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Subject: VA Condo Assoc fining us for rule that doesn't exist, against state law, and supreme court ruling.
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Author Messages
MarkW18


Posts:1290


03/08/2020 4:02 PM  
Posted By MelissaP1 on 03/08/2020 3:53 PM
There is always a bigger *ick head... or I mean fish... LOL!

Really anyone else not picturing someone outside their house running off geese with a remote car not thinking "Wow now there is a genius!" Watching wildlife honking, flapping off feathers, and dropping crap all the way... Wonder why the neighbors aren't happy with this??? Mmmm...

Oh and it's the Board NOT doing anything because it's not on their agenda... Wonder why? Because they have to deal with someone's behavior more than the problem???



Not me!
GeorgeS21
(Florida)

Posts:3279


03/08/2020 4:03 PM  
Most here probably don’t have a “Goose Frame of Reference.”

I find them so abhorrent, I would gladly chase them knowingly into my neighbors yard - every person for themself! And, I am extremely community minded.

I would gladly eliminate them from the earth. There are references in Virginia and Maryland history books of locals devising special large caliber guns that mounted to small boats to kill them as the geese darkened the sky in huge flocks - I assumed initially this was for food, but they may have simply decided enough was enough.

JR may have some form of justifiable goose insanity that has not yet afflicted his neighbors.
JR13
(Virginia)

Posts:30


03/09/2020 7:53 AM  
Paul, if there was a rule in our bylaws, like ours and most others have, that says you can't play your music too loud and it was "ticking off" the neighbors I would agree wholeheartedly. However that is not the case. If the board doesn't like the behavior they should amend the bylaws appropriately.

Imagine a board fining you for whatever they wanted to because a "few" neighbors didn't like it. Then any 2 or 3 neighbors could dictate your existence. That's technically what you are siding with. Unjust, unfair, and unbalanced control.
WalterH4
(Indiana)

Posts:145


03/09/2020 8:31 AM  
Posted By JR13 on 03/09/2020 7:53 AM
Paul, if there was a rule in our bylaws, like ours and most others have, that says you can't play your music too loud and it was "ticking off" the neighbors I would agree wholeheartedly. However that is not the case. If the board doesn't like the behavior they should amend the bylaws appropriately.

Imagine a board fining you for whatever they wanted to because a "few" neighbors didn't like it. Then any 2 or 3 neighbors could dictate your existence. That's technically what you are siding with. Unjust, unfair, and unbalanced control.

Check your ByLaws, if it's like ours, they only say that the board has authority to set the rules for common area usage. Those actual rules are not encoded into the ByLaws, but only the *authority* to set the rules.

So if your ByLaws are like ours, then the board *does* have the ability to set the rules. So if they sent you a notice to cease/desist on this behavior, and you ignored it, it may be very well within their legal rights to then fine you for not paying attention to their rules.

If you want to change the rules (or bring sanity to the board), you might need to get elected to the board along with others like-minded. Otherwise, I think you are screwed, and will lose in court if you have enough funds to risk by even going to court (and I'm guessing you don't, as legal fees go into the $1000's super-quick).

The evidence here indicates to me that you aren't much of a "team player", and might not have the inclination to do this right. If you want to handle the Goose Problem, you really need to turn this into a "community resolution", and obtain the appropriate support before just taking matters into your own hands. Some residents there are likely to be bird lovers, and sense your hatred of these birds, and don't want you doing this on their common property. So it really needs to come down to a vote. It's not just your decision, but rather should be the decision of the majority, or even super-majority. I am wondering if you are the sort of person who even cares what the majority thinks.

If the board really only cares about a "few people" vs. "many" -- shame on them. But if they are defending the opinions of at least 1/3rd of the community -- then kudos to them, and shame on you, IMO. If 2/3rd's of the community doesn't endorse your endeavor, then you should probably just STOP it. Or even just 51%? Does this matter to you?
WalterH4
(Indiana)

Posts:145


03/09/2020 8:31 AM  
Posted By JR13 on 03/09/2020 7:53 AM
Paul, if there was a rule in our bylaws, like ours and most others have, that says you can't play your music too loud and it was "ticking off" the neighbors I would agree wholeheartedly. However that is not the case. If the board doesn't like the behavior they should amend the bylaws appropriately.

Imagine a board fining you for whatever they wanted to because a "few" neighbors didn't like it. Then any 2 or 3 neighbors could dictate your existence. That's technically what you are siding with. Unjust, unfair, and unbalanced control.

Check your ByLaws, if it's like ours, they only say that the board has authority to set the rules for common area usage. Those actual rules are not encoded into the ByLaws, but only the *authority* to set the rules.

So if your ByLaws are like ours, then the board *does* have the ability to set the rules. So if they sent you a notice to cease/desist on this behavior, and you ignored it, it may be very well within their legal rights to then fine you for not paying attention to their rules.

If you want to change the rules (or bring sanity to the board), you might need to get elected to the board along with others like-minded. Otherwise, I think you are screwed, and will lose in court if you have enough funds to risk by even going to court (and I'm guessing you don't, as legal fees go into the $1000's super-quick).

