October 30, 2026
Virginia Court of Appeals Upholds Homeowner’s Judgment After Defective HOA Siding Repairs
The Condominium and HOA industry is a big business, particularly when it comes to maintenance and repair of improvements to property. HOA renovation projects are not just on common areas such as roads, clubhouses, tennis courts and pools. Many community associations are required to repair components that function as part of someone’s home, such as a roof, siding, ventilation, utilities and so on. When community associations make decisions, they commonly rely upon their advisors, such as managers, attorneys or other professionals. Even when volunteer leaders make significant efforts, the price paid and quality of workmanship varies. For this reason, homeowners ought to monitor such activities, especially when the cost passes through as a special assessment, or the repairs are necessary to protect their home interior.
Earlier this year, the Court of Appeals of Virginia decided a case where such things did not go as desired. In Stonehenge HOA v. Tanesha Hudson, the Circuit Court of Albemarle County entered a $4,500 judgment and $44,761.50 for attorney fees in favor of Ms. Hudson. After filing the appeal, the HOA paid the $4,500. This case caught my interest because of the damage caused by defective repairs, the application of the voluntary payment doctrine, and the arguments regarding reasonableness of attorney’s fees.
Defective Exterior Repairs by Company with Relationship with Manager
The following facts are taken from the judicial opinion and supplemented by some additional research that I have done. Ms. Hudson owns a townhouse. The governing instruments require the HOA to maintain the roof, gutter and siding on the townhouses. The HOA worked with Associa. Associa is a community management holding company estimated to have over one billion annual revenue and over 10,000 employees. The HOA hired Community Group, Inc., doing business as Associa Community Group and Associa on Call to install new siding on the townhouses, including Ms. Hudson’s. Many property management companies that work with HOAs and condominiums are owned by Associa. Associa owns complementary businesses such as Community Group and Associa on Call. I do not know how Stonehenge HOA decided to do business with Associa on Call. What could happen is the manager who works for the Associa subsidiary learns that the association needs a contractor. They “refer” Associa on Call to the association. Yet they are subsidiaries of the same company and to my knowledge share common employees. I do not know whether Associa on Call has any employees who perform construction work or if they always “subcontract” the actual work to a separate company at a lower price. This judicial opinion does not say whether Associa on Call had a contractors license or if they subcontracted the work out to a third party. Associa’s management subsidiary is ordinarily familiar with what work is needed, what funds are available, and what the board members want. This practice does not necessarily lead to an unfair result. Note that Virginia law does not have statutes that regulate bidding in the community association context. Government contracting law does not apply to HOAs, but the directors are nonetheless fiduciaries. This issue was not discussed in the Hudson case opinion. Another issue that may arise with the practice of awarding exterior repair contracts to an affiliate of the manager has to do with workmanship warranties that would run from the subcontractor through the affiliate to the association. If the association terminates the management contract, that may complicate warranty claims. That issue was not discussed in the Hudson v. Stonehenge HOA case either.
In the lawsuit, Ms. Hudson alleged that the deficient siding replacement diminished her home’s value, caused black mold, water damage, and allowed rats and bees to enter the house. She sought $280,000 in damages. Ms. Hudson’s expert testified that the contractor removed and improperly re-installed the drip edge flashing, failed to make certain repairs to the roof, improperly installed kickout flashing and failed to install counterflashing. These effects allowed moisture, bees and rats to enter the townhouse. The Circuit Court agreed with her and awarded $4,500 for repairs and $44,761.50 in attorney fees against those defendants. While the appeal went on, the association paid her $4,500 for the judgment portion.
Voluntary Payment Doctrine
The Court of Appeals refused to consider the Association’s challenge to the judgment because it paid the $4,500. The Voluntary Payment Doctrine provides that absent fraud or misconduct, a claimant cannot later demand that a court return to him funds that he voluntarily paid to another. This is because the making of the payment constitutes a voluntary cessation of the dispute. An exception to this rule arises when the transfer of the money occurs due to a garnishment. But that is not voluntary. A garnishment does not require any agreement on the party of the person who puts their money in the bank account. In the appeal, the association admitted making the payment in order to avoid the accumulation of interest. The court found that the making of this payment in full waived the right to have the appellate court consider a reversal that would require return of the money.
Voluntary payment is an important doctrine for anyone in a dispute with their HOA or condominium to understand. Many homeowners assume that if they consider the payment to be made under protest then they can go back and challenge it later. But this is ordinarily not the case. However, by making a payment this does not constitute an admission or concession as to everything in dispute. On December 4, 2020, I posted an article, The Voluntary Payment Doctrine and HOA Liens, which discusses the voluntary payment doctrine in the HOA context.
Under Virginia judicial precedent, if there are several debts in dispute between two parties, the debtor can expressly or implicitly direct that a payment go to one debt and not the other. In Upper Occoquan Sewage Authority v. Blake Construction, the Supreme Court quoted an older case saying:
A payment by a debtor who owes several debts to a creditor, is to be applied to one or the other of the debts; first, as the debtor may direct at or before the time of making such payment; and such direction may be given expressly or by implication. Secondly, if the debtor give no such direction then the creditor may make the application, according to his pleasure; and he may make it, either at the time of such payment, or afterwards, before the commencement of any controversy on the subject.
This allows a homeowner, under certain circumstances, to pay their “regular” assessments while resisting payment on disputed claims.
