June 18, 2025
Do District of Columbia Courts Apply the Business Judgment Rule?
The Business Judgment Rule (BJR) is a legal doctrine that owners must understand when dealing with their homeowners’ associations, condominiums and housing cooperatives. The BJR is a legal presumption that corporate directors’ business decisions were on an informed basis, in good faith and in the honest belief that the actions taken were in the best interest of the organization. The BJR imposes a burden upon the challenger to rebut the presumption. There are several exceptions to the BJR. Before discussing that, I would like to explain why the BJR is so heavily ingrained in the law of any organization. Generally, it is not the job of courts to “armchair quarterback” the management and internal life of private business organizations by reversing decisions that the judge or the plaintiff view to be imprudent. The same could be said for families, houses of worship, and school boards. Classical liberalism allows people to freely associate with each other as they see fit and order their own affairs, and to give up a certain measure of their own freedom or flexibility to pursue a common endeavor. The BJR is not a delegation of authority, it is a legal presumption that can be overcome by proof. Overbroad application of the BJR can undermine the property rights, free association and liberty to contract principles that the BJR is supposed to protect. To be clear, the BJR does not mean that corporate boards can do whatever they want.
The BJR is important in the community association context. It acts as a check on the idea that a single homeowner ought to be able to challenge any doubtful board decision on a theory of violation of the governing instruments or breach of fiduciary duty. The whole idea of a private association is that neither an individual director nor lot owner ought to be able to hijack the business of the collective by ignoring rules of order. I have written about the BJR in the past. On March 16, 2022, I posted, “Are Courts Critical or Deferential towards HOA Decisions?” This compared the BJR to other standards that may apply under Virginia law such as principles of strict construction or reasonableness. On April 15, 2022, I posted the article, “Condominium Director Conflict of Interests and the Business Judgment Rule.” This piece focused on a Maryland appellate decision Cherrington Condo. v. Kenney that dealt with the interested director exception to the BJR. The landowner prevailed on a challenge to a landscaping contract that favored certain townhouse owners. Maryland courts hold that the BJR applies in that state, subject to certain exceptions. Any exception to the BJR is a fact specific inquiry, especially the meaning of the governing instruments. Note that the rights to inspect books and records and attend business meetings are essential to discern whether a BJR exception may apply.
I would like to now turn to District of Columbia, which has fewer community associations. D.C. has older row houses which are usually not governed by an association. The most common types of D.C. common interest communities are cooperatives and condominiums. D.C. has its own condominium act which was based in part upon Virginia’s. D.C. does not have an equivalent to the Property Owners Association Act. D.C. has corporate statutes that impose standards of conduct on directors of corporations. However, those statutes do not always apply because many organizations are not set up as D.C. corporations. In corporate governance cases, the applicable statutes are a good place to start. The BJR is primarily a legal presumption that is used by the courts in various states to ascertain the burdens of the parties to move forward in litigation. Do District of Columbia courts apply the Business Judgment Rule? In a 2006 decision, the Court of Appeals considered a derivative action, Behradrezaee v. Dashtara, brought by a shareholder against a D.C. stock corporation, alleging self-dealing and misuse of corporate assets regarding leases by the corporation for two stores, a lease by the corporation for warehouse space, and preferential hiring practices. In Behradrezaee v. Dashtara, the Court of Appeals sent the case back to the Superior Court because the complaint adequately pleaded a derivative action based on improper refusal to pursue a claim, by reason of the directors’ interestedness. This opinion recognized the BJR in the sense that there would be little reason to find an exception if the rule did not otherwise apply.
Two years prior, the Court of Appeals decided a residential cooperative case, Willens v. 2720 Wisconsin Avenue Cooperative Association. This is an interesting common interest community case because the opinion discusses the paradox that every association board is susceptible to a conflict arising from the interests that the directors have in their own properties governed by their own votes. This raises a thorny question as to whether the reality of pervasive director interestedness warrants stricter or more relaxed application of the duty to govern impartially in the interest of the community as a whole.
