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Thread: Interesting HOA issue to watch

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    Regular Member TFred's Avatar
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    Interesting HOA issue to watch

    Not sure why this is news worthy, other than the media hates guns... but this may turn out to be an interesting case that could test the power of an HOA to defy the intent of 15.2-915.

    TFred

    Snip of HOA related portion (my bold added to highlight the ridiculous):

    Stafford BZA grants home firearm sales permits

    Gilason will have to clear another hurdle and get approval from The Willows homeowners association in addition to obtaining a federal firearms license.

    That will likely present an obstacle for Gilason after several association representatives spoke against the business proposal on Tuesday.

    Douglas Levy, a lawyer with Rees Broome PC, spoke as a lawyer for the homeowners association.

    “This is out of line with what the residents of the community would want to see going on,” Levy said.

    He added that while the applicant is considering the best-case scenario, the board must consider the worst-case scenario such as what will happen when someone is denied their firearm inside Gilason’s home.

    Levy said that he was speaking on behalf of four to five subdivision residents who were against the proposal. He later added that the board of directors for the homeowners association also were opposed to the business due to safety concerns.

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    Moderator / Administrator Grapeshot's Avatar
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    I'm not so sure that this is a 15.2-915. issue TFred.

    Think that any deed restrictions or covenants referring to the HOA rules, authority and/or limitations will prove more important.

    Even such things as to whether the streets are private or have been turned over to the county or state could have an impact.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by Grapeshot View Post
    I'm not so sure that this is a 15.2-915. issue TFred.

    Think that any deed restrictions or covenants referring to the HOA rules, authority and/or limitations will prove more important.

    Even such things as to whether the streets are private or have been turned over to the county or state could have an impact.
    I don't think it is, currently, either, which is why I chose to include "intent." The same reasons that drove the passage of 15.2-915 originally should also drive a restriction on HOAs to prevent them from doing exactly the same things that 15.2-915 prohibit. Even though another name, HOAs are just another layer of local government, authorized by the General Assembly.

    TFred

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by TFred View Post
    I don't think it is, currently, either, which is why I chose to include "intent." The same reasons that drove the passage of 15.2-915 originally should also drive a restriction on HOAs to prevent them from doing exactly the same things that 15.2-915 prohibit. Even though another name, HOAs are just another layer of local government, authorized by the General Assembly.

    TFred
    As in a municipal authority, I presume.
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    Campaign Veteran skidmark's Avatar
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    IF the HOA allows other home-based businesses they are going to have trouble denying this one. And if they try to impose "special conditions*" on this they are going to show that they have imposed and enforced the same "special conditions" on all other home-based businesses.

    It's a case of the HOA either keeping the camel's nose completely out of the tent or having to take down the tent wall and let any [legal] camel wander in. Which is why a) I avoid HOAs like the plague, and b) why HOAs need to be uncompromising SOBs.

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    * - such as specified hours of operation, numbers of clients/customers at any given time or in total over 24 hours, number of parking places, and the like.
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    Regular Member TFred's Avatar
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    I read through some of the comments on the article this morning, and assuming the one commenter knows what they are talking about, it sounds like the BATFE has not kept up with the realities of the modern day age of the internet, when it comes to requirements for issuing a FFL. Specifically, a store front is required, but both the cases covered in the article are legitimate situations where a FFL is required, but a traditional store front is not.

    TFred

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    Accomplished Advocate peter nap's Avatar
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    I've commented on HOA's before. People that buy a house in an HOA subdivision knew what they were getting into. If the HOA in this case blinks, good for them but if they don't, the applicants need to find another shoulder to cry on.

    Kinda like taking free room and board at a Nazi Concentration camp because they like the neighborhood, then kicking up a fuss because the showers don't have water.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by peter nap View Post
    I've commented on HOA's before. People that buy a house in an HOA subdivision knew what they were getting into. If the HOA in this case blinks, good for them but if they don't, the applicants need to find another shoulder to cry on.

    Kinda like taking free room and board at a Nazi Concentration camp because they like the neighborhood, then kicking up a fuss because the showers don't have water.
    I understand your point, but blaming the residents for the sins of the HOA is not the best long-term solution. Why don't we try to fix the actual problem? Why do HOAs get a pass on sinning, just because a resident or residents knew that such violation of their rights might happen?

