Community Associations Newsletter - May 2017
What Happens When Local Ordinances Conflict with your Governing Documents? – A Survey of the Conflict of Law Provisions for the Northern Virginia & Fredericksburg Areas
By Chad Rinard, Esq.
Every city or county in Virginia has published ordinances that restrict their residents’ home construction and lot use in a subdivision. Authorized by Virginia Code[1], a city or county may adopt the ordinances it needs to perform its obligations. To assure the orderly subdivision of land in the city or county, achieve the goals of a comprehensive development plan, or implement the Chesapeake Bay Preservation Act, subdivisions have been the subject of countless ordinances. Not surprisingly, so many ordinances cover a wide range of topics, and each is accompanied by a remedy for the local government to ensure compliance, often via an agency that will receive and investigate complaints.
In addition, recorded covenants unique to a condominium or property owners’ association restrict residents’ home construction and property use. Therefore, the restrictions of ordinances and covenants are bound to overlap, and many aspects of community associations are subject to these overlapping restrictions, including balconies, carports, decks, driveways, fences, height limits, home businesses, home improvements, lot size, maintenance, monuments, noise levels, nuisances, parking, open areas, outdoor lighting, pets, private roads, setback requirements, sheds, snow removal, signs, storm water management, towing, and trees.
What happens when an ordinance restriction and conflicts with a covenant in an association’s governing documents? In the event of a conflict, most cities and counties have an(other) ordinance that says the more restrictive ordinance or covenant shall prevail, and other cities and counties have said that their ordinance prevails. A board of directors therefore will have a choice when dealing with a conflicting ordinance and covenant that may well be resolved depending on the law of the city or county in which it sits.
For example, if Prince William County allows most fences in a rear or side yard to be built to a maximum height of six feet;[2] Arlington County allows most fences to be up to seven feet;[3] and Spotsylvania County allows as much as ten feet for most fences;[4] then community associations in those counties will need to be aware of their respective local government’s ordinance to set or adjust its own association’s maximum fence height at respectively six, seven, ten feet, or less.
This conflict is also relevant to covenants enforcement. An association’s board of directors may find an owner in violation of the restrictions of an ordinance or a covenant, and seek to bring that owner into compliance. But, which restriction should the board choose? On one hand, the board lacks authority to enforce the restriction in a local ordinance against an owner in violation, and will have to file a complaint with the appropriate city or county agency to investigate. On the other hand, the board certainly has the authority to enforce the restrictive covenants for its association, and may choose to proceed after it has weighed the costs and benefits to do so without the assistance of the local government. Below is a survey of the law from several local cities and counties for associations and their councils or boards to consider when addressing ordinances and covenants that conflict.
Loudoun County, Prince William County & Fairfax County
Loudoun County, Prince William County, and Fairfax County are clear that the restrictions in their ordinances for subdivisions do not abrogate an agreement among private parties such as the restrictive covenants in a declaration between owners and their association. In each of these counties, if a respective county ordinance is more restrictive or imposes a higher standard than a private covenant, then the ordinance governs. However, when the covenant is more restrictive, it controls, provided that it is consistent with the ordinance.[5]
An association’s council or board of directors located in any of these counties should determine whether an ordinance may impose a different standard than a pertinent covenant. It also will need to be aware of any ordinance that overlaps with a covenant that it wishes to enforce against an owner in violation; before amending its covenants; or, before expanding on any existing covenants with the adoption of a rule, regulation, or architectural guideline. Identify and address any conflict now to make a defensible restriction going forward.
City of Alexandria
The City of Alexandria does not currently have a conflict of law provision for when an ordinance and covenant conflict. Association board and council-members in Alexandria should seek legal counsel before enforcing, amending or adding covenants in conflict with an ordinance.
Arlington County
In Arlington County, if a county’s zoning ordinance imposes either a greater or lesser standard than a covenant upon the use of buildings or premises, the height of buildings, or the size of yards, courts or other open spaces, then the more restrictive standard controls. [6]
An association’s council or board in Arlington County will similarly wish to be aware of any ordinance that overlaps with a covenant it wishes to enforce against an owner in violation; before amending its covenants; or, before expanding on any existing covenants with the adoption of a rule, regulation or architectural guideline more restrictive than the County’s standard.
