VA Section 55-515

I recently lost a case in small claims court when I brought suit against a POA in Virginia.

The POA set the yearly dues, but, they also made a rule that if a member used their property more than a certain number of days a year that member would have to pay an additional fee.

The POA had an attorney and I did not. The Club's attorney told the judge that the County had an ordinance stating that no person could remain overnight after 180 days. This Club has a campground, but the members own their lots. I argued that the ordinance applied to campgrounds but each member had a deed to their lots. Didn't get very far with that.

To make this short the judge ruled in favor of the Club. Following that ruling the attorney for the Club asked that I pay their legal expenses under Section 55-515. The judge said no as that section did not allow what was being asked. The Club's attorney said the Supreme Court had changed that and gave the judge a paper to support his claim. The judge ruled I would have to pay their expenses.

I was not happy with that ruling and I now have two options. Pay the expenses or find an attorney and appeal. I am open to any suggestions you may have and let me say thanks in advance.

Wayne

Wayne,

Find an attorney immediately. Your options are all limited by the calendar at this point. Before appealing, your attorney should move for reconsideration. The reason for this is that it is likely that you failed to bring up one or more important points at trial. Appellate courts usually hold that you cannot raise an issue on appeal that you did not bring up in the trial court.

You wrote that the attorney for the club "gave the judge a paper to support his claim." Did he also provide you with a copy of this? (I suspect it was a printed copy of a Supreme Court opinion.) It may have been a violation of the discovery rules to withhold this from you until trial.

The Club can set rules for the common areas. Rule 21 did not pertain to the common area, but to property that I own. Here is the rule that I went into court to challenge:

21. Occupancy
Caroline County has amended the zoning ordinance for all campgrounds/camping areas and individual lots within those areas. Permanent occupancy of any camping lots shall not be permitted. The maximum number of overnight stays shall not exceed 180 days from January 1st thru December 31st. Caroline County will issue citations to include court appearances and fines. F____ W____s will impose up to a $8.00 per day assessment on members who don't follow Caroline County's ordinances. Questions or concerns can be addressed by Planning and Zoning @ (804) 633-4303.

Section 55-515 does not allow payment of legal costs, however, the Club's attorney said the Supreme Court had changed that and after reading the paper the judge allowed their costs. I did not see the paper and have no idea what the attorney was referring to.

Wayne

OK, from what I understand you purchased a campsite in a campground and golf court resort facility. The County passed an ordinance that prevents you from using the property 24/7/365. Again, this is because the property is considered a campsite and not a residential property.

Unfortunately, laws change and the Association must comply with all applicable laws. Therefore, your issue would have been with the County Zoning Commission and not your Association.

You may want to approach the zoning commission to see if your property can get a waiver. Then ask the Association if they will allow the waiver. This, of course would have been the advice I would have offered had you discovered this site prior to starting legal action.


20/20 hindsight has me ask if you looked up the zoning ordinance?

If you didn't look it up, did you call the number provided and ask about it (what did they say)?


Again 20/20 hindsight, should have asked for a copy when he handed it to the judge.

Note: per VA § 55-513 which addresses rules:

Rules and regulations may be enforced by any method normally available to the owner of private property in Virginia, including, but not limited to, application for injunctive relief or damages, during which the court may award to the association court costs and reasonable attorney fees.

Rule 21 appears to be based on the interpretation of a county ordinance by an unknown party. Not only do you not know who made this interpretation, you also have no reference to the source. You do not know if such an ordinance exists nor if it is properly interpreted.

If there is/was such a county ordinance the proper party to enforce it would be the county. If the county fails to issue a citation, where does the club get the authority to fine a member for violations?

Erika,

Exhaustion of administrative remedies is a common requirement before seeking relief in the courts. I wonder why neither the court nor the association raised the issue.

I am sorry but pursuing this in court is just going to cost more time and money. What are we exactly suing for? Was it the fee they charged for staying overnight over 180? Was that what your suing about? The POA can adopt the rules they want but they also have to be compliant with the county.

