If you work with community associations in Virginia as a board member, manager or attorney, you probably know that Virginia law permits HOA members to record any open meeting of the association. The relevant statute, Virginia Code § 55-510.1(B) of the Virginia Property Owners’ Association Act, contains one short paragraph which outlines the recording requirement as follows:
Any member may record any portion of a meeting required to be open. The board of directors or subcommittee or other committee thereof conducting the meeting may adopt rules (i) governing the placement and use of equipment necessary for recording a meeting to prevent interference with the proceedings and (ii) requiring the member recording the meeting to provide notice that the meeting is being recorded.
The provision gives associations the authority to adopt rules with respect to the recording of meetings, however, the authority to enact rules is very narrow in scope:
1. The association is permitted to establish rules regarding only the placement and use of the equipment; and
2. The member recording is required to provide notice that they are recording the meeting.
Association rules that reach farther than these two items violate the Property Owners’ Association Act according to a recent Determination issued by the Office of the Common Interest Community Ombudsman (“Ombudsman”).
An Owner is Permitted to Record Meetings
According to the October 22, 2014 Determination, a recording policy adopted by a Williamsburg HOA contained several provisions that were “in direct conflict with common interest community law.” The Ombudsman found 3 requirements of the policy that appeared to conflict with Virginia law. Specifically, the improper recording policy required owners who wished to record meetings to
i) provide 3 business days’ notice that they intend to record the meeting;
ii) make only audio recordings, no video recordings permitted; and
iii) provide a copy of the recording to the association within 1 business day after the meeting.
In making its determination, the Ombudsman pointed out that while it does not have jurisdiction over the HOA’s governing documents, the office does have the authority to order the association to comply with the Property Owners’ Association Act and to stop enforcing the overreaching portions of the policy. And that is exactly what the office did. Effective immediately, the office ordered the association
A. to permit any type of recording of future meetings,
B. to stop requiring advance notice that a member wishes to record,
C. to stop requiring members provide a copy of their recordings to the association.
Should the association continue to violate the Property Owners’ Association Act, the matter will be referred to the Common Interest Community Board for whatever enforcement action the board may deem appropriate.
This Determination should serve as a warning to HOAs: Associations only have whatever power is granted to them by law or in their governing documents. Going beyond that authority can have consequences and with the establishment of the Ombudsman, the courts may not be the only place homeowners can go to seek resolution.
Before your condominium or homeowners association enacts restrictions on recording meetings, make sure you review those policies with your experienced community association attorney.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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