The Virginia Legislation passed SB 1008 that modified the Code of Virginia adding a “Statement of Lot/Unit Owner Rights,” sections 55-79.72:3 and 55-509.3:1. It sounds like a Bill of Rights, but the 5 items merely repeat existing law without meaningful and effective enforcement.
Consider that Virginia has a constitutional Bill of Rights, Article 1, that contains section 14,
Government should be uniform. That the people have a right to uniform government; and, therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.
It seems that HOA private governments violate Virginia’s Constitution.
Furthermore, take the first 2 clauses of Section 11, “That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts.” Compare the “fine print” of SB 1008 that adds, “the right of due process in the conduct of that hearing” (my emphasis), referring to the section on enforcement of rules, (Sec. 55-513 or 55-79.80:2). The enforcement section specifies the hearing in accordance with the [governing] documents, “the member shall be given an opportunity to be heard and to be represented by counsel before the board of directors or other tribunal specified in the documents.” Does that mean that the counsel is restricted to seeing that the homeowner is allowed to be heard, or is there more?
I have not come across a governing document that calls for hearings that allow presentation of documents and witnesses and the questioning of this evidence, or that the tribunal be an independent body. My point is, What does due process meaning in the context of SB 1008? Is it under the constitutional bill of rights meaning, or constrained by the CC&Rs and bylaws private contracts? Sounds like same ol’, same ol’.
Legislation without effective enforcement through monetary penalties is merely a recommendation that relies on the good faith of the parties, namely the board and its attorney and manager advisors. But, we know all about the good faith acts of many of these responsible parties, especially those of rogue boards that ignore the laws and governing documents or knowingly violate them with impunity.
It would have been so much simpler to have these details spelled out in this one page bill if, indeed, justice for homeowners was sought.
HOA Constitutional Government 