The evidence here indicates to me that you aren't much of a "team player", and might not have the inclination to do this right. If you want to handle the Goose Problem, you really need to turn this into a "community resolution", and obtain the appropriate support before just taking matters into your own hands. Some residents there are likely to be bird lovers, and sense your hatred of these birds, and don't want you doing this on their common property. So it really needs to come down to a vote. It's not just your decision, but rather should be the decision of the majority, or even super-majority. I am wondering if you are the sort of person who even cares what the majority thinks.

If the board really only cares about a "few people" vs. "many" -- shame on them. But if they are defending the opinions of at least 1/3rd of the community -- then kudos to them, and shame on you, IMO. If 2/3rd's of the community doesn't endorse your endeavor, then you should probably just STOP it. Or even just 51%? Does this matter to you?
WalterH4
(Indiana)

Posts:145


03/09/2020 8:41 AM  
...or you can just pay the $50 fine, and stop scaring the geese. And fine another obsession.
JohnC46
(South Carolina)

Posts:10017


03/09/2020 1:54 PM  
Posted By WalterH4 on 03/09/2020 8:31 AM
Posted By JR13 on 03/09/2020 7:53 AM
Paul, if there was a rule in our bylaws, like ours and most others have, that says you can't play your music too loud and it was "ticking off" the neighbors I would agree wholeheartedly. However that is not the case. If the board doesn't like the behavior they should amend the bylaws appropriately.

Imagine a board fining you for whatever they wanted to because a "few" neighbors didn't like it. Then any 2 or 3 neighbors could dictate your existence. That's technically what you are siding with. Unjust, unfair, and unbalanced control.

Check your ByLaws, if it's like ours, they only say that the board has authority to set the rules for common area usage. Those actual rules are not encoded into the ByLaws, but only the *authority* to set the rules.

So if your ByLaws are like ours, then the board *does* have the ability to set the rules. So if they sent you a notice to cease/desist on this behavior, and you ignored it, it may be very well within their legal rights to then fine you for not paying attention to their rules.

If you want to change the rules (or bring sanity to the board), you might need to get elected to the board along with others like-minded. Otherwise, I think you are screwed, and will lose in court if you have enough funds to risk by even going to court (and I'm guessing you don't, as legal fees go into the $1000's super-quick).

The evidence here indicates to me that you aren't much of a "team player", and might not have the inclination to do this right. If you want to handle the Goose Problem, you really need to turn this into a "community resolution", and obtain the appropriate support before just taking matters into your own hands. Some residents there are likely to be bird lovers, and sense your hatred of these birds, and don't want you doing this on their common property. So it really needs to come down to a vote. It's not just your decision, but rather should be the decision of the majority, or even super-majority. I am wondering if you are the sort of person who even cares what the majority thinks.

If the board really only cares about a "few people" vs. "many" -- shame on them. But if they are defending the opinions of at least 1/3rd of the community -- then kudos to them, and shame on you, IMO. If 2/3rd's of the community doesn't endorse your endeavor, then you should probably just STOP it. Or even just 51%? Does this matter to you?




I agree.
JohnC46
(South Carolina)

Posts:10017


03/09/2020 1:55 PM  
Posted By WalterH4 on 03/09/2020 8:41 AM
...or you can just pay the $50 fine, and stop scaring the geese. And fine another obsession.




I agree.
PaulJ6


Posts:0


03/09/2020 2:14 PM  
Posted By JR13 on 03/09/2020 7:53 AM
Paul, if there was a rule in our bylaws, like ours and most others have, that says you can't play your music too loud and it was "ticking off" the neighbors I would agree wholeheartedly. However that is not the case. If the board doesn't like the behavior they should amend the bylaws appropriately.

Imagine a board fining you for whatever they wanted to because a "few" neighbors didn't like it. Then any 2 or 3 neighbors could dictate your existence. That's technically what you are siding with. Unjust, unfair, and unbalanced control.




As I've stated, I despise HOAs.

HOA rules don't ban every single type of objectionable behavior. For example, no HOA I've ever lived in expressly bans being a jerk. But if someone is a jerk, the neighbors will get ticked, and rightfully so, and the jerk behavior should stop, even though the HOA itself doesn't ban the behavior.
JR13
(Virginia)

Posts:30


03/09/2020 4:05 PM  
Walter, Please read my original post "third paragraph" before you waste your time typing out these lengthy/irrelevant replies. I clearly stated in my original post the bylaw the board/assoc believes gives them full authority over the common grounds. I'll save you the time "it's a maintenance clause". You, my friend, need a hobby. Who doesn't read a post and just blindly replies three times in a row?

JohnC46, if you read my original post you wouldn't.

Paul, stop saying you despise HOA's if you agree with their overly apparent abusive of power and them attempting to enforce such actions.

Walter, JohnC46, and Paul, this will be my last reply to all three of you as well. I took a lot of time crafting my original post in hopes I would get some helpful replies. The least you could do, if you're going to reply, is actually read it. If you don't have something constructive to add please don't. You're clogging up the post with quoted replies and nonsense.
PaulJ6


Posts:0


03/09/2020 5:24 PM  
Sounds like we're done then. If you post and don't get the responses you want, perhaps rethink your approach in real life.

