When Is a Virginia HOA Rule Unenforceable?

Not every rule a Virginia board announces is automatically enforceable. A rule has to come from somewhere — the authority the declaration and the Property Owners' Association Act (POAA) grant — and a charge for breaking it has to follow the act's process. When a rule strays outside that authority, or a charge skips the process, its enforceability is open to question. For your specific situation, a licensed Virginia attorney is the right resource. This is general information, not legal advice.

The general tests, and where Virginia's rule power comes from

The tests that apply in most states also apply here: a rule generally has to be properly adopted, consistent with the recorded declaration, and reasonable, and it can't conflict with federal law such as the Fair Housing Act, the FCC's OTARD antenna rule, or the Freedom to Display the American Flag Act. Those tests, and how uneven enforcement is treated, are explained in When Is an HOA Rule Unenforceable?.

In Virginia, the POAA gives the rulemaking power to the board, and it defines the reach of that power. Under § 55.1-1819(A), the board "shall have the power to establish, adopt, and enforce rules and regulations with respect to use of the common areas and with respect to such other areas of responsibility assigned to the association by the declaration, except where expressly reserved by the declaration to the members." A rule aimed at something outside the common areas and the responsibilities the declaration assigns has no footing in that grant. The declaration, the bylaws, and Virginia's nonprofit corporation law (for incorporated associations) fill in the rest.

Can owners repeal an HOA rule in Virginia?

Yes, at a special meeting. Under Va. Code § 55.1-1819(A), a majority of votes cast at a special meeting of the association, convened under the bylaws, may repeal or amend any rule the board adopted. The board may adopt rules by resolution, but they must be reasonably published or distributed throughout the development.

The statute keeps adoption simple but requires notice to the community: "Rules and regulations may be adopted by resolution and shall be reasonably published or distributed throughout the development."

Owners also have a statutory check on board rules: "At a special meeting of the association convened in accordance with the provisions of the association's bylaws, a majority of votes cast at such meeting may repeal or amend any rule or regulation adopted by the board of directors." How a special meeting is called comes from the bylaws.

Charges need the declaration's say-so, notice, and a hearing (§ 55.1-1819(B)–(F))

The power to charge for a violation is not automatic. The board may assess charges only "to the extent the declaration or rules and regulations duly adopted pursuant to such declaration expressly so provide."

Before any charge, the statute requires two steps. First, the member must get "a reasonable opportunity to correct the alleged violation after written notice of the alleged violation to the member." Second, if the violation isn't corrected, the member must get "an opportunity to be heard and to be represented by counsel before the board of directors or other tribunal specified in the documents." Notice of that hearing has to be "hand delivered or mailed by registered or certified mail, return receipt requested, to the member at the address of record with the association at least 14 days prior to the hearing," and the result has to be delivered the same way within seven days of the hearing.

The amounts are capped. A charge "shall not exceed $50 for a single offense or $10 per day for any offense of a continuing nature," and continuing charges "shall not be assessed for a period exceeding 90 days." Charges are "treated as an assessment against the member's lot for the purposes of § 55.1-1833," the assessment lien. Once the association or the owner files suit over the charges, "no additional charges shall accrue."

A charge imposed without a declaration provision behind it, without the notice-cure-hearing sequence, or above the caps is open to challenge on that basis alone, whatever the merits of the underlying rule. See Challenging an HOA Fine in Virginia.

Which communities the POAA covers (§ 55.1-1801)

The act applies to "developments subject to a declaration initially recorded after January 1, 1959, associations incorporated or otherwise organized after such date," and to subdivisions created under the old Subdivided Land Sales Act. It does not govern condominiums, cooperatives, time-shares, or membership campgrounds, which have their own statutes.

The act also defers to existing declarations in a specific way: "This chapter shall not be construed to affect the validity of any provision of any prior declaration; however, to the extent that the declaration is silent, the provisions of this chapter shall apply." So in an older community, what the declaration itself says can matter as much as the act.

