Homeowner cannot be forced to join a voluntary HOA
In a case from the Chesterfield Circuit Court, the circuit court judge determined that a homeowner could not be forced to pay association dues to a voluntary association. This result is not surprising.
When we purchase real estate, we take that real estate subject to all the restrictions on the property recorded in the land records. Therefore, if we purchase property that has a recorded easement over it, we must honor that easement. Similarly, when we purchase a lot in a subdivision governed by a mandatory homeowners association, we must honor the rules set forth in those recorded documents, including the payment of dues.
This scenario was different. Like some of our homeowner associations in the Williamsburg area, the Chesterfield neighborhood had a voluntary association. Voluntary associations were more prevalent until the late 1980’s. In those associations, lot owners voluntarily pay money for the upkeep of the common areas. However, the recorded declaration did not obligate any lot owner to make those payments. Pursuant to the declaration, the Chesterfield neighborhood held a vote to make the association mandatory, and the required majority voted for it. However, the court determined that to convert a voluntary association to a mandatory association, all of the lot owners had to vote for the change.
For the most part, the law of restrictive covenants is governed by contract law. Simply stated, when the Chesterfield homeowner purchased the home, he did not enter into a contract to pay mandatory homeowner dues. The Court determined that obligation cannot be forced upon him, because there was no provision in the association documents that permitted such a result, without 100% agreement of the lot owners.
This case should not have any effect upon the laws governing common interest communities, but it does point out the limitations upon voluntary associations to care for common area. If those voluntary associations need to make a significant capital expenditures for repair or maintenance, the financial burden may fall upon a few to make that contribution.
We represent several voluntary associations that have faced these same issues. Although the actions of the Chesterfield neighborhood are understandable, the judge’s decision seems to be consistent with Virginia law.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
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John Tarley
John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.
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Dear John,
Thank you for publishing your article entitled Homeowner cannot be forced to join a voluntary HOA.
My wife and I are longtime residents in a 70-year old subdivision. In 2008, a group of homeowners filed Articles of Incorporation with the SCC. This corporation formed a voluntary HOA, to which we and a number of other longtime lot owners decided not to join.
This month a proposed Declaration of Covenants and Conditions was sent to all subdivision lot owners that makes membership mandatory and included the fact that liens would be levied for non-payment of dues.The forwarding letter asked for a YES or NO vote and indicated that the proposed document would be recorded if a two-thirds vote was achieved.
I have drafted a response to the Directors with a copy to all lot owners that uses the findings in the Chesterfield Circuit Court case.
Respectfully Submitted
Carmen