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.
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.
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:
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.
It’s a good day to talk to you about due process procedures which are needed when you wish to formally take action on a covenant violation without filing a law suit or possibly suspend services or use of facilities for an owner who is more than 60 days delinquent in the payment of assessments.
The authority for suspension and levying charges must be included in your governing documents in order to be available to you. That is required by the pertinent statute. If you do not have those provisions you need to amend your documents to acquire them. Most of your documents will contain the pertinent language. If so you still need a formal procedure to follow which details when and in what form an owner will be put on notice, time frames for processing the matter, establishing what body will conduct the hearing (the board or a committee), rules pertaining to evidence and testimony, and other rules to be followed so as to establish some uniformity to the process that every member can rely upon. Every association’s procedure is not the same and the procedure can be tailored to the needs of each community. Some associations want those proceedings to be held in a closed session – others do not handle it in that manner. Even if you have a procedure you should review it periodically to insure you are following it and, if not, you should amend or rewrite it. We are pleased to help you with due process procedures so that your enforcement actions are handled smoothly, fairly and effectively.
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….”
With the federally mandated switch from analog to digital signals the interest in satellite dishes has increased. A brief refresher on the Rules is in order. OTARD, the acronym for Over the Air Reception Devices prohibits community associations from enacting restrictions that unreasonably impair the installation, maintenance, or use of antennas used to receive video programming.
My deceased husband purchased our home and signed all HOA paperwork. After his death, the entire neighborhood including the Association was informed of his passing. I continued to pay the dues for the upkeep of the common property and gated entrance.
Recently I decided to build a greenhouse on my property. After construction began, the HOA president came to my home and stated that I was in violation of a rule within the book.
My question is…I now have the home and deed in my name. With the HOA being aware of a transfer in property…can I be held liable for the broken rule? I have not signed ANY paperwork and was just given a copy of the covenants.
Most HOA declarations contain covenants which require upkeep of the exterior to a high standard by each owner. Not all owners follow the requirements. Some ignore this requirement, or hire third rate contractors who do a poor job and take months to finish what they start. The board if directors needs to find a way to get better quality work done by the homeowners and get it done quickly after starting.
Many of us have faced this issue and it is good to see a strong decision on this topic.
No Pet Policy Does Not Violate State or Federal Fair Housing Acts
Hawn v. Shoreline Towers Phase I Condominium Association, Inc., No. 09-11797, U.S. App. Ct., 11th Cir., Sept. 22, 2009
Covenants Enforcement/Use Restrictions/Federal Law and Legislation: An association board was within its rights to deny a homeowner’s request to have a dog, when the homeowner did not provide sufficient documentation of a disability and the association had a no pet policy.
In 2004, Davis Hawn purchased a condominium unit in Shoreline Towers Phase I, located in Pensacola, Fla. When he purchased the unit, there was a sign on the property that read "No Animals Allowed." Hawn was aware of the sign and the community’s no pet policy.