There are certain unenforceable HOA rules in Virginia that board members and homeowners should know about. These rules are unenforceable because they conflict with the law; however, some rules can also be deemed unenforceable in other ways.
What Makes Unenforceable HOA Rules in Virginia?
Homeowners associations enforce rules that help maintain order, appeal, and property values. Residents agree to abide by these rules when they first buy a home in the community.
While rules serve an important purpose, not every rule is particularly popular among residents. Still, just because a rule is disliked does not mean it is unenforceable. Certain conditions must be met to render a rule unenforceable.
What makes unenforceable HOA rules in Virginia? Let’s break them down below.
1. Unlawful Rules
The clearest type of unenforceable rule is one that is unlawful. These are rules that conflict with federal, state, or local laws. Remember that the law takes precedence over all governing documents, including HOA rules and regulations.
For example, if an association prohibits all satellite dishes, that rule is unenforceable because it goes against the federal Over-the-Air Reception Devices Rule. Another example is when an association bans clotheslines in a Right to Dry state, of which there are 19, including Virginia.
2. Rules That Don’t Align With Governing Documents
Rules that conflict with the association’s governing documents can also be deemed unenforceable. Homeowners can challenge the validity of the rule and urge the board to amend it as necessary.
Governing documents follow a hierarchy:
- Federal, state, and local laws
- CC&Rs
- Articles of incorporation
- Bylaws
- Rules and regulations
If a provision in the bylaws conflicts with the articles of incorporation, then the latter prevails. Similarly, if an operating rule conflicts with the CC&Rs, the latter takes precedence.
3. Rules That Discriminate
An association may not enforce a rule that discriminates against homeowners and protected classes. Discriminatory rules are in direct violation of both the Fair Housing Act and state housing laws.
It is important to exercise caution when enacting rules that may tread the line. For instance, a rule that prohibits children under the age of 18 from using the pool after 4 p.m. might be considered discriminatory based on age.
4. Rules That are Vague or Arbitrary
Vague rules are rules that are unclear, overly broad, or open to subjective interpretation. These types of rules can create confusion and even lead to legal disputes between the board and homeowners. They can also be considered unenforceable.
For example, an HOA might have a rule that prohibits loud noises, but it is difficult to determine what constitutes a loud noise. A similarly vague rule might require landscaping to be attractive, which is also subjective.
5. Rules That are Not Properly Adopted
When enacting and enforcing a rule, the association board must follow specific procedures. Both state laws and the governing documents outline these procedures, as well as any associated requirements.
If the board adopts a rule without following the procedures, homeowners can challenge the rule. For example, if the governing documents require a homeowner’s vote to pass a rental restriction but the board skips this vote, it can render the rule void.
Other requirements may include providing notice to homeowners, voting on the rule at a board meeting, and requiring a formal board resolution.
6. Rules That Overreach Board Authority
If an association has no authority to enforce a specific rule, that rule is deemed void or unenforceable. Board members can determine the extent of their authority by referring to state laws and the governing documents. Overreaching not only calls the validity of a rule into question but can also breach trust.
7. Rules That are Selectively Enforced
Fair and consistent enforcement is a requirement. If the association board selectively enforces a rule, homeowners can challenge the rule’s validity.
Examples of selective enforcement include:
- Citing some homeowners for a violation but not others for the same violation.
- Approving certain homeowners’ architectural requests while denying others for identical changes.
- Waiving late fees for some residents but charging them to others without a consistent policy.
- Allowing some residents to keep holiday decorations up past the deadline while requiring others to remove them.
- Sending warnings to some residents about noise complaints, but not addressing similar complaints against others.
- Only enforcing a rule sometimes or when it’s convenient.
What are the Unenforceable HOA Rules in Virginia?
In Virginia, the Property Owners Association Act lays down specific rules that associations can’t enforce. These include prohibiting the display of the U.S. flag, the use of solar energy devices, home-based businesses, the use of for-sale signs, and the installation of electric vehicle charging stations.
Let’s break down the unenforceable HOA rules in Virginia.
1. Rules Prohibiting the Display of the U.S. Flag
According to Section 55.1-1820, homeowners in Virginia have the right to display the U.S. flag on their property. The law does not allow HOAs to adopt rules that ban this display.
That said, an HOA may create reasonable restrictions on the flag’s size or placement. Still, it can’t prevent homeowners from flying the flag. Any rule that prohibits it is unenforceable.
2. Rules Banning Solar Energy Devices
According to Section 55.1-1820.1, an HOA can’t prohibit homeowners from installing solar energy devices on their homes or properties. That said, associations can impose reasonable restrictions, particularly involving the appearance, placement, and safety of the device. If an HOA outright bans all solar energy devices, homeowners can challenge the rule.
3. Rules Prohibiting Home-Based Businesses
According to Section 55.1-1821, associations can’t ban home-based businesses that are both legitimate and don’t pose significant impacts on the community. Of course, the business must adhere to local zoning ordinances. Additionally, the business should not interfere with neighborhood peace.
There are some things that an HOA can regulate. These include customer visits, traffic, or signage related to the home-based business. This is understandable considering the negative effects these things can have on security, curb appeal, and property values.
4. Rules Banning the Use of For Sale Signs
According to Section 55.1-1822, homeowners can attach a standard “For Sale” sign on their property when they want to sell their homes. Associations can’t prohibit owners from doing this.
Again, Virginia law allows associations to enforce reasonable rules concerning the placement and size of the signs, but HOAs can’t hinder owners from advertising the sale altogether. This also includes “For Sale” signs that owners place on their yards.
5. Rules Prohibiting Electric Vehicle Charging Stations
According to Section 55.1-1823.1, associations can’t outright ban the installation of electric vehicle (EV) charging stations on individual property. As with most others on this list, an HOA can enforce reasonable restrictions involving the appearance and location of the charger.
Many associations still require homeowners to go through the architectural approval process. This typically involves submitting a form with all relevant details and attaching supporting documentation.
Legal Protections for Homeowners in Virginia
Virginia offers several protections for residents living in common interest communities. One key safeguard is the Office of the Common Interest Community Ombudsman. The Ombudsman operates under the Department of Professional and Occupational Regulation (DPOR).
This office assists homeowners in resolving disputes with their homeowners’ associations, condominiums, or cooperative associations. It also provides information about state laws and association responsibilities.
If a homeowner believes that their association has violated their rights, they may file a complaint with the Ombudsman. To do this, the owner must first go through their association’s internal complaint process. If the parties fail to resolve the issue, the homeowner can submit a Notice of Final Adverse Decision to the Ombudsman.
From here, the Ombudsman will review the complaint and assess whether or not the association violates Virginia law. It is worth noting that the Ombudsman does not hold the power to force an association to act in one way or another. That said, the Ombudsman can issue written determinations, which are non-binding.
The Final Word
Understanding unenforceable HOA rules in Virginia will help both board members and homeowners protect their rights and responsibilities. With clear legal guidelines, homeowners can challenge invalid rules, while board members can ensure fair treatment and avoid liability.
Keymont Community Management offers expert management services, including legal compliance, to associations in Virginia, Maryland, and Washington, DC. Call us today at 703.752.8300 or contact us online to get started!
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