    TFred

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    Activist Member JamesCanby's Avatar
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    The answer to overreach of an HOA is to remove the current Board members and replace them with homeowners that have common sense about working for the benefit of their member-owners. It's not as if the HOA Board members are anointed by God or serving through the Divine Right of Kings. Having said that, I know full well how difficult it can be to remove entrenched Board members. What needs to be done is to find issues around which the majority of homeowners can agree and make their preferences known by the Board. After all, it's the *members* that have the final say. Don't let a few activist owners who "know what's best" to run roughshod over the whole Association.
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    Regular Member Repeater's Avatar
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    Quote Originally Posted by JamesCanby View Post
    The answer to overreach of an HOA is to remove the current Board members and replace them with homeowners that have common sense ...
    Well sure, but it's hard to overcome irrational fears when people obsess about "worst case scenarios" and "safety concerns" and so on.

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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by Repeater View Post
    Well sure, but it's hard to overcome irrational fears when people obsess about "worst case scenarios" and "safety concerns" and so on.
    Believe me, I know ... and it may be hard to get enough members energized about making the changes to the Board complement. Most home owners and condo owners just want to be left alone and don't want to get involved. Let the word go out that the condo or HOA fee is going to be increased by 20% next year* and watch how many show up to the annual meeting, filled with ire and a "throw the bums out" mentality. In most cases, however, replacing one or two Board members at a time will change the way the Board operates in just a couple of years.

    *Note: I'm not suggesting that anyone spread false rumors just to get annual meeting attendance increased. Find an issue that many can legitimately get exercised about.
    Last edited by JamesCanby; 04-23-2014 at 03:41 PM.
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    HOA = Fascist

    30+ years ago, the 1st place we looked in Chesterfield was Brandermill. I commented that the home had no gutters. The agent said the HOA didn't allow it. I said it was time to go. He couldn't understand I had no intention to allow some group of Fascist idiots tell me what I can and can't do in or to my home.

    He attempted to say it maintained property values. I agreed. They had NO VALUE to me and never would.

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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by va_tazdad View Post
    30+ years ago, the 1st place we looked in Chesterfield was Brandermill. I commented that the home had no gutters. The agent said the HOA didn't allow it. I said it was time to go. He couldn't understand I had no intention to allow some group of Fascist idiots tell me what I can and can't do in or to my home.

    He attempted to say it maintained property values. I agreed. They had NO VALUE to me and never would.
    Your post title was HOA = FASCIST. I find that disturbing.

    An HOA or Condominium Regime has a Board of Directors elected by the membership -- the individual homeowners. If the Board is making decisions and implementing rules that impede the homeowners' ability to live comfortably in their homes, then it is the membership's fault for electing or re-electing them. If you don't like their Bylaws or Rules, then you made the right choice to find a different place to live, but to call them Fascists is, IMHO, way over the top.

    HOAs and Condo Boards do exist to help maintain property resale values. Without common-sense guidance for their community, to which the members and the mortgage lenders must agree before they can be implemented, you may end up with owners whose actions may damage resale values.

    That is not to say that some Boards cannot become populated by petty tyrants, but in most cases the Board members do a good job at maintaining value without becoming "Fascist idiots."
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    So you should live there

    Quote Originally Posted by JamesCanby View Post
    Your post title was HOA = FASCIST. I find that disturbing.

    An HOA or Condominium Regime has a Board of Directors elected by the membership -- the individual homeowners. If the Board is making decisions and implementing rules that impede the homeowners' ability to live comfortably in their homes, then it is the membership's fault for electing or re-electing them. If you don't like their Bylaws or Rules, then you made the right choice to find a different place to live, but to call them Fascists is, IMHO, way over the top.

    HOAs and Condo Boards do exist to help maintain property resale values. Without common-sense guidance for their community, to which the members and the mortgage lenders must agree before they can be implemented, you may end up with owners whose actions may damage resale values.

    That is not to say that some Boards cannot become populated by petty tyrants, but in most cases the Board members do a good job at maintaining value without becoming "Fascist idiots."

    Fascists are mentally deficient small minded dictators and that is how I see HOA's.

    I have no intention to allow a group of people tell me what, when, how or if I can do something in MY home. I pay the bills, cut the grass and maintain MY home, NOT them. If you like that lack of freedom, move to North Korea. I prefer living in a free country, and that includes free from idiot HOA boards.

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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by JamesCanby View Post
    HOAs and Condo Boards do exist to help maintain property resale values. Without common-sense guidance for their community, to which the members and the mortgage lenders must agree before they can be implemented, you may end up with owners whose actions may damage resale values.
    Either such actions are tortious, or they are within the rights of homeowners. Either way, HOAs which enforce arbitrary rules in the name of "maintaining property values" are unnecessary and aggressive.

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    We sold our first home, not only because of the HOA, but mainly because of it. As young, first time idiot home buyers, we didn't really understand or research what an HOA meant. We learned quickly when the bill came for a pool no one used, a tennis court that always needed repairs, and a no soliciting sign that was ignored. There were also strict rules about when and how these facilities could be used, and there was an incident with the Treasurer using the community funds to pay off her credit card.