Prevailing Party Attorney’s Fees in Community Association Cases
These defendants were particularly displeased with the award of attorneys fees. Here, they were sued for $280,000. The plaintiff won $4,500.00. The attorney fee award was $44,761.50. The defendants argued that Ms. Hudson did not substantially prevail, because that was only a 1.7% success ratio. However, under judicial precedent, one may qualify as the “prevailing” party even if they do not prevail on all of their claims. The comparison of damages recovered to damages sought does not change which party prevailed. The defendants also argued that awarding a $44,761.50 on a $4,500 judgment is excessive. The factors that the courts are to consider for attorney’s fees awards are the time and effort expended, the nature of the services rendered, the complexity of the services, the value of services provided, the results obtained, whether the fees are consistent with those for similar services, and whether the services where necessary and appropriate. The court observed that while the ratio of damages sought to damages awarded is a factor to be considered, the other factors ought to be weighed as well. I previously blogged about attorney fee awards in HOA. My July 20, 2022 article was Awards of Attorney’s Fees in Community Association Litigation.
What Should a Virginia Homeowner Do After Defective HOA Repairs?
If association-directed work may have damaged your home, or common elements upon which it relies, consider taking the following steps:
- Take photographs and record videos. Record when you first noticed the problem and the frequency or any reoccurrence.
- Keep notices, emails, letters, inspection reports, invoices, meeting minutes, and communications with the HOA, property manager, and contractor.
- Review the governing document provisions that assign responsibility for the affected building component to the association or the homeowner.
- Notify the HOA and property manager in writing. Describe the condition, identify any immediate risks, and request an inspection and written response.
- Emergency work may be required to stop active water intrusion or protect the property. When possible, document existing conditions before repairs begin and preserve removed materials that may help establish the cause of the damage.
- Construction-defect disputes often depend on technical issues involving flashing, roofing, moisture pathways, installation methods, and building components. An inspection may help identify both the source of the problem and the work required to correct it. HOA leaders and professional advisors take such reports seriously. Sometimes it helps to show the obvious.
- Before paying a disputed charge or judgment, consider whether payment could affect the ability to challenge it.
- Consult with legal counsel should a contractor, HOA lawyer, director or manager ask the homeowner to sign a release, proposal or work order when the financial responsibility is uncertain or contested.
Legal Authority:
Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va. 41 (2008).
Stonehenge Homeowner’s Assn v. Hudson, 2026 Va. App. Lexis 442 (Aug. 18, 2026)(Unpub).
The photo used is a free image and does not depict anything discussed in the article.
October 22, 2026
First Material Breach, Cost vs. Value Damages, and Unsigned Change Orders
For many people, a custom home build, large addition or whole house remodel is the most expensive and complicated transaction they will personally handle in their lifetime. Choosing a contractor and a design takes considerable time and carries high stakes. Most projects see at least one breach or accusation. Most homeowners, even those who can afford a major construction project, are not familiar enough with construction law to know for certain what course of action is necessary in the event of a breach. This post covers three issues from a 2026 Court of Appeals of Virginia decision: the first material breach rule, the cost vs. value measure of damages, and email change orders.
What Is the First Material Breach Rule in Virginia Construction Cases?
Under Virginia law, the party who commits the first “material” breach cannot enforce the contract. But a “minor” breach, one that does not “go to the root of the contract,” does not excuse the other party’s performance. Virginia appellate courts are generally averse to applying the rule strictly in construction cases unless there is bad faith. This is especially true when both sides have offsetting claims for payment and defect correction.
On June 23, 2026, the Court of Appeals of Virginia decided Inviting Structures, Inc. v. Royal in an unpublished opinion. The dispute arose from a $232,180 contract to install an outdoor spa tub, a stone outdoor living space, and landscaping. Each side claimed the other breached the contract first.
Royal claimed the contractor started off on the wrong foot by installing plants in locations that did not match the design. When told of the problem, the contractor stopped work and met with the homeowner. At trial, the court awarded $12,471.60 in damages for landscaping defects. The Court of Appeals held that the misplaced plantings were a breach, but not one that triggered the first material breach rule.
The contractor claimed Royal breached first by seeking damages for a project Royal had not paid for in full. The draw schedule required a $40,000 payment upon delivery of the spa tub. Royal did not make that payment and later claimed in the lawsuit that the tub was defective. The Court of Appeals held that this did not bar Royal’s recovery. Royal had paid $192,170 of the $232,180 contract price, and the court found that withholding the $40,000 payment was not material and not in bad faith.
As this case shows, the “first material breach rule” is something of a misnomer. A breach may be “material” enough to entitle the other party to payment, an offset, or a damages award. Sums of $12,000 to $40,000 are not trivial, even on an expensive project. Courts are still reluctant to apply the rule in such cases because excusing the other party from all further performance is an extraordinary, drastic result. It can derail a project that would otherwise resolve itself through corrective work, substantial completion, and reasonable payment for work received. The takeaway — be circumspect about canceling or terminating a construction contract and immediately suing without first consulting counsel. Many contracts spell out what gives rise to a right of termination for cause and what the effect of a termination without cause would be.
How Are Construction Defect Damages Measured? Cost Rule vs. Value Rule:
The Inviting Structures, Inc. case also addresses how courts measure damages for defective construction work. Under Virginia law, there are two alternative measures of awarding damages for defective work, the “cost rule” and the “value rule.” The cost rule awards the cost one would incur to correct the defects proven. The cost rule is the measure that the courts ordinarily apply and is thus more familiar to judges, attorneys and experts. The cost measure is used unless it would be “grossly disproportionate” to the results, would involve “unreasonable economic waste,” or the cost of remedying the defect is unreasonable compared with the benefit that would be achieved. The value rule considers the difference between the value of the construction if it was properly completed versus the value of the defective work that the purchaser received.