As for disliking HOAs, I'm one of the few on this board who has filed numerous lawsuits against HOAs.
WalterH4
(Indiana)

Posts:145


03/10/2020 10:25 AM  
JR13, there is nothing in your CC&R's or ByLaws that provides the HOA power of setting the rules for Common Area usage? That's the key here. Nothing you've quoted from an official document, states the power of the HOA to "set the rules". And if they can set the rules, then that "unofficial handbook" would then become authentic (they don't have to file it with the state, but only prove that they gave everyone access to read this handbook).

Here's the handbook statement that puts you in violation:
"DISTURBANCES: No home owners, their tenants, guests, families or invitees shall make or cause to be made any noises, music or disturbances which shall annoy or disturb other residents."


And so the only question left is "does the HOA have the right to establish/enforce rules for Common Area Usage?" If yes, you are screwed. If Not, then your HOA documents are absurdly deficient. I've never seen a HOA which wasn't permitted to establish "Rules for Common Area Usage".

So you might want to double-check all of your official HOA docs (Declaration, CC&R's, ByLaws).

So if your HOA docs are truly deficient (i.e. don't authorize your board to set the Rules of Common Area Usage), then you have a CHANCE of success, but only if you have the money to take them to court and file suit (or find an attorney who will do it based on contingency, that the HOA will pay his fees). In doing this, also know that you are actually suing your neighbors -- as the HOA will be paying for all attorney fees if you win.

It's a Lose-Lose-Lose, likely here. Unless you simply vote out the current board, and install better more sane board members.

==
All said, your aggressive tones taken here against those who are trying to help you, indicates to me that you are not a "team player" and don't know how to lead. You may be smart, and passionate, and maybe even correct in your legal assessments, but your character flaw of being quick to chastise, indicates that you don't have what it takes to win here (which is to coordinate a HOA-wide effort to change these rules, or to get a new board elected).

My best guess though, is that you are missing (or not telling us about) the parts of your official docs which provide authority to the board to set the Rules of Common Area Usage. This is the key to your legal case.

Good luck to you. I hope you are able to rally support for your cause (although I'm guessing you have a stronger knack for pissing people off, than rallying their support).
AugustinD


Posts:4160


03/10/2020 11:19 AM  
Posted By WalterH4 on 03/10/2020 10:25 AM
Here's the handbook statement that puts you in violation:
"DISTURBANCES: No home owners, their tenants, guests, families or invitees shall make or cause to be made any noises, music or disturbances which shall annoy or disturb other residents."
The HOA and residents cannot simply decree that conduct xyz is annoying or disturbing. The legal standard is that conduct xyz has to be unreasonable. Otherwise, the HOA has free reign to unfairly harass owners based on a subjective, non-standard.
JR13
(Virginia)

Posts:30


03/10/2020 12:28 PM  
Posted By AugustinD on 03/10/2020 11:19 AM
Posted By WalterH4 on 03/10/2020 10:25 AM
Here's the handbook statement that puts you in violation:
"DISTURBANCES: No home owners, their tenants, guests, families or invitees shall make or cause to be made any noises, music or disturbances which shall annoy or disturb other residents."
The HOA and residents cannot simply decree that conduct xyz is annoying or disturbing. The legal standard is that conduct xyz has to be unreasonable. Otherwise, the HOA has free reign to unfairly harass owners based on a subjective, non-standard.




Walter, again, please read the original post. When asked what gives them the authority they quote the maintenance clause. Additionally, if you read my original post you would see the "rulebook" is prefaced stating that it's simply an outline of the declaration/bylaws. Nothing more, nothing less. You're arguing a mute point and furthering the discussion in a way that isn't beneficial for anyone who may come across it. I don't have a tone, you're simply wrong and are having a difficult time processing that. There are sections that outline amending the bylaws but nothing that gives them the authority to fine for whatever they like simply because they don't like it.

AugustinD, do you have anything you could link to that goes into that further? I'd like to read up on it. Sounds interesting.
AugustinD


Posts:4160


03/10/2020 12:51 PM  
JR13, below is an introduction to the topic, from a 2007 Virginia Supreme Court opinion. You could read some of the buzillion cases the Court cited for more reinforcement. In that letter I drafted, when a covenant is vague and subject to capricious interpretation, it either is, or borders on, being unreasonable.

---- From Scott v. Walker, 2007, Virginia Court of Appeals ---
"When, as in this case, the interpretation and enforcement of a restrictive covenant concerning real property is at issue, we are guided by certain legal principles:

'It is... the general rule that while courts of equity will enforce restrictive covenants where the intention of the parties is clear and the restrictions are reasonable, they are not favored, and the burden is on him who would enforce such covenants to establish that the activity objected to is within their terms. They are to be construed most strictly against the grantor and persons seeking to enforce them, and substantial doubt or ambiguity is to be resolved in favor of the free use of property and against restrictions.'

