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
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.
