On February 12, 2016, in Tvardek v. Powhatan Village HOA, the Virginia Supreme Court struck down a leasing amendment established by a homeowners association in Virginia as a result of the failure of the recorded amendment to contain what the Court deemed compliance with the statute on amendment of the Declaration. Virginia Code Section 55-515.1 of the Property Homeowners Association Act requires the certification on the amendment to be ”signed by the principal officer of the association or by such other officer or officers as the declaration may specify that the requisite majority of the lot owners signed the amendment or ratifications thereof.” In this case the amendment signed by the principal officer stated:
By: Jeanne S. Lauer, Esq.
The Virginia General Assembly and the Governor have agreed on several changes to the Condominium Act and the Property Owners Association Act (POAA). As a member of the CAI Virginia Legislative Action Committee I want to let you know about these changes of which you should be aware:
The General Assembly finally heard the hue and cry from us about lenders abuse of associations in the foreclosure process. Unfortunately this new statute does not fully end the abuse. The key word in the title above is “occur”. The first benefit of the new law is that Lenders must now give associations notice at least 60 days in advance of initiating foreclosure. How does this help us?
Senate Bill 1008 awaits the Governor’s signature to proclaim a “bill of rights” for homeowners in condominiums and property owners associations. The irony is that under “bill of rights” title on this new statute, there is nothing which changes or adds to the current statutory scheme for voting, accessing records, recording meetings or extending due process. Instead, the proposed law seeks to gather those provisions as they are spread out throughout the Condominium Act and the Property Owners Association Act into a single place to promote greater awareness among homeowners. For those who have read about this new law in some summary article with few specifics — you may all exhale now.
We have found that managers and board members who have not had any experience with the process of obtaining FHA project approval have unrealistic expectations about the processing time.In this edition we let you know the “ins and outs” of the application for such approval. We handle both initial applications and recertifications and there is a significant difference.
Due to some shepherding of this bill by CAI’s Virginia Legislative Action Committee, as of July 1 you can get help from the Circuit Court if you have made a good faith attempt (3 times) to get a critical amendment passed without success. The statute details exactly what must be done to achieve the amendment. We hate to say it but you really need to read this statute as it lays out exactly how and when it works. Here it is:
We are often asked if an owner can be prevented from voting when the association declaration or bylaws state that an owner who is not in good standing may not vote or that their vote will not be counted. Most board members and managers think this means that an owner who is delinquent in his payment of assessments cannot vote. Without further definition in the documents this is a correct interpretation. Some people think that it also means that if an owner has been found in violation of the covenants or rules and has not cured the violation or paid a charge made after a due process hearing that the owner cannot vote. Unless the documents specifically provide for such we believe that “not in good standing” is limited to delinquency in the payment of assessments.
Below are a host of new laws that will become effective on July 1, 2014. There are some significant new items and we urge you to read closely. Mike Inman serves on the Virginia Legislative Action Committee and can answer any questions you might have about the bills.
Late Fees- HB 566
HB 566 amends the Virginia Condominium Act (§55-79.83) and the Property Owners’ Association Act (§55-513.3) (the “POAA”) by clarifying that associations can charge a late fee as provided in the governing documents, and if not provided for in the governing documents, the association can charge a late fee not to exceed 5%.
Compliance with Declaration- HB 530
HB 530 amends the Virginia Condominium Act (§55-79.53A) by adding the following language: This section shall not preclude an action against the unit owners’ association and authorizes the recovery, by the prevailing party in any such action, of reasonable attorney fees, costs expended in the matter, and interest on the judgment as provided in § 8.01-382 in such actions.
Merger; Judicial Reformation of Declaration- HB 690
HB 690 amends the Virginia Condominium Act (§55-79.71:2) by providing condominiums with the ability to merge two or more condominiums. It also amends both the Condominium Act (§55-79.73:2) and the POAA (§55-515.2:1) by permitting associations to petition the circuit court to make changes to a declaration.
Michael A. Inman has been reappointed by City Council to the Virginia Beach Planning Commission for another four year term beginning in January 2018. The Planning Commission meets monthly to review and vote upon applications from property owners for rezoning and conditional use permits. Mr. Inman has practiced in Hampton Roads since 1973 and has been active in numerous community organizations. His practice has a historical heavy emphasis on a broad range of real estate matters including acting as counsel to developers of condominiums and homeowner associations and the formation of a practice group that represents over 200 community associations in the region and beyond.
The law firm’s attorneys provide a broad array of legal services from domestic relations to workers compensation to business matters and can be viewed on the firm’s website: www.inmanandstrickler.com.
Did you know that Virginia has a law which requires all licensed contractors to contribute towards a fund that helps victims of fraud and dishonest conduct? While many states have similar consumer laws, Virginia also includes Property Owners Associations as potential victims. (We don’t know why condominium associations are not included but it is on our “to do” list.) The Contractor Recovery Fund (aka Santa) reimburses qualified applicants up to $20,000.00 in cases where the contractor has engaged in “wrongful taking or conversion of money, property or other things of value which involves fraud, material misrepresentation or conduct constituting gross negligence, continued incompetence, or intentional violation of the Uniform Statewide Building Code…” Virginia Code § 54.1-1118. So if a contractor collected a deposit and never came back to do the work and you can’t find him, there might be a chance to get that money back. The process is a bit technical but worth the effort if you have a substantial amount involved.