September 10, 2025
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)
