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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

How important are state statutes and case decisions in governing your HOA?

We discussed Governing Documents for homeowners associations and Governing Documents for condominium associations. These governing documents for your community association must be read in conjunction with certain state and federal laws. In this article, we will discuss those relevant laws that must be considered by your HOA.

Obviously, your association is governed by Virginia laws and federal laws.  In particular, you should be familiar with the following:

First, Property Owners Associations (commonly known as Homeowners Associations) are governed by the following Virginia statutes:

Next, Condominium Associations (commonly known as Unit Owners Associations) are governed by these Virginia statutes:

Sometimes we may be concerned that your governing documents conflict with an applicable Virginia statute.  In such a situation, the relevant Virginia statute will prevail over your the terms of your governing documents. Therefore, it is important that your experienced HOA attorney reviews with you your governing documents and the relevant statutes to determine whether your documents do actually conflict with the statute.  For example, portions of the Virginia Nonstock Corporation Act include language that prefaces the statute, such as, “…[u]nless the articles of incorporation or bylaws provide otherwise,….”  In those instances the provision found in your articles of incorporation or bylaws would control even if it conflicted with the balance of the statute.

Your analysis of your governing documents does not stop with Virginia statutory law because judicial decisions impact your community. If your documents or a statute conflicts with a Virginia case decision on the particular issue, the case law will prevail over your governing documents. Although there are not many Virginia cases for community associations, your HOA attorney must be vigilant to keep you informed of possible changes in the interpretation of your governing documents.

In conclusion, the following list provides the hierarchy of authority for governing your community association:

  1. Case Law and Statutes;
  2. Declaration and Plats;
  3. Articles of Incorporation;
  4. Bylaws;
  5. Rules and Regulations;
  6. Resolutions

When questions arise, ask your experienced HOA attorney to provide you with support and guidance.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

Susan Tarley

Susan Tarley

Susan Tarley

Susan chairs the firm's common interest community (HOAs and Condos) practice area. She was admitted into the College of Community Association Attorneys (“CCAL”). Susan is one of fewer than 150 attorneys nationwide to be admitted to CCAL, for distinguishing herself through contributions to the evolution or practice of community association law.

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Filed under: Common Interest Community, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association by Susan Tarley

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