Every association must establish and follow HOA due process before levying a fine, suspending privileges, or imposing any other enforcement action. While the process may seem tedious, it is essential for protecting owners’ rights and minimizing legal exposure for the association. Boards must check state laws and their governing documents for guidance.
Understanding State HOA Due Process Requirements
In an HOA or condominium, due process essentially entails following specific steps and requirements before imposing a penalty or taking legal action against an owner. It ensures the fair and consistent application of enforcement actions.
Apart from the governing documents, state laws dictate the steps an association must take. Maryland, Virginia, and Washington, DC, all address HOA due process requirements.
Maryland
Due process falls under Section 11B-111.10 of the Maryland Homeowners Association Act and Section 11-113 of the Maryland Condominium Act. According to these statutes, an association must meet specific requirements before imposing a fine or any other penalty for a rule violation.
These laws require:
- A cease-and-desist demand that explains the violation and how to correct it,
- An opportunity to be heard,
- A disciplinary hearing to be held in an executive session, where owners may present evidence and witnesses, and
- Documentation of the notice and hearing outcome.
Virginia
Due process falls under Section 55.1-1819 of the Virginia Property Owners’ Association Act and Section 55.1-1959 of the Virginia Condominium Act. Associations must adhere to the requirements of these sections before imposing a penalty or taking legal action.
These laws require:
- Written notice of the violation and an opportunity to cure,
- An offer of a disciplinary hearing and a right to counsel,
- A 14-day hearing notice, and
- A written decision within 7 days.
Washington, DC
Due process is set forth in Section 42–1903.08 of the DC Condominium Act. This law does not go into much detail, unlike the laws in Maryland and Virginia. The section simply states that an association must provide notice and an opportunity to be heard before imposing a fine or penalty.
What are the Steps in the HOA Due Process?
In general, associations should take the following steps when applying HOA due process.
1. Warning Letter and Opportunity to Cure
Most associations begin with a warning letter. This isn’t the formal notice of the violation; rather, it notifies the owner of an alleged offense and gives them a chance to correct it.
In Virginia, the law requires associations to first send written notice describing the alleged violation. Owners must be given a reasonable opportunity to cure it.
Similarly, in Maryland, associations must first send a cease-and-desist letter. This letter must describe the violation and what the owner must do to fix it. The same letter must define how long the owner has to correct the violation.
For continuing violations, owners must receive at least 15 days to remedy it before the HOA or condo can impose a penalty. On the other hand, for one-time violations, the notice may instead state that future violations of the same rule could result in penalties.
2. Formal Notice
If the violation persists, meaning the owner failed to cure it, associations can proceed with a formal notice. This notice must be in writing and list the potential penalties the owner can face.
3. Disciplinary Hearing
Owners must be given an opportunity to be heard. At this hearing, owners can defend themselves by presenting evidence, calling witnesses, and even cross-examining the association’s witnesses. They can even have an attorney present.
Virginia, Maryland, and DC all require HOA due process hearings.
4. Notice of the Hearing
Disciplinary hearings are not automatic. Generally, owners must request to appear before the board or committee.
In Virginia, an association must send the hearing notice at least 14 days before the hearing itself. It must deliver this notice by hand or via certified/registered mail with a return receipt requested.
In Maryland, the HOA must send another notice if the violation isn’t corrected or if the owner violates the same rule again within the next 12 months. This notice must explain how the owner can request a hearing. Owners must receive at least 10 days to request one.
If the owner requests a hearing, the association must schedule one at least 10 days after the request. The hearing must then take place in executive session, not in an open board meeting.
5. Impartial Decision
Board and committee members must review the evidence, examine witness statements, and align with the governing documents before making a decision. This decision must be unbiased, fair, and objective.
In Virginia, within 7 days after the hearing, the association must send the decision to the owner. The board must send this decision by hand delivery or through certified/registered mail with return receipt requested.
Even without a requirement, boards would be wise to send a written notice of their decision.
6. Follow-Up
If the board decides to impose a penalty, it must follow through on its decision. This means collecting a fine from the owner or suspending their privileges. Unpaid fines can result in more debt and even legal liability for the owner.
For suspensions of privileges, associations can temporarily revoke an owner’s access to facilities and services. Depending on the CC&Rs and bylaws, some communities even suspend voting rights.
That said, it is generally not permitted to block access to the owner’s home or unit. Any suspensions that create health/safety risks or endanger property are also not allowed.
7. Documentation
It is sound practice to document everything, every step of the way. Boards must keep records of all notices, owner replies, meeting minutes (including executive session hearings), and decisions.
In Maryland, it is required to document the proof of notice in the meeting minutes. These include details on when and how the notice was delivered to the owner. The minutes must also include the hearing result and any penalty the board imposed.
What if the Owner Doesn’t Request a Hearing?
While associations must offer a disciplinary hearing, holding one is not mandatory unless the owner requests it. If the owner ignores the notice and doesn’t request a hearing by the deadline, the board can typically proceed with enforcement.
In Maryland, the board may discuss the matter at its next meeting and decide whether the violation occurred. From there, the board can decide whether the violation warrants a penalty.
Can Owners File an Appeal?
In Maryland, owners can appeal the board’s decision in court. Virginia and DC law do not provide specific guidance for appeals. That said, owners can generally approach the board and inquire about appealing the decision.
Protecting Owners and the Association
Understanding HOA due process is the first step in ensuring fair and consistent enforcement. Owners have rights, and failing to adhere to the requirements set forth under state laws or the governing documents can violate those rights.
National Realty Partners is a leading provider of HOA management services in Virginia, Maryland, and Washington, DC. We can help your board enforce rules fairly and consistently. Call us today at 703-435-3800 or request a proposal online!
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