Can a Virginia HOA deactivate a delinquent owner's gate barcode if it makes the back gate unusable?

Plain-English summary

A gated-community HOA in Senator Reeves's district adopted a resolution authorizing the board to deactivate a member's gate barcode after a hearing if the member was more than 60 days late on assessments, fees, or fines. The neighborhood had a manned main gate and an unmanned back gate; deactivating the barcode would still let an owner enter through the manned front, but the back gate would be unusable. For some lots, the front gate was several miles away from the lot, around or through the subdivision.

The AG concluded that the underlying enforcement power exists but has two important limits. First, § 55-513(B) of the Property Owners' Association Act allows a board to suspend a member's right to use facilities or services for unpaid assessments more than 60 days past due, "to the extent that access to the lot through the common areas is not precluded and provided that such suspension shall not endanger the health, safety, or property of any owner, tenant, or occupant." So if deactivation could endanger health, safety, or property, it was barred. Second, when the delinquency was on a special assessment governed by § 55-514(C), the statute provided that "direct access to the member's lot over any road within the development which is a common area shall not be denied the member." So if denying back-gate access also denied direct access to the lot, the deactivation was barred.

The AG declined to rule on the resolution's overall legality, observing that the answer depends on lot-specific facts: how far the lot is from each gate, which direction the owner is coming from, and whether an emergency was foreseeable.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Title 55 was reorganized into Title 55.1 effective October 1, 2019. The Property Owners' Association Act now appears at § 55.1-1800 et seq., with provisions analogous to former § 55-513 and § 55-514. Any current analysis should use the recodified provisions and check for substantive amendments enacted since 2016.

Background and statutory framework

Under the Virginia Property Owners' Association Act, § 55-513(A) gave HOA boards the power to "establish, adopt, and enforce rules and regulations with respect to use of the common areas," using any method normally available to a private property owner.

Section 55-513(B) extended that authority to suspending a member's right to use facilities and services "provided directly through the association" for nonpayment of assessments more than 60 days past due, subject to two express conditions:

• access to the lot through the common areas could not be precluded; and
• the suspension could not endanger the health, safety, or property of any owner, tenant, or occupant.

The board had to give the member an opportunity to cure and then to be heard, with the right to counsel, before any action.

Section 55-514(C) added an additional limit for delinquency on a special assessment authorized by statute (rather than by the recorded governing documents): even though failure to pay a special assessment let the association "deny the member access to any or all of the common areas," "direct access to the member's lot over any road within the development which is a common area shall not be denied the member." The opinion noted that if the recorded documents themselves are the source of authority to impose a special assessment, then the controlling statute remains § 55-513 and its narrower limits apply.

Because the question whether health, safety, or property was endangered, or whether "direct" access was denied, depended on lot-specific facts (distance to each gate, direction of approach, foreseeable emergencies), the AG followed long-standing practice of declining to resolve factual questions in advisory opinions.

Common questions

Q: Could the HOA deactivate the barcode for being 60+ days late on regular assessments?
A: Generally, yes, but subject to § 55-513(B)'s limits. Deactivation that endangered health, safety, or property, or that precluded access to the lot through the common areas, would be barred.

Q: When would back-gate denial endanger health or safety?
A: The AG pointed to scenarios where an owner needed to return home quickly for an emergency. If a property is close to the back gate but distant from the main gate, and the owner is approaching from that direction, blocking the back gate could endanger health, safety, or property in violation of § 55-513.

Q: What if the delinquency is on a statutory special assessment under § 55-514?
A: Then in addition to § 55-513's limits, § 55-514(C)'s "direct access" guarantee applies. For lots closer to the back gate, deactivation could deny "direct" access to the lot and would be barred.

Q: What process is required before deactivation?
A: Section 55-513(C) required notice and an opportunity to cure first. If the violation was uncured, the member had to have an opportunity "to be heard and to be represented by counsel before the board of directors or other tribunal specified in the [POA's] documents."

Q: Did the AG rule the resolution itself was illegal?
A: No. The opinion expressed no opinion on the overall legality of the resolution, only that it could not be applied in a way that violated the statutory limits.

Citations and references

Statutes:

• Va. Code Ann. § 55-508 to § 55-516.2 (Virginia Property Owners' Association Act, 2012 and Supp. 2015 versions cited)
• Va. Code Ann. § 55-509 (definition of "common area")
• Va. Code Ann. § 55-513 (board powers; suspension of facilities for nonpayment)
• Va. Code Ann. § 55-514(C) (special assessments; direct-access guarantee)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Attorney General opinions:

• 2013 Op. Va. Att'y Gen. 118 (AG declines to resolve factual questions in advisory opinions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-073_Reeves.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

February 19, 2016

The Honorable Bryce E. Reeves
Member, Senate of Virginia
Post Office Box 396
Richmond, Virginia 23218

Dear Senator Reeves:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether it is legal under the Virginia Property Owners' Association Act (the "Act") [1] for a property owners' association (a "POA") 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 will restrict but not completely deny entry into the neighborhood.

