LisaW13 (Virginia)
Posts: 4
Posts: 4
Posted:
In Virginia, are HOA's allowed to charge fines to a homeowner for a violation of a covenant if the CC&R's do not state anything about fines?
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Allowed to Charge Fines for Covenant Violation
Started by LisaW13 • 2 replies • 1574 views
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RayC4 (Virginia)
Posts: 173
Posts: 173
Posted:
Lisa, the trend of court decisions in Va seems to be: No, HOA cannot levy fines to enforce unless expressly stated in the CC&R's. A good example is a recent ruling here, http://valawyersweekly.com/wp-files/pdf/010-8-154.pdf where an HOA enacted a resolution (rule) that authorized fines for covenants violations. A homeowner challenged and won on the basis that such fines were not authorized by the covenants.
The logic seems to be that covenants are viewed as contractual in nature, and in contract law items not specifically included are deemed to be intentionally excluded by the parties.
Bear in mind the above case reference is a circuit court ruling. I'm not aware of any Supreme Court (controlling) opinion on this subject.
The logic seems to be that covenants are viewed as contractual in nature, and in contract law items not specifically included are deemed to be intentionally excluded by the parties.
Bear in mind the above case reference is a circuit court ruling. I'm not aware of any Supreme Court (controlling) opinion on this subject.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Are you in an HOA or a COA (condominium)?
Basically, as partially discussed in this thread, and from my research, the authority to use monetary penalties for rules and regulations of the common areas must come from the Declaration (CC&Rs) in HOAs and from the Condominium Instruments (CC&Rs or Bylaws) in COAs.
The argument in the one court case that involved an HOA, Belhaven, was that the Board overstepped its authority when it adopted monetary penalties for use restrictions. It's unclear to me if the actual violation was for a violation of the CC&Rs or of adopted rules/regulations. Regardless of what the actual violation was, that court ruled that the Association overstepped it's authority when it adopted a resolution for fines.
However, many Assocaitions in VA believe that they do have the authority to fine if that authority is mentioned anywhere in the governing documents (CC&Rs, Articles of Incorporation, Bylaws or Resolutions). Therefore, many Associations will assess fines (because they believe that they do have that authority).
Based on my research, and I am not an attorney nor do I work in the legal profession, it's not necessarily a cut and dry issue. There is some gray area. It depends on what the violation is and the actual language used in the entire document (not just in the enforcement section of the document). Because it can be a gray area, the only way to know for sure if your Association can use monetary penalties or not for an infraction of the governing documents, is to test that authority in court.
By they way, if you are in violation, even if an Association can't fine, they can still take you to court for the violation. The expense of you hiring an attorney to go through the legal process will be more expensive than bringing the issue into compliance.
Basically, as partially discussed in this thread, and from my research, the authority to use monetary penalties for rules and regulations of the common areas must come from the Declaration (CC&Rs) in HOAs and from the Condominium Instruments (CC&Rs or Bylaws) in COAs.
The argument in the one court case that involved an HOA, Belhaven, was that the Board overstepped its authority when it adopted monetary penalties for use restrictions. It's unclear to me if the actual violation was for a violation of the CC&Rs or of adopted rules/regulations. Regardless of what the actual violation was, that court ruled that the Association overstepped it's authority when it adopted a resolution for fines.
However, many Assocaitions in VA believe that they do have the authority to fine if that authority is mentioned anywhere in the governing documents (CC&Rs, Articles of Incorporation, Bylaws or Resolutions). Therefore, many Associations will assess fines (because they believe that they do have that authority).
Based on my research, and I am not an attorney nor do I work in the legal profession, it's not necessarily a cut and dry issue. There is some gray area. It depends on what the violation is and the actual language used in the entire document (not just in the enforcement section of the document). Because it can be a gray area, the only way to know for sure if your Association can use monetary penalties or not for an infraction of the governing documents, is to test that authority in court.
By they way, if you are in violation, even if an Association can't fine, they can still take you to court for the violation. The expense of you hiring an attorney to go through the legal process will be more expensive than bringing the issue into compliance.
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