Schwarzschild v. Welborne, 186 Va. 1052, 1058, 45 S.E.2d 152, 155 (1947); accord Waynesboro Village, L.L.C. v. BMC Properties, 255 Va. 75, 80, 496 S.E.2d 64, 67–68 (1998);
Bauer v. Harn, 223 Va. 31, 39, 286 S.E.2d 192, 196 (1982); Jernigan v. Capps, 187 Va. 73, 78, 45 S.E.2d 886, 889 (1948). “However, if it is apparent from a reading of the whole instrument that the restrictions carry a certain meaning by definite and necessary implication, then the
thing denied may be said to be clearly forbidden, as if the language had been in positive terms of express inhibition.” Bauer, 223 Va. at 39, 286 S.E.2d at 196 (citing Friedberg
v. Riverpoint Bldg. Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977))."

-------------------------
See https://cases.justia.com/virginia/supreme-court/1061410.pdf?1317062144

Because I just did all of the above work (which would have run you at least $300 from a competent HOA attorney), consider this:

A former board I was on met with a well-known HOA attorney several years ago. He had contributed to the state's condominium act many years ago. He was old and pleasantly droll. He was in semi-retirement but said he happily consulted with condos and HOAs 'to heat his swimming pool.' He also laid down the law in a nutshell: Aim to be fair and reasonable, and your legal problems will be small.

Is JR13's board being reasonable? Maybe. Maybe not. I would have to be there to assess. If I were on the board I would put out the word, emphatically and with a snarl, that this condo association condemns acts of violence between members.
WalterH4
(Indiana)

Posts:145


03/10/2020 9:26 PM  
JR13, thank you for your more considerate reply to me. I didn't say it, but I do agree with you that your board seems inept for quoting that maintenance clause as justification.

Per AugustinD's comment about "rules must be reasonable" - this is a solid concern. However, "no chasing geese" probably won't qualify as an "unreasonable" rule. If the rule was "no wearing red shirts" -- well, that would be unreasonable.

At best, you *might* luck into a judge that sides with you, but you are taking a big risk. At best you've got a 50/50 chance of "winning", and by "winning" I mean that the HOA has to pay all legal fees, instead of just you. There's no real "win" to be had here.

The only "win" you probably can hope for is to replace the board with yourself and a couple others who are like-minded with you. Although this may seem like a lot of work, it will be less work and a LOT less risk than a legal fight. When is the next election?

Or, you can just STOP your actions, and pay the $50. Or has it already grown to more than $50?
AugustinD


Posts:4160


03/11/2020 7:13 AM  
Posted By WalterH4 on 03/10/2020 9:26 PM
At best you've got a 50/50 chance of "winning", and by "winning" I mean that the HOA has to pay all legal fees, instead of just you.
You do realize that something called "the American Rule" nearly always translates to each side paying her or his own legal fees, don't you? Google on {"the American rule" attorney's fees}
BobB31
(Florida)

Posts:178


03/11/2020 8:07 AM  
Posted By AugustinD on 03/11/2020 7:13 AM
Posted By WalterH4 on 03/10/2020 9:26 PM
At best you've got a 50/50 chance of "winning", and by "winning" I mean that the HOA has to pay all legal fees, instead of just you.
You do realize that something called "the American Rule" nearly always translates to each side paying her or his own legal fees, don't you? Google on {"the American rule" attorney's fees}



" ... unless specific authority granted by statute or contract allows the assessment of those fees against the other party."

I'm not familiar with the VA statutes so I can't say whether this applies or not. In the absence of any specific instruction in the statute or governing documents, I imagine the American Rule would apply, unless one side is guilty of some egregious behavior.
SheilaJ1
(South Carolina)

Posts:176


03/11/2020 8:16 AM  
Didn't read the whole post but the issue with the geese would be a breach of contract since no rule for what they did is in the CC&R's, so winning party would be entitled legal fee's. I would even go far as to say if he was fined, the fine was illegal, going just on the geese issue alone wouldn't be as strong of a case. I wouldn't pay the fine. The Farran case is a clear example of this.

We have geese problems as well. Can't go in the backyard or walkways unless you tippy toe.
AugustinD


Posts:4160


03/11/2020 8:36 AM  
Posted By SheilaJ1 on 03/11/2020 8:16 AM
Didn't read the whole post but the issue with the geese would be a breach of contract since no rule for what they did is in the CC&R's, so winning party would be entitled legal fee's.
See Bob's and my posts. Per the "American Rule," the losing side in a lawsuit is typically not ordered to pay the winning side's legal fees. The reasoning behind the American Rule is that doing otherwise deters people from taking legitimate legal disputes to court.

I think it's fair to say that the U. S. legal system is based on the view that the stakes had better be high, and one had better be willing to pay at least one's own legal fees, if one is going to enter into a lawsuit.

What's the effect of this? Attorneys who won't take small potato lawsuits, because said suits will not pay them the upper class income to which they think they are entitled. An expansion in free legal clinics to improve "access to justice" (a several decades old, bona fide movement). Where I am, over half of new civil lawsuits have at least one pro se party. The courts are backed up. District court judges are elected and have been known to quit mid-term. Some district court judges have to share courtrooms.

