HOA Bylaws overriding Virginia state law?

Our HOA board argues that the HOA's bylaws take precedent over state law. I am not a lawyer, but I have worked on regulatory and legislative issues for many years and cannot imagine that this would be the case. But, I've been wrong before.

The two specific sections in the bylaws reference: (1) the Board can take any action in the absence of a meeting that they could take at a meeting provided they obtain approval of all the directors; and (2) board meetings shall be held without notice.

The bylaws were adopted in 2003 and have not been changed.

Virginia law is very specific that members must be given notice of meetings and that board members cannot use informal gatherings to circumvent the open meetings section of the law.

Am I off-base on this?

I do not know anything about Virginia law but in Florida the statutes take precedence over documents. Your board must be wrong.

Notice of board meetings must be given per Va 55-510. The bylaws cannot override this.

There is provision in the Va statute for "action in lieu" of meeting. Any such action must be approved unanimously by all directors. Our board often takes such actions between monthly meetings where waiting would lead to added expense (e.g for emergency repairs.

David - what does "notice" mean? For REGULAR board meetings, is it not enough to announce their time and place, i.e. second thursday of the month at the community center, 7 p.m.?

Newsletters usually will suffice for this kind of "notice.'

The OP did not state whether his question was about REGULAR board meetings or special meetings (which DO have to have written Notice to Members)

as everyone else has said state law takes precedence...if they are that obtuse good luck!

Thanks, everyone. You've confirmed what I was pretty sure of. As someone mentioned, however, unless more community members speak up (apathy is always an issue in HOAs), little is likely to change. But, a small group of us are certainly pushing for more transparency. It all boils down to a domineering president who gets her way because the other two board members are retired and just don't want to deal with it.

BJN,

Some State laws defer to the Bylaws. Some do not.

For the sections you are talking about:

Actions without a meeting is covered in VA Nonstock Corporation Act § 13.1-841 and VA § 13.1-865 addresses actions without a meeting.
This section does state that any action that could be taken in a meeting may be taken without a meeting and without notice.

As for notice of meetings:

VA Nonstock Corporation Act § 13.1-866
defers to the Bylaws for notice requirements. This is probably where your Board is getting that understanding. However, Virginia Property Owners Act, § 55-510.1 specifies that notice of meetings shall be published to the membership. Since there appears to be a discrepancy between the two State Statutes, you need to determine which law is applicable. For that we look at the applicability sections of the law:

VA § 55-508: The VPOAA applies to your Association unless it's a condominium, a timeshare or membership campgrounds. The Non-stock Corporation Act would apply if your Associations was incorporated within the State of VA as a non-stock corporation.

Expecting that your Association is incorporated under these acts, it appears that there is a conflict within the State Statutes. One law, VA non-stock Corporation Act says you don't need notice and one law, the VPOAA, says you do have to provide notice. However, if you read the documents closely,

The VPOAA uses the word "shall" which makes it a requirement. The Corp. Act defers to the governing documents and uses the word "may" which makes it an option. Therefore, I don't think that their is an actual conflict between the two and that notice of meetings are required. However, I can understand how someone could interpret it as being a conflict.

The Fairfax County Community Association Manual under chapter 2 specifies that the laws were changed in 2000 to require notice of Board meetings.
You may want to provide these links to your Board.

BjN, Since your Association is choosing to interpret this law differently, you might request that the Board consults an attorney for advice. You also might want to pose the question to the CIC board. However, if your board insists to going by their interpretation, you will probably have to seek legal action for a court ordered interpretation.

Tim

Well said. This law is not only applicable to Florida but almost in every state of USA. rent homes Arlington Virginia

Well while Mike acknowledges that it is an old post he just wanted to update, Alex took it as an opportunity to SPAM. I have no knowledge or stake in what Alex is hawking but since he took the time to SPAM us IMO whatever he is pedaling should be avoided at all costs. If they can't follow simple posting rules, how could you trust them to deal honorably with you?????? And why is someone supposedly in Colorado hawking a Virginia company?

State law always takes precedent. The only thing that trumps State law is and applicable Federal statutes and the Constitution.

I know this is a necromatic post, but...
when we trumpet the phrase "X law takes precedence", we are doing our folks here a slight misservice. It's like saying "A stitch in time", and leaving it at that.

We should say "X law takes precedence when in conflict with Y"... because that is the real, legal aspect of it.

State law may say "No loud noises between 6 am and 8 am". Your by-laws state "No loud noises between 4 am and 7 am".

Which law trumps? In this case, a court would have to decide first "what was the intent of the state law", and then adjudicate the result. It is very likely, should you be making loud noises at 5:30, the court would hold that the by-law applied, and took precedence over the state law, even though, by state law, you 'could' make noise then. If you made noise at 7:30, however, the same court would convict you under the state law, saying that IT had precedence from 7:01 to 8.

If there is no conflict, then all levels of law can apply. When there is, however, then the higher law takes precedence.

and this should up my total to six now, I think...

Interesting discussion. My HOA has just approved amendments to the CCRs. Embedded in these amendments is language that clearly contravenes Davis-Stirling and the California Corporations Code. Due to the serverability clause in our governing documents, this language does not invalidate the entire amendment, but leaves parts unenforceable. I would like to see this cleaned up. My aim would be to amend the amendments only to strike out the illegal language. Does anyone know of particular case law on the subject?

Any person who runs for a homeowner association board should educate themselves as to the appropriate state and federal laws which impact the associaton and the internal legal documents,ie. covenants, articles and bylaws of the association. Otherwise you are setting yourself up for lawsuits. JMI