In 1974, a developer established the 2720 Wisconsin Avenue CooperativeAssociation, Inc. (the Cooperative) under the D.C. Cooperative Housing Act. As a Cooperative, the members do not own their individual units. They own shares in the corporation which owns the property as a whole. The member’s ownership interest consists of corporate equity in the Cooperative. The right to occupy or sublease a particular unit derives from being a member in good standing with the Cooperative. At creation, this particular developer transferred the building to the Cooperative in exchange for a wrap-around mortgage. The Cooperative subsequently apportioned the debt on the mortgage to the individual shareholders. Plaintiffs Liliane Willens and Steven Niederman exercised their rights to prepay their obligation under the apportionment. This saved them money on interest that would otherwise be incurred if paid out periodically. Subsequently, the Cooperative negotiated with the developer to release the mortgage in consideration of various setoffs and judgments entered against the developer, a sum that it agreed to pay, and assumption of an underlying promissory note. Thereafter, the board voted to release the other members of their obligation to pay their allotted portion of the debt. However, the board gave no rebate to Willens, Niederman or the other two prepaying members. The board voted to impose a new special assessment against the “forgiven” members to replenish the reserves, but this was less than the amount that had been forgiven. Willens and Niederman brought a lawsuit against the Cooperative. The Superior Court granted summary judgment for the Cooperative, finding that the decision to cancel the debt for the other members protected by the BJR.
The Court of Appeals found that the equity interests of the members, including the plaintiffs and the directors, were in the assets of the Cooperative, including the members individual promissory notes. In this sense, a housing cooperative is a fundamentally different sort of community association from a HOA or condominium. The cancellation of the mortgage debt apportioned in the promissory notes was equivalent to the distribution of corporate assets to the shareholders. The other members, including the directors, received a distribution of corporate assets. The plaintiffs received nothing. The Court of Appeals found this to constitute a prima facie case for breach of an implied covenant of good faith and fair dealing. Also, the Court found that the claim for breach of fiduciary duty ought to have been permitted to move forward. The directors of a Cooperative owe fiduciary duties to the corporation and its members, including a duty of loyalty. An unequal treatment of shareholders may be found to violate the fiduciary duty of loyalty. The Court found that to show breach of duty of loyalty, the plaintiffs were not required to present evidence of motivation for personal gain or actions in bad faith. Even where directors act in good faith, they may unintentionally violate the duty of loyalty. Because the Court found breach of duty of loyalty, the BJR will not apply. The Court explained:
“It is,” in short, “black-letter, settled law that when a corporate director or officer has an interest in a decision, the business judgment rule does not apply.” Croton River Club v. Half Moon Bay Homeowners Ass’n, 52 F.3d 41, 44 (2nd Cir. 1995); see also Williams, 891 F. Supp. at 1183-84.
We appreciate that the directors of a residential cooperative (or condominium) association will typically be unit owners who “will rarely be wholly disinterested” in any decision the board may make. Croton River Club, supra. This may be reason enough to stick with the “reasonableness” standard of review employed in Johnson, or otherwise to be cautious in affording such directors the protections of the business judgment rule; alternatively, it may be a justification for applying the rule with a degree of tolerance for some director interestedness where cooperative and condominium boards of directors are involved.
Wherever the line should be drawn, however, we think the present case falls on the wrong side of it for purposes of deciding whether the business judgment rule applies. Without in any way impugning the good faith and integrity of the director defendants in this case, the fact remains that they had a personal economic interest in the decision they made that was in direct conflict with that of appellants and other Cooperative members in the minority. The interest and the conflict, taken together, are too blatant in our view for the business judgment rule to shield it from scrutiny. It is not only that the directors benefitted personally from their decision to cancel their own (and the majority of members’) sizable promissory note obligations; it is also that they benefitted personally and disproportionately, if indirectly and only modestly, from their concurrent decision to withhold corresponding payments from the minority of members, including appellants, who had prepaid their notes. Simply put, withholding the distribution of corporate assets (money) from the minority indirectly enriched the majority, if only because the money remained in the corporate treasury.
Willens, 844 A.2d at 1138(emphasis added). While the Court of Appeals seems to recognize the BJR under D.C. law, the “interested director” exception, while narrow, is particularly potent when it applies. This exception could theoretically be raised in many cases because every director is impacted personally by the business decisions of the board. This is because every director is subject to the rules adopted and the assessments imposed or forgiven. Generally speaking, community associations are adverse to going to trial if their directors engaged in some sort of self-dealing.