Posted By SheilaJ1 on 03/11/2020 8:16 AM
I would even go far as to say if he was fined, the fine was illegal, going just on the geese issue alone wouldn't be as strong of a case. I wouldn't pay the fine. The Farran case is a clear example of this.
Thanks for reading about the Virginia Farran case (recently cited in another thread). Though there may very well be an important distinction: In the Farran case, the covenants did not authorize fines. At the OP's condo, the covenants may authorize fines. It isn't clear yet. Farran did cite the Virginia statute that awards attorney fees to the prevailing party in specifically HOA disputes:
55-15 (repealed Oct 1, 2019), replaced by 55.1-1828 (effective Oct 1, 2019).
GenoS
(Florida)

Posts:4133


03/11/2020 1:11 PM  
Posted By WalterH4 on 03/07/2020 2:21 PM
I'd like to see a video now from your RC car as you run off those geese. It just sounds like a fun activity; I know I'd enjoy it.

So what are your next steps?

He should get a drone. Launch it and recover it from off of the association's property, and the only legitimate authority over the use of that drone - in the air and below 400' - is the FAA.
SheilaJ1
(South Carolina)

Posts:176


03/11/2020 1:36 PM  
This case was interesting, case is still ongoing:

Summary:

How a Loudoun Co. family’s year-round holiday lights sparked a lawsuit


https://wtop.com/loudoun-county/2019/08/how-a-loudoun-co-familys-year-round-holiday-lights-sparked-a-lawsuit/


On Monday, Virginia’s highest court ruled that the HOA’s seasonal guidelines were unenforceable and overturned Irby’s decision, which awarded the homeowners association $884 in fines and more than $39,000 in attorney fees and costs.

But last August, the Virginia Supreme Court overturned that verdict, saying the HOA’s rule against holiday light displays is unenforceable.

“We reject the HOA’s assertions that it has the ‘broad’ authority to adopt such design-control rules and that it has the implied power to regulate the aesthetics of individually-owned lots,” wrote Justice D. Arthur Kelsey in Monday’s opinion.



I think the owners are now seeking attorney fee's.
PaulJ6


Posts:0


03/11/2020 1:55 PM  
It's extremely difficult for a plaintiff to win attorneys' fees.

Most lawsuits end up settling anyway, before a court could award them.
AugustinD


Posts:4160


03/11/2020 5:44 PM  
Posted By SheilaJ1 on 03/11/2020 1:36 PM
This case was interesting, case is still ongoing: [snip for brevity]
https://wtop.com/loudoun-county/2019/08/how-a-loudoun-co-familys-year-round-holiday-lights-sparked-a-lawsuit/

[In August 2019] Virginia’s highest court ruled that the HOA’s seasonal guidelines were unenforceable and overturned Irby’s decision, which awarded the homeowners association $884 in fines and more than $39,000 in attorney fees and costs.
I think the above is an excellent and relevant find. Here's a quotation from the article that seems germane to the OP's concerns: "The court said the HOA’s restrictive covenants didn’t adequately specify the conditions in which the lights would be against the rules." The plaintiffs' lights were in honor of several Hindu, Sindhi and Sikh holidyas.

Here's the Virginia Supreme Court's 2019 ecision: https://law.justia.com/cases/virginia/supreme-court/2019/181037.html. Here's the part of the decision I like:

=====
The proper construction of restrictive covenants is a question of law that we review de
novo. See Fein v. Payandeh, 284 Va. 599, 605 (2012). As we recently observed, “in keeping
with our common-law traditions, Virginia courts have consistently applied the principle of strict
construction to restrictive covenants.” Tvardek v. Powhatan Village Homeowners Ass’n, 291 Va.
269, 275 & n.2 (2016) (collecting cases). Underlying this principle of strict construction is the
common-law premise that the “absolute right” to property “consists in the free use, enjoyment,
and disposal of all [one’s] acquisitions, without any control or diminution, save only by the laws of the land.” 1 William Blackstone, Commentaries *138; see Hamm v. Hazelwood, 292 Va. 153,
157-58 (2016).

With this common-law underpinning, “the general rule” is that restrictive covenants “are
not favored, and the burden is on [the party] who would enforce such covenants to establish that
the activity objected to is within their terms.” Scott v. Walker, 274 Va. 209, 212-13 (2007)
(citation omitted). Restrictive covenants “are to be construed most strictly against the grantor
and persons seeking to enforce them, and substantial doubt or ambiguity is to be resolved in
favor of the free use of property and against restrictions.” Id. at 213 (citation omitted). Virginia courts should “enforce restrictive covenants where the intention of the parties is clear and the restrictions are reasonable” and “if it is apparent from a reading of the whole instrument that the restrictions carry a certain meaning by definite and necessary implication.” Shepherd v. Conde, 293 Va. 274, 288 (2017) (emphasis added) (citations omitted).
============

Scott v. Walker... huah!
WalterH4
(Indiana)

Posts:145


03/11/2020 6:02 PM  
So based on this "American Rule" talk, the I stand corrected -- JR13 is most likely going to face some attorney fees, unless he tries to fight this in court without an attorney (not a good idea either).

