Association of Lake Area Communities, Inc.
By R. C. Neuman, Resident Moneta, 24121

     This is the first of a series of monthly reports made available to the constituents of ALAC member associations through the courtesy of the Smith Mountain Laker.com magazine.
     At our August member meeting, Mr. Bill Marr, President of Property Owners Association of Virginia, addressed the topic “Changing Subdivision Restrictions”.  He made the interesting point that the best solution to many association problems may not be to change the restrictions.
• Unless the Restrictions (or Covenants) specify the percentage of owners required to change them, 100% approval is likely to be required.  This level of acceptance may be impossible to obtain since one owner ignoring the process will defeat it!
• Even when an achievable percentage is specified, changes must be carefully planned and executed in the proper sequence to achieve a timely result.  The service of an attorney is highly recommended to plan and coordinate the activities.  The cost may be considerable.

 Before any changes are considered, the following documents, listed in priority of effect on the subdivision, should be reviewed by the board of directors:
1.  The deed of subdivision, which divides a parcel of land into lots and may also place restrictions on their use, such as the creation and location of easements.
2.  The declaration of covenants, conditions and restrictions which further restrict the uses of the lots and may create a property owners association.
3.  The articles of incorporation of the association (for those that are incorporated) which, at the very least, define what the association was created to do. 
4.  The bylaws and rules define how the association will be managed.
These documents should be reviewed and determined, not just assumed, to be consistent among themselves.  It is relatively easy to create a bylaw or rule to deal with a new situation that is contrary to or even forbidden by a superior document.

 These subdivision documents should also be reviewed for conformance with:
1.  The Virginia Property Owners Association Act defines, for those associations that are under its domain, many activities that a board of directors must and must not do.  Many of its provisions define good management practice for boards.
2.  The Virginia Nonstock Corporation Act makes similar definitions for nonstock corporations, including most incorporated property owners associations.
3.  Local zoning ordinances take precedence over any conflicting provisions in the subdivision documents.
(Recent ALAC speakers have made current copies of the first two of these documents available to each member association, and it is the intent of the ALAC board to update its members annually.)
     The objective of reviewing these documents is to assure that actions taken by your Board of Directors are consistent with the documents and regulations that apply.  Before a restriction, bylaw or rule is adopted or enforced, it is prudent to be sure that it is legal and within the capability of the board to enforce.  If it is not, no court or arbiter will support the enforcement effort.
     Unhappily, this is a lot of work, and it may be difficult to find, in volunteer organizations like most boards of directors, people to undertake this task.  It is too bad, because the exercise would create a board of uncommon expertise as well as a set of consistent documents.
     Mr. Marr presented alternative approaches that may resolve some property owners association problems as effectively as changing the Restrictions. 
• The Virginia Property Owners Association Act, section 55-513, empowers the board of directors to establish, adopt and enforce rules and regulations with respect to the common areas and to such other areas of responsibility assigned to the association by the declaration.  These rules and regulations may be adopted by the board by resolution, distributed throughout the development, and enforced by any method available to the owner of private property in Virginia.  The rules may be canceled or amended by a majority vote at a meeting of members called for that purpose.  The section goes on to explain this in more detail, and how the board may enforce these rules via suspension of rights and penalties.
• Section 55-515 enables the board of directors to levy special assessments if the purpose in doing so is in the best interests of the association and the proceeds of the assessment are used primarily for the maintenance and upkeep of the common areas.  The special assessment may be rescinded by a vote similar to the section above.  The section also describes how special assessments may be enforced.  This section enables associations to raise necessary money to maintain common property even when they are limited in the amount they can levy by subdivision documents.
     ALAC offers this information as a strategic guide for its member associations.  It is not to be construed as legal advice.