In sum, a property owner in a D.C. community association ought to be prepared to show how her claim fits into a recognized exception to the BJR to move the case forward. The interestedness of the board members who made the adverse decision is something that such a party ought to carefully consider in determining whether a claim may be brought.
Selected Legal Authority:
D.C. Code § 29-306.30. Standards of conduct for directors.
D.C. Code § 29-306.31. Standards of liability for directors.
Behradrezaee v. Dashtara, 910 A.2d 349 (2006).
Willens v. 2720 Wis. Ave. Coop. Ass’n, 844 A.2d 1126 (2004).
June 4, 2025
District of Columbia Demolishes Building After Mailing Notice of Violation
Washington, D.C. has numerous old buildings. The building owners usually want to sell, repair or renovate them. Some owners fail to adequately maintain older buildings. Over the years, the D.C. government has taken an increasingly strict approach to unmaintained buildings. In some instances, the government ignores property that causes problems for adjacent residents. The government’s aggressive approach in such matters has put owners in a bind. The owner may struggle to maintain or remodel the property while simultaneously fight off legal notices.
In 2023, the D.C. Court of Appeals decided a case, 1417 Belmont Glen Community Development LLC vs. D.C., where a property owner brought a constitutional due process lawsuit against the D.C. government for demolishing its building on safety grounds. Belmont challenged the sufficiency of the notice provided to it as the owner. The case is important to the owner or occupant of any D.C. property that has or could have a maintenance or renovation issue. D.C. property owners ought to treat Notices of Violation and Notices of Infraction with appropriate seriousness.
Belmont owned a property in D.C. with an existing building. Belmont intended to develop it into a condominium association. In 2008, the building partially collapsed. The D.C. Department of Consumer and Regulatory Affairs (DCRA, now Department of Buildings) found it to be in imminent danger of further collapse, presenting a life safety issue. In 2009, DCRA issued a notice of violation and notice to abate (NOV). The NOV directed Belmont to demolish or repair it to make it safe. The NOV quoted statutes requiring structures that are unsafe or dangerous to be taken down or made safe as deemed necessary. The NOV mentioned that the mayor may summarily correct the violations where there is an imminent threat to safety. The NOV stated that the owner ought to be provided with notice by personal service or registered mail and by conspicuous posting. The NOV included deadlines and indicated an opportunity to request a hearing.
DCRA sent out the NOV by regular first-class mail and posted it on the door of the premises. Belmont contended that it never received a copy of the NOV. DCRA did not hear from Belmont. A second major collapse occurred. Approximately three months after the NOV, the D.C. government demolished the structure.
Belmont filed a lawsuit against the D.C. government, alleging violation of its Fifth Amendment due process rights by failure to provide proper notice. Note that the Fifth Amendment applies because D.C. is a federal city and not a state. The Superior Court initially granted Belmont’s motion for summary judgment. Later, upon D.C.’s motion to reconsider, the court did a 180-degree turn, entering judgment in favor of the government. Belmont appealed.
D.C. admitted that it did not follow the statutory registered mail notice requirements that applied. On appeal, Belmont argued that D.C.’s failure to follow the local procedural requirements in connection with the deprivation of a constitutionally protected property interest amounted to a constitutional due process violation. However, federal and D.C. courts have held that the failure to follow procedural statutes does not by implication amount to a constitutional violation. An error of state (or D.C.) procedural law does not automatically implicate the constitution.
The Court of Appeals agreed with the Superior Court’s reconsidered ruling that a combination of (a) regular first-class mail and (b) posting on the property satisfied minimum constitutional due process requirements. The constitution requires “adequate” notice, not proof of “actual” notice.
What is important about this case is not merely the application of these constitutional law principles, but the question as to whether the content, form and timing of the notice provided was sufficient for the abatement action taken. Many Americans assume that robust procedural guardrails exist and must be observed before the local government can tear down the building that the owner is in the process of renovating.
