Virginia: 2017 Legislative Update for Common Interest Communities

Date: June 22, 2017

Virginia: 2017 Legislative Update for Common Interest Communities

The Virginia General Assembly approved a number of bills during its 2017 legislative session. Several of the bills impact, directly or indirectly, common interest communities. The Governor of Virginia signed the following bills into law in March and the new laws will take effect on July 1, 2017. We have outlined the substantive legislative action taken by the Virginia General Assembly that impacts both homeowners and condominium associations.

The following bills amend the Virginia Property Owners' Association Act (Va. Code Ann. 55-508, et seq., as amended (1950)), the Virginia Condominium Act (Va. Code Ann. 55-79.39, et seq., as amended (1950)), and other statutes that may affect common interest communities. Please feel free to contact us if you have questions regarding any of the following legislative changes.

Amendment to the Declaration

House Bill 1554 amends § 55-515.1 of the Property Owners' Association Act (POAA). The bill is in response to the February 2016 Virginia Supreme Court decision in Tvardek v. Powhatan Village Homeowners Association, Inc., which analyzed the voting and certification requirements necessary to make an amendment effective. The amended POAA now provides that, except as otherwise provided in the declaration of a property owners' association, an association may amend its declaration by a two-thirds vote of the owners. Under the bill, an action to challenge the validity of an amendment may not be brought more than one year after the amendment is effective. The bill further clarifies that an amendment becomes effective only when recorded, with the requisite certification, among the County land records.

Additionally, the bill provides that amendments recorded prior to July 1, 2017 are not affected by the voting or recording requirements set forth in subsections (D) and (F) of POAA § 55-515.1

Virginia Fair Housing Law Updates

House Bill 2006 amends and adds to the Virginia Fair Housing Law (Va. Code Ann. §§ 36-96.1, et seq.) in an effort to (1) clarify the requirements and procedures for providing a reasonable accommodation for a disabled person with an assistance animal and (2) establish procedures for addressing all reasonable accommodation requests made by disabled persons.  It is worth noting that the new statutory language adds obligations for housing providers beyond what is required by the federal Fair Housing Act. 

For individuals requesting a reasonable accommodation for an assistance animal, HB 2006 provides an updated definition of “assistance animal,” which includes untrained, emotional support animals and which states that all assistance animals are not pets.  As a result, associations with limits on the number of pets will not be able to include either service animals or emotional support animals in the number of pets the resident has in the unit.  For example, if an association has a two pet limit and the resident already has two pets, the association will have to allow a third animal in the unit if it qualifies as an assistance animal for which the disabled owner needs a reasonable accommodation. 

The bill also establishes a process through which a person with a disability may submit a request for a reasonable accommodation to maintain an assistance animal in a dwelling, including the submission of supporting documentation verifying the disability and disability-related need for an accommodation. Associations are prohibited from charging a pet fee or deposit or any additional rent to maintain an assistance animal, but the resident remains responsible for any damages caused by the animal.

HB 2006 broadens the class of persons that can provide reliable documentation of the resident's disability.  Now, anyone in a “therapeutic relationship” with the disabled individual can provide information about the disability.  A “therapeutic relationship” is defined as the provision of medical care, program care, or personal care services, in good faith, to the person with a disability by (i) a mental health service provider, (ii) an individual or entity with valid, unrestricted state license, certification, or registration to serve persons with disabilities, (iii) a person from a peer support or similar group that does not charge service recipients a fee, or (iv) a caregiver, reliable third party, or government entity with actual knowledge of the disability.  Associations will now have to be open to accepting documentation of the disability from persons who may not have a particular expertise in the diagnosis of disabilities, but who has actual knowledge of the requesting resident's disability. 

Finally, HB 2006 establishes procedures for any disabled person to request a reasonable accommodation from a housing provider, which is consistent with the requirements of the federal Fair Housing Act with one notable exception.  If a disabled individual requests an accommodation, the association can propose an alternative that meets the individual's needs and is reasonable.  But if the disabled individual's original requested accommodation is reasonable and the individual does not want to accept the alternative accommodation, he or she is entitled to reject the alternative accommodation offered and to insist on the originally requested accommodation.  This new requirement will limit associations' ability to negotiate accommodations that, while meeting the disabled owner's needs, will have less of an impact on other owners.

Please feel free to contact our office if you have any questions regarding a request for reasonable accommodation.

CICB Disclosure Packet

House Bill 1475 amends § 54.1-2350 of the Code of Virginia, relating to the Common Interest Community Board (“CICB”). The bill requires the CICB to include a statement in association disclosure packets that the purchase contract for a lot within an association is a legally binding document once it is signed by the prospective purchaser where the purchaser has not elected to cancel the purchase contract in accordance with law. This requirement simply reiterates the point that buying a home within an association subjects the owner(s) to the restrictive covenants of the homeowners association.

For Sale Signs and Power of Attorney

House Bill 2045 amends §§ 55-509.4 and 55-509.6 of the Property Owners' Association Act; and House Bill 2274 amends §§ 55-79.97, and 55-79.97:1 of the Condominium Act.

Unless provided for in the Property Owners Association Act, the Condominium Act, or the declaration, an association may not require the use of any for sale sign that is designed by the association or that does not comply with the requirements of the Real Estate Board. The association may, however, regulate the number, location, period of display, and manner in which signs are affixed to real property.

If an association currently requires the use of an association designed for sale sign, it will need to ensure that the association's governing documents expressly require the use of an association sign. If not expressly authorized, the association will need to suspend the requirement.

The bills also restrict an association's ability to require an owner to sign a formal power of attorney if the owner designates a real estate licensee as the owner's authorized representative. The association must recognize such authorized representation without a formal power of attorney, provided that the association is given written authorization signed by the owner designating such representation.

Complaints Regarding a Resale Disclosure

Certificate or Disclosure Packet

Under House Bill 2045, any person aggrieved by an association's failure to deliver a resale certificate or disclosure packet may file a complaint with the CICB. This includes complaints from a realtor, or any party who claims to have been aggrieved, in addition to the seller or potential purchaser. House Bill 2045 and House Bill 2274 further authorize the CICB to assess a monetary penalty against the association or its common interest community manager for failure to deliver the association disclosure packet within the required timeframe.