Land 101 ยท Covenants and associations

Covenants and HOAs on rural land:from a promise in one deed to an association that runs the roads

Private restrictions on rural land can be as small as one promise in one deed or as large as a recorded declaration that makes every lot owner a member of an association. This guide follows covenants and HOAs across that range under Virginia law.

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Three recorded papers

A covenant in a deed, restrictions on a plat, a declaration over a development

A title search on rural land can turn up three different kinds of private restriction: a covenant written into a single deed, restrictions recorded with or based on a division plat, and a declaration recorded over a whole development. They are easy to lump together. The third is the paper Virginia's Property Owners' Association Act builds an association around.

The deed covenant. Va. Code 55.1-353 carries a covenant made with the words "the said ... covenants" to the heirs, personal representatives and assigns of both the covenantor and the covenantee. Whether one promise in one old deed reaches the present owner of a parcel is a reading for an attorney.

The plat restriction. Floyd County's Land Division Ordinance describes this kind as a private covenant, agreement or restriction "which may be recorded with, or based on, any division plat." A recorded private restriction on how land may be used is what the glossary calls restrictive covenants, and who can enforce one, and where a county rule governs instead, is set out in what restrictive covenants are.

The declaration. The Act defines a declaration as any instrument, however it is titled, recorded among the land records that either imposes maintenance or operational responsibilities for the common area on the association, or creates the association's authority to impose mandatory payments for maintenance or services on the lots or their owners.

None of the three is a county ordinance.

Inside the Act

A recorded declaration makes lot owners members who owe assessments

The Act describes a development as real property subject to a declaration that contains both lots, at least some of them residential or occupied for recreational purposes, and common areas, where owning a lot makes a person a member of an association obligated to pay the assessments the declaration provides for.

Its reach is set by dates and by one other statute. The Act applies to developments subject to a declaration initially recorded after January 1, 1959, to associations organized after that date, and to all subdivisions created under the Subdivided Land Sales Act. The same section adds that, as the Subdivided Land Sales Act uses them, the terms "covenants," "deed restrictions" and "other recorded instruments" for managing a development are deemed to correspond with the term declaration for the Act's purposes. That correspondence is stated for those terms in that Act, not for every covenant in every deed.

Registration comes early in an association's life. Unless control of the association has been transferred to the members, the developer must register it with the Common Interest Community Board within 30 days after the declaration is recorded.

The common area is the association's ground: property in the development owned, leased or required by the declaration to be maintained or operated by the association for its members' use, and designated as common area in the declaration.

Where a county calls for one

Shared roads and common ground are where these ordinances name an association

The Act governs developments that have a recorded declaration. Whether a particular new subdivision has to form an association in the first place is answered under that county's ordinance, and it has its own page: whether a new subdivision needs an HOA. What the ordinances here have in common is where they name one.

Four places county ordinances in this footprint name an association
County and typeWhen the ordinance names oneWhat it keeps up
Carroll, Class B subdivisionLots for non-primary recreational dwellings, at least 2.5 acres, not resubdivided, with no public servicesIts private streets, kept by the developer or a homeowners association
Carroll, Class C subdivisionOnly on parcels recorded before January 1, 2014 that lack the frontage or acreage for Class A or B; at most five lots of at least 1.5 acres, not resubdivided, with no public servicesThe same: streets kept by the developer or a homeowners association
Floyd, divisions with shared facilitiesA POA is required only for private division roads, private centralized water or wastewater systems, stormwater facilities and common areasThose facilities; the plat states private division roads will not be maintained by VDOT or Floyd County
Pulaski, patio homesPatio homes require a planned subdivision developmentThe common areas, managed by a homeowners association
Carroll figures are from the county's posted subdivision ordinance, amended through April 14, 2014; confirm current text with Carroll County Land Use and Planning. Grayson, Wythe, Montgomery and the City of Galax are not in this table; whether a division there must form an association is a question for that locality's subdivision agent.

Private streets carry a notation of their own on the plat and the affected deeds, about what VDOT would require before accepting them. How upkeep of such a road is assigned and paid, whether by an association, a recorded agreement or the lot owners, belongs to private roads and maintenance agreements.