Initially the Superior Court was dissatisfied with the decision of the D.C. government to raise the building when the NOV did not expressly inform Belmont that it would summarily do so if there was not a correction. The NOV was issued before, not after D.C. made a governmental decision to demolish the building. In its reconsidered ruling, the Superior Court observed that the NOV was “ambiguous” as to whether additional notice would be given before razing the building. The Court of Appeals went even further in validating the government’s powers, finding that the NOV unambiguously provided procedural due process of the imminent possibility that the government would tear down the building if Belmont failed to take action.
Note that the Superior Court and the Court of Appeals, at various times construed the legal characteristics of the NOV in different ways suggests that a homeowner attorney might also find the NOV confusing. What this appellate opinion means for owners is that the courts can be expected to construe any NOV in a manner friendly to the government’s prerogatives. It would be a mistake to assume that there would be subsequent regulatory notice of lawsuit before the building would be demolished. This does not mean that the agencies can do whatever they want. This means that property owners must exercise caution.
The Belmont opinion describes the facts in a manner that does leave the reader feeling particularly sorry for the landowner. The opinion strongly suggests that Belmont was negligent in monitoring the property. However, in other cases the facts that can be put into evidence may appear less clear 1. The statutes do not require the building to partially collapse before the government may take drastic action.
Given this appellate decision, it would be a mistake for any D.C. property owner to assume that the government would make a diligent effort to get in contact with her before taking corrective action, bring a lawsuit or a specific notice to demolish, or provide “grace” in a situation where it would be obvious that the property owner was in the process of renovating or improving the structure viewed as requiring maintenance.
Property owners can take precautions to avoid harsh results. The property owner can keep the government appraised of her best mailing address for legal notices. The owner can monitor the property for unsafe conditions or posted notices. The owner can prevent structures from becoming unsafe by conducting timely repairs. When a NOV or Notice of Infraction is posted or mailed, the owner ought not to view it as an advisory memorandum that can be ignored if it is wrong. For reasons of temperament or cultural background, some may be inclined to show their disapproval of an erroneous notice by ignoring it. This is quite risky. Any NOV, NOI or similar legal document ought to be viewed as something like a lawsuit or final court order which should be contested or appealed as legally required. On the flipside, the homeowner ought not to consider these developments to mean that if a NOV or NOI is issued, there is nothing that can be done to protect her rights. In many cases, the property owner ought to consult with an attorney to discuss what action ought to be taken. If nothing else, the Belmont case shows that simply doing nothing and seeing what happens should be avoided. Ordinarily, the property owner needs to submit a response form within a defined deadline to obtain a hearing before the agency or the Office of Administrative Hearings. As the Belmont case shows, the NOV or NOI does not necessarily need to be clear in order to allow the government to take adverse action.
One frequent issue in such matters is that the abatement or hearing request deadline stated in the NOI or NOV is inadequate to find a contractor, apply for a permit, and to abate the issue in the time allotted. The inadequacy of the time allotted forces the homeowner to either “dual track” the abatement with the legal hearing request and appeal or to abandon a legal challenge. But by abandoning such a challenge the homeowner opens herself up to drastic action like what is seen in the Belmont case.
Case Citation:
1417 Belmont Cmty. Dev., LLC v. D.C., 302 A.3d 512 (D.C. 2023).
May 13, 2025
Can the Homeowners Stand Their Ground with the HOA?
To show their prowess, lawyers try to sprinkle magical dust with a cease-and-desist letter, brokering a compromise, or strategically complying with the opponent’s requirements. Alternatively, the client needs the attorney to “show his teeth” and forcefully lead action or bring litigation. In these scenarios, decisive action provides apparent relief from acrimony, uncertainty, or doubt. This website focuses on the variety of dispute resolution techniques that an attorney may be able to assist the homeowner with.
In today’s article, I address a particular approach in HOA, condominium or neighbor disputes that does not require commitment to quick settlement or finding the fastest route to the courthouse. Can the homeowners stand their ground with the HOA? For many property owners, the best course of action may be sticking up for themselves and seeing what happens next. For example, a homeowner may believe that the accessory structure on their property that the HOA complains about today ought to remain because years ago she received an approving email or letter from a HOA representative. In another hypothetical, the declaration may not subject property to HOA regulation of trees and shrubs, because the restrictions do not speak to such things. The homeowner may not believe that a Notice of Violation for an unapproved tree planting is a legitimate violation. Elsewhere, the association may tolerate other expressive signage or decorations but find fault with the display of a particular flag chosen by the homeowner.