In the Inviting Structures, Inc. case, the Royals complained that the contractor installed a spa tub in their backyard that showed visible corrosion on its exterior. They wanted the court to award them the cost to purchase and install a new spa tub. The Court of Appeals concurred with the Circuit Court’s determination that to do so would give the Royals a windfall, essentially two tubs for the price of one. The trial judge found that the corrosion to the tub was minor, cosmetic, and localized to certain areas.
In other cases, the Supreme Court of Virginia suggests that if the property owner puts on evidence of the breach and the cost to repair, then the burden shifts to the contractor to rebut the accuracy of the cost claim with evidence of the current value, depreciation or betterment. This is consistent with the principle that the defendant bears the burden of proving mitigation of damages. In the Inviting Structures, Inc. case, the record showed that it was the Royals’ own expert who characterized the damage to the tub as “localized” to certain areas.
Are Unsigned or Email Change Orders Enforceable?
Virginia courts will enforce provisions in contracts that require any change orders to be made in writing and signed. The law ordinarily enforces contracts as written. This rule is subject to the defense that such provisions may be expressly or implicitly waived in particular instances. But waiver would have to be proven. In the Inviting Structures, Inc. case, the contractor sought payment for additional work that the homeowner informally agreed to purchase as add-on work. The contractor argued that this established liability under a “course of dealing” manner of doing business. The Court of Appeals agreed with the contractor, but on a different ground — the contract’s change order clause itself allowed change orders by email. The parties had agreed to the changes by email exchanges. Those emails were enforceable without a physical signature or formal e-signature.
Legal Authority:
Lee v. Bell, 237 Va. 626 (1989).
Nichols Constr. Corp. v. Va. Mach. Tool Co., LLC, 276 Va. 81 (2008).
Note that the photo used with this blog post does not depict any of the property at issue in the case discussed in this article. It shows a different spa tub.
October 17, 2026
Does Selective Enforcement Make HOA Restrictions Unenforceable?
When the HOA contends a resident violated a rule, the accused may wonder if the rule is unenforceable because of other changes in the use or alteration of structures in the subdivision allowed to continue since the creation of the rule. This is called “selective enforcement.” Does selective enforcement make HOA restrictions unenforceable? That is a reasonable question. But under Virginia law, inconsistent enforcement does not automatically make a restrictive covenant unenforceable. The answer usually depends on the covenant’s language, its purpose, the association’s prior conduct, and the effect of other violations on the community as a whole.
It is human nature to compare oneself with others when accused. They see varying uses and alterations that developed over time and draw their own conclusions based on a sense of fairness. This tendency to compare reflects the fact that the developer made the lots and homes look similar or at least cohesive in some way. One may not be able to avoid comparison during each drive in and out of the neighborhood. This has to do with the peer pressure within and among social classes. Comparison is tricky. Good examples can draw people upward. On the downside, comparison can breed envy or snobbishness, poisoning relationships. If the principle of treating others as one would want to be treated breaks down, mental alarm bells go off. The “golden rule” runs like a thread through community association law. Yet, restrictive covenants are not really expressions of the golden rule. They require everyone to do more specific things.
Whenever a lot owner receives a notice of violation, they immediately think about other houses in the neighborhood that are doing the same thing that they have. When they confront their leaders or management about this, the latter simply point back to the rule. The recorded instruments form the “contract” between the owners. The covenants provide a specific set of parameters for what one ought to expect parameters that are supposed to be clearer and more fair than individual opinions or informal understandings. When the rule appears contrary to the practices and patterns seen in the subdivision, many lot owners wonder if the changes on the ground have nullified the developer’s, “dead hand.” Many people research this issue on Artificial Intelligence programs and receive misleading answers. AI tends to validate negative emotions by rendering an answer favorable to the phrasing of the question.
In Virginia, like most states, the burden of proof to nullify a recorded restriction on the grounds of changed conditions is more onerous than what AI leads many people to believe. According to judicial precedent, the party asserting that the recorded restriction is unenforceable or because changed conditions has the burden of proving that the purpose of the restriction can no longer be achieved. Conditions must have changed so substantially that the essential purpose of the covenant is defeated. The legal precedents require the party attacking the restriction to prove that there was “radical change.” The HOA’s or neighbor’s ability to enforce the restriction is not forfeited by mere failure to object to similar violations in the same neighborhood. How does one distinguish between the “radical change” that nullifies a rule and “ordinary” lapses in enforcement that do not deprive the plaintiff of a remedy? Consider a few case decisions:
- If the homeowner installs a fence that violates a prohibition against side yard walls, the mere fact that some other lot owners have been getting away with having side yard fences does not nullify the rule. Village Gate HOA. v. Hales, 219 Va. 321 (1978).
- If the rules only allow split rail fences, but the developer approved some other fence styles, this is insufficient to nullify the rule requiring split rail fences. Melmore II, L.C. v. Boyer, 45 Va. Cir. 178 (Loudoun Cir. Ct. 1998).
