Virginia Nonstock Corporation Act

Is there a reason you did not mention the Virginia Property Owners' Association Act? See https://law.lis.virginia.gov/vacodepopularnames/property-owners-association-act/

A former Virginia HOA director named "TimB4" posts here. He is a just-the-facts type of person. Hopefully he will check in soon.

I am among the handful here who checks state statutes and often asks for people to state what their covenants say, word for word. If you share the date this association's declaration was recorded, and possibly answer a few more questions, I will offer an opinion on whether the Virginia POA Act applies and give the reasons why.

I am looking at the Virginia POA Act now. To me, if the "initial" Declaration was recorded after January 1, 1959, it looks like it will be difficult for the POA Act not to apply.

One reason this is important is because, where the corporate statutes and Virginia POA Act conflict, the Virginia POA Act controls/prevails. If you want to know why, ask.

Hi Ellen Tim - hope the new year has been good to you. I remain hopeful and positive that I am moving in the right direction. Below are Svenen shots and provisions I interpret as allowing the association to proceed. My objective is to hold the BOD accountable to do what’s right (many operate on the premises weyers mot subject to any regulation other than the nonstick act and, our bylaws prohibit that (I cannot fathom how bylaws can override law. Looking forward to hearing back

Article of Incorporation:

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RHLOA Declarations / Covenants
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Chapt 2 Title 13.1 VA Code
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§ 13.1-814.1. Special provisions for community associations
A. As used in this section, "community association" shall mean a corporation incorporated under this chapter or under former Chapter 2 of this title which owns or has under its care, custody or control real estate subject to a recorded declaration of covenants which obligates a person, by virtue of ownership of specific real estate, to be a member of the corporation.
B. Notwithstanding the requirements of §§ 13.1-851, 13.1-852, 13.1-855, 13.1-856, 13.1-857, 13.1-858 and 13.1-862, the provisions set forth in those sections need not be set forth in the articles of incorporation of a community association and shall be effective if set forth in the bylaws.
C. Notwithstanding the provisions of §§ 13.1-855, 13.1-856, 13.1-892 and 13.1-899, the provisions of the bylaws of any community association in existence on or before January 1, 1986, shall continue to govern
(i) the procedures for and election of members of the board of directors,
(ii) the amendment of the bylaws,
(iii) the sale, release, exchange or disposition of all or substantially all of the corporation's property, whether or not in the usual and regular course of business, and
(iv) the corporation's ability to mortgage, pledge, or dedicate to repayment of indebtedness, or otherwise encumber its property; provided, that the community association may, in accordance with its current articles of incorporation and bylaws, vote to amend its corporate documents to become subject to §§ 13.1-855, 13.1-856, 13.1-892 and 13.1-899. 1986, c. 53

§ 13.1-826. General powers
A. Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including, without limitation, power:
1. To sue and be sued, complain and defend, in its corporate name;
2. To have a corporate seal, which may be altered at will, and to use it, or a facsimile of it, by impressing or affixing it or in any other manner reproducing it;
3. To purchase, receive, lease, or otherwise acquire, and own, hold, improve, use and otherwise deal with, real or personal property, or any legal or equitable interest in property, wherever located;
4. To sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of all or any part of its property;
5. To purchase, receive, subscribe for, or otherwise acquire, own, hold, vote, use, sell, mortgage, lend, pledge, or otherwise dispose of, and deal with shares or other interests in, or obligations of, any other entity;
6. To make contracts and guarantees, incur liabilities, borrow money, and issue its notes, bonds, and other obligations, which may be convertible into, or include the option to purchase, other securities or property of the corporation, and secure any of its obligations by mortgage or pledge of any of its property, franchises, or income;
7. To lend money, invest and reinvest its funds, and receive and hold real and personal property as security for repayment;
8. To transact its business, locate offices, and exercise the powers granted by this chapter within or without the Commonwealth;
9. To elect directors and appoint officers, employees, and agents of the corporation, define their duties, fix their compensation, and lend them money and credit; 19 6/30/2023 12:00:00 AM
10. To make and amend bylaws, not inconsistent with its articles of incorporation or with the laws of the Commonwealth;
11. To make donations for the public welfare or for religious, charitable, scientific, literary or educational purposes;
12. To pay pensions and establish pension plans, pension trusts, profit-sharing plans, bonus plans, and benefit and incentive plans for any or all of the current or former directors, officers, employees, and agents of the corporation or any of its subsidiaries;
13. To insure for its benefit the life of any of its directors, officers, or employees and to continue such insurance after the relationship terminates;
14. To make payments or donations or do any other act not inconsistent with this section or any other applicable law that furthers the business and affairs of the corporation;
15. To pay compensation or to pay additional compensation to any or all directors, officers, and employees on account of services previously rendered to the corporation, whether or not an agreement to pay such compensation was made before such services were rendered; 16. To cease its corporate activities and surrender its corporate franchise; and 17. To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized.

§ 13.1-853. Requirement for and duties of board of directors
A. Except as provided in an agreement authorized by Voting Agreement under § 13.1-852.1, each corporation shall have a board of directors.
B. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation

§ 13.1-892. Amendment of bylaws by board of directors or members A corporation's board of directors may amend or repeal the corporation's bylaws except to the extent that:
1. The articles of incorporation or § 13.1-893 reserves that power exclusively to the members; or
2. The members in repealing, adopting, or amending a bylaw expressly provide that the board of directors may not amend, repeal, or reinstate that bylaw.

