Notice of Final Adverse Decision filed with DPOR, CIC Ombudsman

DESIRED ACTION from Common Interest Community Ombudsman, DPOR, Virginia

A. Direct the Association to annul (void) the 2013 election for the Board of Directors

The Condominium Act § 55-79.77.D, "votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons."

At the 2013 Annual Meeting, homeowners were denied the opportunity to cast a vote for the candidate of their choice because the proxies mailed to homeowners did not specify any candidates for election. The proxies were mailed concurrently with the call for candidates!

There are three situations that in and of themselves render an election null and void. They are:

1- Failure to follow the procedures for giving the first notice of the date of the election shall require the association to conduct a new election;

2- The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters;

3- The failure of the written ballot to indicate the name of each eligible person.

The 2013 election to the Board of Directors violates the Condominium Act.

B. Forbid the Association from exempting homeowners paying monthly assessments

At the 2013 Annual Meeting, two names were drawn and the lucky homeowners were exempted of one month's assessment. We can't find any authorization for the drawing in the Minutes of Board Meetings. Moreover, exempting any homeowner of paying the monthly assessment violates the Virginia Condominium Act.  Specifically:

The Condominium Act, § 55-79.83.D Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”

§ 55-79.83.F Liability for common expenses: “It remains the policy of this section that neither a unit owned by the declarant nor any other unit may be exempted from assessments made pursuant to this section by reason of the identity of the unit owner thereof.”

§ 55-79.71.E Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”

And where does it stop? Exempt one homeowner, two homeowners, … ?

We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.

Exempting any homeowner from paying the monthly assessment violates the Condominium Act and sets a bad precedent — regardless of how the Board describes it.

C. Direct the Association to implement the requirements of § 55-79.75:1

The Board proposes using an "unofficial Facebook Group" administered by four Southampton homeowners to satisfy the requirements of § 55-79.75:1 of the Condominium Act.

§ 55-79.75:1. Distribution of information by members requires:

A. The executive organ shall establish a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves and with the executive organ regarding any matter concerning the unit owners' association.

B. Except as otherwise provided in the condominium instruments, the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners' association.

The Association has no rules governing the operation of this "unofficial Facebook Group”. It is up to the group’s administrator to decide who may join the group, what content is permitted, and how long they choose to continue their sponsorship of this group.

The "unofficial Facebook Group” does not give notice of meetings and does not keep minutes of meetings as required by § 55-79.75.

Further, Facebook collects information from comments posted by group members and uses it to target them for advertising. Homeowners should not be subjected to targeted advertising from Facebook in order to take advantage of § 55-79.75:1.

The "unofficial Facebook Group” does not satisfy the requirements of § 55-79.75:1


VIA PRIORITY MAIL #9114901230801364264718
Department of Professional and Occupational Regulation
Office of the Common Interest Community Ombudsman
9960 Mayland Drive, Suite 400
Richmond, VA 23233-1485