Background

You relate that the board of directors of a POA in your district adopted a resolution providing that after giving a member an opportunity for a hearing, the board of directors has the right to suspend a member's and his or her tenants' or family's use of a barcode decal, in the event of nonpayment of assessments, fees, or fines owed to the POA where payment is more than sixty days past due. The barcode decal is used to facilitate the manned main gate at the front of the subdivision and is required to use the unmanned gate to enter at the back of the subdivision. Without the barcode decal, an owner can still access his or her home by using the manned main gate, but for those owners whose homes are closer to the unmanned back gate, this access may be less convenient. The location of the back gate is approximately five miles from the main gate when driving around the subdivision, and it is approximately three miles from the main gate when driving through the subdivision. The streets within the subdivision are common area private roads.

Applicable Law and Discussion

The Act provides that the board of directors of a POA has "the power to establish, adopt, and enforce rules and regulations with respect to use of the common areas," and such enforcement may be "by any method normally available to the owner of private property in Virginia." [2] The board of directors also has the power, to the extent the declaration or rules and regulations of the POA expressly so provide, to

suspend a member's right to use facilities and services . . . provided directly through the association for nonpayment of assessments which are more than 60 days past due, to the extent that access to the lot through the common areas is not precluded and provided that such suspension shall not endanger the health, safety, or property of any owner, tenant, or occupant . . . . [3]

For a member who fails to timely pay an assessment, this statute bars a POA from suspending the right to use facilities and services if the suspension either denies access to the lot or if the suspension endangers the health, safety, or property of any owner, tenant, or occupant.

If the member fails to pay a special assessment, a second statute, § 55-514(C), [4] may impose an additional restriction on a POA's ability to suspend the right to use facilities and services:

The failure of a member to pay the special assessment . . . will provide the association with the right to deny the member access to any or all of the common areas. Notwithstanding the immediately preceding sentence, direct access to the member's lot over any road within the development which is a common area shall not be denied the member. [5]

For failure to pay a regular assessment, the question is whether denial of access to the back gate "endanger[s] . . . health, safety, or property." There could conceivably be situations where an owner needs to return to his or her property for an emergency affecting health, safety, or property. If the property is close to the back gate but distant from the main gate, and if the owner approaches from that direction, then denial of access through the back gate could possibly endanger health, safety, or property in violation of the Act.

For failure to pay a special assessment, the additional question under § 55-514 is whether denial of access to the back gate denies the owner "direct" access to his or her lot. For certain lots that are a significant distance from the main gate but close to the back gate, and depending on the direction from which the owner arrives, "direct" access might be only through the back gate, while for other lots, "direct" access may be through the main gate. For certain lots, deactivating the barcode and thereby denying use of the back gate could thus deny the owner "direct" access to his or her property in violation of the Act.

These are questions of fact. The Office of the Attorney General has consistently declined to answer questions resolving factual matters. [6] Accordingly, I can express no opinion about the overall legality of the resolution in question, other than to say that it may not be applied in such a way as to violate the Act.

Conclusion

For the reasons stated, while I express no opinion about the overall legality of the resolution in question, it is my opinion that it may not legally be applied against any owner if deactivation of the owner's bar code for nonpayment of a regular assessment would endanger health, safety, or property; or if deactivation for nonpayment of a special assessment under § 55-514 would deny the owner "direct" access to his or her property through the roads of the development which are common areas.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Virginia Property Owners' Association Act, VA. CODE ANN. §§ 55-508 through 55-516.2 (2012 & Supp. 2015).

[2] VA. CODE ANN. § 55-513(A) (Supp. 2015). Under the Act, a "common area" is "property within a development which is owned, leased or required by the declaration to be maintained or operated by a property owners' association for the use of its members and designated as common area in the declaration." Section 55-509 (Supp. 2015).

[3] Section 55-513(B). Before any action can be taken, the member must have the opportunity to correct the violation, and, if the violation remains uncured, the member must be given an opportunity "to be heard and to be represented by counsel before the board of directors or other tribunal specified in the [POA's] documents." Section 55-513(C).

[4] The unpaid special assessments statute does not apply if authority to impose a special assessment derives from the recorded governing documents. If the recorded governing documents are the source of authority for special assessments, then the controlling statute remains § 55-513. It grants and limits powers under recorded governing documents, and it imposes a slightly different limit for remedies for unpaid assessments, namely, that any remedy may not "endanger ... health, safety, or property."

[5] Section 55-514(C) (2012) (emphasis added) (authorizing a POA to levy special assessments and providing penalties for nonpayment).

[6] 2013 Op. Va. Att'y Gen. 118, 120.