Virginia HOA law changes (maybe)

For fellow Va residents (and others who may be interested)this bill seems pretty far along and a little hairy to 'analyze'....................any thoughts?

http://www.washingtonpost.com/local/virginia-politics/homeowners-associations-fighting-back-in-virginia-legislature/2014/02/17/a7de19c2-9811-11e3-9616-d367fa6ea99b_story.html

It looks like the Bill is going to become law as both the House and Senate agreed to changes from the conference committee.

Here is a link to the latest version of the bill:

http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+HB791H2

Here is a link to the bill's history (and all earlier versions):

http://lis.virginia.gov/cgi-bin/legp604.exe?141+sum+HB791

As a brief summary, this bill amends an existing statute (that allowed monetary penalties for violation of common area rules) and will basically allow VA Associations to impose monetary damages for Covenant violations. The bill was drafted based on several court cases that resulted in the courts specifying that if the Covenants didn't allow for monetary penalties then the Association could not impose them. This basically left the Associations with three options:

1) Don't enforce the covenants
2) enforce all covenant violations through the courts
3) amend the CC&Rs to allow monetary penalties.
4) Impose monetary penalties and hope they are never challenged in the courts.

Since #3 is difficult to obtain and #2 is extremely expensive many Associations were left with option 1 or 4 (neither one being the best option).

Tim, I realize you are not an attorney. But say the bill becomes law. What is your understanding of any previously outstanding Covenants violations that were issued prior? (i.e. can a 'fine' be grandfathered?)

This whole change in the POAA is most interesting to me: Given that a new statutory change cannot change the terms of an existing contract under the Virginia Constitution, and given that the Va Supreme Court has ruled that CC&R's constitute a contract, wouldn't the Covenants have to be changed anyway???

I'm no attorney either, but this seems to me to be a head-scratcher.

It's amazing what a second or third read of a document will have you realize.

In my opinion, the changes do little if anything to the existing statute.
Allow me to explain:

The bill still defers control to the CC&Rs for the authority to impose monetary damages. As I pointed out in other threads, many CC&Rs do not authorize monetary damages for violations. My Assocaitions CC&Rs very plainly state that enforcement is to be through a court of law or in equity. That line is very similar (if not exact) to CC&Rs I've seen from other Associations across Virginia (I believe that it was the boiler plate standard at the time).

However, court cases (listed in the thread referenced in my initial post on this thread) have resulted in rulings that said without the authority to impose monetary damages being in the CC&Rs (for covenant violations) the board would be over stepping their authority if they did impose them.

Additionally, the bill still doesn't answer the question if the 90 day limit on fines can be restarted on continuing violations if the Association goes through the warning/hearing process again.

At first read I though it was going to resolve the issue of covenant enforcement.
Unfortunately, in my opinion, it does not.

I'm actually afraid that the rewrite will have many Associations misinterpret their authority and, once that bill becomes law, will think that they are now on solid ground to use monetary penalties regardless if the governing documents give them that authority or not.

Tim