The person issuing the letter, email or notice may feel strongly that the “offending” item ought to be removed, and may be an officer, director, committee member or manager of the association. The homeowner may be uncertain whether she should accommodate that person’s wishes (for the sake of peace and certainty), aggressively defend themselves through a counterattack (in consideration of what they are dealing with), or find middle ground.
There are three general ways of looking at these sorts of HOA, condominium and neighborhood controversies. The first approach is that the leaders ought to take strong and direct action in dealing with miscreants. “Violators” inspire other violations. Objections to use of HOA notices of violations, fines, and other heavy-handed approaches are met by arguments that there are people upon whom due process would be wasted, and they must be prevented by legal means from ruining things for everyone. The second idea is that all problems can be solved through “restorative justice,” managing the feelings of others, and collaborative, communitarian ideals. The third is the idea that society’s institutions, including business, government, education and also community associations are corrupted in some important way. Thus, in any dispute one ought to assume that the individual being pressured or sued is probably innocent (unless proven otherwise), because this is what institutionalism does.
With HOA’s and condominiums, the second, “collaborative” view dominates the discourse. The concept of a community association is that it is a local mediating institution that makes decisions deliberatively by votes of committees or the membership. However, a “collaborative” approach does not always result in an agreement. People become frustrated by a sense of wasted time. Many HOA committees like to be “informal, while prepared to move on or impose punitive measures if they see fit. When collaborative approaches fail, boards and committees tend to rely more on executive sessions or email communications. The focus evolves into using the deliberative process in a way to manage various voices and factions within a community.
It is possible to go too far in valuing “concord” over toleration of personal dignity. I was reading something about civil unrest in the United Kingdom by journalist Sam Ashworth-Hayes. He was talking in a May 11, 2025 article about the place of free speech within the UK in the context of controversies about migrant policy. Ashworth-Hayes writes,
If you set out with the goal of minimising (sic) the risk of conflict between groups, then you will tend to police those who are easily policed, rather than those who infringe on the rights of others. . . .
Your rights, in other words, are directly related to the perceived threat your group poses. If you are largely peaceful, you will face the full force of the law as it attempts to avoid clashes between groups. If police officers are worried that a riot will result from confrontation, an offender will likely walk free. And the wider war on free speech results from the same dynamic.
Of course, disputes within HOA’s are not the same as political controversies in other countries where the fear of rioting is a factor. But the human dynamics are not dissimilar. HOA’s and condominiums tend to bring their enforcement powers down on those whom they can make a public example of. Thus, “concord” is achieved by picking sides. Ashworth-Hayes makes an important point: How one is treated in a controversy is often a product of how one presents oneself. Always seeking a “collaborative” solution is noble. But if you are completely within your rights, and someone wants you to change, if you enter into mediation with them, you may have to compromise on something important that you were never obligated to. By appearing to be helpless and weak, others will treat you like you are, rather than respecting your vulnerability.
For many homeowners, the best immediate course of action in their dispute with their HOA may be to stay the course with whatever alteration or usage they have going on, politely decline to comply with a request that is not based on a rule that must be followed, and to leave the door open to negotiation about other matters. For some people, this will not work, because some people cannot tolerate any sort of uncertainty or ambiguity in their dealings with others. Standing one’s ground may me that participation in community meetings or activities may be awkward, because they have a dispute with someone that has never been “resolved.” However, if they simply give in or escalate the conflict, the sense of alienation would not be avoided.
In discussing such an approach, the landowner may ask what sort of threats or action they may face if they simply stand their ground on something. The big threats could mean a notice of violation, a fine, a lien, foreclosure, lawsuit, or suspension of common element usage rights. However, if the homeowner is in the right, the association may be reluctant to take any sort of punitive or legal action just to satisfy a complainer. For example, an association may not have the will or resources to spend tens of thousands of dollars on pursuing a lawsuit. They may believe that filing a lien and pursuing foreclosure would open themselves up to getting sued. These concerns introduce a level of uncertainty. But the homeowner usually knows the people involved well enough to understand whether the risk is high. In other cases, standing one’s ground is not recommended because the homeowner would lose the case and suffer some sort of financial loss.
