VA non stock corp law vs. property owners assn law

-- Quoting here the exact sections from each statute that you think conflict would be best. For laypeople to claim there is a contradiction, when in fact there is none, is common.

-- The rules of statutory construction state that, when the sections from one statute conflict with sections from another statute, the statute that is more specific to the situation controls. If there is truly a conflict between sections of the Va Corporations Act and sections of the Va HOA Act, then the Va HOA Act controls.

The Virginia Nonstock Corp Act, Section 13.1-866 says "unless the articles of incorporation or bylaws provide otherwise, regular meetings of the board of directors may be held without notice... Special meetings shall be held upon notice as prescribed in the article or by laws.

The Virginia Property Owners Association Act, Section 55.1-1816B says Notice of the time, date and place of each meeting of the boards of directors .. shall be published were it is reasonably calculated to be available to a majority of the lot owners... Notice, reasonable under the circumstances, of special or emergency meeting shall be given contemporaneously with the notice given to members of the board or c committee conducting the meeting.

The Nonstick Act says no notice required for regular meetings; The POA requires publication of notice (but, unlike Section 55.1-1815G applicable to meetings of members) but does not specify a number of days.

I'm writing bylaws - it looks like I should follow the Property Owners Association Act. ??

Leslie

Agree comply with the POA.

However, HOA boards will still get away with taking actions without a meeting no matter what the law says.

Best to write bylaws saying all actions require a meeting in which a meeting requires a notice.

This is why HOA's get away with so much, our HOA uses the "special" or "emergency" provision for regular board business. It's sad but who is to stop them.

The user is doing just fine.

These are the same professionals that specifically put ambiguity in bylaws, CC&Rs, and state law? No thanks. And you want to pay for them to put loopholes in? No thanks.

Back to the question, I see your other post, which is related, I'll put it here


TimB4 would be the best person. But I'm thinking 5-7 days minimum, usually management has a historical reference and usually go with more days rather than less, it's usually the board that likes to cut it short.

Attorney's and management professional too, this is where they make their money.

No particular qualifications for HOA bylaws. But I'm a retired Virginia attorney and the author of several major Federal regulations. Leslie

Leslie,

As an attorney, you should see that these are not really in conflict (at least that is my opinion).

The Virginia Nonstock Corporation Act defers control (the document that must be followed) to the governing documents (specifically the Bylaws and Articles of Incorporation).

In every Virginia Bylaws and Articles of Incorporation I've seen, they defer conflicts to the Declaration of Covenants, Conditions and Restrictions (CC&Rs). I would expect that one of those documents defer control to the Property Owners' Association Act.

Regardless, if none of these deferrals were happening, the key word (as you know) is "may". Hence the Board of Directors meeting may be held without notice - an option. However, since the VPOAA uses the word "shall", the VPOAA requires that notice be sent.

Hence, the Corporations act is not decisive but the VPOAA is. Therefore, compliance with both acts (laws) is obtained.

One could certainly interpret the statutes the way you are. As you are aware, differing opinions (and technicalities) are why there are legal cases. Feel free to take action if you believe perceived conflict warrants it (I say perceived because until a court rules and all appeals are exhausted, each opinion would be based on perceptions).

Personally, I don't think a court would rule for you.

I’m with JohnC on this.

I avoid original authorship whenever possible!

Find a few well run, recently built developments in your area ... call the pres of each, get copies of their bylaws and ask each pres where they have had issues with those bylaws.

Except, Geno - to determine where those same docs (I use online records a lot when looking for the best examples) - many docs, though new, are just boilerplate from developers which comes from their attorneys - who are using boilerplate :-)

I'd like to hear whether they are having problems - and, while I didn't mention it earlier, good property managers are also a great source of what works and where issues can be avoided.