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Client Alert: Due Process or Due Trouble? Navigating the Legal Maze of Covenant Enforcement in Virginia Community Associations

Date: June 26, 2025
Community associations governed by the Virginia Condominium Act (VCA) and the Virginia Property Owners’ Association Act (POAA) are frequently called upon to enforce their association’s covenants, rules, and restrictions. While an association’s governing documents can provide broad authority for enforcement, the VCA & POAA impose procedural requirements, commonly referred to as “due process,” that must be observed, particularly when community associations seek to impose sanctions or obtain certain remedies in court. This alert outlines the statutory framework, practical considerations, and best practices for ensuring compliance with due process requirements.
 

Statutory Framework: When is Due Process Required?

Both the VCA (§ 55.1-1915) and the POAA (§ 55.1-1828) empower Associations to enforce compliance with governing documents through actions for charges (or fines), injunctive relief, or other remedies. However, the statutes distinguish between the types of relief sought and the forum in which relief is pursued:
 
  • Circuit Court Actions: Community associations may file lawsuits in Circuit Court for injunctive relief or damages without first providing due process to the owner. This is particularly relevant in emergency situations where immediate action is necessary (e.g., to prevent irreparable harm to common areas or property).
  • General District Court Actions: By contrast, before a General District Court can award injunctive relief to a community association, the community association must demonstrate that it has provided the owner with due process as required by statute.
 
The law recognizes that emergencies may arise (e.g., imminent destruction of property such as leaks or tree removal) where the time required to provide due process would defeat the purpose of enforcement. In such cases, immediate action may be justified, but community associations should be prepared to explain and document the emergency nature of the situation, although an “emergency” is not a statutory prerequisite.
 

Statutory Due Process Requirements

While the statutes do not prescribe a rigid process for every enforcement action, they do establish three minimum requirements for community associations to follow if they want to impose sanctions or obtain certain remedies:
 

1. Notice of Violation and Opportunity to Cure:

  • The owner must be sent a written notice of the alleged violation, describing the nature of the violation and providing a reasonable opportunity to cure it.

2. Notice of Hearing:

  • If the violation is not cured, the owner must be sent a notice of the opportunity to be heard before the board or a designated committee.
  • This notice must be sent at least 14 days before the hearing and must be delivered by certified mail or hand delivery.

2a. The Hearing:

  • There is no statutory requirement for the board to hold a hearing if the owner does not respond, but best practice is to proceed with the hearing regardless of the owner’s participation to ensure the process is documented and defensible.
  • The hearing is the owner’s opportunity to present their side, offer explanations, or propose solutions. 

3. Decision and Notice of Sanction:

  • After the hearing, the board should promptly issue a written decision, including any sanctions imposed, and deliver it to the owner within 7 days via certified mail or hand delivery.
 

Best Practices for Community Associations

  • Follow Your Governing Documents: Ensure your association has the authority to impose the sanction(s) it is considering.  If there is no authority for a certain sanction in the governing documents, an association cannot choose it except for seeking injunctive relief authorized by the VCA or POAA. Also, many community associations have adopted due process resolutions or procedures that may provide greater protections than the statutory minimum. Always follow your own procedures, as failure to do so can undermine enforcement actions.
  • Document Every Step: Maintain detailed records of notices sent, delivery confirmations, hearing minutes, and decisions. This documentation is critical if enforcement actions are challenged in court.
  • Hold the Hearing: Even if the owner is unresponsive, schedule and conduct the hearing. This demonstrates good faith and compliance with statutory requirements.
  • Foster Constructive Dialogue: Use the hearing as an opportunity to resolve the violation, not just to impose sanctions. Encourage open communication, explore alternative solutions, and be receptive to reasonable requests for additional time or clarification.
  • Timely Communication: Send all required notices and decisions promptly, using the prescribed methods of delivery.
 

Practical Considerations

  • Emergencies: In urgent situations, immediate action may be necessary. However, document the circumstances and rationale for bypassing the usual process.
  • Litigation Risk: Courts may scrutinize whether the community association provided due process, especially if the owner challenges the enforcement action. Adhering to statutory and internal procedures reduces the risk of adverse rulings and attorney fee awards against the community association.
  • Attorney Fees: Both the VCA and POAA provide for the recovery of reasonable attorney fees and costs by the prevailing party in enforcement actions. Proper due process increases the likelihood that the community association may be deemed the prevailing party and may recover its attorneys’ fees and costs for pursuing the lawsuit.
 
Due process is a cornerstone of fair and effective covenant enforcement. While not always required before seeking judicial relief, providing notice and an opportunity to be heard is both a statutory obligation and a best practice that protects community associations from legal challenges and fosters better community relations. Community associations should review their governing documents, adopt clear due process procedures, and ensure strict compliance whenever enforcement action is contemplated.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.