What Are HOA Bylaws?
HOA bylaws, sometimes referred to as condominium bylaws, are key documents that govern the internal affairs of an association. In addition to governing the association’s general operations, HOA bylaws supplement the provisions included in the Declaration, set forth certain legal restrictions and organize the functions of the governing body for an association.
HOA bylaws typically set forth information about:
HOA bylaws typically provide for the election and terms of the officers. Typically officers are required to be a member of the board of directors. However, some states may not require officers to be members of the board. In states where it is required, associations should ensure that officers are in fact members of the board. If an officer is not a member, it may make the actions of the non-compliant individual grounds for challenging the validity of decisions made by the officers.
As the primary governing document for an association , the HOA bylaws typically define the powers of the board of directors. It is essential to limit and define the powers of the board in the bylaws in order to protect against common law claims of ultra vires (beyond their powers) by unit owners. Additionally, it is also important to remember the RLTO or IRLTO of various states when adopting election or noticing provisions.
When it comes to altering or amending the bylaws there are generally two types of provisions: binding and non-binding. The only binding provisions are those for the number of votes required to amend the bylaws and to which a court will defer. Non-binding provisions are simply guidelines that an association can deviate from as long as it does so within the bounds of the other amendments and the law.
Are HOA Bylaws Legally Binding?
HOA bylaws are legally binding both on the individual homeowner and the homeowner’s association. The bylaws are the rules that govern the relationship of the homeowner with both the association and his or her fellow homeowners. While there is some discretion in the manner of enforcement for a homeowner who has violated the bylaws, the association is legally allowed to take action against that homeowner, including levying a fine in some cases.
When you buy property in a subdivision with a homeowner’s association, you are agreeing to the bylaws that govern it. While these bylaws must be made available to homeowners, there is not a requirement that they be reviewed or accepted by a homeowner when purchasing property. A general understanding of the bylaws is deemed to be satisfactory.
Most bylaws state that the purpose of the homeowner’s association is to protect and advance the interests of the homeowners of the subdivision, including things like landscaping, maintaining common areas and even architectural controls. If a homeowner doesn’t agree with them, he or she can attend association meetings to voice concerns; however, if actions have already been taken by the governing body, the action has been taken and the bylaws are enforceable.
Enforcement of HOA Bylaws
Although homeowners’ associations are given wide latitude in the enforcement of rules and regulations governing their communities, enforcement actions must be reasonable. Enforcement actions that are arbitrary or undertaken for improper reasons can ultimately give rise to a cause of action for tortious interference. However, if the complaint is that the policy itself is unreasonable, a homeowner will likely not succeed because the governing document can be reasonable as to its content even though its effect may seem onerous. The governing document is controlling unless it violates public policy, and generally, courts will not engage in the balancing of interests.
The association may have significant flexibility in choosing disciplinary procedures and efforts, but the association is not free to take action that is either arbitrary or capricious or for improper purposes.
An association has the right to establish reasonable restrictions on the activities of owners within the community, as well as the right to demand compliance with those restrictions. The association may impose disciplinary fines against owners who violate the governing documents as part of its enforcement scheme, and it may restrict access to common areas or facilities of the association where owners have violated the restrictions. The enforcement procedure used should be established in advance by the board of directors so as to provide consistency in dealing with disputes.
Challenging the Legality of HOA Bylaws
Even with a well-drawn set of bylaws, conflicts are not uncommon in community associations. Neighborhoods evolve and can face many challenges, which can sometimes make it difficult to maintain compliance with complex or outdated rules and regulations. When compliance issues arise that are not resolved informally, it may be necessary for associations to pursue enforcement of their bylaws by stating a legal claim for a remedy in the appropriate adjudicative forum.
Some of the most common claims for dispute resolution in community association law relate to restrictions on the owner’s property or the use of common areas, improper voting or elections, encroachments (such as an individual owner’s fence or landscaping), and challenges to developer authority or control. In spite of the frequency of these types of disputes, case law is still developing in many areas, and owners and associations alike should be aware of these potential claims and how they are resolved under the law.
Any time a claim is brought against a homeowner association, the rights and obligations of the association are reviewed by the court against the documented "legal" authority of the association. When challenging the validity or enforcement of particular bylaws or rules, the Court will consider:
Where the Court finds that a particular rule, restriction or assessment is not reasonable or not in compliance with the governing documents (as well as federal, state and local law), the Court must void that rule. In addition, the authority of directors of an association is called into question when their actions, including their discretion, are challenged. The Court will review the authority granted to directors in the bylaws and state statutes to determine whether their actions were proper and their decisions reasonable. In addition, the Court may review the authority of the developer itself when the developer authority is challenged.
In determining whether a particular rule or restriction is reasonable or not, or the authority of directors has been abused, the facts and circumstances of each case are crucial. The court will analyze the situation — looking closely at the intention of those who enacted or sought to enforce particular rules, as well as the motivations behind the action — to determine reasonableness and/or proper authority. While this analysis is complex, it is even more complex if the owner (and/or the association) fails to act on its rights in a timely manner.
For example, many courts have noted that waiting years or decades before challenging an assessment or rule can be reason enough on its own to refuse a petition for relief. Cases that have been prosecuted after numerous calls for change, petitions and, in some instances, fines, have frequently been dismissed. Because the passage of time can make it difficult for reasonable changes to be enacted, and furthermore, substantial conflict arise between neighbors, the doctrine of laches defines the rights of owners to bring a claim. Laches is measured objectively and is determined by analyzing the following: 1) the nature of the interest allegedly injured; 2) the conduct of the party against whom the defense is asserted; 3) the delay of the party asserting the defense; and 4) the hardship to the other party resulting from allowing such a defense.
