Practice Pointers

Charge Checklist: Don't Leave Home Without It

Assessing charges against a member for a violation of the declaration or the rules may be an effective enforcement tool without initially involving the courts. However, it is a statutory remedy loathed by the courts. Associations are required to be perfect. Listed below are some common problems faced by associations along with the related authority, as follows:

AUTHORITY

Verify you have the correct owners by examining the deed or by calling the local office of the tax assessor
Adopt a resolution on charges – the documents alone are not enough
Refer specifically to the statute and any supportive provisions in the documents
All rules must be reasonably published or circulated throughout the development

Source:
Va. Code Ann. Sec. 55-513(A) or Sec. 55-79.80:2
Unit Owners Association v. Gillman(1982)(Virginia Supreme Court) Lake Monticello Owners Association v. Lake (1995)(Virginia Supreme Court) Skeen v. Indian Acres Club (1992)(Spotsylvania Circuit Court) Jefferson Green Condominium Unit Owners Association v. Kessler (1993)(Fairfax Circuit Court)
Comments:
The courts, including the Virginia Supreme Court, have made it clear that the authority to assess charges can only be granted by the Legislature. There is even a strong argument that this power cannot be granted to private associations (See Gilmore case and article).

DESCRIPTION

Refer to the amount imposed as a charge
It may be treated as an assessment
Never refer to the amount as a fine
Describe the activity that is in violation of the documents and refer to the sections
Charge should be documented in the ledger so that the time period and amount is clear

Source:
Va. Code Ann. Sec. 55-513(A) and (B) or Va. Code Ann. Sec. 55-79.80:2
Rolling Valley Professional Center Unit Owners Assn. v. Wilson(1995)(Fairfax Circuit Court)
Comments:
Prior to its enactment, the Virginia Attorney General stated that a statute that referred to "fines" was unconstitutional. The language was changed to "charges". It has not been challenged on this basis since. The charges may be treated as assessments, according to the statute and may also be included in a memorandum of lien.

NOTICE OF HEARING

Follow the notice rules set forth in the statute and documents on hearings
Send notice at least fourteen (14) days in advance of the hearing date
The statute requires hand delivery or mailing by registered or certified mail

Source:
Va. Code Ann. Sec. 55-513(B) or Sec. 55-79.80:2
Comments:
In addition, sending the Notice of Hearing of regular mail is also a good idea and indicated whether the mail came back as addressed or not.
Hearing Comments:
The association should present their case. It is important for the governing body to listen and keep an open mind…it is after all a hearing.

LIMITATIONS

Limits are $50 for a single offense and ninety days ($900 total) for continuing offenses
A defense of latches or statute of limitations may be raised if associations sit on their rights

Source:
Va. Code Ann. Sec. 55-513(B) or Sec. 55-79.80:2

CHOICE OF REMEDIES

Charges of $50 for a single offense or $10 per day for a continuing offense – not both

Comments:
The statutory language states that a choice must be made between a one-time violation and a continuing violation. Further, there is an unreported case in southwestern Virginia that states that imposing charges is a choice of remedies that precludes injuctive relief. It is rare that both items are requested of the courts and such a finding is a possible outcome of litigation.

NOTICE OF FINDING

The statute requires hearing results to be hand delivered or sent by certified mail within seven (calendar) days

Source:
Va. Code Ann. Sec. 55-513(B) or Sec. 55-79.80:2
Comments:
The letter, stating the finding of the governing body, alerts the owner to the finding and that the charge is potentially continuing. The statute imposes another hurdle for associations.

SUSPENSION OF CHARGES

The statute requires that charges not accrue while any challenging suit is pending

Source:
Va. Code Ann. Sec. 55-513(B) or Sec. 55-79.80:2

SUSPENSION OF USE OF FACILITIES OR SERVICES

Same rules about notice, hearing, results, etc. apply
Access to the lot through the common area may not be precluded
Suspension may not endanger property and owner or tenant

Source:
Va. Code Ann. Sec. 55-513(B) or Sec. 55-79.80:2

COURT

A witness to the violation is usually needed
Charges may be treated as assessments and combined with annual assessments