William T. Coleman is a homeowner in Fairfax County.

Live in a homeowners association in Virginia? Your property rights may not be worth the paper they’re written on. If you are a property owner within a homeowners association in Virginia, the property rights listed in your Declaration of Covenants, Conditions and Restrictions (CCRs) and included in your property deed/title may not be as permanent as you think.

These rights, or restrictive covenants/easements, can take the form of equal access to parking spaces within a common area or your right to rent your property.

Virginia law, specifically the Property Owners’ Association Act (POAA), contains a provision that allows an association, by a vote by the other members and without your consent, to amend your CCRs in a way that would modify or take away completely those property rights you believed to be permanent. No way, that’s not fair, you say? Well, that’s exactly what’s happening right now.

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As I write this, my homeowners association in Fairfax County, which contains both garage and non-garage townhouses, is in the process of amending its declaration to take away from garage townhouse owners the deeded right of equal access to common area parking spaces by reserving spaces for the exclusive use by non-garage owners. The proposed amendment reads: “The Board of Directors shall have the authority to reserve one common area parking space for use of each lot that does not contain a driveway or a garage.”

Associations in Virginia are doing this because they believe the law allows it. The Virginia Supreme Court has made clear that it disfavors this use of the statute. However, it has yet to issue a definitive ruling stating that such an action is unconstitutional. Surprisingly, those who live in condominium associations do not face the same dilemma. Virginia’s Condominium Act provides specific protections against the loss of deeded property rights through an amendment to a declaration without the harmed owner’s consent. Owners in homeowners associations deserve nothing less than the same protections afforded those in condominium associations.

Here’s the rub: Absent a decision by the Supreme Court on the constitutionality of this practice, it will take a lawsuit by a homeowner whose rights have been taken away without his or her consent to correct a practice the court says is outside the boundaries of the common law — the established jurisprudential guide as contained in the Virginia Constitution. The court has said that a restrictive covenant running with the land that is imposed on a landowner solely by virtue of an agreement or vote entered into by other landowners would have been unheard of under English common law. The court has further noted that an amendment such as the one above “affects the forfeiture or revocation of the recorded easement rights of the owners of garaged lots in derogation of their titles.” The court is clear in its distaste for the creation of new restrictive covenants that take away previously recorded easement rights contained in an original title.

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The Supreme Court disfavors strongly the practice of using the amendment process to create new restrictive covenants that are unequal and favor one category of property owner at the expense of the other. But until someone is willing to challenge this practice with a lawsuit, it will continue. Sounds simple enough. However, it can take up to $250,000 to litigate such a case through the courts. Very few of us have the funds or the time to do this. Therefore, associations will continue to seek to amend their declarations in an unfair and discriminatory manner until either the Supreme Court rules or the General Assembly in Richmond wakes up and decides to act to preserve fairness within the statutes that govern homeowners associations.

The Property Owners’ Association Act should not be used to bypass the common law with amendments that violate fundamental public policies and provide for the unequal treatment of different classes of owners. It’s time for the General Assembly to fix this inequity and relieve homeowners who are losing their deeded property rights of the burden of having to go to court to retain what is legally theirs.

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