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Understanding the Basics of Homeowners' Rights, Rules, and Regulations

In recent years, property owners' associations in Virginia (commonly called "homeowners' associations") have come to wield significant powers to regulate, control, and even punish members for violating rules. While associations' powers have expanded significantly, property owners' associations are NOT fully self-governing communities or self-governing democracies. Rather, they have limited powers which they acquire from the consent of their members, and similarly, homeowners have important rights. Understanding your rights and responsibilities as a homeowner is crucial to avoid conflicts which would be detrimental to your use and enjoyment of your home.

Note: This article discusses rules and regulations of homeowners' associations only. It isn't intended to address other forms of ownership, such as condominiums ("condos"), leases, landlord-tenant relationships, etc.

How do understand what rights I have?

First, the basic rights and responsibilities of every homeowner and their property owners' association are generally found in the declaration of covenants and by-laws. Every purchaser of a home in an association is entitled to a disclosure packet which contains the declaration and by-laws, when the unit is sold.[i] In addition, every member of the association in good standing is generally entitled to review and copy documents of the association upon written request.[ii] To inspect records, you must allow five (5) days written notice, and you must reasonably identify the purpose of the request and what specific records you are looking for.2 The association may impose a charge for the reasonable costs of providing copies.[iii] A copy of the declaration will also be recorded in the county land records where the association is located.[iv]

An association's declaration is a contract between all members of the association.[v] When its language is clear, it means what it says. Otherwise, it will be strictly construed against restrictions and in favor of the free use of property.[vi]

An association can adopt rules and regulations, if they are both (i) consistent with the powers given by the declaration of covenants and by-laws,[vii] and (ii) not arbitrary and capricious. The Virginia Supreme Court has said:

"Certainly, [an] association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot." [viii]

Homeowners can repeal or amend a rule or regulation adopted by the association's board of directors, by majority vote of the members at a meeting called for that purpose.[ix]

Finally, Virginia has several laws that govern homeowner rights and responsibilities. Among them is the Property Owners' Association Act, available at § 55-508 through 55-516.2 of the Code of Virginia.[x]

If a dispute develops between you and your association or another homeowner, it is best to consult with a lawyer who can advise you of your specific rights and responsibilities.

What rights does a homeowner have if the association accuses her or him of a violation of the association's rules and regulations?

Every member of the association has the right to a hearing - specifically, the opportunity to be heard and to be represented by an attorney, before the association can impose any fines or suspend a member's right to use facilities or services.[xi] The association must give the member notice of the hearing at least 14 days prior to the hearing. 11 The notice must include the charges or other sanctions that may be imposed.11

The association may - only if their declaration allows - assess fines which do not exceed $ 50 for a single offense or $ 10 per day for any offense of a continuing nature.11 However, the total charge for any offense of a continuing nature cannot exceed $900.11 The enforcement powers of the association will be further described by the association's declaration of covenants, by-laws, and regulations.

If a lawsuit is filed by the association against a homeowner to enforce a rule or regulation, the Court may award the association additional relief, such as an order compelling the member to stop or remedy the violation, money damages, court costs, and reasonable attorneys' fees incurred in bringing the suit.[xii]

What happens if the association violates the covenants?

If your association is exceeding its powers under the declaration, or is violating homeowners' rights, it is best to talk to an attorney. As a general rule, complying with the association's declaration and by-laws is NOT optional even for the association itself.

In the case of White v. Boundary Association, Inc., the Virginia Supreme Court interpreted the Property Owners' Association Act to allow homeowners to sue an association to enforce rights in their declaration of covenants, and to also allow the homeowners to recover their reasonable attorneys' fees if they prevail.[xiii] As of the time of this blog, that issue is the subject of several appeals to the Virginia Supreme Court.[xiv]

[i] Va. Code Ann. § 509.5.

[ii] Va. Code Ann. § 55-510.

[iii] Va. Code Ann. § 55-510(D).

[iv] Va. Code Ann. § 55-509.

[v] White v. Boundary Ass'n, Inc., 271 Va. 50, 624 S.E.2d 5 (2006).

[vi] "It is a well established principle that restrictive covenants on land are not favored and must be strictly construed." Barris v. Keswick Homes, L.L.C., 268 Va. 67, 71, 597 S.E.2d 54 (2004); see also Scott v. Walker, 274 Va. 209, 213, 645 S.E.2d 278 (2007). "Substantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property." Id.

[vii] Va. Code Ann. § 55-513.

[viii] United Owners Ass'n of Buildamerica-1, A Condo. v. Gillman, 223 Va. 752, 767, 292 S.E.2d 378 (1982) (discussing amendment of condominium association rules); accord Va. Attn'y. Gen. Op. 10-078 ("The [Virginia Supreme] Court likely would apply similar principles in adjudicating amendments, restrictions, rules and regulations in cases involving homeowners' associations.")

[ix] Va. Code Ann. § 55-513(A).

[x] Please note that condominiums ("condos") are NOT subject to the Property Owners' Association Act. Condos are governed by a different set of requirements, set out in the Condominium Act, § 55-79.39 through 55-79.103 of the Code of Virginia.

[xi] Va. Code Ann. § 55-513.

[xii] Va. Code Ann. § 55-513; Va. Code Ann. § 55-515.

[xiii] White v. Boundary Ass'n, 271 Va. 50, 624 S.E.2d 5 (2006) (citing Va. Code Ann. § 55-515(A)); accord Augmentation, Inc. v. Atoka Chase Assoc., Case No. CL 40591, 2008 Va. Cir. LEXIS 199 (Loudoun County Mar. 17, 2008); Farran v. Olde Belhaven Towne Owners' Ass'n, CL-2011-2339, 2011 Va. Cir. LEXIS 114, 17-18 (Fairfax County Aug. 24, 2011).

[xiv] E.g., Farran v. Olde Belhaven Towne Owners' Ass'n, CL-2011-2339, 2011 Va. Cir. LEXIS 114 (Fairfax County Aug. 24, 2011).

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