AugustinD, you are helping him to make his case. So even if you think he's got a decent chance of prevailing in court, what is your recommendation? To fight them in court, or something else?
AugustinD


Posts:4160


03/11/2020 6:17 PM  
Posted By WalterH4 on 03/11/2020 6:02 PM
So based on this "American Rule" talk, the I stand corrected -- JR13 is most likely going to face some attorney fees, unless he tries to fight this in court without an attorney (not a good idea either).
Since JR13 is in Virginia, and Virginia does have a statute that specifies the prevailing side in a HOA dispute gets her or his attorney's fees paid for by the losing side, this changes things.
Posted By WalterH4 on 03/11/2020 6:02 PM
AugustinD, you are helping him to make his case. So even if you think he's got a decent chance of prevailing in court, what is your recommendation? To fight them in court, or something else?
In my opinion, SheliaJ1 posted a diamond of a court precedent. I think JR13 should add the following sentence to the end of the first paragraph of the letter I proposed earlier: "Please especially consider reviewing Sainani v. Belmont Glen Homeowners Association Inc. (Virginia Supreme Court, August, 2019). I believe this Virginia court precedent and other Virginia Court precedent heavily favors my position." [Add Sainani v. Belmont to the list of authorities.]

I think JR13 should send the letter and see what the Board says.

Thx for asking. SheliaJ1 hit a home run, as far as I am concerned.
WalterH4
(Indiana)

Posts:145


03/11/2020 9:42 PM  
You are a gem AugustinD. I'm very glad you are on these forums.
JohnC46
(South Carolina)

Posts:10017


03/12/2020 12:50 AM  
Good Summary Of The VA SUpreme Court Ruling:

https://lawfirmcarolinas.com/blog/recent-hoa-case-a-good-reminder-in-north-carolina-south-carolina/:

Basically says an HOA cannot make Rules and Regulations on items not covered in their Covenants and/or Bylaws.


MelissaP1
(Alabama)

Posts:9649


03/12/2020 4:51 AM  
I just love how being a *ick to geese is now a federal case... LOL!

Former HOA President
PaulJ6


Posts:0


03/12/2020 5:24 AM  
Posted By MelissaP1 on 03/12/2020 4:51 AM
I just love how being a *ick to geese is now a federal case... LOL!




If the case characteristics meet the criteria to go into federal court instead of state court, some parties prefer federal court. Submitting the paperwork to the court may be easier in federal court (the electronic document system, PACER, is better than some state alternatives).
WalterH4
(Indiana)

Posts:145


03/12/2020 9:07 AM  
Posted By JohnC46 on 03/12/2020 12:50 AM
Good Summary Of The VA SUpreme Court Ruling:

https://lawfirmcarolinas.com/blog/recent-hoa-case-a-good-reminder-in-north-carolina-south-carolina/:

Basically says an HOA cannot make Rules and Regulations on items not covered in their Covenants and/or Bylaws.



But if the Covenants/By-Laws says anything like "the board may establish Rules of Conduct for the Common Areas", would this not cover them for saying "no harassment of geese on Common grounds"? Just granting the board authority to make rules, should cover them? It would be very odd to have a POA that didn't grant this power to the board in some fashion.
JohnC46
(South Carolina)

Posts:10017


03/12/2020 9:17 AM  
Posted By WalterH4 on 03/12/2020 9:07 AM
Posted By JohnC46 on 03/12/2020 12:50 AM
Good Summary Of The VA SUpreme Court Ruling:

https://lawfirmcarolinas.com/blog/recent-hoa-case-a-good-reminder-in-north-carolina-south-carolina/:

Basically says an HOA cannot make Rules and Regulations on items not covered in their Covenants and/or Bylaws.



But if the Covenants/By-Laws says anything like "the board may establish Rules of Conduct for the Common Areas", would this not cover them for saying "no harassment of geese on Common grounds"? Just granting the board authority to make rules, should cover them? It would be very odd to have a POA that didn't grant this power to the board in some fashion.




This would be my thinking especially if a statement similar to above is in the Covenants
GeorgeS21
(Florida)

Posts:3279


03/12/2020 9:45 AM  
Agreed - if Board has the written ability, per the CCRs, to make Rules and Regulations (remember, this is for common areas), the Board could do so.

However, given the circumstances, the Board would need to have done this prior to the issue occurring, right?
AugustinD


Posts:4160


03/12/2020 9:49 AM  
I agree WalterH4's question right above is a good one. From reading JR13's first post in this thread, it sounds like his HOA's covenants do not say what WalterH4 proposes. But I imagine many HOAs/COAs do have wording like what WalterH4 wrote. On the one hand, I think the 2019 Virginia Sainani case (concerning the Sainanis' holiday lighting, located entirely on their lot) may end up being distinguishable from violations of rules for common areas. On the other hand, the citations and quotations in the 2019 Sainani decision concern covenants in general. The ruling said rules created by a board must have a basis in the covenants. Does wording like WalterH4's in a covenant mean that a Board can create any rule it wants with regard to the common areas? I think not. I think the rule has to be reasonable. I do not have any case law at the moment to address WalterH4's point, focusing on rules for common areas, but am all eyes.

