The Virginia HOA Power Grab

countrysideby James A. Bacon

When I was elected president of the Countryside Homeowners Association last month, I joked with our treasurer Russ Gambrell that our first order of business would be to plot our path to world domination. First we take over the homeowners association. Then we take over Henrico County. Then Virginia, the United States and the world! Mwa ha ha ha!

Actually, Countryside has a very laid-back homeowners association. Our covenant has relatively few restrictions. We’re a purely volunteer organization. We’ve kept our dues low, we hire a landscaper to maintain our two subdivision entrances, we hold neighborhood parties, we mobilize once a year to clean up the creek… and we refrain from meddling in peoples’ business. If a resident has a problem with the dog next door or the mailbox across the street, don’t come to the HOA — work it out with your neighbor.

As president, I bring my laissez-faire philosophy to the job. The last thing — the very last thing — I want is to become an HOA Nazi. I subscribe to the same philosophy with HOAs that I do with government: restrict your activity to a few core functions that you can do really well.

Alas, it appears that not everyone shares my live-and-let-live attitude. Just as government continually accretes power unto itself, it appears that homeowners associations, which perform similar functions as local government, want to do the same. The General Assembly is close to passing legislation that would allow HOAs to impose fines not specified in their covenants. Quoth the Washington Post (my emphasis):

On Monday, a Senate committee approved a bill that would allow such fines for violations of an association’s rules as long as the declaration does not explicitly ban them. Under another, such fines are limited to $10 each day of a violation for 90 days or a one-time $50 charge. The bill would require that “a reasonable opportunity” to correct the violation be given as well as a hearing before the association board.

Del James L. LeMunyon, D-Fairfax, argued that change is necessary to keep communities in good condition and resolve disputes before they end up in court. HOAs need more power to enforce their rules properly, and it’s difficult to amend bylaws because governance changes typically require support of supermajorities.

Franklin R. Short, an attorney who owns property in two homeowners associations, testified against the bill. “This document would strip homeowners of property rights,” he said. “We’re taking away the right not to be fined, and I think that’s a very significant right.”

The Post also quotes Del. Scott A. Surovell, D-Fairfax, as characterizing the bill as a “power grab” for associations.“How many of your constituents have said: ‘My homeowners association doesn’t have enough power. Make it easier for them to tell me what to do.’?”

Bacon’s bottom line: HOAs should be allowed the power to collect fees and fines that are specifically provided for in their charters. But the idea of allowing HOAs to impose fines “as long as the declaration does not explicitly ban them” represents a grotesque enlargement of HOA power and an invitation to abuse. What really amazes me is that Republicans would support such a measure. Republicans expend great energy opposing the expansion of federal-government beyond those enumerated in the U.S. Constitution, yet they seem perfectly willing to give HOAs to exact penalties from citizens in contravention of their governance documents. Is no one experiencing cognitive dissonance here?

I am flabbergasted by this bizarre turn of events. Do Virginians now have to rely upon Democrats — thank you, Scott Surovell — to preserve their individual liberties? This issue raises a bigger question: Do Republicans have any core philosophical principles anymore? Or have they simply become an aggregation of special interests … which apparently now include homeowner’s associations, or perhaps the companies that manage them?

This is one HOA president (I speak for myself, not the Countryside Homeowners Association) that wants no part of such power. I oppose the legislation and hope others do, too.

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13 responses to “The Virginia HOA Power Grab

  1. there are some of the opinion that the GOP is no better than the Dems when it comes to government. They too want government to dictate …just in different ways.

    but the thing is .. if one knowingly bought where there was an HOA to start with – they must have wanted some level of restrictions… for instance, we have “covenants” but no HOA so we have folks who are swapping motors out of vehicles in their front yard with folks on either side of him not very happy about it.

    but there are no guarantees with HOAs either as they in a perverse way demonstrate that you as an individual are not entitled to your preferred Goldilocks solution.. that others will help you decide AND they may appeal to the State to give them more power than the HOA intended them to have originally.

    so we have this perverse thing that people sign a contract.. agree to rules … and then the government steps in and re-writes that contract.

    this would be not too far afield from you signing a contract for a car or a house ..and then the state stepping in and putting provisions in the contract that you would have never agreed to originally.

    this sounds wrong and yes.. where the H E double L are those who blather and whine about Liberty and property rights?

