HOA Authoritarianism in Loudoun County
Recent events have placed the rise of authoritarianism in the nation on full display and been widely treated in recent op-eds. However, its rise has also become evident in Washington’s own Loudoun County Virginia HOAs. Over the past several years, HOA Boards and their management abetted by their legal counsel have become intoxicated with perceived power to frighten and coerce HOA Members in the exercise of their fundamental rights. Facilitating HOA autocracy has become big business in Loudoun in the form of full-time management inspectors, surveillance databases, and billed hours for legal counsel for scores of new HOAs — all kept secret under the guise of confidentiality.
A recent example is frightening. In one Loudoun HOA near Leesburg, a young couple decided to retain a nostalgic banner with President Biden’s name hanging in their 2nd floor townhouse living room. They soon received a threatening notice from the HOA manager that a site visit was performed and “in the interest of maintaining an aesthetically pleasing community, they were required to remove all election campaign signs and/or banners on the property which can be seen from the sidewalk. They were required within 30 days to comply and send photographic evidence of their compliance with fake HOA requirements that actually do not exist. Subsequently, the couple was threatened with a fine of $570 plus $10/day if they persisted.
Other examples abound that include all manner of abusive vicarious controls on signs, daycare centers, vegetable gardens, pipe colors and festival lights. The last abuse gave rise to a landmark 2019 decision by the Virginia Supreme Court constraining the exercise of alleged HOA powers against Indian homeowners celebrating Diwali. Xenophobia, racism, and other discriminatory hostilities persist as undercurrents in rapidly evolving HOA communities — as perceived powers are exercised against those who are different.
One Loudoun HOA Board even decided to target Association Members who raised questions about Board actions by creating a “code of conduct” — not for the Board, but for the Members! It then proceeded to ban a homeowner from further participation at meetings. Another tactic increasingly being employed by autocratic HOA boards is to use their well-funded monopoly control over communication with homeowners to attack those who question their authority.
Virginia’s attention to basic human, property, and due process rights of those living under the control of HOA local government is woeful. In 2015, Virginia lawmakers, facing mounting examples of HOA autocracy in the Commonwealth, enacted a Homeowners Bill of Rights Act. Unfortunately, it was just a small subset of the provisions recommended by the AARP HOA Rights Model that were more fully implemented in other jurisdictions.
Special interest lobbyists who earn significant revenue from HOA autocracy helped diminish the Virginia rights provisions and the effectiveness of the 2015 Act — providing for no oversight of HOAs. There are effectively no means for enforcement of the rights or even basic due process except through a very constrained ombudsman process or expensive litigation. Even basic U.S. Supreme Court guarantees of First Amendment political expression by homeowners enacted by the Virginia legislature in 2004 were gutted by an Attorney General opinion to exempt HOAs. Virginia is also one of the few states which has no homeowner privacy right guarantees.
Massive transfer of government powers to Homeowner Associations in rapidly growing Virginia suburban regions — among which Loudoun is the fastest — has occurred with few basic human and property rights protections for hundreds of thousands of people. There are now more than 600 HOA communities in Loudoun County — encompassing most of its population.
Tools of HOA Authoritarianism
The tools of HOA authoritarianism typically begin with the vague Declarations of Covenants that homeowners are effectively forced to sign with no cognizance of the implications when they purchase their home. Those Declarations wax poetic about community standards and defer the details to HOA Boards, including extraordinary enforcement powers that significantly exceed those of normal governmental authorities and with minimal legal process. It is a dream for anyone with autocratic proclivities and evocative of Verwaltungspolizei inspectors. The sales pitch for this regime is that it is good for property values and keeps out undesirable owners and residents. In reality, it primarily benefits the purveyors of the authoritarian HOA regime services.
Tucked under the Declarations are typically three instruments: restrictive covenants that often ban racial and religious minorities, combined with design and maintenance requirements. Most outrageous discriminatory covenants in Virginia have been declared unenforceable. However, it is the open-ended design and maintenance requirements that remain a fascist’s delight — where no detail or aesthetic nuance is too small for imposition on fellow homeowners and provide a rush of perceived dominance. Any pretense of free expression — especially anything deemed vaguely political — is typically explicitly targeted as offensive to autocratic sensibilities.
It is these requirements that also give rise to the dreaded inspectors, roving about the community peering at property (sometimes through windows), keeping detailed photographs and records on property and dwellings, generating threatening violation notices, holding hearings, and producing copious billable hours by HOA management and legal counsel. Because this is all done in secretive, closed proceedings with no public records and claims of confidentiality, the extent of the abuse is impossible to measure but clearly significant. There is zero transparency, and the provisions are designed to be vague without explanations to allow enforcement that is unreasonable, arbitrary and capricious.
This regime of HOA abuse relies on inspections and over-the-top violation notices that belittle homeowners and threaten extreme penalties for non-compliance in the belief that most homeowners will simply cower and comply rather than questioning the assertions or undertaking any hearing or appellate rights pursuant to Virginia statutory law. Furthermore, most homeowners lack the skill sets to push back and engage in the available remedies. Unscrupulous HOA legal counsel all too frequently pander to HOA Board autocratic proclivities to drive revenue, rather than advocate the rights of Member homeowners and represent their interests. Because this HOA inspection scam nets management contractors and the attendant legal counsel millions of dollars per year in what amounts to dark money that comes from the pockets of complacent homeowners, the incentives to keep it going are considerable.
Needed Reforms
Two reform actions need to occur.
The first is for the Virginia Attorney General to undertake a thorough investigation and public inquiry of abusive Virginia HOA practices that use the AARP HOA Bill of Rights as a starting point, and include the inadequacies and failures of the 2015 Virginia HOA Property Owner Bill of Rights, and non-stock corporation statutory provisions, the Virginia Administrative Procedure Act, the Antitrust Act, conflict of interest, and Sunshine provisions as applied to HOAs. In should address HOA Board grooming and lobbying tactics of HOA management contractors, specialized HOA legal counsel firms, and lobbying organizations operating as educational activities.
The Attorney General investigation and inquiry should consider new statutory provisions providing for HOA Member rights of expression — especially political expression — and rights of privacy in their own homes that include potential penalties for tortious invasion of privacy by HOAs. It should also consider means to give full force and effect to Virginia Supreme Court’s Sainani Decision, and to make it plain through the Professional Guidelines of the Virginia State Bar the HOA legal counsel client obligations are to HOA Members rather than the Board or management contractor, as well as provide full transparency in all representational agreements and financial transactions between the HOA and counsel.
The second reform action rests with the Virginia General Assembly — operating in collaboration with the HOA practices investigation and public inquiry of the Attorney General — to institute supporting remedial legislation. That legislation should include statutory changes, policy declarations, adjustments to government bodies and activities, and a permanent independent advisory committee intended to give full force and effect to HOA Member rights.
In addition to the above actions by Virginia authorities, there is a clear need for both the removal of the constraints on jurisdiction, authority, and purpose of the Ombudsman — directing it to be a pro-active advocate for HOA Property Owner Rights. This re-purposing should ideally be accompanied by private-sector advocacy organizations with the necessary capabilities and incentives to also provide such advocacy, such as the new Virginia HOA Member Rights Association