Other VA Code
§ 55.1-1825. Authority to levy special assessments.
A. In addition to all other assessments that are authorized in the declaration, the board of directors shall have the power to levy a special assessment against its members if (i) the purpose in so doing is found by the board to be in the best interests of the association and (ii) the proceeds of the assessment are used primarily for the maintenance and upkeep of the common area and such other areas of association responsibility expressly provided for in the declaration, including capital expenditures. A majority of votes cast, in person or by proxy, at a meeting of the membership convened in accordance with the provisions of the association's bylaws within 60 days of promulgation of the notice of the assessment shall rescind or reduce the special assessment. No director or officer of the association shall be liable for failure to perform his fiduciary duty if a special assessment for the funds necessary for the director or officer to perform his fiduciary duty is rescinded by the owners pursuant to this section, and the association shall indemnify such director or officer against any damage resulting from any such claimed breach of fiduciary duty.

Loks like the images didn’t copy forward - second attempt Article of Incorporation:

Under the Article of Incorporation, it state we can „conduct any or lawful affairs, not required to be specifically stated herein….

Under the RHLOA Declarations / Covenants, it provides for „modifying or supplementing“ covenants when appropriate and „further the health and welfare of the property owners“

First, Articles of Incorporation are different from bylaws.

Second, the Articles of Incorporation are legally subordinate to the Declaration. That is legally, the Declaration and state statutes control what the HOA can and cannot do. I can seek a citation for this, but my sense is you need to talk to an attorney, because communicating what the law is to the board in a "persuasive" way can be a challenge. This forum can help prepare you for a meeting with an attorney, in my opinion.

Third, modifying or supplementing the covenants amounts to an amendment. If the covenants require an owners' vote for an amendment, then an owners' vote must happen.

Fourth, I think you will need to hire an attorney to make appropriate legal threats to the board for not complying with either the covenants or statutes, or some combination of the above. I sense you may be struggling understanding what the law says here.

Fifth, images cannot be copies into the body of a post here. Instead, when you start typing a post, look at the bottom of the screen. You will see "Choose File." Click on "Choose File" and follow the instructions to upload an image et cetera.

Thank you

One thing you should check is if the property owners association act does or does not apply to your Association.

see:

§ 55.1-1801. Applicability.

Documents are:

Deed Restrictions - also called The Declaration; The Declaration of Covenants, conditions and restrictions; CC&Rs and simply The Restrictions.
This document limits what you can and can not do with your lot.
This document creates the Association (typically by identifying that one shall be created).
This document establishes what the associations purpose is and what services, if any, they will provide
This document establishes that assessments will be paid
This document specifies how the covenants may be enforced.
This documents is seen as a binding contract by the courts when you purchase your property.

Articles of Incorporation - also called simply the Articles
This document is created to specify (basically reiterate) what the corporation (HOA inc.) purpose is, etc.

The Bylaws - never heard them called anything else
This document establishes how the association shall be ran.
Who is a member, number of directors, election of directors, etc.

NOTE: I have heard many call their CC&Rs bylaws. They are two different documents and have two different functions.

Resolutions - formal decisions and policies of the board also known as rules and regulations
A common resolutions would be architectural guidelines
rules and regulations for common areas
procedures for enforcement (warnings, hearings, etc.)

The Association restrictions can be more restrictive than local laws providing that their is not a conflict.

Examples: City allows 6 foot fence, Association only allows 4 foot fences. There is no conflict, as the 4 feet is less than the 6 feet allowed.
City allows dogs off leash, association requires leashes on common areas. there is no conflict as association is discussing private property.

See:

HOA Governing Documents Every Homeowner Must Know from a management company

HOA 101: A Breakdown of Community Governing Documents from a management company

Understanding HOA Rules in the City and State Law Hierarchy from a management company

General Info:

Best Practices Reports free excellent info from the foundation for community association research

The declarations, recorded in 1969, is silent on state law. Only one provision, below, is what the board holds as prohibiting to execute permissions under the nonstick act or other is:
Nothing herein is to be construed to prevent the developers from, in the event that provision must be made to protect the further health and/or welfare of the property owners, modifying or supplementing the above covenants, if in their sole opinion, such change, modification or supplementation is deemed appropriate.

The Board states this provision prohibits exercising permissions, such as implementing special assessments, and establishing property care to fire prevention, and water and wildlife contamination - actions I am trying to push through as they meet the health and welfare clause. These concerns can be addressed by the nonstock act as well as others however since the declaration is silent (it does reference an architectural committee but doesn’t spell out the latter) the board claims a change requires a signature by all lot owners to implement and we have never had 100% participation since the community was established in 1969. they say a quorum does not apply to this.

The following are options for making changes within an HOA/COA:

1) Educate
Provide documentation to the board and ask that if they don't agree to seek a legal opinion (may or may not work)
Educate the membership either in person or via written articles (but be careful that you don't cross a legal line).
Educate yourself through research and, perhaps, legal consultations.

2) Replace the board (or at least a majority of the board)
This can be done via recalls or, less expensive and much easier, by gathering like minded owners together, solicit proxies (translation, start knocking on doors) and vote in a slate of owners willing to make the change. when you knock on doors, you can also use that as an opportunity to educate and to listen to concerns of others.

3) Legal action
The slowest, most expensive and most energy draining of all the options.
Virginia does have the community ombudsman which will get involved when laws are ignored. They will not get involved if it's an issue with your governing documents.

See: Office of the Common Interest Community Ombudsman just remember that their are specific steps one must do before filing a complaint. They have the forms and charts. If the same person is there, they knew their stuff.