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Association Charges : Be Aware of Legal Restrictions on Assessments and Charges

As of July 1, 2015, the Virginia Condominium Act provides that no condominium association may impose an assessment or charge against a unit owner unless such charge or assessment (a) is expressly authorized by the Condominium Act (see particularly Va. Code Sec. 55-79.83) and/or by the condominium instruments for the community, (b) represents a fee for service provided, or (c) is a fee for a resale certificate, as provided for in the Condominium Act. Va. Code Section 55-79.42:1.

The Common Interest Community Board has the authority to assess a monetary penalty and/or issue a cease and desist order against an association or common interest community manager who violates this Code section pursuant to its powers under Title 54.1 (“Common Interest Communities”), Sections 54.1-2349, -2351, and -2352. (The Property Owners’ Association Act already included a similar provision regarding assessments and charges in Section 55-509.3, which was amended in 2015 to add the CICB’s enforcement powers.)

This new section mirrors the holding of the Shadowood case (see Fairfax Cty. Redev. & Hous. Auth. v. Shadowood Condo. Ass'n, 83 Va. Cir. 33 (Fairfax Cnty. 2011)). In that case the Circuit Court of Fairfax County held that the Shadowood Condominium Association did not have authority to levy charges against units for miscellaneous rule breaches. The condominium’s master deed provided that the association shall assess against the units sums necessary to operate, maintain, repair, replace, restore, or improve the common elements and that no other sums shall be collected. The association’s bylaws similarly limited the authority of the association to assess only those sums necessary to maintain and operate common elements. The court found that a resolution passed by the association’s board of directors to assess charges for violations of the community’s governing documents was not supported by, and was inconsistent with, the language of the master deed and bylaws and, therefore, invalid.

The court referred to Virginia Code Section 55–79.80:2(A) to support its holding, reflected in the 2015 addition to the Condominium Act, which provides that “(t)he unit owners' association shall have the power, to the extent the condominium instruments or rules duly adopted pursuant thereto expressly so provide, to (i) suspend a unit owner's right to use facilities or services, including utility services, provided directly through the unit owners' association for nonpayment of assessments which are more than sixty days past due, to the extent that access to the unit through the common elements is not precluded and provided that such suspension shall not endanger the health, safety, or property of any unit owner, tenant, or occupant and (ii) assess charges against any unit owner for any violation of the condominium instruments or of the rules or regulations promulgated pursuant thereto for which such unit owner or his family members, tenants, guests or other invitees are responsible (emphasis added).”

Rental Restrictions
Also new as of July 1, 2015, the Condominium Act’s Section 55-79.87:1 provides that no unit owners association may condition or prohibit an owner from renting his or her unit or make an assessment or impose a charge other than as authorized by the new Section 55-79.42:1, discussed above.

Specifically, unless authorized by the Condominium Act or by the condominium association’s governing instruments, an association may not (1) charge a rental fee, application fee, or other processing fee in excess of $50.00 as a condition of a rental during the term of any lease; (2) require the unit owner to use a lease prepared by the association; or (3) charge a security deposit from either the unit owner or tenant. An association may require a unit owner to provide it with a copy of any lease with a tenant or an association document disclosing the names of the tenants and occupants under the lease. Also, the association may require the unit owner to provide it with the tenant’s acknowledgement of and consent of the association’s rules and regulations.

Section 55-509.3:1 sets out identical provisions for property owners’ associations.

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