On February 19, 2016, Virginia Attorney General Mark Herring determined whether it is legal under the Virginia Property Owners’ Association Act for a property owners’ association to deactivate a member’s barcode decal if he or she is more than sixty days late paying an assessment. Deactivation of the barcode decal would restrict, but not completely deny, entry into the subdivision.
After a thorough analysis, the Attorney General determined that a property owners association may not deactivate a member’s barcode for nonpayment of assessments if deactivation would endanger health, safety, or property (tracking language from the Virginia Property Owners’ Association Act), or—for certain special assessments—if deactivation would deny an owner direct access to his or her property.
The analysis reminds us that circumstances surrounding the suspension of a member’s right to use facilities or services “are questions of fact” and require a case-by-case review by a community association board of directors.
This is particularly true if suspension might endanger health, safety, or property, or if suspension would deny an owner direct access to his or her property. And, as always, strict compliance with all procedural rules required by the Virginia Property Owners’ Association Act and governing documents is critical.
The opinion in Footnote 4 also rightfully recognizes two potential sources of authority for the imposition of special assessments in property owner’s associations – Section 55-514 of the Virginia Property Owners’ Association Act and the governing documents. This nuance can have significant consequences and the source of authority should always be considered carefully when considering the imposition of a special assessment.
Because every set of governing documents is different, the application of law to each community association differs. As always, contact an experienced attorney for advice and counsel.