Stafford County
Any subdivision ordinance more restrictive than an agreement among private parties such as the covenants in a declaration between owners and their association controls in Stafford County.[7] An association’s board in Stafford County is best to give deference to any pertinent ordinance more restrictive than its own covenant and it may wish to avoid amending the same or adopting a rule, regulation or architectural guideline less restrictive than the County’s standard. A council or board in Stafford County is still encouraged to enforce any covenant that may be less restrictive than a pertinent ordinance as it is not logical that an owner can assert an association is not authorized to enforce its own covenant even if it is less restrictive than the County’s standard.
City of Fredericksburg
Fredericksburg says that its ordinances govern the use, development and subdivision of buildings, structures, and land.[8] It may therefore be best to enforce covenants, to amend covenants or to adopt rules, regulations and architectural guidelines that are in harmony with the City’s ordinances.
Spotsylvania County
Spotsylvania County’s subdivision and zoning ordinances cannot abrogate a covenant. If a County ordinance imposes either a greater or lesser standard than a covenant, then the more restrictive standard controls. No ordinance may be used to repeal a covenant, nor may a less restrictive covenant excuse an owner’s failure to comply with an ordinance. [9]
An association’s council or board in Spotsylvania County should be aware of any ordinance that overlaps with a covenant before it enforces that covenant against a noncompliant owner; amending its covenants; or expanding on any existing covenants with the adoption of a rule, regulation or architectural guideline. Adopted standards that are either the same or more restrictive that the County’s standard should make defensible restrictions going forward.
***
When the restrictions of a city or county ordinance and an association’s covenant conflict, a council or board will always have a choice. To amend a covenant or expand upon it by adopting a rule, regulation or architectural guideline, a council or board should weigh the risk of a more restrictive covenant, rule, regulation or architectural guideline than the standard adopted by the city or county. A council or board will further need to weigh any potential conflict in the restrictions of a city or county ordinance and a restrictive covenant when deciding to proceed against an owner in violation. Legal counsel will be available to make recommendations to the council or board on how best to reconcile a covenant with an overlapping ordinance. Council and board members should contact their association’s manager to identify pertinent local ordinances, and consult with legal counsel as conflicts with the association’s covenants arise.
[1] Virginia Code § 15.2-1425.
[2] Prince William County Ordinance § 32-300.02.
[3] Arlington County Zoning Ordinance § 3.2.6.
[4] Spotsylvania County Ordinance § 23-5.2.2.
[5] Loudoun County Ordinance § 1241.09; Prince William County Ordinance §§ 25-7 & 32-200.05; and Fairfax County Ordinance § 101-1-7.
[6] Arlington County Zoning Ordinance § 1.4.1.
[7] Stafford County Ordinance § 22-45.
[8] Fredericksburg Ordinance § 72-15.2 (B)
[9] Spotsylvania County Ordinance §§ 20-2.1.2 & 23-2.1.3.
Maryland Common Interest Communities 2017 Legislative Changes
Below we have outlined the substantive legislative actions taken by the Maryland General Assembly over the course of the most recent legislative session. We have included legislation that impacts both homeowners and condominium associations for a comprehensive view of the laws affecting community associations in Maryland generally. The below-referenced legislation takes effect October 1, 2017.
Amendment of Bylaws and Declaration
The threshold percentage of affirmative votes required to amend the bylaws of a condominium and the declaration of a homeowners association has been changed to sixty percent (60%), or a lower percentage if allowed by the governing documents, of voters in good standing. “Good Standing” is defined as not being more than 90 days in arrears in the payment of any assessment or charge due to the condominium or homeowners association. The previous minimum standard to amend the bylaws of a condominium was a two-thirds (2/3) majority and in a number of declarations for homeowners association, the threshold can be higher than three-quarters (3/4). These changes are significant because they make the process easier for older associations who need to amend their governing documents to bring them up to present-day standards.
Mortgagee/Lender Foreclosures
Notice of Foreclosure
This legislation places an obligation on a person authorized to sell residential property subject to foreclosure to file a notice of foreclosure with the Department of Labor, Licensing, and Regulation (DLLR) in the Foreclosure Property Registry. Notably, these foreclosure notices are generally not public record. However, the legislation expressly provides that the department or jurisdiction that maintains the respective registry may provide information in the notice of foreclosure to a homeowners association or condominium in which the subject property is located. This is useful to Associations for purposes of contacting the record owner as it pertains to any issues related to assessments, maintenance and security.