- A defendant constructed a garage without architectural approval. When he did apply, the committee denied it. Defendants identified other outstanding violations in the community. The court declined to find abandonment of the rule requiring architectural approval for alterations. Sugarland Run HOA v. Couzins, 28 Va. Cir. 334 (Loudoun Co. 1992)
- Norfolk Circuit Court found that if a platted street was not constructed, a lot owners were not required to observe a setback rule based on the street location. Miller v. Grinnan, 86 Va. Cir. 446 (Norfolk 2013).
- Where a covenant protected the historic character of an adjacent property, and that historic home was later relocated to a different location and the agricultural neighborhood became a commercialized. This constituted a “radical change” that nullified enforcement of the covenant. Chesterfield Meadows Shopping Center Assoc.. v. Smith, 264 Va. 350 (2002).
- There were two lots in a subdivision. One lot bore a restriction that it must be sold with the other. But the other lot was not burdened with a reciprocal restriction. The court found the purpose of the restriction defeated. Wells v. Beville (March 31, 2022 unpublished Supreme Court of Virginia decision).
- A restriction forbade commercial uses. There were some commercial uses surrounding the lot. The subdivision did retain its residential character. The court found that the existence of those commercial uses nearby did not defeat the purpose. River Heights Assocs. v. Batten, 267 Va. 262 (2004)
As you can see, “radical change” is rarely found where the defendant merely pointed out various other lots around them also breaking the rule. Seem to violate the principle of mutuality that the HOA, as the enforcer, should not expressly or implicitly not condone the violation of the rule for one and not another, especially since all of the directors are also burdened by the same rule. However, the courts tend to look at restrictions as something more than a legal mandate asserted by a peer group. What the restriction seeks to achieve ought not to be defeated by a few violations. In other words, two wrongs do not make a right. The protection afforded by the recorded covenant is not lost merely because the HOA fails to properly enforce it. A HOA may lose its ability to enforce a covenant by express waiver. The HOA may change or nullify the rule by amending the declaration or handbook. But in the end the HOA’s role in covenant enforcement is understood in terms of contract law.
Unfortunately, the concept of “selective enforcement” can be ambiguous. Although the “radical change” standard is enforcement-friendly and not often useful to owners who receive notices of violation, this does not mean that everyone has to do as their HOA orders them at all times. There are other grounds upon which enforcement activity may be resisted, as discussed in other articles on this website. For example, the rule may be inapplicable. In other cases, the rule may be valid but cannot be enforced due to abandonment, waiver or estoppel. That inquiry focuses instead on the HOA’s particular actions or communications.
Maryland also applies the “radical change” rule. Dumbarton Improvement Assn v. Druid Ridge Cemetery Co., 434 Md. 37 (2013).
In 2026, the D.C. Court of Appeals applied the “radical change” doctrine. In that case, the landowner wanted to use an alleyway property as a large nightclub featuring exotic dancing. However, a restriction against nightclub use burdened the property. The landowner believed that it could operate the property as a nightclub without unreasonably burdening the neighbors. D.C. ruled against them, rejecting a suggestion to adopt the “reasonableness” rule used in New Jersey. DTLD, LLC v. Power Station Ltd. P’ship, 350 A.3d 1285 (D.C. 2026).
New Jersey courts apply a reasonableness test: “‘reasonableness’ is necessarily a fact sensitive issue involving an inquiry into present business conditions and other factors specific to the covenant at issue.” In addition to issues of ambiguity or non-ambiguity of the restrictive covenant language and the property purchaser’s actual or constructive notice of the restriction, the factors they consider are: (1) the intention of the parties when the covenant was executed and whether the parties had a viable purpose which did not at the time interfere with existing commercial laws or public policy; (2) whether the covenant had an impact on the consideration paid, “a measure of the value to the parties of the covenant at the time”; (3) whether the covenant is reasonable concerning area, time, or duration (with a caveat that covenants that extend for perpetuity may often be unreasonable); (4) whether the covenant imposes an unreasonable restraint on trade (such as “where there is limited space available to conduct certain business activities”); (5) whether the covenant interferes with the public interest or the public welfare; and (6) whether, even if the covenant was reasonable at the time it was executed, “changed circumstances” now make the covenant unreasonable. Davidson Bros. v. D. Katz & Sons, 121 N.J. 196 (1990). This is not currently the law in Virginia, Maryland or D.C.
Given that much of the advice that one may receive from artificial intelligence is misleading, homeowners ought to consult with an attorney before “digging in” opposition to a notice of violation, complaint or lawsuit regarding challenged alterations or use of their property.
May 18, 2026
Virginia Supreme Court Reaffirms a Reasonableness Standard for Placing Things in Easements
Ingress and egress are fundamental characteristics defining the usefulness of property. Sometimes, access runs across another owner’s lot. Many lots lack sufficient (or any) frontage on the right of way to get a vehicle through without an easement. Driveway easements inevitably result in disagreements, or at least tension, in the neighborly relations between the “landlocked” home and the property across which the easement lies. This gives rise to lawsuits concerning fences, walls, stones, trees, grading, shrubs or other objects placed within the easement. On October 21, 2021, I have posted an article about this to this blog, “Problem with Pipestems.”
In April 2026, the Supreme Court of Virginia published a new judicial opinion that provides clarification about this. In this case, Caryn and David Yost relied upon a 50 foot wide easement across the lot owned by Thibault Enterprises LLC to access their home in Dinwiddie County, Virginia. Thibault placed fencing, vines and hay bales within the easement. The gravel road is narrower than the 50 feet width of the easement. The Yosts could use the gravel road to drive to and from their home, despite the presence of the items located elsewhere in the easement. None of the items encroached upon the gravel road.