For example, in 2005, the Kentucky Supreme Court affirmed a judgment dismissing a claim for a declaratory judgment that would have limited a homebuilder’s power to approve exterior home modifications. This particular case, involving the River Ridge neighborhood in Boone County, Ky., spanned more than 20 years — from the time the community was developed until the homeowner filed suit in 2004. In that case, the homeowner did not make a request for change until his neighbor had made extensive modifications that were similar to his own.
The trial court held that the lawsuit was barred by laches, noting that the homeowner failed to act on opportunities to control the situation as it occurred over a twenty-year period. Specifically, the trial court found that the plaintiff waited the better part of 20 years to inquire about modification approvals on the same day that he filed suit, paying no heed to the architectural committee process that would have protected his interests. Furthermore, because the plaintiff’s delay led to significant hardship suffered by future homeowners as they attempted to sell their homes, the trial court and Supreme Court, respectively, refused to grant relief. Therefore, the developer and original builder were allowed to retain the authority defined in the declarations.
In cases where challenges to rules or declarations are brought after a significant lapse of time, owners would be wise to consider the impact of the passage of time on their rights before deciding to pursue a claim. Having met their burden, owners can prevail in a limited number of cases; however, the denial of relief becomes more likely when an owner’s delay resulted in hardship to other neighbors.
Amending HOA Bylaws
The process for the association to amend its Bylaws is set forth in the Bylaws themselves. Prior to any changes being made, a meeting must be held by the association’s Board of Directors and notice of the time and place of the meeting must be given "to each member of the Corporation." Not less than fourteen (14) days prior to the meeting, the Board or a committee should deliver or mail to the members of the association, at their last known addresses, a notice stating "the date, place, and time of the meeting at which the proposed amendment or amendments will be considered." The amendment(s) shall (1) "be approved by an affirmative vote of two-thirds of the voting power of the Corporation or, if there is more than one class of Members of the Corporation, by a (2/3) two-thirds of the entire voting power of each class of Members of the Corporation , " unless the Declaration or other governing documents require that the amendment(s) be approved by a larger proportion of the votes; (2) be signed by either the existing secretary or the secretary’s successor; and (3) be mailed to the members within a reasonable time after the amendment(s) has/have been adopted.
If the package of amendment(s) was sent to the members in accordance with Bylaws, an amended package of amendment(s) when mailed again in accordance with the Bylaws will not be required; however, if the package of amendment(s) was not mailed to the members in accordance with Bylaws, an amended package of amendment(s) will be required, regardless of whether the package of package of amendment(s) was mailed to the members at a prior time in accordance with Bylaws.
HOA Bylaws vs CC&Rs
Just because the developer of a community, or even the members of the community, seek to enforce certain provisions of the bylaws does not mean that such provisions of the bylaws are legally enforceable under Virginia law. To provide more clarity, since a set of community rules and regulations like the bylaws often have vague language, not all of the provisions of the bylaws are necessarily legally enforceable. For example, how do the bylaws at issue define the term "enforceable" and what parties are allowed to enforce (e.g., Board, members, owners, or a combination thereof)? In this context, it is also important to discuss the differences between HOA bylaws and Covenants, Conditions, and Restrictions ("CC&Rs"), which are specified in the HOA documents (e.g., Declaration of Covenants, Conditions, and Restrictions, Covenants, Conditions, Restrictions, Declaration of Covenants) or by Virginia law as specific rules that address issues like nuisances, restrictive covenants, design review, paint colors, noise concerns, signage, and satellite dish installation.
Both legal documents are subject to the provisions of Virginia law set forth in Chapter 26 of Title 55 (specifically, Title 55, Chapter 26 of the Code of Virginia, commonly referred to as the Virginia Property Owners’ Association Act, or VPOAA). It is important to note that while HOA bylaws go further than the scope of the Virginia Property Owners’ Association Act and designate specific procedures which the association and members must follow, the CC&Rs are not subject to the provisions of the Virginia Property Owners’ Association Act. As a result, while both legal documents are significant, the bylaws must follow the requirements of the Virginia Property Owners’ Association Act, while the CC&Rs are not only governed by Chapter 26 of Title 55 of the Code of Virginia, but also the Declaration of Covenants, Conditions, and Restrictions (which generally has a clause that states that the CC&Rs will run with the land), and the documents governing the community, if any.
Legal Tips for Homeowners
At some point you may consider seeking legal advice regarding the governing documents or your Homeowner’s Associations. The following is a guideline of issues that you should consider and caveats you should be aware of when obtaining legal advice regarding HOA Bylaws.
Purely Legal Issues
Clarifying your legal rights or responsibilities under the HOA Bylaws. While it may seem obvious to you, it is not uncommon for our attorneys to clarify what a specific section of the HOA Bylaws means. Of course, while we may refer to other relevant sections of the Bylaws and offer advise regarding how it all works together, our focus is on your specific Bylaw question.
Issues not governed by Statute
The HOA Bylaws are not governed by Statute. As a result there is no regulatory agency or board to which you can lodge an official complaint if the provisions of your Association’s Bylaws are being ignored. It generally appears to be up to the members of the Association to police their associations compliance with its own rules (Bylaws).
Legal Advice Regarding your HOA Board or Officers
Generally Thai Law Group , PLLC will not be retained to advise or represent individual HOA officers or Board of Directors in the course of their HOA duties. We are generally retained to represent the HOA entity as a whole. Further, we will not be representing you as an individual other than in the capacity of a unit owner.
Legal Remedies available to HOA Officers and Boards.
Sometimes conflicts arise when an HOA needs to take legal action against a Member in order to enforce the provisions of its Declarations. This can include anything from collection action to injunctive relief. In the event the HOA’s efforts to remedy the problem have been exhausted, or the HOA’s member(s) have refused or otherwise failed to comply the HOA may need to seek legal recourse.