By Stephanie Minkoff

When you purchase a condo, townhouse, or freestanding home in a neighborhood with shared common areas—such as a swimming pool, parking garage, or even just the grass and sidewalks in front of each residence, these common areas are maintained by a private homeowners association, or HOA. The HOA will set the rules for the common areas and help maintain and manage those areas for the benefit of the community as a whole.
 
Owners are obligated to join the HOA and will typically pay a monthly or annually HOA fee for the upkeep of those common areas. To determine the amount that home or condo owners must pay, the HOA will typically develop a budget. The financial resources needed to support the budget is often divided by the number of properties located within the community.  Prior to purchasing a home or a condo, potential buyers should review the documentation associated with the HOA. These can include the articles of incorporation, bylaws, covenants, conditions and restrictions, budgets, past meeting minutes, etc. Many sales contracts have a contingency provision to allow buyers the opportunity to review these association documents prior to finalizing the sale. Additionally, the association may also impose a special assessment for one-time expenses when reserve funds do not cover the costs of a major repair or specific improvement. 
 
If the homeowner fails to pay these dues and falls behind on payments, in addition to imposing late fees and fines, the HOA may take legal action. The association could file a lawsuit, get a lien on your home that could lead to foreclosure and/or suspend the owners right to certain common areas or privileges within the property. If an HOA does take legal action, owners may be required to pay the delinquent association fees plus any imposed late fees. Many associations’ governing documents will also state that the association is entitled to recover its court costs and attorneys’ fees. Regardless of association documents, Virginia Code § 55-516(F) allows for the reimbursement of attorney fees.
 
If an HOA places a lien on your home this does not pay off the debt and has no impact on your mortgage payments. The lien simply tells a future buyer that the HOA is owed money. As such, the lien may not become an issue until the property owner tries to sell, refinance or the association forecloses on the lien.  As you imagine, a future buyer would simply reduce the sales price by the amount of the lien because the new owner does not want to be responsible for the prior owner’s debt.
 
According to Virginia Code § 55-516, almost all HOAs have the power to place a lien on the homeowner’s property if homeowner becomes delinquent in paying the monthly fees and/or any special assessments. Before the HOA can file the lien, they must provide written notice to the property owner by certified mail, informing the property owner that a memorandum of lien will be filed in the circuit court clerk’s office of the applicable city or county. The notice shall be sent at least 10 days before the actual filing date of the memorandum of lien. A lien will usually attach automatically to that homeowner's property, typically as of the date the assessments became due.
 
As mentioned above the lien could be foreclosed upon regardless if you are up to date on your mortgage payments. In Virginia, an HOA may foreclose its lien nonjudicially, which means the foreclosure takes place without court supervision (See Va. Code § 55-516(I) and § 55-79.84(I)). If you have additional questions about these procedures, please contact Steven Krieger Law.

By Stephanie Minkoff
 
The short answer is, yes, thanks to recent changes by the Virginia legislature to the common law security deposit statute § 55-225.19.

There are two sets of laws that govern residential leases: common law (for private landlords unless they have multiple properties) or the Virginia Residential Landlord and Tenant Act (mainly for institutional landlords, buildings, or private landlords with several properties). The Virginia Residential Landlord and Tenant Act (“VRLTA”) always had a provision for attorneys' fees (see § 55-248.15:1), but tenants renting from private landlords who were exempt from the VRLTA could not get their attorneys’ fees recovered in a lawsuit to related to the return of a security deposit.
 
For reference, the VRLTA protects tenant’s apartments, rental homes, and federally subsidized housing in many different ways by imposing requirements on institutional and large residential landlords (defined as three or more properties subject to a residential lease). For more information on the rights of tenants in Virginia, please see our recent blog post on the subject.
 
Let’s say you have just moved out of your rental apartment and you now want to collect the security deposit you paid at the start of your lease. In Virginia, your landlord is obligated to return your security deposit with or without any deductions, which should be itemized with written notice, provided by the landlord, within 45 days after the termination of the lease (for both common law and VRTLA leases). 
 
There are several reasons that your landlord may decide to withhold payment, including outstanding rent payments (including late fees as specified in the rental agreement), money to cover unpaid utilities, excessive wear and tear on the unit, etc., The landlord must provide written notice of such payment obligations. Tenants should make sure landlords have updated address information where security deposits can be mailed and returned. In situations where there is more than one tenant subject to the rental agreement, the security deposit will be returned, less any deductions, with one check made payable to all tenants to a forwarding address provided (unless otherwise previously agreed to in writing). 
 
According to § 55-225.19, obligations in regards to security deposits by the landlord include:

• Itemized record of all deductions made by reason of the tenants noncompliance with § 55-225.4 during the preceding two years; and 
• Permit a tenant or his authorized agent or attorney to inspect such tenant's records of deductions at any time during normal business hours.
• Upon request by the landlord to a tenant to vacate, or within five days after receipt of notice by the landlord of the tenant's intent to vacate, the landlord shall provide written notice to the tenant of the tenant's right to be present at the landlord's inspection of the dwelling unit for the purpose of determining the amount of security deposit to be returned. If the tenant desires to be present when the landlord makes the inspection, he shall so advise the landlord in writing who, in turn, shall notify the tenant of the time and date of the inspection.
• Following the move-out inspection, the landlord shall provide the tenant with a written security deposit disposition statement including an itemized list of damages. If additional damages are discovered by the landlord after the security deposit disposition has been made, nothing herein shall be construed to preclude the landlord from recovery of such damages against the tenant, provided, however, that the tenant may present into evidence a copy of the move-out report to support the tenant's position that such additional damages did not exist at the time of the move-out inspection.
• If the tenant has any assignee or sublessee, the landlord shall be entitled to hold a security deposit from only one party in compliance with the provisions of this section.

 
If you feel that your landlord has not complied with his/her obligations and has not returned your deposit appropriately, and you are unable to resolve the dispute informally, you may decide to take legal action against your landlord. While you may consider handling the dispute yourself, inside or outside of court, hiring a professional with expertise related to the specific landlord and tenant laws in Virginia, doesn’t have to be a huge expense. Professional legal assistance can make the difference in obtaining a favorable outcome and with the recent legislative changes you are also able to request your attorneys’ fees associated with the litigation to recover your security deposit.
 
Feel free to contact Steven Krieger Law if we may be helpful in your security deposit dispute.