Is Thibault barred from placing anything in the easement that practically narrowed its width in certain areas, or are such things permissible so long as the purpose of the easement remained protected? The easement stated, “. . . the right of ingress and egress over an outlet road, fifty (50) feet in width, running from the southwestern corner of the [Yosts’ property] to State Route #601.” The gravel road is approximately 12 feet wide.
The Supreme Court opinion summarizes several points of law from judicial precedent. Because a party in Thibault’s position remains entitled to make reasonable use of the land burdened by the easement, not all encroachments are forbidden. When an easement is limited to a particular purpose, the burdened parcel may use the land in ways that are not inconsistent with the neighbor’s easement right. This style of analysis requires courts to consider factors beyond the wording of the deed and whether the object narrows the width for traffic purposes. Courts consider whether trees or shrubs would obstruct emergency vehicles from using the driveway or hamper snow removal. If the construction of a fence would prevent two vehicles from passing each other along the driveway in the easement, this could be an impermissible burden on a driveway easement.
In addition to case law, Virginia has a statute, Code § 55.1-305:
Unless otherwise provided for in the terms of an easement, the owner of a dominant estate shall not use an easement in a way that is not reasonably consistent with the uses contemplated by the grant of the easement, and the owner of the servient estate shall not engage in an activity or cause to be present any objects either upon the burdened land or immediately adjacent to such land that unreasonably interferes with the enjoyment of the easement by the owner of the dominant estate. For the purposes of this section, “object” does not include any fence, electric fence, cattle guard, gate, or division fence adjacent to such easement as those terms are defined in §§ 55.1-2800 through 55.1-2826. Any violation of this section may be deemed a private nuisance, provided, however, that the remedy for a violation of this section shall not in any manner impair the right to any other relief that may be applicable at law or in equity.
Note that Va. Code § 55.1-305 is an important statute in any easement dispute because it articulates a statutory basis for a nuisance action. In Yost v. Thibault, the Supreme Court articulated a general rule that might allow more options for the parcel burdened by the neighbor’s driveway:
Consistent with our cases and Code § 55.1-305, we hold that the owner of a servient estate is not automatically required to remove all objects intruding into an easement of a defined width. Instead, courts reviewing claims of an impermissible encroachment upon an easement, whether of defined width or otherwise, should (1) examine the language of the deed to determine the purpose of the easement and the intent of the parties; and (2) evaluate whether the actions of the owner of the servient estate unreasonably interfere with the easement.
The Supreme Court reversed the Court of Appeals’ ruling, judging in favor of Yost, finding that for an ingress and egress easements, the objects placed in portions of the easement not used for the gravel driveway were reasonable. The court added a footnote that the reasonableness of the item’s location may change in the future.
We recognize that a change in circumstances may require a different answer. For example, if traffic increases along the gravel road, making the width of the existing road inadequate for ingress and egress, or if erosion renders driving over the road impracticable, it may become necessary to use the full width of the easement for ingress and egress.
The Yost v. Thibault Enterprises LLC case does not explain how to resolve difficulties where an express easement contains ambiguous language. In the 2023 case, Forbes v. Cantwell, the easement stated, “[t]here is reserved for the benefit of the owners of Lot 6 and their heirs and successors in title, a 40[-]foot easement . . . for the purpose of providing. . . fencing and landscape buffer for the benefit of Lot 6.” The Court of Appeals found the words, “fencing and landscape buffer” to be ambiguous. In a situation where the deed does not adequately explain the purpose of the easement, the Court may take evidence regarding the intentions of the parties from the circumstances surrounding the transaction. This raises thorny questions in many cases because the parties may disagree as to whether the language is ambiguous, or what evidence is relevant to resolve the issue of intention.
The Yost v. Thibault Enterprises LLC case does not address what to do when the burdened owner installs a fence and gate across the width of the easement, where the gate is narrower than the full width of the easement. For example, what if Thibault installed a gate that was only 12 feet wide? In Yost, the court allowed fencing within the easement area, but there was not a gate providing the sole opening through the easement. Prior to Yost, some courts concluded that if the easement was 50 feet wide, any gate must be no less than 50 feet wide, absent some express term to the contrary.
Developers try to prevent easement disputes from arising by telling lot owners to obtain HOA approval. Recorded covenants often require committee approval of a design application before any fence, wall, pillar or gate may be erected or altered, including easements. HOA’s ordinarily forbid owners from constructing things that interfere with sight lines for motorists.
In addition to HOA’s, local governments regulate fences and walls in zoning ordinances. This is why one ordinarily sees short fences in front yards and taller fences in backyards. The HOA and county rules operate independently of each other, such that the homeowner must comply with both, even if they contain different standards.
In most cases, HOA and county rules are more lenient regarding trees, shrubs and grading than structures. A vegetative buffer is often the best option.
A homeowner ought to consult with an attorney before constructing anything in an easement or reacting to a neighbor’s effort to obstruct the easement.
Legal Citations:
Thibault Enterprises, LLC v. Yost, 927 S.E.2d 806 (Va. Supr. Ct. Apr. 9, 2026).
Forbes v. Cantwell, 78 Va. App. 454 (2023).
October 21, 2021 article to on blog, “Problem with Pipestems.”