On federal cases, I understand PaulJ6's point about (court) forum shopping. I could be wrong, but apart from maybe debt collection disputes, I do not think I have seen a HOA dispute between a HOA member and a HOA reach a federal court. Federal courts have addressed covenant disputes in general, though. Such disputes may tend to be among the plurality (and sometimes, majority) of cases decided annually where the U. S. Supreme Court's justices vote unanimously (9-0)? Google on the 14th amendment's clause prohibiting states from taking away property (including property rights) without due process, as in "nor shall any state deprive any person of life, liberty, or property, without due process of law;" ?
PaulJ6


Posts:0


03/12/2020 9:50 AM  
I do not think I have seen a HOA dispute between a HOA member and a HOA reach a federal court.




Mine did.
GeorgeS21
(Florida)

Posts:3279


03/12/2020 9:53 AM  
I would consider it to be reasonable for a R&R to be written which says something like this:

"Owners are prohibited from harassing geese."

Note, I said "owners" - as I would want the Board to be able to organize whatever method they felt needed, on behalf of the community, to harass, er, chase off the geese.

I still prefer to totally eradicate them ... assuming there is no obvious issue wrt the biosphere.
AugustinD


Posts:4160


03/12/2020 9:55 AM  
Posted By PaulJ6 on 03/12/2020 9:50 AM
I do not think I have seen a HOA dispute between a HOA member and a HOA reach a federal court.


Mine did.
Are you going to leave the forum hanging with regard to the legal issue that gave the federal court jurisdiction? The specifics of course are not necessary. Just the legal issue that gave rise to a federal court having jurisdiction. And none of that two different states, diversity jurisdiction jazz, please. [wink]
AugustinD


Posts:4160


03/12/2020 10:00 AM  
I do see Fair Housing HOA discrimination cases, HOA member vs. HOA, in the federal courts. And I do mean discrimination against a person based on their disability, familial status, race, religion, gender, and the other, specific protected classes.
PaulJ6


Posts:0


03/12/2020 10:06 AM  
Posted By AugustinD on 03/12/2020 9:55 AM
Posted By PaulJ6 on 03/12/2020 9:50 AM
I do not think I have seen a HOA dispute between a HOA member and a HOA reach a federal court.


Mine did.
Are you going to leave the forum hanging with regard to the legal issue that gave the federal court jurisdiction? The specifics of course are not necessary. Just the legal issue that gave rise to a federal court having jurisdiction. And none of that two different states, diversity jurisdiction jazz, please. [wink]




I've filed multiple lawsuits against HOA. In one, it was different states plus an amount in controversy being over the dollar minimum. In another, it was an allegation of violation of Federal law by the defendant.
PaulJ6


Posts:0


03/12/2020 10:53 AM  
Posted By JohnC46 on 03/12/2020 12:50 AM
Good Summary Of The VA SUpreme Court Ruling:

https://lawfirmcarolinas.com/blog/recent-hoa-case-a-good-reminder-in-north-carolina-south-carolina/:

Basically says an HOA cannot make Rules and Regulations on items not covered in their Covenants and/or Bylaws.






That blog post says, "At Black, Slaughter & Black we keep track of legal trends and recent case law that impacts our HOA and condo clients." Well, duh- if they represent HOA and condo requirements, the state bar and ethical rules (and basic sense) requires them to do so. Of course a law firm would keep up with "legal trends and case law". Thanks for sharing, and I just needed to vent about that moronic statement.


AugustinD


Posts:4160


03/12/2020 10:59 AM  
Yes Paul, but isn't it so that the typical HOA attorney (not being from Yale [wink]) is incompetent and so probably does not keep up with legal trends and case law?
PaulJ6


Posts:0


03/12/2020 11:11 AM  
Posted By AugustinD on 03/12/2020 10:59 AM
Yes Paul, but isn't it so that the typical HOA attorney (not being from Yale [wink]) is incompetent and so probably does not keep up with legal trends and case law?




I didn't go to Yale either but that's a great point! Excellent as always.
PaulJ6


Posts:0


03/12/2020 1:03 PM  
Posted By AugustinD on 03/10/2020 12:51 PM
He also laid down the law in a nutshell: Aim to be fair and reasonable, and your legal problems will be small.




Exactly. The HOA in my case decided to be a bully even refused to even discuss the situation, but it had thin legal justification for its position. Result? Ended up in Federal court as a defendant. Lesson learned, but likely rarely followed by HOAs.
JR13
(Virginia)

Posts:30


10/04/2020 8:44 PM  
Short Version. All fines were removed from our account.

