We often get calls from new board members after transition from developer control. They have questions like this one: Some of the homeowners have added fences, above ground pools and sheds without getting approval from the Association. Many of these changes do not appear to meet the standards that are part of our documents. No action has been taken to correct these violations. How do we go about enforcing the covenants and rules?

The first step is to examine the architectural guidelines and the enforcement provisions in the governing documents. Usually an association’s declaration establishes a committee, often called the architectural standards committee, and grants it powers and duties.

There are often architectural guidelines in the nature of rules and regulations which detail the standards for the community and the procedures for enforcement. If these do not exist, the board of directors should pass a policy resolution that clarifies the standards in the association’s governing documents with greater detail and sets the procedures for enforcement.  This policy resolution is generally referred to as a “due process procedure.”

One of the most important reasons that these procedures need to be in place is that the actions of the committee are subject to review in any legal action in which the association may become involved. The more clearly the resolution defines the procedures and the more closely the committee adheres to them, the more likely they are to be successful if enforcement of a covenant or rule goes to court.
Continue Reading “OUR NEW BOARD JUST INHERITED A HOST OF OLD VIOLATIONS – WHAT SHOULD WE DO? “

Many board members and managers may not be aware that the Property Owners’ Association Act (“POAA”) requires that an association’s board of directors provide a member due process prior to taking action against that member in court.

Specifically, §55.1-1819 of the POAA and § 55.1-1959 of the Condominium Act require that if a board of directors believes a member may be violating its covenants or rules and regulations, the board must provide the member notice of the violation, and a reasonable opportunity to correct the alleged violation. If the member fails to correct violation after receiving the notice, the board must then provide the member an opportunity to present his or her position on the violation where the member may elect to be represented by counsel. This opportunity is commonly referred to as a due process hearing. In both of the Acts the Association governing documents must have adopted the provisions of these sections before they may be utilized to assess charges or suspend an owner’s right to utilize facilities or services.
Continue Reading Provide Members Due Process Prior to Suing in Court

What are the challenges facing a board of any association which has recently experienced significant board member turnover or has emerged developer control?  We have found that some of these prior boards have not been attentive to the area of enforcement of certain covenants. There are many challenges but one which requires prompt attention is architectural violations which have not been addressed by the prior board. Some homeowners have likely added fences, sheds, and other exterior improvements without getting approval from the Association.  Many of these addition and exterior improvements may not meet the standards that were part of their documents. The board has a duty to enforce covenants and rules. So, what can the new board do about these apparent violations?
Continue Reading UNWANTED INHERITANCES FROM LAID BACK BOARDS

In the midst of this electoral season, perhaps it is especially timely to discuss sign regulation in communities, particularly as it relates to political signs. You may be getting questions or comments about sign regulation in your communities, so we thought it would be a good idea to let you know what goes, and what does not, in community associations with regard to political signs. There are those that will assume that there is no way that community associations can regulate political signs because it violates their right of free speech under the First Amendment to the Constitution. For reasons we will explain, this is not entirely correct in the community association context.

Of course it is common to have sign regulation in community associations, particularly with respect to “For Sale” signs. Is there a distinction to be made between “For Sale” signs and political signs? Political signs seem to have more to do with free speech than for sale signs. In fact, when analyzing government regulation of speech, courts often distinguish between “commercial speech” and other types of speech, and find that commercial speech is not entitled to the same level of protection as other types of speech. But does that matter in a community association?
Continue Reading Political Signs and Community Associations in Virginia

The Virginia Attorney General can issue opinions concerning statutory interpretation if requested to do so by an array of government officials from the Governor to a member of the Senate or House of Delegates to a local sheriff. These opinions are not binding on a judge but are persuasive when considering the law affecting a given case. In this case a member of the General Assembly asked: Is it legal under the Virginia Property Owners’ Association Act (the "Act") for an association ("POA") to deactivate a member’s barcode decal if he or she is more than sixty days late paying an assessment. Deactivation of the barcode decal will restrict, but not completely deny, entry in to the neighborhood due to the existence of two access points, one manned and one not.


Continue Reading VIRGINIA ATTORNEY GENERAL ISSUES OPINION ON

Q.       It is springtime and a few creative and industrious neighbors are out erecting fences and sheds as others have done in the past without requesting the permission of the Association. We are a 24 home association that recently elected a homeowner board. The developer finished the last home in late fall. We are self-managing and are not sure what to do about enforcing our covenants. We have a provision that requires that any structures or exterior modifications have to be approved by the Board of Directors but the homeowners aren’t asking permission.


Continue Reading Spring Projects Create Work For This Architectural Standards Committee. Are You Ready?

Often associations review their rules when they want to make some change or addition, but it is best to review all the rules at least every 5 years because a few things do change periodically in the make-up and needs of every community.  So here are some guidelines for your review that might prove useful to you:


Continue Reading Revising your Rules and Regs? Keep it Simple!

Several years ago the Virginia General Assembly gave community associations the power to foreclose on their assessment liens.  This provided an apparent powerful tool in the collection of delinquent assessments.  I emphasize the word apparent.  First of all, and worst of all, association liens are subordinate to first mortgages and real estate taxes.  In this day in time it is most often the owner with virtually no equity in his property that is also delinquent in his assessments.  The first step in deciding on the use of the foreclosure option is to perform a title search to determine what liens are on the property. That might result in a quick decision to cease all action toward foreclosure because the sale will not yield any dollars for the association.  However, if there is substantial equity you should keep pursuing that option if the balance owed by the homeowner is significant enough to make the investment of costs  (attorney’s fees, advertising the sale, etc.) worthwhile. 


Continue Reading Are you thinking about foreclosing on an assessment lien? Think twice

Recently in a Fairfax County case involving the Shadowood Condominium Association the Court examined whether or not the board could assess charges against an owner for failing to submit a unit owner status report required by the Association and for violations of rules by the unit owner’s tenants.  It appears that this association’s documents had not adopted the provisions provided in the Virginia Condominium Act authorizing the assessment of charges for rules violations. In fact the Master Deed provides that “no common expense or other sums shall be assessed….other than for the maintenance, repair, replacement or improvement of the general common elements….”


Continue Reading Virginia Supreme Court focuses on authority of Association Board to impose charges or suspensions