Virginia's Statement of Owner Rights: A Primer

Virginia's Statement of Owner Rights: A Primer

The Virginia Condominium Act and the Virginia Property Owners’ Association Act play a pivotal role in defining the relationship between owners and their common interest community associations.  In 2015, the Virginia General Assembly amended the Condominium Act and Property Owners’ Association Act to expressly set forth five specific owner rights concerning:

• Access to association books and record;
• Voting on association matters;
• Notice of, and participation in, meetings of an association’s Board of Directors;
• Notice of and procedures for enforcement hearings; and,
• Board service.

While these rights already existed in previously adopted code provisions, the statement of owner rights restates the rights to which owners are entitled under Virginia law. This primer provides a closer look at the rights enumerated in Section 55.1-1939 of the Condominium Act and Section 55.1-1807 of the Property Owners’ Association Act.

Access to Books and Records.  Owners in good standing have the right to examine and copy all books and records “kept by on behalf of” the association, including records of all financial transactions.  Owner access is subject to the provisions of Section 55.1-1945 of the Condominium Act or Section 55.1-1815 of the Property Owners’ Association Act, as applicable, and requests for records must be made for a “proper purpose” related to association membership. 

Owners may examine association membership lists, including owner names and addresses, provided such information is not used for solicitation.  Associations may adopt a cost schedule establishing charges for labor and materials in responding to the owner’s records request.  Requests to examine records must be accommodated within the timeframe specified by statute (five to ten days, depending on whether an association is professionally managed or self-managed) during business hours or at a mutually convenient time.  However, associations may withhold certain documents from examination that are considered confidential under the applicable statutes, including materials concerning personnel matters, contracts in negotiation, pending or probable litigation against the association, enforcement proceedings, consulting with legal counsel, executive session materials for board meetings, and individual member files (other than the requesting member’s own file).

Right to Cast Vote.  Owners have a right to cast a vote on any matter requiring a vote by the association’s membership, proportionate to an owner’s ownership interest, unless an association’s governing documents provide otherwise.  Most associations’ governing documents establish the right of owners to cast votes or issue approvals regarding association matters, including board elections, document amendments, and association loans – Section 55.1-1945 of the Condominium Act and Section 55.1-1815 of the Property Owners Association Act do not alter such rights. These statutory provisions do not negate governing document provisions conditioning voting on absence of delinquency, violations, or other good standing issues.

Board Meeting Rights.  Owners have the right to notice of any board meeting, to make an audio or visual record of such meeting, and to participate in such meetings in accordance with the provisions of Section 55.1-1949 of the Condominium Act or Sections 55.1-1815 and 55.1-1816 of the Property Owners’ Association Act.  Associations must publish notice of the time, date, and place of all board and association committee meetings in a location calculated to be available to a majority of owners.  Owners may record open portions of meetings and participate in portions of meetings designated for owner comment, subject to reasonable board-adopted rules.

Enforcement Hearing Rights.  Owners have the right to have notice of proceedings against them to suspend their right to the use of common facilities or services or to assess violation charges in enforcing the association’s rules or regulations.  Owners also have the right to be heard and represented by counsel at such hearing and the right to “due process” in the conduct of the hearing – such hearings must be conducted fairly, impartially, and provide the opportunity for an owner to present their position on whether they are violating the rules and why they should not be sanctioned.

Right to Serve on the Board.  Owners have a right to serve on the board if duly elected and a member in good standing of an association, unless the association’s governing documents provide otherwise.  Neither the Condominium Act nor the Property Owners’ Association Act expressly defines “good standing.” Accordingly, associations must look to their governing documents for clarification.  “Good standing” typically relates to the absence of past due assessments or other sums due to the association and may also relate to the absence of pending violations of association governing documents or rules and regulations.

Additional qualifications for board service may be established in an association’s governing documents.  Some governing documents provide, for example, that an individual must be an owner within the association or the spouse of an owner to be eligible for board service.  Who qualifies for board service will vary from association to association, based on the provisions of the association’s governing documents.

While to some extent a restatement of owner rights previously established by statute, the statement of owner rights set forth in the Condominium Act and the Property Owners’ Association Act helps to ensure that associations are aware of the statutory rights to which owners are entitled under Virginia law as to the governance and operation of their associations.