Inheriting Old Violations

"Our Board Just Inherited a Host of Old Violations - What Should We Do?" 

We often get calls from new board members after transitioning from developer control. They have questions like this one: Some of the homeowners have added fences, above-ground pools, and sheds without getting approval from the Association. Many of these changes do not appear to meet the standards that are part of our documents. No action has been taken to correct these violations. How do we go about enforcing the covenants and rules?

The first step is to examine the architectural guidelines and the enforcement provisions in the governing documents. Usually, an association's declaration establishes a committee, often called the architectural standards committee, and grants it powers and duties.

There are often architectural guidelines in the nature of rules and regulations which detail the standards for the community and the procedures for enforcement. If these do not exist, the board of directors should pass a policy resolution that clarifies the standards in the association’s governing documents with greater detail and sets the procedures for enforcement. This policy resolution is generally referred to as a “due process procedure.”

One of the most important reasons that these procedures need to be in place is that the actions of the committee are subject to review in any legal action in which the association may become involved. The more clearly the resolution defines the procedures and the more closely the committee adheres to them, the more likely they are to be successful if enforcement of a covenant or rule goes to court.

The Virginia Condominium Act and the Virginia Property Owners Association Act provide that in order for the association to legally enforce any violation of the rules it must have given the violator an opportunity to be heard and be represented by counsel at a meeting of the committee or board of directors. There are strict rules regarding written notice of the hearing.

Before taking these steps, the association needs to send each owner a “non-hostile” notice of a rule’s violation. It is possible that an owner does not know that there is a violation or doesn’t understand the rule. Offer to meet with the owner to explain the reason for the rule. In other words, do some marketing.  Cold demand letters “out of the blue” can leave a homeowner feeling less than cooperative.

Subsequently, if the violation is not corrected, the owner needs to be given notice of a hearing by the committee. This notice needs to state the time and place and the rights of the violator in that hearing. If the Board finds there is a violation, it should give the owner reasonable time to correct the problem. This may be as little as five days to remove a junk automobile or up to six months to remove an unauthorized addition to the lot depending on the circumstances. If the owner does not clear the violation, Virginia law provides that you may levy administrative charges ranging from $10 per day for a continuing violation to $50 per single offense, provided that the governing documents permit such charges. This is treated as an additional assessment. 

With consistent enforcement, most violations will be cleared up by the first or second notice. The majority of the remaining violations can be resolved at a hearing. Occasionally a violation will not be resolved and either the association or the violating owner will want to take the matter to court.

Board members have a fiduciary duty to the community to enforce the covenants and promptly notify owners who violate them. If the Board repeatedly fails to act on a certain type of violation and many owners “follow the leader”, it may lose the right to enforce the rule – this is called waiver of rights. If offenders refuse to comply within a reasonable time, the board has an obligation to take legal action. As an example, this kind of problem can arise with non-compliant fences or storm doors being overlooked.

Perhaps the board does not understand its obligations, or perhaps it is reluctant to take action against its neighbors. Whatever the reason for the lack of action, the board of directors, whether it is composed of developer appointees or elected board members, has a duty to enforce the rules. The question is: what are the specific standards and powers established in the declaration of covenants and restrictions? If the guidelines are clear and thorough enough, then the Association must step up and enforce the guidelines. If they are not, then the Board needs to consider amending the association’s governing documents to provide for more complete standards and to give the board of directors the necessary enforcement powers.


Michael Inman is a partner at Inman & Strickler focusing his practice in the areas of Community Association/Condominium Law, Real Estate and Business Law. Mr. Inman is a member of the College of Community Association Lawyers, and an has served on the board of multiple civic organizations.

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