Notices of Foreclosure Sale Postponement or Cancellation of Foreclosure Sale
This is another requirement that is placed on those authorized to sell residential real property. A foreclosing party will now, in the event of a postponement or cancellation of a foreclosure sale, have the obligation to send, within fourteen (14) days of the subject foreclosure sale, notice that the foreclosure sale was postponed or canceled to the record owner and to a condominium or homeowners association. This notice requirement helps Maryland community associations track the status of pending foreclosure actions and assists in the identification and collection of delinquent assessments.
Expedited Foreclosure of Vacant and Abandoned Property
The provisions of this law allow a secured party to petition a circuit court for leave to immediately commence an action to foreclose a mortgage or deed of trust on residential property if the property is vacant and abandoned under specified circumstances. It also requires: a secured party send a copy of the specified petition to specified persons under specified circumstances; and, a court to rule on a specified petition promptly after the petition is filed. The law will be applied prospectively on October 1, 2017. This is another assist to Maryland community associations as the ability of a secured party to move more quickly through the foreclosure process helps to eliminate potential maintenance and security issues at a property, and stem the accrual of delinquent assessments and charges related to the collection thereof.
Sale of Common Elements and Common Areas
The legislature has placed an obligation on the governing body of a community association, and under specified circumstances, the developer and/or declarant to provide written notice to the community association’s membership no less than thirty (30) days before the sale of any common element property, including the sale of real property via tax sale. The notice portion of this law is satisfied by providing written notice about the sale to each owner; or posting a sign about the sale on the property to be sold, in a manner similar to signage required for a zoning modification; and, if the community association has a website, providing notice about the sale on the home page of the website of the community association.
Inspection Fees for Resale of Lot
This law authorizes a homeowners association to charge a reasonable fee not to exceed fifty dollars ($50.00) for an inspection of a lot owner's lot if the inspection is required by the governing documents of the homeowners association at the time a lot is being sold.
Rear-View Mirror Obstructions
This new statute relates to parking hang tags or permits issued by Associations. Beginning October 1, 2017, a driver may not drive a vehicle on a highway with any object, material or obstruction hanging from the rearview mirror that interferes with the clear view of the driver through the windshield. Associations should consider an alternative such as a sticker or decal system for regulation and enforcement of Association parking.
Proposed Legislation that DID NOT Pass
Some noteworthy legislation which did not pass include: a ban on smoking tobacco within a condominium unit or townhome; a state licensing system for community managers; state registration of community associations not already registered in their local jurisdiction; limitations on the enforcement of developer construction warranties; required periodic replacement reserve studies; and limitations electric vehicle charging stations and backyard gardens.
If you have any further questions or would like to inquire more about Whiteford, Taylor and Preston, LLP’s community associations practice, please feel free to contact our office at (301) 804-3610.
Virginia: 2017 Legislative Update for Common Interest Communities
The Virginia General Assembly approved a number of bills during its 2017 legislative session. Several of the bills impact, directly or indirectly, common interest communities. The Governor of Virginia signed the following bills into law in March and the new laws will take effect on July 1, 2017. We have outlined the substantive legislative action taken by the Virginia General Assembly that impacts both homeowners and condominium associations.
The following bills amend the Virginia Property Owners’ Association Act (Va. Code Ann. 55-508, et seq., as amended (1950)), the Virginia Condominium Act (Va. Code Ann. 55-79.39, et seq., as amended (1950)), and other statutes that may affect common interest communities. Please feel free to contact us if you have questions regarding any of the following legislative changes.
Amendment to the Declaration
House Bill 1554 amends § 55-515.1 of the Property Owners' Association Act (POAA). The bill is in response to the February 2016 Virginia Supreme Court decision in Tvardek v. Powhatan Village Homeowners Association, Inc., which analyzed the voting and certification requirements necessary to make an amendment effective. The amended POAA now provides that, except as otherwise provided in the declaration of a property owners' association, an association may amend its declaration by a two-thirds vote of the owners. Under the bill, an action to challenge the validity of an amendment may not be brought more than one year after the amendment is effective. The bill further clarifies that an amendment becomes effective only when recorded, with the requisite certification, among the County land records.
Additionally, the bill provides that amendments recorded prior to July 1, 2017 are not affected by the voting or recording requirements set forth in subsections (D) and (F) of POAA § 55-515.1.