Others may advice you to go back to court and hire a lawyer. I just forsee that as a mistake and putting yourself up for more unnecessary expenses. Expect to have to pay the other side's costs again if you pursue. Suing your POA/HOA is suing yourself and your neighbors. That lawyer of the POA was also representing you as a member. Why not just pay the additional fee and live life instead?

Erica,

I would expect that since Wayne has already taken the Association through the legal process, and received a ruling, that the Ombudsman's office can do anything about the issue.

Since it was fairly easy to figure out what Association Wayne is part of, it should be noted that their website provides a pdf document of that County ordinance (which was adopted in 2003). The Association is advertised as a "campground and golf court resort." Here is a link to the actual County zoning restriction:

http://www.visitcaroline.com/zarticle15.pdf scroll down to page 65 of the document, section 20.

As has been said by others, we don't know the details of the issue, how the case was presented, the reference referred to by the Association in regard to collection of legal expenses or a copy of the actual ruling. Mind you, per the initial posting, this was done in small claims court. (The only cases I saw that were available were concerning debt collection). Therefore, there may or may not be a complete record available to everyone except those involved in the case.

In my opinion, the best we can do is suggest what has already been suggested, consult a local attorney to see if the charges awarded were reasonable and authorized (as was successfully argued). As we know, an appeal is typically only based on the technicalities of the case and not the actual testimony. Additionally, the clock is ticking for filing an appeal.

Wayne, I wish we could do more for you. Unfortunately, in this instance, you simply found this site to late into your issue for us to be of more assistance.

Wayne

From what I read the stay more then 180 days is real simple.

Is your issue the 180 days or the "charge" to do so?

That's nice to hear.


They should be responding to correspondence. You may want to bring that issue up at your next general membership meeting. Please note: if your correspondence to the board even hinted at potential litigation, they might not have responded based on legal advice.

If you were considering going to court, I would have also advised you to send correspondence via certified mail to the registered agent with copies via first class mail to all members of the Board and any property manger or management company.


I understand your thinking. However, the amount of assessments and the limitation on length of stay are, as you found out, two different things.

Besides the issue of length of stay originating from the Zoning Board, the argument in court should have been for procedural violation of VA § 55-513, Adoption and enforcement of rules. That is to say if there were any procedural violations and if the VPOAA is applicable to your type of Association.


I am surprised that you did not receive any warnings prior to that amount. Additionally, if The VA Property Owners' Association Act is applicable to your Association, it appears (based on your postings) that your Association may have been in violation of VA § 55-513. Adoption and enforcement of rules. Per item B, paragraph 2:

Before any such charges or suspension may be imposed, the member shall be given an opportunity to be heard and to be represented by counsel before the board of directors or other tribunal specified in the documents. Notice of a hearing, including the charges or other sanctions that may be imposed, shall be hand delivered or mailed by registered or certified mail, return receipt requested, to the member at the address of record with the association at least 14 days prior to the hearing. Within seven days of the hearing, the hearing result shall be hand delivered or mailed by registered or certified mail, return receipt requested, to the member at the address of record with the association.

Therefore, if the Association did not hold a hearing, send you notice of a hearing or gave you an opportunity to be heard at the hearing, they should not have been able to impose charges for violation of that rule.

Mind you, I am not an attorney and I do not work within the legal profession.

You may or may not be able to file a complaint with the CIC Board via the CIC Ombudsman office (see http://www.dpor.virginia.gov/CIC-Ombudsman/ ). Said complaint may or may not have the Association waive the charges for the rule violation (providing that there were procedural violations). However, any such complaint would not waive your court ordered requirement to reimburse legal expenses for the Association defending themselves from your legal action.

I know your experience has been an expensive lesson in Associations.

I hope this little bit of advice helps,

Tim

the issue was a lack of understanding of the hierarchy of the documents

state/county/local law OVERRIDES the CC&Rs

if the law is more restrictive (180 day stay maximum)
IT APPLIES even though the CC&Rs are silent

if the CC&Rs were MORE restrictive then THEY would apply

evidently, imo, a new law restricting length of stay was passed after the CC&Rs were in effect - how the HOA became involved in enforcement of same is the big ???

is the fight worth it ????