Can the homeowners stand their ground with the HOA? They may need an attorney. The homeowner’s attorney performs an important role in evaluating a course of action built around firmly but politely declining the unfounded demands of an association or neighbor. An attorney may represent the other side. The client may have never “disobeyed” a legal letter before. The risks or opportunities afforded by staying on the course may be unclear to the homeowner. The attorney may have dealt with many HOA notices or cease and desist letters before and may understand something about what is happening that the owner lacks the experience to pick up on. It may be necessary to investigate to determine how firm of a footing the client or the opponent seems to be. Attorneys sometimes communicate things to the opponent for the purpose of drawing a response that allows the client to be advised of potential further action or non-action.
April 11, 2025
Common Interest Community Law in Virginia Seminar
On May 20, 2025, I am going to present a portion of a continuing legal education (CLE) seminar about Common Interest Community Law in Virginia. The Seminar can be accessed live in Richmond, or there is also a webcast. This is geared towards attorneys. I will participate in a panel discussion about owners rights in community associations. Chad Rinard and I will focus on architectural review and covenant enforcement, providing both board and owner perspectives. This is a highly qualified group of presenters. I recommend that any Virginia attorney interested in this area of the law participate.
Common Interest Community Law in Virginia
Tuesday, May 20 | 9:00 a.m.–4:15 p.m. ET
Live Webcast + Telephone
Live on Site in Richmond/Innsbrook
Live MCLE Credit: 6.0
Title Agent Credit: 6.0 Title (live on site and webcast only)
Live on Site $329 | Web $329 | Tel $379
Cosponsored with the Common Interest Community Substantive Committee of the Virginia State Bar Real Property Section
Collaborate with experienced attorneys for a detailed and comprehensive overview of the creation and operation of Common Interest Communities, more commonly known as Community Associations.
Enjoy an educational seminar with some of the top speakers on Community Association law.
- Master new tools to enhance your practice and make you a better lawyer.
- Discover an array of solutions, both with and without the intervention of a Court, that are available for both the Community Association and the “non” Community Association lawyer.
- Network with your colleagues attending in person at our Bobzien-Gaither Education Center in Richmond/Innsbrook.
- Option to attend virtually via live-interactive webcast or telephone: attend this can’t-miss program from the convenience of your home or office and still be able to ask questions of the speakers in real time.
Faculty
Gregory S. Bean, Gordon Rees Scully Mansukhani, LLP / Williamsburg
Kristen Buck, Rees Broome, PC / Tysons
Brendan P. Bunn*, Chadwick, Washington, Moriarty, Elmore & Bunn, PC / Fairfax
Deborah M. Casey*, Woods Rogers Vandeventer Black, PLC / Norfolk
John C. Cowherd, Cowherd PLC / Vienna
Robert M. Diamond*, Reed Smith LLP / Tysons
Erik W. Fox, Rees Broome, PC / Tysons
David S. Mercer*, MercerTrigiani LLP / Alexandria
Chad Rinard, Whiteford, Taylor & Preston LLP / Falls Church
Lucia Anna Trigiani*, MercerTrigiani LLP / Alexandria
Jerry M. Wright, Jr.*, Chadwick, Washington, Moriarty, Elmore & Bunn, PC / Richmond
* College of Community Association Lawyers
Moderator
Chad Rinard, Whiteford, Taylor & Preston LLP / Falls Church
June 2025 Update:
This seminar is now available as an on-demand CLE program. For more information check this link.
March 17, 2025
Personal Development Can Improve Community Engagement
Even in situations where blame rests with the poor decision-making of other people, homeowners can reset derailed experiences with neighborhood communities through work on their own skills and relationships. Personal development can improve community engagement. When homeowners have bad experiences with their condominiums and HOAs, there is a discernment process for where to place the blame, be it certain board or committee members, neighbors, managers, attorneys, the developer, the inadequacy of the laws or the bylaws. Quite often there are reasons that can be given as to why such things are contributing to the problem and may be the primary cause. My blog primarily focuses on the use of legal methods to tackle problems external to the client’s self and family.