Virginia Fair Housing Law Updates
House Bill 2006 amends and adds to the Virginia Fair Housing Law (Va. Code Ann. §§ 36-96.1, et seq.) in an effort to (1) clarify the requirements and procedures for providing a reasonable accommodation for a disabled person with an assistance animal and (2) establish procedures for addressing all reasonable accommodation requests made by disabled persons. It is worth noting that the new statutory language adds obligations for housing providers beyond what is required by the federal Fair Housing Act.
For individuals requesting a reasonable accommodation for an assistance animal, HB 2006 provides an updated definition of “assistance animal,” which includes untrained, emotional support animals and which states that all assistance animals are not pets. As a result, associations with limits on the number of pets will not be able to include either service animals or emotional support animals in the number of pets the resident has in the unit. For example, if an association has a two pet limit and the resident already has two pets, the association will have to allow a third animal in the unit if it qualifies as an assistance animal for which the disabled owner needs a reasonable accommodation.
The bill also establishes a process through which a person with a disability may submit a request for a reasonable accommodation to maintain an assistance animal in a dwelling, including the submission of supporting documentation verifying the disability and disability-related need for an accommodation. Associations are prohibited from charging a pet fee or deposit or any additional rent to maintain an assistance animal, but the resident remains responsible for any damages caused by the animal.
HB 2006 broadens the class of persons that can provide reliable documentation of the resident’s disability. Now, anyone in a “therapeutic relationship” with the disabled individual can provide information about the disability. A “therapeutic relationship” is defined as the provision of medical care, program care, or personal care services, in good faith, to the person with a disability by (i) a mental health service provider, (ii) an individual or entity with valid, unrestricted state license, certification, or registration to serve persons with disabilities, (iii) a person from a peer support or similar group that does not charge service recipients a fee, or (iv) a caregiver, reliable third party, or government entity with actual knowledge of the disability. Associations will now have to be open to accepting documentation of the disability from persons who may not have a particular expertise in the diagnosis of disabilities, but who has actual knowledge of the requesting resident’s disability.
Finally, HB 2006 establishes procedures for any disabled person to request a reasonable accommodation from a housing provider, which is consistent with the requirements of the federal Fair Housing Act with one notable exception. If a disabled individual requests an accommodation, the association can propose an alternative that meets the individual’s needs and is reasonable. But if the disabled individual’s original requested accommodation is reasonable and the individual does not want to accept the alternative accommodation, he or she is entitled to reject the alternative accommodation offered and to insist on the originally requested accommodation. This new requirement will limit associations’ ability to negotiate accommodations that, while meeting the disabled owner’s needs, will have less of an impact on other owners.
Please feel free to contact our office if you have any questions regarding a request for reasonable accommodation.
CICB Disclosure Packet
House Bill 1475 amends § 54.1-2350 of the Code of Virginia, relating to the Common Interest Community Board (“CICB”). The bill requires the CICB to include a statement in association disclosure packets that the purchase contract for a lot within an association is a legally binding document once it is signed by the prospective purchaser where the purchaser has not elected to cancel the purchase contract in accordance with law. This requirement simply reiterates the point that buying a home within an association subjects the owner(s) to the restrictive covenants of the homeowners association.
For Sale Signs and Power of Attorney
House Bill 2045 amends §§ 55-509.4 and 55-509.6 of the Property Owners' Association Act; and House Bill 2274 amends §§ 55-79.97, and 55-79.97:1 of the Condominium Act.
Unless provided for in the Property Owners Association Act, the Condominium Act, or the declaration, an association may not require the use of any for sale sign that is designed by the association or that does not comply with the requirements of the Real Estate Board. The association may, however, regulate the number, location, period of display, and manner in which signs are affixed to real property.
If an association currently requires the use of an association designed for sale sign, it will need to ensure that the association’s governing documents expressly require the use of an association sign. If not expressly authorized, the association will need to suspend the requirement.
The bills also restrict an association’s ability to require an owner to sign a formal power of attorney if the owner designates a real estate licensee as the owner’s authorized representative. The association must recognize such authorized representation without a formal power of attorney, provided that the association is given written authorization signed by the owner designating such representation.
Complaints Regarding a Resale Disclosure
Certificate or Disclosure Packet
Under House Bill 2045, any person aggrieved by an association’s failure to deliver a resale certificate or disclosure packet may file a complaint with the CICB. This includes complaints from a realtor, or any party who claims to have been aggrieved, in addition to the seller or potential purchaser. House Bill 2045 and House Bill 2274 further authorize the CICB to assess a monetary penalty against the association or its common interest community manager for failure to deliver the association disclosure packet within the required timeframe.