Defending the Constitution: VA, yes; AZ, no

With the removal of the statutory imposed right of an HOA to fine members from Virginia’s  HB 791, the VA legislature demonstrated that it stood behind the separation of powers doctrine of the US and VA constitutions.

I had written VA Rep. Suorvell and Senator Petersen, who opposed the bill as it was written, about the Virginia Supreme Court’s findings in Gillman v. Unit Owners, which said HOA fines were unconstitutional.

In Gillman the Virginia Supreme Court held,

We do not agree that it was ever the intent of the General Assembly of Virginia that the owners of units in a condominium be a completely autonomous body, or that such would be permitted under the federal and state constitutions. Admittedly, the Act is designed to and does permit the exercise of wide powers by an association of unit owners. However, these powers are limited by general law and by the Condominium Act itself.

The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment. . . . We think it clear that the Gillmans were being punished, not assessed, and hold the action of the Association to have been impermissible.

 And very importantly from a constitutional point of view (my emphasis), “A condominium restriction or limitation, reasonably related to a legitimate purpose, does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied.”

Sadly, the Arizona Legislature is still trying to pass for a 4th and 5th time (two versions of last year’s trice defeated HB 2371/SB 1454).  It would allow unlicensed and untrained HOA property managers to represent HOAs in small claims court and in administrative hearings;  but not allow the homeowner a third-party representative, violating the equal application of the laws and no special laws for special groups provisions of the US and AZ  constitutions.

What is the legitimate AZ government purpose to selectively deny homeowner equal representation?  Does it reasonably promote good public policy?

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Published in: on March 7, 2014 at 3:35 pm  Comments (8)  
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  1. What can be done to ensure an HOA in VA operates in accord with its Declaration when its BoD resolutions are in conflict with Articles of Incorporations and its Declaration i.e. the Association Documents?

  2. Virginia’s HB 791 did not remove the statutory imposed right of an HOA to fine members. HOA attorneys are smart and have overcome this ruling by drafting language to HOAs to change the charter. They combined the right to fine with the right to charge small fees for administration of service enabling monthly payment of dues verses annual lump sum payments. The HOA sold changes to the HOA charter through an intense marketing campaign emphasizing authority to charge the fees and actually targeting authority to levy the fines. The campaign stated that because of HB 791, the HOA would not be able to charge $2.00 monthly fees to cover administration costs to processing the installment homeowner monthly payments of dues. Unless the homeowners voted to amend the charter enabling fines, they would not be able to make monthly payments. A majority of homeowners voted for the language and the HOA has reinstated levy of fines at the rate of $10.00 per day for up to 90 days. Two questions come to mind – Did HB 791 actually apply to fees for service or was it limited to fines? Does the minority still need to be subjected to fines?

  3. VA supreme court actually understands! The entire concept of fining Association members for various transgressions, real or imagined, is flawed. When I was a kid, I used to hate it when someone made up the rules on a whim, and expected others to play along. We used to say, “who died and made you the boss?” Kinda like HOAs.

  4. The key to success in HOA legislative actions is: Knowledgeable legislators. When we worked on the bill in Kansas the three key legislators working with us all lived in HOAs. One had lived in my HOA years earlier. It’s a hopeless battle if the legislators cannot see the situation from the HOMEOWNERS side of the fence. They are not all brilliant people and analogies help them understand.

    George, once again you have helped others understand the need to change that bill so it did not further the disaster that HOAs have become today. When you helped them, you helped us all. Thank you so much!

    • Thanks Nila. I agree that the education of legislators, and the media, is very important to achieving HOA reforms. They have some 22 years (since 1992 when CAI became a trade group for lobbying) of pro-HOA propaganda that must be set straight.

    • The key to success in HOA legislative actions is: Knowledgeable legislators….It’s a hopeless battle if the legislators cannot see the situation from the HOMEOWNERS side of the fence. They are not all brilliant people and analogies help them understand.

      Yes.

      But a large fraction of (if not most) legislators are lawyers, so they’re more likely to see things from the industry attorneys point of view. Ben Barton wrote about a lawyer-judge bias, documenting how judges are sympathetic to the legal professional, because judges used to be lawyers. See

      – his book, The Lawyer-Judge Bias in the American Legal System (2010). 312 pages long, and $90.

      – his paper, “Do Judges Systematically Favor the Interests of the Legal Profession?” (2007). 45 pages long, and free.

      – his video interview (2011). 12 minutes long, and free.

      Many legal outcomes can be explained, and future cases predicted, by asking a very simple question, is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

      I think the same can be applied to legislators. Look at legislation (including H.O.A. legislation) and ask who it benfits.

      – robert at madison hill hoa dot com

  5. What about the HOA protection from Breach of Contract protection. I notified Colony North of a Breach of Contract because they would not provide me services for 1 1/2 years because the house next to me was in decay because it had been abandoned for so long. I refused to pay (1) membership fee for $135.00, and the court awarded the HOA $7,000. I tried to pay the debt before and during the filing, but they kept sending my check back, because the HOA refused to to accept the money unless I sign papers saying they were not in violation of the contract. We have decided to move out of this state by the end of March. Anyone who values freedom and the Constitution should do the same.

  6. With the removal of the statutory imposed right of an HOA to fine members from Virginia’s HB 791, the VA legislature demonstrated that it stood behind the separation of powers doctrine of the US and VA constitutions.

    I had written VA Rep. Suorvell

    Scott Surovell was also the attorney who represented the Farrans in Farran v. Olde Belhaven Towne Owners’ Association. If I understand the situtation correctly, HB-791 was an attempt by the C.A.I. to prevent similar rulings in the future.

    So in Virginia, there is a legislator who is personally knowledgeable about, and has a personal incentive to defeat, this type of legislation. It’s a rare circumstance, and I don’t expect that other home owners in other states aren’t going to be so lucky in the future.


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