Having collaborated with numerous clients in HOA disputes, I have noticed connections between certain personality traits and the varied outcomes of dispute resolution. In other words, one’s motivations, behavioral patterns and personal habits can be just as important as the facts or the actions of the opponent. I previously wrote an article for this blog entitled, “Does Civility Still Matter in HOAs and Condominiums?” The answer to this question is “yes,” because improving the likelihood of a good outcome is grounded in a mindset. Here are a few reasons why:
- The right kind of engagement is helpful. The homeowner who never attends meetings, never reads their mail or emails, and does not keep records is not positioned to solve problems when they arise, because at that point what they can learn and who they can confer with will be defined by what the association is willing to share after the dispute has arisen. So those people who have collected various documents and developed relationships with other community members have an advantage in terms of meeting their needs. As a quick test, the reader may ask himself whether he is more engaged mentally with national politics or the affairs of his favorite sports team or the business of his community association.
- Bad engagement is worse than low engagement. Sending that incendiary email blast to a list of email accounts may be chock full of truth but there may be reasons why it does not solve the problem. The community may have all sorts of problems that need to be discussed. But insecure, angry or fearful mindsets do not lead to constructive communication. That may be the owner, or it may be the board. You need to have some friends and allies. When things escalate to a certain level of acrimony, it may be necessary to have a representative or filter to keep things cool.
- Motivations and goals of yourself and those surrounding you. Is this property an investment that will be sold at a foreseeable time in the future or is this the forever home that feels like an aspect of their personhood? Or a little of both? Is the community a “starter home” place or do people buy homes there that they live in until they transition to a nursing home? One must understand what you and the other parties are trying to achieve. Consider taking up a social or recreational activity in the community to better understand the the interests of your “business partners.”
- Leaders are not born, they are made. People do not become leaders merely because they are rich, they are masters of a professional discipline, or because of innate ability. Most successful leaders were cultivated as such from an early age and grew until they became self-motivated. Many people find themselves in situations where their peers or superiors do not see them as potential leaders so they are not given opportunities to develop confidence in such things. Fortunately, there are options other than paid coaches or health professionals. For example, Toastmasters International is an organization that exists to transform its members into public speakers and leaders.
The attorney is not simply taking on a case. The law firm is partnering with a client that must be managed collaboratively from the first minute of the initial consultation until the file closing letter. When presented with a choice, an attorney will avoid clients who shift the entire responsibility or blame for their problems onto other people. Every client is a human being that is more than a rational unit in a utilitarian system. Understanding human factors is essential to engineering solutions that do not merely amplify or dampen rhetorical or manipulative conduct by one side or the other. Disputes that have have been going on for years among groups whose underlying interests are fundamentally divergent may not be quickly resolved simply by a positive outlook or intentional socializing. But if the homeowner feels more relaxed, confident and supported, the risk of falling victim to manipulative behavior, or resorting to manipulative strategies is minimized.
February 24, 2025
Does a Homeowner Need an Attorney to Manage a HOA Architectural Application?
Anyone who has ever found themselves in an intractable covenant enforcement dispute with a condominium or homeowners association gets to a point where they must choose between tearing down whatever they built or hiring an attorney to defend their interests. This decision arises because the HOA will often use a lien to encumber the property with a fine or file a lawsuit to ask the court to order the homeowner to remove or alter the thing they find objectionable. Homeowners accept such risks (knowingly or not) when the commence a project without HOA approval or try to navigate the architectural approval process without an experienced guide. One ought not to have to hire an attorney for a HOA architectural application. But there are many situations in which hiring an attorney to support them is necessary to protect their interests. This blog post describes several situations in which the threat of HOA legal action makes such assistance adventitious:
Sheer Size of the Construction Project. If a homeowner wants to buy some pieces of wood or stone and install a decorative planting bed in their front yard, replace a mailbox with a different size, or paint their front door a different color, when they may decide not to use an attorney. In the event of a dispute, the homeowner can simply revert the appearance of the lot to the way it looked before, instead of spending money on an attorney. This option of self-protection is not so easy if the homeowner undertakes a major project such as a tear down rebuild, a major addition, or construction of a large pool, cabana and surround in the back yard. Such projects are expensive and difficult to remove or remodel once completed. If the homeowner must borrow money or dip into long term savings, then that is a sign that attorney assistance is appropriate. This is to avoid a situation where the project could become completely unaffordable if it becomes necessary to make structural changes or defend a lawsuit. The risk of such circumstances arising is increased if the contractor is not licensed, the project does not have county approval, or the contractor was chosen because their bid was unusually lower than the others.
