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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:

1. 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).
2. 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).
3. 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)
4. 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).
5. 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).
6. 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).
7. 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.

Photo by TLK GentooExpressions:

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!

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:

1. TVPOA was not a “property owners association” for purposes of the Virginia Property Owners Association Act.
2. TVPOA had no authority to collect the disputed fee or any fee against them.
3. 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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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)

Va. Code § 55.1-1805

Burkholder v. Palisades Park Owners Association, 76 Va. App. 577 (2023).

Does Failure to Follow the Bylaws Render a Board Decision Void?

When homeowners purchase properties in HOAs or condominiums, often they do so with the belief that they, as members, have a voice in community business. Association boards make business decisions that impact the way of life, investment, and financial burden on the members. Poor decision-making may result in financial distress or diminished usefulness of the home. In such instances, affected homeowners find themselves searching for means to protect their own interests.

The law enshrines “individual” property rights. It also defers, to some degree, to committees established to govern ”collective” business. Many wonder how it is possible for boards and committees to make poor decisions without being corrected by some agency of government. Within the association, the governing instruments set forth what the board is supposed to do (limiting the scope of potential business that may be conducted) and how they are supposed to go about their deliberative process (corporate governance).

Given that procedures in the statutes and bylaws serve to protect members, what difference does it make if the board fails to follow proper procedures in deliberating and deciding an important business decision? Does failure to follow the bylaws render a board decision void? Well, it depends.

This issue was recently litigated in the Circuit Court of Fairfax County, Virginia. Blakeview Home Owners Association in Oakton, Virginia had a retaining wall that needed to be replaced at a six-figure cost. The community discussed this topic from time to time. The HOA president sent an email to other directors calling for a letter ought to be sent to the members informing them of the situation and what needed to be done. Such a letter was not sent. On August 10, 2023, the members received a board meeting agenda stating that the “Retaining Wall Committee” would report on a “Retaining Wall Update.” This agenda served as a notice for the August 16, 2023 meeting. This notice did not say that the board would consider approving a Fine Earth Landscaping, Inc. contract for the replacement of the wall. The price tag was approximately $340,000.00.

The developer incorporated Blakeview pursuant to the Virginia non-stock corporation act. While the Property Owners Association Act does impose meeting notice requirements on associations, no statute imposes a heightened notice requirement in order to approve a contract with a price tag at a certain threshold. But Blakeview’s bylaws impose such a requirement:

It shall be the duty of the Board of Directors to  . . . not authorize any item, or group of related items, whether by way of payment, agreement, or similar, in excess of $40,000 without 45 days notice to the members of the intention to do so and with at least 14 days’ notice of the date, time, and place of the meeting at which such item or group of related items will be considered.

When the Blakeview board conducted their August 16, 2023 meeting, almost no members attended the discussion about the Fine Earth contract. At that meeting, the board approved the contract. Later, lot owner Jacob Davison became aware of this. In his view, the contract was overpriced and unduly benefitted the lots protected by the retaining wall.

Before continuing with the reasoning of the judicial opinion, I would like to acknowledge a general concern about lack of notice in HOAs.  Many community association members struggle to discern what the board is doing. Homeowners sometimes do not discover that a contract was made until months after the fact. When an HOA leader announces that a contract is eminent, it may be impracticable for a homeowner to push for competitive bidding or further review. HOAs are supposed to conduct most business in open meetings. The agendas for the board meetings should be circulated in advance. Executive (closed) session is supposed to be used only in certain circumstances, such as consultation with legal counsel.

HOA boards become frustrated with the sorts of inquiries and statements made by their members during (and between) meetings. Sometimes they try to avoid criticism by deliberating over e-mail and in executive session, and to use open sessions and newsletters to announce what is going to happen. Attendees are usually allowed to speak for 2-3 minutes. Because the consideration of pending contracts can be handled in executive session, it is common for boards to keep such negotiations confidential until they want to announce them. Reserve studies are provided upon request. The full cost and urgency of a project may not be adequately shown in the reserve study. Unsurprisingly, homeowners sometimes abandon attempts to participate in the meetings of the association. Furtive deliberations often backfire. Homeowners are displeased when everything seems to be fine until one day they are unpleasant surprises. I have no reason to believe any of these practices were present in Blakeview, beyond what is indicated in the opinion letter. I mention these things to illustrate how the failure to provide the notice required in the bylaws for major action items reflects a larger problem.

