Virginia’s HOA bill, SB1489: stands the constitution on its head

Virginia’s HOA bill, SB 1489, “reformation of declarations”, is another legalistic slight-of-hand that appears to have been accepted by its sponsor unquestioningly and without conducting any due diligence as to the real intent behind the bill. In the spirit of “transparency to the public”, Virginians should ask the sponsor which lobbyists or group brought this bill to her attention.

The serious fault of this bill lies in its addition of § 55-515.3, “reformation of declaration; judicial procedure”, that grants the HOA the right to petition the courts to force amendments to the declaration without member approval. The bill provides an plausible justification and appearance of propriety with its verbiage relating to “inconsistencies”, “errors”, or “mistakes”. Yet, the bill seeks court approval of “reform, in whole or in any part”. And most atrocious are subsection (B)(2), that permits an open-ended right to amend the declarations contrary to the contractual requirement of a vote of the membership (emphasis added),

(A) [W]here the association . . . has attempted to amend the declaration using provisions outlined therein to resolve (i) inconsistencies in the declaration that are the source of legal and other disputes pertaining to the legal rights and responsibilities of the association or individual lot owners

(B)(2) Correct mistakes or any other error in the declaration that may exist with respect to the declaration for any other purpose.

The bill just requires a “good faith attempts”, on at least 3 different occasions, without any specificity on the meaning of “attempt”, by the board to have the declaration amended. Does that mean that the bill was rejected on each of the 3 occasions? Or that no quorum existed because the members, in exercising their rights under the declaration, did not attend meetings or did not submit their ballots or proxies in regard to the content of the proposed amendments? But, isn’t even the failure to attend a meeting or to vote also reflect the will of the people, the members? What a travesty on the supposed democratic functions of HOAs! What a reversal of the HOA lobbyist groups headed by CAI and their arguments against contract interference.

Realizing that homeowner rights advocates may pierce the veil of plausible justification for the bill, we see a title implying that the bill is an HOA reform bill. The use of the term “reformation” is interesting. Webster defines the terms,

Reformation: a reforming or being reformed; the Reformation — the 16th century religious movement . . . that resulted in establishing the Protestant Church.

reform: 1) to make better by removing faults and defects; 2a) to make better by putting a stop to abuse or malpractices by introducing better procedures, etc.

What SB1489 really appears to be is not a bona fide homeowner/member initiated homeowner rights reformation, but another example of the hypocrisy surrounding authoritarian HOA private regimes: a top-down state imposition of laws designed to further deny homeowner rights and freedoms in order to make the defective legal scheme of HOAs workable.

CAI supports this imposition of uniform state HOA laws, UCIOA, and the inclusion of its provisions when the model is not being adopted per se. (See CAI Central’s Public Policy statement). CAI has argued against the extension of constitutional protections to members (see it amicus brief in the Twin Rivers free speech case before the NJ appeals court). Even CAI’s top man has argued that HOAs are businesses, but democratic (See Ungated Blog on CAI website).

This bill should not even be heard in committee. It should be withdrawn immediately!