What can't an HOA ban in Virginia?

Several things. An association generally can't bar a properly displayed U.S. flag on property an owner owns or exclusively uses (§ 55.1-1820), solar devices on the owner's property unless the recorded declaration prohibits them (§ 55.1-1820.1), or personal-use EV chargers on the owner's property unless a recorded governing document says otherwise (§ 55.1-1823.1). Most of these sections leave room for reasonable restrictions.

Several POAA sections restrict what an association can prohibit. Most of them leave room for reasonable restrictions, and several yield to the recorded declaration.

• U.S. flag (§ 55.1-1820). An association may not bar a lot owner from displaying the U.S. flag on property the owner owns or exclusively uses, when the display follows federal flag rules. Size, place, duration, and manner restrictions are allowed only if "necessary to protect a substantial interest of the association," and in an enforcement action "the association shall bear the burden of proof" on that point. The association may restrict flags in the common areas.
• Solar (§ 55.1-1820.1). "No association shall prohibit an owner from installing a solar energy collection device on that owner's property unless the recorded declaration for the association establishes such a prohibition." Reasonable size, place, and manner restrictions are allowed, but a restriction is "deemed not to be reasonable" if it raises the installation cost by five percent or cuts energy production by 10 percent, as shown by documentation from a certified, Virginia-licensed solar design specialist. Common areas can be restricted or closed to solar.
• EV chargers (§ 55.1-1823.1). "Except to the extent that the declaration or other recorded governing document provides otherwise, no association shall prohibit any lot owner from installing an electric vehicle charging station for the lot owner's personal use on property owned by the lot owner." The owner must indemnify the association, and the association may require insurance.
• For-sale signs (§ 55.1-1822). Unless the act or the declaration authorizes it, an association may not require an association sign. It may regulate the number, location, and removal of real estate signs on an owner's lot, "so long as at least one real estate sign is permitted."
• Rentals (§ 55.1-1806). "Except as expressly authorized in this chapter, in the declaration, or as otherwise provided by law," an association may not condition or prohibit renting a lot, charge rental-related fees "in excess of $50 during the term of any lease," require its own lease form, charge a deposit, or evict a tenant.

Can I complain to the state about a Virginia HOA rule?

Yes, once the association's complaint process ends in a final adverse decision. Under Va. Code § 54.1-2354.4, notice may go to the Common Interest Community Ombudsman within 30 days, with a $25 fee waivable for hardship. If the decision may conflict with the common interest community laws, the Director gives both sides information; it isn't a court ruling.

Virginia adds a state backstop. Every association must "establish reasonable procedures for the resolution of written complaints" from members. A member who gets a final adverse decision may give notice to the Common Interest Community Ombudsman; the notice "shall be filed within 30 days of the final adverse decision," on the Board's form, with a $25 fee that can be waived for hardship. If the Director finds the decision may conflict with the common interest community laws, the Director gives both sides information about those laws. It is a low-cost way to get a rules dispute in front of the state, though it is not a court ruling.

Where to turn

The association's records and minutes usually show when and how a rule was adopted and whether it was published, and an open board meeting is one place the question can be raised. Before a disputed charge feeds the lien, a licensed Virginia attorney or the Ombudsman complaint route is the resource for judging whether a specific rule or charge holds up.

Sources

• Va. Code § 55.1-1801 — Applicability
• Va. Code § 55.1-1806 — Rental of lots
• Va. Code § 55.1-1819 — Adoption and enforcement of rules
• Va. Code § 55.1-1820 — Display of the flag of the United States
• Va. Code § 55.1-1820.1 — Installation of solar energy collection devices
• Va. Code § 55.1-1822 — Use of for sale signs in connection with sale
• Va. Code § 55.1-1823.1 — Electric vehicle charging stations permitted
• Va. Code § 55.1-1833 — Lien for assessments; foreclosure
• Va. Code § 54.1-2354.4 — Association complaint procedures; final adverse decisions