Long Version+++
Turns out our board president, who had been president since the creation over 30 years ago, the one that loves the geese, was also the liaison. Every letter/response/email we got was actually a response from him even when emailing management. He had full control over that place. The board attorney's didn't agree with him so the letters we got were from private attorneys he hired and paid thousands to, with the unit owners' funds, in an attempt to scare me. I went door to door and got proxies signed for the annual board meeting to elect all brand new board members. All fines were removed off my account and we finally got the full roofing and siding inspection that was requested by our industrial hygienist. Apparently the old president put into effect a new rule banning use of RC toys. Not that it was enforceable but they took it out after getting rid of him https://i.imgur.com/WQb7HLp.jpg

The new board president even acknowledged that she is aware the "rulebook" isn't an enforceable document. Was really refreshing to hear someone actually acknowledge that. Turns out the majority of the unit owners are happy the geese have been kept out. Out of the 72 unit owners it was just 4-5 that were making a big deal about it and they all just happened to be best friends with the old president. You should have seen his face when he got voted off... Priceless.
+++
AugustinD


Posts:4160


10/04/2020 9:04 PM  
Posted By JR13 on 10/04/2020 8:44 PM

The new board president even acknowledged that she is aware the "rulebook" isn't an enforceable document.
I am not sure what you mean by "rulebook." I spent a couple hours yesterday reviewing case law nationwide concerning board-created rules and regulations and their enforceability per se. As long as either the Declaration or Bylaws say the Board may create reasonable rules and regulations (with a basis in the Declaration), then the courts will enforce these rules and regulations.

JR13
(Virginia)

Posts:30


10/04/2020 9:17 PM  
Posted By AugustinD on 10/04/2020 9:04 PM
Posted By JR13 on 10/04/2020 8:44 PM

The new board president even acknowledged that she is aware the "rulebook" isn't an enforceable document.
I am not sure what you mean by "rulebook." I spent a couple hours yesterday reviewing case law nationwide concerning board-created rules and regulations and their enforceability per se. As long as either the Declaration or Bylaws say the Board may create reasonable rules and regulations (with a basis in the Declaration), then the courts will enforce these rules and regulations.





As stated earlier in the thread the rulebook is prefaced stating it's just an outline of declaration/bylaws. Our CCR's say they can only enact new rules by a majority vote and then amending the bylaws and filing them in circuit court. They can't just add rules as they go.
AugustinD


Posts:4160


10/04/2020 9:48 PM  
Posted By JR13 on 10/04/2020 9:17 PM
As stated earlier in the thread the rulebook is prefaced stating it's just an outline of declaration/bylaws. Our CCR's say they can only enact new rules by a majority vote and then amending the bylaws and filing them in circuit court. They can't just add rules as they go.
Okay, I get it now: On page 1 of this thread, you called it a "handbook." Yada yada. I agree this "handbook" is not a set of Rules and Regulations under Virginia law.
JR13
(Virginia)

Posts:30


10/05/2020 5:25 AM  
Sorry, I use the two terms interchangeably. The document is actually titled "Rules & Regulations Handbook".
AugustinD


Posts:4160


10/05/2020 8:58 AM  
Posted By JR13 on 10/05/2020 5:25 AM
Sorry, I use the two terms interchangeably. The document is actually titled "Rules & Regulations Handbook".
How marvelously obfuscating. Here's my vote to burn all copies.

Good job purging the HOA of this jerk who sought and found attorneys who would say what he wanted and paid for them with members' funds. This sounds like it was a fair amount of work. I trust you will be running for the board soon.
JR13
(Virginia)

Posts:30


10/05/2020 9:04 AM  
Absolutely not. I got a group of women on there that are doing a phenomenal job. I feel bad for them. They were left with years of work orders that weren't completed that go back 5 years or more. The old president was paying people/contractors out of pocket and simply just asking the Assoc to reimburse him for whatever he said he paid them. No records of any financials. It's actually, if you can believe it, a lot worse than that but that's just the short version. We are getting our place fixed up, sold, and we are out of here!
JohnC46
(South Carolina)

Posts:10017


10/05/2020 1:01 PM  
Posted By JR13 on 10/05/2020 9:04 AM
Absolutely not. I got a group of women on there that are doing a phenomenal job. I feel bad for them. They were left with years of work orders that weren't completed that go back 5 years or more. The old president was paying people/contractors out of pocket and simply just asking the Assoc to reimburse him for whatever he said he paid them. No records of any financials. It's actually, if you can believe it, a lot worse than that but that's just the short version. We are getting our place fixed up, sold, and we are out of here!




Will you be taking any geese with you? Me, I love a good roasted goose.
JohnC46
(South Carolina)

Posts:10017


10/05/2020 1:02 PM  
Posted By JohnC46 on 10/05/2020 1:01 PM
Posted By JR13 on 10/05/2020 9:04 AM
Absolutely not. I got a group of women on there that are doing a phenomenal job. I feel bad for them. They were left with years of work orders that weren't completed that go back 5 years or more. The old president was paying people/contractors out of pocket and simply just asking the Assoc to reimburse him for whatever he said he paid them. No records of any financials. It's actually, if you can believe it, a lot worse than that but that's just the short version. We are getting our place fixed up, sold, and we are out of here!




Will you be taking any geese with you? Me, I love a good roasted goose.




ADDON

Good work on getting BOD changes, both rules and people.
TimB4
(Virginia)

Posts:17008


10/05/2020 4:22 PM  
JR,

Thank you for the update. Often, that never happens.
By providing an update you helped everyone here learn.
It is appreciated.


I agree with others, GREAT WORK !
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Forums > Homeowner Association > HOA Discussions > VA Condo Assoc fining us for rule that doesn't exist, against state law, and supreme court ruling.



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