  2. It depends on whose property rights you are considering. If an HOA has a rule that homeowners cannot paint their house pink, don’t the other HOA members have a right to live in a pink-free community? If the rules provide garbage cans must be out of sight and my neighbor keeps his on his front steps, what about my rights to a neat community?

    Overreaching rules should be changed and every homeowner must be given notice and opportunity for a hearing before any action is taken.

    • Sure, if those rules are in the covenant, then an HOA should be able to enforce the rules. But if the covenant was so poorly drafted that it provides no sanction for breaking the rules, whose fault is that? HOAs should amend their charters. The General Assembly has no business imposing a uniform “solution,” which, in my mind, could lead to tremendous mischief.

      • exactly! THe GA is essentially rendering null and void the original contract between two parties and substituting a new one.

        that’s wrong and as Jim said.. it’s amazing that the GOP of the two political parties, the GOP that says “Government is the problem”, would even consider such a thing…

        there are those with the view that both parties believe in govt to force what they think should be done – they just differ on what the govt should force you to do.

        you sign your name on a contract – you own it.

        • You guys are taking the position a contract among the homeowners can never be modified. What if the majority of homeowners decide to allow properly installed solar panels on roofs? Can they do this? If they can and set forth construction standards for safety, can those standards be enforced? For people who think the Constitution can change based on public opinion, you sure are inflexible with permitting individuals to modify their contracts.

          • re: ” You guys are taking the position a contract among the homeowners can never be modified. What if the majority of homeowners decide to allow properly installed solar panels on roofs? Can they do this? If they can and set forth construction standards for safety, can those standards be enforced? For people who think the Constitution can change based on public opinion, you sure are inflexible with permitting individuals to modify their contracts.”

            HOAs are contracts not Constitutions. You have signed many contracts in your life and I’m quite sure that opinion does not enter into it.

            If you signed a contract as a member of a group and the contract lays out ways for change – then you are bound by those ways.

            otherwise, think about this. Any contract you sign – the other party can go to the government and have it changed.

            it’s called rule of law. it’s the difference between 3rd world and 1st world countries.

            In 3rd world countries, the govt can and will change your contract…in this country – we don’t want that.

          • TMT, You and I usually agree, so I’m surprised we disagree on this one. Of course people can change their HOA covenants — they just have to follow the bylaws contained in the covenant. It’s probably not easy to do. You have to get a quorum. You have to get a supermajority. But guess what, changing the U.S. constitution or state constitution isn’t easy either! That’s the whole point. Changing governing documents *should* require supermajorities.

          • the other difference is that HOAs doe not have the 3 parts of Govt.

            they do not have a legal arm that determines the “legality” of the written HOA rules.

            that’s an interesting thing about all contracts and all businesses.

            they can and do have governance and rules for governance and decision-making but they rely on govt for rule of law.

          • HOA covenants and rules should be very clear and reasonable. There should not be confusion as to what constitutes compliance or what is a violation. As with any contract, there needs to be a way for the parties to modify the agreement. It should be easier to change rules than covenants. I would expect the latter to require multiple hearings and even a super-majority to pass.

            Residents should elect reasonable board members and be willing to serve on the board themselves. And no one should be fined absent a fair hearing and reasonable time to fix the problem.

            But there are scofflaws in this world; people who use their property in a manner that will certainly harm their neighbors. I’m not talking about the guy who wants to fly the US Flag on Memorial Day or the gal who wants to put a “Mark Warner for Senate” sign in her yard two weeks before the election. But there are people who park four cars in their backyard; operate a business from their home (as opposed to working from home); store junk outside; etc. It’s not unreasonable to impose a fine (if permitted) to obtain compliance.

  3. Yeah, I’ve always wondered why examples of HOA tyranny usually get a free pass from conservatives. I suspect the answer is “it’s ok because it’s not the government”.

    Conservatives tend to fall back from positions when they can no longer direct their anger at the government. Look at privacy, for instance. In the internet age, as citizens became pitted against private content providers, conservatives quickly lost interest in privacy as one of their core issues. Yet not too long ago privacy used to be a huge concern to conservatives when it was an issue about citizens vs. their government.

  4. Agree completely on this one.

  5. If the General Assemby feels it is OK to allow HOAs to change their rules without the consent of those in them, then they should also make it OK to remove one’s property from the HOA and the associated covenants from the deed, without penalty.

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