New Virginia case law(?)

Started by RayC4 • 9 replies • 1995 views

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RayC4 (Virginia)
Posts: 173

Posted:

Not sure I trust the Washington Post to get it all 'right' but this is a helluva interesting article that concerns condo association management.

http://www.washingtonpost.com/blogs/the-state-of-nova/post/restons-shadowood-condominiums-make-new-va-case-law-cant-impose-fees-on-rule-violators/2012/12/13/52fb582c-4554-11e2-9648-a2c323a991d6_blog.html

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ray,

It's an old case that finally went through all the appeals. Here is a link to the courts ruling (I've posted it before).

Basically, that court ruling formalized (for Virginia) what members of this forum have been stressing: you need to have the authority to fine within the governing documents in order to fine.

Based on a seminar one of our board members attended, this ruling has made a few attorney's gun shy in pressing fining in court unless the documents clearly allow for fining.

RayC4 (Virginia)
Posts: 173

Posted:

Tim, thanks for the comeback and Va court ruling text.

Our CC&R's are silent with regard to anything like 'fines'. The closest item is under 'assessments' (regular and special) and basically says that non-payment of assessments may result in liens per VA POAA 55-516.

Our Bylaws state that "to the extent permitted by the Va POAA and in accordance with its requirements, [the BOD] may assess charges against any member for any violation of the [CC&R's] for which the member is responsible."

Based on this (very generic) text in our subdivision documents, and in the context of the Shadowood ruling, would you conclude that our BOD has the authority to fine?

(Note: I realize that the court ruling concerned condo associations and not POA but I am assuming the same principle would apply in a court challenge.)

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RayC4 on 12/30/2012 3:48 PM

Our Bylaws state that "to the extent permitted by the Va POAA and in accordance with its requirements, [the BOD] may assess charges against any member for any violation of the [CC&R's] for which the member is responsible."

The problem with that language is § 55-513, defers back to the Declaration. Actually, it defers back to the Declaration and "rule" but the rule may not be in conflict with the Declaration (which includes enforcement. Here is what it says [emphasis added]:

"The board of directors shall also have the power, to the extent the declaration or rules and regulations duly adopted pursuant thereto expressly so provide, to (i) suspend a member's right to use facilities or services, including utility services, provided directly through the association for nonpayment of assessments which are more than 60 days past due, to the extent that access to the lot through the common areas is not precluded and provided that such suspension shall not endanger the health, safety, or property of any owner, tenant, or occupant and (ii) assess charges against any member for any violation of the declaration or rules and regulations for which the member or his family members, tenants, guests, or other invitees are responsible."

There is another case out there that specifies if the Declaration is silent that the silence is now seen as prohibiting a practice. However, I can't find that at the moment.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RayC4 on 12/30/2012 3:48 PM

Our CC&R's are silent with regard to anything like 'fines'. The closest item is under 'assessments' (regular and special) and basically says that non-payment of assessments may result in liens per VA POAA 55-516.

Our Bylaws state that "to the extent permitted by the Va POAA and in accordance with its requirements, [the BOD] may assess charges against any member for any violation of the [CC&R's] for which the member is responsible."

Bylaws are the internal rules of how the incorporated association operates. They are not property restrictions nor do they constitute a contract with the homeowners. Unless the declaration, which is a contract with the homeowners, expressly grants the association the authority to make rules and/or impose fines for violating rules, the HOA has no legal authority to do so and cannot confer such powers upon itself.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By LarryB13 on 12/30/2012 5:01 PM

Unless the state governing the HOA gives it the power to fine.

Studies show that 5 out of 4 people have problems with fractions

RayC4 (Virginia)
Posts: 173

Posted:

"There is another case out there that specifies if the Declaration is silent that the silence is now seen as prohibiting a practice. However, I can't find that at the moment."

Would certainly be interested in this case if you come across it.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ray,

I was looking for that case as well and also couldn't find it. I'm sure I posted a link to it on this site but would have to look through all my posts until I found it and I'm a little too busy to that at the moment.

Tim

RayC4 (Virginia)
Posts: 173

Posted:

Thanks, Tim. It is not time urgent, but if you come across it I'd be interested in reading up on it.

BTW, can you solve another mystery for me: how do you get the 'boxes' to form around text you want to quote in a reply on this forum? (I don't get out much!)

I am fairly new here and have really appreciated the thoughtful, reasoned comments found here, especially from you, Melissa, Glen, and others. Have a great new year!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RayC4 on 12/31/2012 1:22 PM
Thanks, Tim. It is not time urgent, but if you come across it I'd be interested in reading up on it.

BTW, can you solve another mystery for me: how do you get the 'boxes' to form around text you want to quote in a reply on this forum? (I don't get out much!)

I am fairly new here and have really appreciated the thoughtful, reasoned comments found here, especially from you, Melissa, Glen, and others. Have a great new year!