Homeowner associations set rules and regulations for the residents of their communities. These rules are set in place to maintain the community and protect its residents. Residents and homeowners should take care to observe these guidelines, though, many seem to find these rules to be exasperating. The rules and regulations govern many aspects of the community such as;
- what type of fence you can erect
- the amount of noise considered “nuisance”
- where a homeowner may park
- what types of renovations may be done to your property
- what types of contractors may be hired
An HOA has the power to enforce these rules as well as reprimand those who disobey them.
POWERS OF THE HOMEOWNER ASSOCIATION
When a homeowner violates the rules and regulations, the HOA is responsible for enforcing them. Their enforcement powers may include the following:
2) Entry onto an owner’s property to determine if violations have occurred
3) Entry onto an owner’s property to correct violations
4) Suspension of homeowner’s use of common facilities
5) Commencement of legal action against the homeowner
6) Placement of a lien on the property
7) A charge of legal fees for any legal action against the homeowner.
Most of the stipulations have a notice provision wherein a notice to the property owner is required prior to the board taking any action. The rules may also require attendance at a meeting. This gives the homeowner a chance to remedy the violation. However, if the violation is not cured within the time allotted, the HOA may take action. If that occurs, contact an attorney immediately.
RECENT LITIGATION REGARDING AN HOA’S LEGAL REACH
The Virginia Attorney General’s Office issued an opinion on whether it is legal under the Virginia Property Owners’ Association Act for an HOA to deactivate a member’s barcode if he/she was over sixty days late in paying an assessment.
Deactivation of the bar code restricts entry into the neighborhood. In this particular case studied by the Attorney General’s Office, there were two access points. One point has a guard posted while the other did not. The barcode was viable at both the front manned gate as well as the back unmanned gate. The back gate, however, is approximately five miles from the front gate. The Attorney General’s office stated that deactivation is not proper where it would endanger the health, safety or property of the homeowner.
Whether the deactivation is proper depends on how far away the homeowner’s property is from the front manned gate. The Attorney General recognized that situations could arise in which the homeowner would need to return to his or her home on an emergency basis. Therefore, limiting access to the back gate for someone who lives near the back gate could endanger the health, safety or property of the homeowner, thus violating the Virginia Property Owners’ Association Act (“POA”). Further, denying use of the back gate via deactivation of bar codes could mean denying direct access to one’s home for certain homeowners. In the event a homeowner fails to pay a special (as opposed to regular) assessment, denying direct access to one’s home would also is a violation of the POA.
Although an Attorney General’s Office opinion is not binding on the Court, it is a persuasive authority.
Residents should abide by the rules and regulations of the HOA at all times. However, if a violation occurs it the duty of the association and the homeowner to attempt to resolve the situation in an agreeable manner. Attorneys can assist in coming to a reasonable resolution that is fair for both sides. If you require legal assistance regarding a dispute with an HOA, contact us to speak with one of our qualified attorneys.
Posted in: Real Estate