Mr. Davison filed suit in the circuit court, seeking money damages on the grounds that the board’s decision to approve the contract was void because they did not follow the bylaws. Mr. Davison’s principal argument was that because the HOA failed to observe the notice requirement in the bylaws for business in excess of $40,000, the Fine Earth contract was ultra vires or invalid as a matter of law. Does failure to follow the bylaws render a board decision void? In its analysis, the circuit court found it significant that Mr. Davison’s lawsuit alleged that the disputed contract was “void ab initio.” The lawsuit did not contend that it was “voidable.” A void corporate act is entirely invalid. By contrast, a “voidable” action is valid if not challenged, but if the legal challenge is made and is successful, then the action is nullified by the court’s decision.

According to Virginia judicial precedent, an action taken by a corporate body, such as the board of directors, is not “void” if the corporation has the power to take the act and the only irregularity is the method by which the act was approved. In such a situation, the irregularly adopted act may be “voidable” in court. Even if it is voidable, it is often possible for the board to later “ratify” the procedurally defective action.

By contrast, if the corporate body lacked the authority to conduct a particular vote or was forbidden from doing so by a state or governing instrument, such an action is “void ab initio” because it is “ultra vires.”

The “void” versus “voidable” distinction sounds overly technical but it is not. The statutes and governing instruments define the scope of the sorts of business, policies and transactions that a community association may undertake. It does not matter how perfectly the board follows the procedural requirements; a HOA cannot undertake ultra vires actions. On the other hand, replacement of the roof on a structure on a common area easily falls within the normal business of a community association. If the board votes on one day against replacing the roof on the poolhouse, it can later revisit that question on a later date. If there is something procedurally defective, the board can later notice the meeting, achieve a quorum, and someone can move for the vote to purchase the replacement roof, even if the board had made a procedural mistake previously. It would not make sense if the failure to follow procedure once would foreclose any ability to properly conduct such a vote in the future. This corrective activity is called “ratification.” While the “ratification” option is powerful, the board nonetheless must exercise good faith business judgment.

In a footnote, the circuit court addresses the Manchester Oaks HOA v. Batt case. Mr. Davison argued this case as authority in support of his argument that the contract was void. In that case, the trial court found that the meeting at which the members adopted a declaration amendment was improper because the members received inadequate notice. The HOA did not challenge this ruling on appeal. The Supreme Court of Virginia observed that if this is correct, the disputed amendment would be rendered invalid because a meeting of a corporation held upon inadequate notice is improper and the corporate acts undertaken at the meeting are invalid as a matter of law. Because of the way this issue came before the Supreme Court, the trial judge in Davison v. Blakeview did not view this as binding precedent. I would add an observation that the meeting at issue in Manchester Oaks was a meeting of the members at which they had a right to vote. This is different from the notice afforded for board meetings, where only directors can vote.

The circuit court only considered Mr. Davison’s argument that the Fine Earth contract was “void,” because he never raised the “voidable” theory. The trial judge found that voting on the Fine Earth contract could not be “void,” even if the bylaw was not observed, because maintaining the common areas was well within the HOA’s business.

The judge observed that had Davison alleged voidability, the HOA could have availed itself of the “ratification” option, retroactively blessing the approval of the contract.

The court observed that there was nothing shown that if proper notice had been given, the result of the board vote would have been different. While Davison said that the contract was too expensive and benefitted some lot owners over others, the court did not find a lack of good faith business judgment in approving it.

The court concluded that there was no basis upon which to grant relief to Mr. Davison, and entered judgment for the defendant HOA.

The Davison v. Blakeview decision does not mean that individual homeowners are without any legal remedy in HOA litigation in general or corporate governance disputes in particular. Some may argue that this case shows that HOAs may conduct themselves in whatever fashion the board majority sees fit. This is not correct.

When homeowners become frustrated with their HOA or condominium boards, there is a temptation to view every procedural defect as an “opening” to object to a meeting from being called to order or to challenge a particular decision after the meeting. There are many instances where a homeowner ought to focus on the legal technicalities, particularly where a HOA decision or inaction impacts her unit or lot in a direct and special way. For questions that have to do with budgets, contracts, and management of common property used by all in a similar way, it is often better for the homeowner to focus on building support for her particular concern among the members and directors of the association.

Authority:

Jacob Davison v. Blakeview Home Owners Ass’n, et al., CL-2024-7040 (Fairfax Co. Aug. 18, 2025).

Manchester Oaks HOA, Inc. v. Batt, 284 Va. 409 (2012).

Va. Code § 55.1-1816 (VPOAA – Meetings of the board of directors)

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.

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.