    Fees were raised 20%, to the consternation of many of us, but the board told everyone to shove it. The tennis courts needed repair, and we were going to pay for it whether we liked it or not. The fact that they could put a lien on our house for refusal to pay basically left us no choice. Don't get me started on the neighbor who wanted a lemon tree (non ornamentals were a no no) or the story of one woman (not our neighborhood) who had her entire vegetable and medicinal plant garden bulldozed by the city because the HOA didn't approve.

    TL; DR

    Fascist doesn't seem like a strong enough word.

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    Applicability of 15.2-915 to HOA's:

    This issue has come up several times in the past few years, and thus far, I've resisted the urge to do the research necessary to form an opinion. I finally broke down and actually thought about it and the following is my opinion; I'd be willing to argue it in court, but don't think of it as anything more than my opinion until some appellate court rules on the issue.

    I've come to the conclusion that, under the Property Owner's Association Act, an HOA lacks the power to control ownership or possession of firearms, period. The reason has to do with the definition of "locality" contained within the statute. There is a clear exception for state-controlled and incarceration facilities. By the principle, "expressio unius alterius exclusio est" (the expression of one thing is the exclusion of any other), that specific reference to those facilities means that they were intended to be excluded from the operation of the statute, but no other "authority" created by law was so excluded. Since a homeowners' association is created by authority of a state statute as a local self-regulating body, it falls within the definition of an "authority" as to which the statute applies, which is clearly distinguished from "local government" by the word, "or" in the statute. (There are "authorities" that are excluded as state-controlled facilities, having to do mainly with how they're funded; e.g., the Virginia Tourism Authority.)

    Moreover, as to the specific question before the body presently, the 2013 statute quoted below governing the power of a homeowners' association to regulate home-based businesses would seem to be dispositive. (However, keep in mind that the "declaration" which is the original charter for the HOA, can be amended by a process more elaborate than rule-making, requiring the recordation of documents in the Circuit Court.)

    =====

    § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies. —

    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
    ...
    The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail, juvenile detention facility, or state-governed entity, department, or agency.
    ...

    =====

    § 55-513. Adoption and enforcement of rules. —

    A. Except as otherwise provided in this chapter, the board of directors shall have the power to establish, adopt, and enforce rules and regulations with respect to use of the common areas and with respect to such other areas of responsibility assigned to the association by the declaration, except where expressly reserved by the declaration to the members. Rules and regulations may be adopted by resolution and shall be reasonably published or distributed throughout the development. A majority of votes cast, in person or by proxy, at a meeting convened in accordance with the provisions of the association's bylaws and called for that purpose, shall repeal or amend any rule or regulation adopted by the board of directors. Rules and regulations may be enforced by any method normally available to the owner of private property in Virginia, including, but not limited to, application for injunctive relief or damages, during which the court may award to the association court costs and reasonable attorney fees.
    ...

    =====

    § 55-513.2. Home-based businesses permitted; compliance with local ordinances. — Except to the extent the declaration provides otherwise, no association shall prohibit any lot owner from operating a home-based business within his personal residence. The association may, however, establish (i) reasonable restrictions as to the time, place, and manner of the operation of a home-based business and (ii) reasonable restrictions as to the size, place, duration, and manner of the placement or display of any signs on the owner's lot related to such home-based business. Any home-based business shall comply with all applicable local ordinances.

    =====
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    Quote Originally Posted by va_tazdad View Post
    30+ years ago, the 1st place we looked in Chesterfield was Brandermill. I commented that the home had no gutters. The agent said the HOA didn't allow it. I said it was time to go. He couldn't understand I had no intention to allow some group of Fascist idiots tell me what I can and can't do in or to my home.

    He attempted to say it maintained property values. I agreed. They had NO VALUE to me and never would.
    Amen sir!

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    Quote Originally Posted by peter nap View Post
    I've commented on HOA's before. People that buy a house in an HOA subdivision knew what they were getting into. If the HOA in this case blinks, good for them but if they don't, the applicants need to find another shoulder to cry on.

    Kinda like taking free room and board at a Nazi Concentration camp because they like the neighborhood, then kicking up a fuss because the showers don't have water.
    HA!