The Homeowner and the HOA Already Have a History. Some homeowners have positive relationships with their HOA boards. They do not have much difficulty working with them. If there are questions or concerns, they get along well enough to resolve them without aggressive action by either side. For other homeowners, the relationship between them and the manager or president soured years ago and remains difficult. Or there may be a neighbor who objects to everything and threatens to sue them or the HOA if they find something objectionable with the way the lot is used or improved. Sometimes the homeowner will submit an application or respond to a request for additional information, and the HOA will refrain from responding, for a variety of reasons. In such an instance, the homeowner needs to know whether she can plow ahead with the project or needs to communicate further. There are some unit owners or homeowners who need to have an attorney represent them on an ongoing basis because the parties’ relationships have deteriorated such that things work better if they just interact through their attorneys. In recent years it has become more common for officers, directors, managers, committees and homeowners to sue each other for discrimination, slander, interference or harassment. The homeowner may have an intractable dispute with their HOA for no fault of their own. If the homeowner and the persons who make the approval or enforcement decisions for the HOA have a history of intense conflict, the homeowner should seriously consider having an attorney help her navigate the architectural approval process.
The Subject Matter is Complicated. Some HOA covenant enforcement or architectural control issues are simpler than others. Sometimes the recorded restrictions are clear and on point to the particular question raised by the application. If the declaration or bylaws contain general language, sometimes the architectural guidelines, handbook, or rules and regulations contain understandable rules that are legally well established. Sometimes the answer is apparent simply by looking at how such things were overseen by the developer on other lots. However, with many applications to alter the construction or the use of a property it is unclear whether there is a standard that the HOA can apply, whether that standard is reasonable, and whether the HOA properly exercised their architectural control powers. It is common for the developer to establish a modest set of rules and an architectural control committee to oversee certain concerns, and later the leaders, managers and attorneys want to enforce more stringent practices and policies. Sometimes the HOA will use generally worded standards and approve a generally worded application and later adopt a stringent approach when what is actually built falls within the general parameters of the application but includes something that is viewed by some as an eyesore. It is all too human for people holding power to devise new prohibitions after something is done that causes a sense of disgust. The courts of Virginia require HOAs to exercise their design control powers reasonably and within the scope of their authority. When the recorded restrictions only discuss a few required or prohibited things, and give the board the authority to adopt additional rules, and allow the committee to decide what is approved, does the silence of the declaration on a particular topic mean that the HOA gets to regulate it or does it mean that they lack such authority to govern such things? These are the sorts of thorny problems which can result in protracted litigation and are suitable for attorney review.
Many HOA board or committee members view it as their responsibility to protect the community from the actions of some “undesirable” person who wants to use their home for a business purpose, install a swimming pool and host parties with added noise, or spoil the architectural homogeneity of the subdivision. Such people typically have an expansive view of the scope of their own power. Many HOA leaders do not believe that they are constrained by provisions of the governing instruments or state law. To them, what matters is what kind of community they think that they have to protect, and as the incumbent leader it is up to them to decide whether something is permissible. Homeowners should not have to pay an attorney to make reasonable alterations to their homes. But they often do, because legal documentation assigns to the HOA enough power to make the appropriate exercise debatable. The contractor and the designer may not tell the homeowner about a potential legal issue because that is not what they are being paid to do, and they do not want to say anything that could prevent themselves from making a sale. Seeking assistance for navigating such a process usually means hiring an attorney (as opposed to asking a friend) because the HOA has their own paid professionals to vindicate its own legal powers. A friend usually has only done these things once or twice. Ideally, the homeowner would get sufficient legal support on something at a point in the process where the information is most effective, so that the bulk of the money is spent on maintaining and improving the home and not on acrimonious disputes or tearing something down and redoing it.