Rules and charges

A board writes rules for the common areas, and its charges come with steps and caps

Under Va. Code 55.1-1819 an association's board may adopt and enforce rules on the use of the common areas and on other areas of responsibility the declaration assigns to the association, except where the declaration expressly reserves that power to the members.

Charging a member for a violation is narrower. The board has that power only "to the extent the declaration or rules and regulations duly adopted pursuant to such declaration expressly so provide." Before a charge, the member is given written notice of the alleged violation and a reasonable opportunity to correct it. If the violation remains uncorrected, the member is given an opportunity to be heard, and to be represented by counsel, before the board or other tribunal the documents specify.

A single offense
No more than $50
An offense of a continuing nature
No more than $10 per day
The continuing charge, in total
Not assessed for a period exceeding 90 days

Those figures are ceilings, not a schedule. What a given association charges, if anything, comes from its own declaration and rules, and whether a charge was properly assessed is a question for an attorney.

Void words, and words a statute leaves standing

Some recorded restrictions are void, and one zoning statute leaves covenants in place

Old deed books can hold restrictions that carry no force at all. Va. Code 36-96.6 declares void any restrictive covenant, and any related reversionary interest, that purports to restrict occupancy or ownership of property on the basis of the protected classes the section lists, whether it was put in an instrument before the law or after.

The opposite case also exists: Virginia's manufactured housing statute says zoning provisions adopted under it do not relieve a lot of the manufactured housing obligations a restrictive covenant imposes.

Neither kind of restriction is something a residential seller's disclosure vouches for. On a sale of residential property of one to four dwelling units, Virginia's disclosure statement says the owner makes no representations or warranties with regard to any covenants and restrictions recorded among the land records. How that seller disclosure works from listing to settlement is its own guide.

Before a contract

Reserve studies, repealed sections and the papers worth pulling

An association that already exists carries duties that reach a buyer's due diligence. Va. Code 55.1-1826 requires the board to conduct, at least once every five years, a study to determine the necessity and amount of reserves required to repair, replace and restore the capital components.

One citation trap is worth knowing. Sections 55.1-1808 through 55.1-1814 of the Code were repealed by Acts of 2023, effective July 1, 2023, so an older document or web page that relies on those sections is relying on law that is no longer in force.

What to gather on a parcel with private restrictions

  • The vesting deed and the deeds before it, for any covenant language that came down the chain.
  • The recorded plat and anything recorded with it, including a notation about privately maintained streets.
  • The declaration, if one is recorded, with the association's rules and its most recent reserve study.
  • Any easement or right of way instrument, which is a different kind of recorded interest, covered in easements explained.
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Questions

Good questions, straight answers.

Can an association charge a lot owner for a violation without a hearing?

Not under Va. Code 55.1-1819. A board may assess charges for violations only to the extent the declaration or rules adopted under it expressly provide, and only after written notice and a reasonable opportunity to correct. If the violation remains uncorrected, the member gets an opportunity to be heard and to be represented by counsel. Charges may not exceed $50 for a single offense or $10 per day for a continuing one, assessed for no more than 90 days.

How often does an association board have to study its reserves?

At least once every five years. Va. Code 55.1-1826 requires the board to conduct a study to determine the necessity and amount of reserves required to repair, replace and restore the capital components. A buyer weighing a lot inside an association can ask to see the most recent study along with the declaration and rules.

Does the Property Owners' Association Act reach a development with older papers?

Only if its dates or its origin bring it in. The Act applies to developments subject to a declaration initially recorded after January 1, 1959, to associations organized after that date, and to all subdivisions created under the Subdivided Land Sales Act. What governs a development whose papers fall outside those lines is a reading for an attorney.

Does a covenant written into a deed bind the heirs and assigns of the people who signed it?

It can, by statute. Va. Code 55.1-353 gives a covenant made with the words "the said ... covenants" effect for the heirs, personal representatives and assigns on both sides, the covenantor's and the covenantee's. The covenant entry in the glossary quotes the section. Whether a particular covenant binds the current owner of a particular parcel turns on its wording and the chain of title, and that reading belongs to an attorney.

Sources

Where this page's facts come from

Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.