    By the way, the official U.S. "Holocaust remembrance week" is coming up, April 27–May 4, 2014. I've always taken the position that the destruction of Jews during WWII was simply the slaughter of one group of people by another (the word, "fascist", by the way, comes from the Latin word, "fasces", or bundle of sticks - the idea being that "guys like us gotta stick together" - hence all nationalism is fascism). I reject the term, "holocaust" because it refers to a wholly-burnt offering in sacrifice to God for the sins of the people consistent with the rules for burning of goat-corpses prescribed by Leviticus and Deuteronomy - a theological position I cannot accept. Anyway, the associations I've seen that have had problems have always been due not to fascists but to one or two fruitcakes with excessive need for control. When you get someone who really needs to run other peoples' lives and no one else wants the job (because they're sane), you get whacky results. I think the answer in such situations is simply to abolish the HOA.
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    That's why I live out in the country on acreage but we still have to but up with a lot of stupid zoning rules.
    Last edited by Firearms Iinstuctor; 04-23-2014 at 07:15 PM.
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  21. #21
    Regular Member TFred's Avatar
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    Quote Originally Posted by user View Post
    [snip...] Anyway, the associations I've seen that have had problems have always been due not to fascists but to one or two fruitcakes with excessive need for control. When you get someone who really needs to run other peoples' lives and no one else wants the job (because they're sane), you get whacky results. I think the answer in such situations is simply to abolish the HOA.
    That's exactly what I was going to say... in my HOA, which is generally OK, although they had a crazy idea about a neighborhood-wide 5 mph speed limit one year, the participation rate at the annual meeting is abysmal - somewhere around 10% representation. More often than not, they can't fill the board with folks willing to sit on it. Throw in one or two folks who have some power grab or control complex, and it's a formula for disaster.

    TFred

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    Regular Member TFred's Avatar
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    Quote Originally Posted by user View Post
    This issue has come up several times in the past few years, and thus far, I've resisted the urge to do the research necessary to form an opinion. I finally broke down and actually thought about it and the following is my opinion; I'd be willing to argue it in court, but don't think of it as anything more than my opinion until some appellate court rules on the issue.
    Thank you very much for your thoughts. I think we all (at least I certainly did) overlooked the "authority," and how an HOA would fall under that provision.

    So, just to state it again for clarity, you believe that HOAs are fully subject to 15.2-915, regarding the whole list of firearms related actions they cannot regulate: [the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof...]

    ?

    You might want to keep an eye on the guy in the linked article, you might find yourself a client here soon!

    TFred

  23. #23
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Grapeshot View Post
    As in a municipal authority, I presume.
    Quote Originally Posted by TFred View Post
    Thank you very much for your thoughts. I think we all (at least I certainly did) overlooked the "authority," and how an HOA would fall under that provision.
    --snipped--
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  24. #24
    Regular Member Thundar's Avatar
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    [QUOTE=user;2054938]This issue has come up several times in the past few years, and thus far, I've resisted the urge to do the research necessary to form an opinion. I finally broke down and actually thought about it and the following is my opinion; I'd be willing to argue it in court, but don't think of it as anything more than my opinion until some appellate court rules on the issue.

    I've come to the conclusion that, under the Property Owner's Association Act, an HOA lacks the power to control ownership or possession of firearms, period. The reason has to do with the definition of "locality" contained within the statute. There is a clear exception for state-controlled and incarceration facilities. By the principle, "expressio unius alterius exclusio est" (the expression of one thing is the exclusion of any other), that specific reference to those facilities means that they were intended to be excluded from the operation of the statute, but no other "authority" created by law was so excluded. Since a homeowners' association is created by authority of a state statute as a local self-regulating body, it falls within the definition of an "authority" as to which the statute applies, which is clearly distinguished from "local government" by the word, "or" in the statute. (There are "authorities" that are excluded as state-controlled facilities, having to do mainly with how they're funded; e.g., the Virginia Tourism Authority.)

    Moreover, as to the specific question before the body presently, the 2013 statute quoted below governing the power of a homeowners' association to regulate home-based businesses would seem to be dispositive. (However, keep in mind that the "declaration" which is the original charter for the HOA, can be amended by a process more elaborate than rule-making, requiring the recordation of documents in the Circuit Court.)





    User,

    Would the same logic apply to the BB Gun preemption? Shooting BB guns in plain view of others (because the damn HOA won't let you put up a privacy fence) would really upset some of those controlling B@$+@rd$!!!
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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  25. #25
    Regular Member SouthernBoy's Avatar
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    Thank you TFred for opening this thread and thank you user for offering your opinion on this issue. There is a gated development not far from where I live, that recently issued restrictions on the carrying of firearms within the community on common property. They have stated that this is only allowed when carrying arms to and from your car and on your own property. I have the article here on my desk as I write this and will reread it in the light of what has come out in this thread.

    Thanks again gentlemen. This is, indeed, timely.
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