April 29, 2026
How to Write So Your HOA Leaders Will Listen
Do you live in a community? A “community” is a group of people who listen to each other when it is important. Anyone can call themselves a community. To really be one, that title must be “earned.” That starts with communication. If leaders expect to be heard, but ignore or deflect the relevant questions or input of others, then it may function as some other type of organization. This is true of HOAs, condominiums, or cooperative housing.
A seller usually presents the home as part of something greater. The buyer may be attracted to this during the visit or in the disclosure packet. Many home buyers believe that they are buying into an arrangement of mutual support. Humans naturally gravitate away from alienation. In a bad situation, later they may suspect that others expect them to pay their assessments, obey the rules and regulations, and support the leaders without burdening them with complaints. What appeared to be a privilege turns out to be mostly an obligation. I do not have a problem with calling these things “community associations” because people ought to aspire to solve problems through sharing and listening together. You may not need a lawyer if you know how to write so your HOA leaders will listen. Sometimes being heard requires a different approach to communication.
To get needs met, the homeowner may need to engage with their association officers, directors, committee members, or managers, or volunteer for a role themselves. This realization may not come until after a significant problem or threat arises that is not easily resolved. Let us consider a hypothetical: The HOA may have altered the landscaping, hardscaping or plants on a common area adjacent to the owner’s home, and now her yard or outdoor space is unusably soggy. The drainage problem may lead to water intrusion inside the home. Upon inquiry, the homeowner learns that the maintenance of the common area was reoccurring HOA agenda item for 2 years. Other homeowners wanted to change the impact of the common area on their own lot. Some wanted to clear out brush for aesthetic reasons. The board and managers do not show great interest in her concerns because they feel that a decision was already reached previously.
If a homeowner is inundated with stormwater and her inquiries are ignored or deflected, then she rightly will feel flooded with concerns about how to solve this problem that impairs the use she envisioned when she bought it. A homeowner is right to believe that the HOA ought not to alter the common area in such a way as to channel stormwater through her backyard. When informally raising this issue, leaders, managers or neighbors may say some off-putting things, such as suggestions that she caused the problem herself. These experiences can be quite alienating.
Where a serious problem is not being adequately addressed, or even acknowledged, some additional efforts must be made for the homeowner to get needs met. Usually this consists of a more formal letter or email directed at the board with a call to action. As an attorney who represents many condominium unit owners and HOA lot owners. I have seen (and written) both successful and unsuccessful demand letters. This blog post is to point out a few do’s and don’ts..
Use an Organized Narrative:
The email must be adequately organized, with an introduction (why am I receiving this), a coherent story that explains why the issue arose, unanswered questions, if any, and a clear “ask.” The most common problem with homeowners’ emails to their HOA leaders is that it is not understandable to someone who was not intimately familiar with the situation. The homeowner may have been talking with someone else to that point. But the reader of the latest email may be ignorant of the situation. This is particularly the case with the association’s attorney or members of the board who are not involved day-to-day.
Many homeowners hope that the HOA’s attorney will look at the situation and advise the board to address the concerns, so as to manage liability and risk. The attorney must understand the story. An escalating letter or email to the HOA ought to be built around a brief storyline. Short paragraphs with useful headings make it easier to read on a cell phone or tablet. Something longer than two pages is likely to be abandoned midway.
Include a Call to Action:
The “ask” or demand must be succinct. Ideally it is apparent at the top of the email and restated towards the end. The issue may be complicated. It is possible that the homeowner may not know why the problem exists or exactly must be done in order to solve it. Even if the demand is a request for an inspection or books and records, it must be readily apparent to a busy, and possibly skeptical reader. “Please restore the swale on the common area to channel water towards the storm drain” is much better than, “My backyard is flooded and your contractor is at fault, so help me.” Both of these things may be true, but the former is much easier to accept.
Be Careful About Personal Attacks:
If a problem is ruining the homeowner’s life, she is being ignored or blamed, and a culprit is identified, it can be easy to view this as something personal. Sometimes, there is an individual malefactor, and it is not possible to discuss the matter without mentioning this person in the facts. In almost all cases, HOA employees, managers or volunteers will stop listening (or go on the offensive) if they receive a letter or email that attacks their honesty, good faith or motivations.
Typically, the director or committee member is in a position of greater influence than the homeowner complaining. The homeowner may have every reason to feel upset. The opportunity in sending a demand by email or letter is the possibility to persuade. If successful, this may avoid the necessity of getting lawyers or courts involved or focus campaigns at the next election. Often a personal attack does not result in mind-changing self-reflection on the party of the attacked person. An attack will be ignored or elicit a personal counterattack.
Emotional Intelligence > Artificial Intelligence:
Do not unduly rely upon artificial intelligence in crafting a letter or email to the HOA or condominium leaders. Programs like ChatGPT are useful, but it does not know what questions are important or what reasons are strongest.
The Board May Include People Who Think In Different Ways:
You may not know whether the board members have the same politics as you, how old they are, or which country, languages, or region they grew up with. They may not agree with each other. Condominium communities are typically more diverse than HOAs. You may write a better letter if you first attend a board meeting or introduced yourself to volunteers.
Trust is Golden, but There is Other Currency:
By the time the homeowner finds himself writing a demand letter to the board of directors, the trust between the parties may already be severely damaged. Everyone wants the important relationships in their life to enjoy a healthy level of mutual trust. If one side expects the other to accept all of their demands as a condition for future trust, the dispute may not be resolved easily. In those situations, sometimes it is more practical to reduce the solution to mutually agreed terms.
