THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, May 27, 1995 TAG: 9505250361
SECTION: REAL ESTATE WEEKLY PAGE: 14 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: Medium: 82 lines
Q. I am the chairman of the architectural standards committee in our homeowners association. Our board has decided at our recommendation that we should be more vigorous in court enforcement of people who simply do not respond to our violation letters after several months.
We want to make sure we are successful if we go to court, so we want to make sure we are taking all the necessary steps before turning the paperwork over to our attorney.
Can you give us some guidelines and pointers?
A. There are two places you need to check to make sure you have followed all the proper procedures.
The first is in the Virginia Property Owners Association Act, which says ``the Board of Directors has the power to establish enforced rules and regulations with respect to areas of responsibility assigned to the Association by Declaration.'' Your rules and regulations must be adopted by resolution and reasonably published or distributed to the homeowners.
You are entitled to an award of attorney's fees at the court's sole discretion. In other words, the statute says the court may award attorney's fees. Consequently, it is preferable that the attorney's fees issue be set forth in your documents.
A judge is more likely to make an award of attorney's fees if the homeowners are clearly on notice through the documents that they are liable to pay the fees if they violate the rules of the covenants.
The board of directors has the power to suspend a member's right to use facilities or non-essential services offered by the association (subject to certain considerations) and, also, the board can assess charges against members who violate the covenants or rules (including the owner's tenants, guests or invitees).
However, before any charges may be assessed, a member must be given an opportunity to be heard and represented by counsel before the board or other tribunals (such as an architectural committee) and members must receive notice of a hearing by certified return receipt mail at least 14 days prior to a hearing.
This often referred to as ``due process procedures.'' The statute limits the amount of charges that can be assessed to $50 for a single offense or $10 per day for an offense of a continuing nature. The fines are treated as an assessment against that member's lot.
In addition to the statutory guidelines, hopefully your association has a policy resolution by the board of directors about due process requirements that spells out the type of notice that will be given, the right to call witnesses, and the right for the homeowner to question his accusers.
There should also be an appeals process in the event that the homeowner is not happy with the committee's decision. Generally, the appeal is to the board of directors.
All of this sounds very legalistic, but your reason for proceeding along these lines is that you have homeowners who have failed to respond to numerous letters. In other words, there is no communication. For whatever reason, this homeowner is not interested in cooperating.
If time allows (and since you are a volunteer, we say that very purposefully), you might wish to make a personal visit or phone call to the alleged violator to determine the reason for not responding. Many people are put off and intimidated by letters but welcome a telephone call. They may feel that a letter is hostile whereas a phone call is not.
Hopefully, a last ditch effort by making a phone call could avoid formal charges and subsequent legal action. If you must take legal action, your instinct is right that judges are going to be making sure you dotted your I's and crossed your T's before coming to court. They also like to see that all reasonable efforts were made to resolve these issues outside the court proceeding.
If you have further interest in this legal issue and others relating to your service to the community, consider attending the Community Association Institute's 8th annual Legislative and Legal Update from 8:30 a.m. to 4:30 p.m. on June 9 at the Greenwich Road Holiday Inn, Virginia Beach.
Call Rhonda Riesco of the CAI for further information at 464-3009. MEMO: Send comments and questions to G. Robert Kirkland and Michael A. Inman
at Real Estate Weekly, 150 W. Brambleton Ave., Norfolk, Va. 23510. To
submit questions by fax, dial 446-2531.
by CNB