Many board members and managers may not be aware that the Property Owners’ Association Act (“POAA”) requires that an association’s board of directors provide a member due process prior to taking action against that member in court.
Specifically, §55.1-1819 of the POAA and § 55.1-1959 of the Condominium Act require that if a board of directors believes a member may be violating its covenants or rules and regulations, the board must provide the member notice of the violation, and a reasonable opportunity to correct the alleged violation. If the member fails to correct violation after receiving the notice, the board must then provide the member an opportunity to present his or her position on the violation where the member may elect to be represented by counsel. This opportunity is commonly referred to as a due process hearing. In both of the Acts the Association governing documents must have adopted the provisions of these sections before they may be utilized to assess charges or suspend an owner’s right to utilize facilities or services. The POAA and the Condominium Act further require that the member receive notice of the hearing at least 14 days prior to its scheduled date and be provided the board’s decision within 7 days after the hearing.
A board may only seek assessment of charges against a member and possibly injunctive relief in either general district or circuit court after completing this due process procedure. Notably, failure to provide a member due process may result in reversal of a judgment as well as reimbursement of the member’s attorney’s fees.
If you have a member violating your association’s covenants and rules and regulations, we can help guide you through the requirements of providing due process. Please let us know if you have questions about this process in general or a specific matter with which you require assistance.