Everyone who owns property has rights. Every person ought to be treated with dignity. But social, persuasive people who can control their impulses and connect with strangers have more success. Active listening and effective communication are the organic fibers that are spun into the woven fabric. You may not be able to make your whole HOA into the community you want. But you do have the power to fashion a community around your own family.
When a Lawyer is Needed:
Sometimes, the demand letter to the HOA is not successful, or the homeowner may be reluctant to write it himself. In moments of intense frustration it may not be clear how to write so your HOA leaders will listen. Often, the homeowner needs his own attorney to help him protect himself, his family and investment. This is particularly helpful if the next steps may include potentially acrimonious discussions or the answer to the problem is not readily apparent because it requires additional information or specialized knowledge.
P.S.: Yes, I am familiar with the book, “How to Talk So Kids Will Listen” by Adele Faber and I thought about it when I chose this topic!
February 4, 2026
Appeals Court Finds Indefinite HOA Assessment Provision Unenforceable
For most homeowners’ associations, the declaration is clear enough about assessments that the lot owners have little doubt whether they can be enforced. The developer has every incentive to make this clear. Community associations run on assessments as fuel. Sometimes inattentive developers hire inexperienced attorneys to write the declaration, and the language is too unclear to accomplish the desired goals. Not all covenants are sufficient to make a HOA a “property owners association” for purposes of the Virginia Property Owners Association Act. Where the declaration was not carefully drafted, the association may not be able to collect the assessments as they expected. This leaves the lot owners in a potentially adventitious position in the sense that the HOA may be less able to lord over them. The uncertainly may lead to unresolvable strive or neglected common areas.
On February 3, 2026, the Court of Appeals of Virginia published an opinion that found a declaration of covenants too indefinite to allow the association to impose assessments. Shekar and Barbara Jannah owned three lots in Terrace View subdivision in Forest, Virginia. Forest is in Bedford County, near Lynchburg. The developer recorded a declaration of protective covenants that gave an option to create Terrace View Property Owners Association. The declaration gave the developer the option to convey common areas to TVPOA. This said that TVPOA, “shall have the right to establish and collect assessments, and by accepting ownership in the subdivision each Lot Owner(s) shall be deemed to have agreed to pay the same when and as due.” The developer subsequently incorporated TVPOA. TVPOA did not do much until 14 years after the developer recorded the declaration.
Later, TVPOA imposed an Assessment Fee on the Jannah lots. The Jannah’s refused to pay the fee. They filed a declaratory judgment and injunction suit against TVPOA. The lawsuit asked the court to make several determinations:
- TVPOA was not a “property owners association” for purposes of the Virginia Property Owners Association Act.
- TVPOA had no authority to collect the disputed fee or any fee against them.
- TVPOA had no authority to enforce any of the restrictive covenants.
TVPOA filed a response, asserting in defense that the Jannah’s had previously agreed to pay assessments, that he had served on the Board at a time when assessments were enforced, and they had sold a lot subject to the declaration they now contest.
For any association to qualify for the powers and remedies afforded by the VPOAA, it must have a recorded declaration that authorizes it to collect a fixed or variable assessment, and the declaration must affirmatively require the association to spend the assessments on maintaining the common areas of the development. These things must be expressly stated in the declaration. According to judicial precedent, it is insufficient for the requirement to spend the assessment on the common areas to merely be implied or inferred. For more discussion of this topic, check out my October 24, 2029 blog post, “Do I Even Have a HOA?” TVPOA pointed to language in the declaration that said that the purpose of the declaration was, “to maintain, ‘the best use and most appropriate development and improvement of said property[,] and to preserve, so far as practicable, the natural beauty of said property.’” TVPOA also said that it had adopted bylaws that require the common area to be maintained. TVPOA had contractually obligated itself to pay for electric lights at the entrance.
TVPOA pointed to a 2024 amendment to Va. Code § 55.1-1805, which added, “Nothing in this chapter shall be construed to prevent an association from levying or using assessments, charges, or fees to pay the association’s contractual or other legal obligations in the exercise of the association’s duties and responsibilities.” TVPOA argued that this amendment relaxed the VPOAA definition of a property owners association such that it now includes TVPOA. the legal standard of what must be in the declaration to make it qualify for remedies under the VPOAA. TVPOA argued that even if it is not a VPOAA association, it still can enforce the declaration by assessments.
The Court of Appeals agreed with the Circuit Court’s determination that TVPOA was not a VPOAA association. TVPOA’s board could not make it a “property owners association” simply by adopting bylaws that required it to maintain the common areas. The Court disagreed that the 2024 amendments to Va. Code § 55.1-1805 relaxed the requirement for a declaration. The General Assembly adopted that 2024 amendment after the Court of Appeals published the Burkholder v. Palisades Park Owners Association case in 2023. In Burkholder, the Court of Appeals held that the pre 2024 amendment version of Va. Code § 55.1-1805 precluded a POA from imposing assessments for the cost of lot compliance inspections, because that was not expressly authorized by the Palisades Park declaration. The declaration authorized assessments for other purposes, but not the cost of lot compliance inspections. In this 2026 TVPOA case, the Court of Appeals found that the 2024 amendment did not change the statutory definition of a “property owners association.” In Burkholder, the parties agreed that Palisades Park was a property owners association. They disagreed whether under the declaration the cost of the lot compliance inspections could be assessed against the inspected lots. The new Va. Code § 55.1-1805 does not change the definition of a property owners association, it just makes it easier for associations to assess lot owners for the obligations that it has. The determination that TVPOA is not a “property owners association” is significant. The VPOAA does contain protections for the homeowners. Overall, the benefits to the HOA of qualifying under the VPOAA outweigh the rights it affords the owners. For example, the VPOAA allows for special assessments beyond what is provided in the declaration. TVPOA cannot take advantage of this. Homeowners who are concerned about a rogue board hoarding resources and bullying its members would prefer if the VPOAA does not apply.
Even when an association does not qualify as a “property owners association” or some other common interest community recognized under Virginia statutes, it nonetheless may be a nonstock corporation or unincorporated association that can do some business. The recorded covenants may be binding as a “contract” even if it is not a VPOAA declaration. The Court of Appeals disagreed with TVPOA’s argument that their declaration was sufficient to allow it to impose and collect assessments. The Court of Appeals held that the provision at issue was to indefinite and uncertain to be enforceable. In doing so, the Court adopted the legal standard taken by North Carolina courts. Under this test used in other states (and now in Virginia), the court examines the covenant to see if it determines (1) the amount of the assessment and (2) the purpose for which it is levied. An open-ended requirement to pay the association any amount demanded for whatever purpose the board wanted is insufficiently definite to be enforced. The court may look beyond the covenant to determine the assessment amount (thus allowing variable assessments), but there must be something in the covenant that provides a “textual anchor” for the determination of the amount. This does not seem to be a “bright line” rule.
In the 2008 N.C. Court of Appeals case Willow Bend HOA v. Robinson, the covenant allowed the HOA to levy assessments to promote the “welfare” of residents. The board imposed assessments to pay the bills from the association’s attorney incurred in defense of litigation brought by a member. The court found this legitimate because an HOA is required to use an attorney in litigation. The amount of the assessment could be ascertained by reading the bills issued by the firm to the HOA.
By contrast, the TVPOA assessment provision gives no guidance as to the purpose or amount of the assessments that would be imposed. The covenant does not require TVPOA to spend any money on common area maintenance or any other purpose. For this reason, the “contract” was insufficient to enable to the court to give it an exact meaning.
The Court of Appeals considered TVPOA’s arguments that the Jannah’s’ suit was barred because they previously had paid assessments to TVPOA or alternatively, because Mr. Jannah was on the board when TVPOA had imposed assessments. The Court found such circumstances, if proven would be irrelevant to the legal issues decided on the summary judgment motion. TVPOA failed to appeal the issue of those defenses with respect to the injunctive relief. This suggests that a different standard applies regarding the defenses of waiver, estoppel and unclean hands in declaratory judgment versus injunctions.
I would not be surprised if TVPOA seeks an en banc review or appeals this decision to the Supreme Court if it has the resources to do so. Or the community associations industry may lobby the legislature to amend the VPOAA to reduce the doubt cast by this case over assessment collection. Assessment collection is HOA life blood. Any legal precedent that provides a grounds of defense against collection suits or liens interferes with the industry’s ability to do fundraising and fund-spending.
A few points in summary:
- The 2024 amendment to Va. Code § 55.1-1805 does not redefine property owners’ associations in a way that would allow them to enforce assessments and then manage the money in a way not contemplated by the declaration. That amendment addresses Burkholder-type issues. The wording of the amendment tells us how to read the other provisions.
- If an association does not qualify as a “property owners association” under the VPOAA, then it cannot take advantage of the statutes that make it easier to levy or collect assessments. For many associations, they will never be able to raise enough money to be able to hire a large team, tackle major upkeep obligations, or use litigation to intimidate their members.
- Just because one’s community association is not a statutory “property owners association” does not mean that the covenants are unenforceable entirely, or that the association is not a valid entity of some kind.
- Barring a reversal of this case on a reconsideration or appeal, the test used in other states will apply in Virginia, whereby the assessment provision must provide a way to determine (1) the amount of the assessment and (2) the purpose of the assessment. This is important to lot owners in Virginia because many declarations contain overly general like that in TVPOA’s declaration. Otherwise, the board could force the lot owners to pay for something that never should be made a part of the association’s business, such as acquiring new property, constructing common area structures not contemplated by the declaration, or other pet projects of the board.
- Many HOA’s that do not qualify as VPOAA associations may not be able to force homeowners to pay any assessments. This is because of the overlap between the two legal standards.
- The prior conduct of the lot owner with respect to the matters at issue may not be relevant. Here, TVPOA asserted that Jannah had participated somehow in the adoption of prior assessments and had paid at least one of those in the past. The Circuit Court found this non-determinative, and the Court of Appeals agreed. This may or may not apply in a particular case. The applicability of affirmative defenses in an equity case is fact specific. Homeowners should not go around and put into writing that they agree with a board action and then try to fight it later, because this may bar their case under its facts.
- One may speculate that the Jannah’s paid more in attorney’s fees to litigate this case and defend the appeal than what they were asked to pay for the assessment. I doubt that they were able to recover any of those attorneys’ fees. The VPOAA attorney fee statute would not apply. Even if there is an attorney fee provision in the declaration, TVPOA has no means to raise the money to pay the fee award. In these sorts of cases, the cost of the litigation often becomes a major concern. The homeowner ought to consider whether they have the resources to match whatever the association can spend out of their funds or their insurance may provide.
Selected Legal Authority:
Terrace View Property Owner’s Assn, Inc. v. Jannah, 86 Va. App. 686 (2026)
Burkholder v. Palisades Park Owners Association, 76 Va. App. 577 (2023).
