We have listed our house for sale with a real estate company and have been told we have to give a packet of disclosure information about our homeowners association to anyone who wants to buy our house. We have also been told that if our buyers are not satisfied with the information they can get out of the contract. We have two problems. First, we don’t want to tie up our house while the buyers decide whether they like the disclosure packet, and, second, and more important, we dont have an active homeowners association. We dont know where or how to get the information. We have never paid any homeowners dues. Is what the real estate agent told us correct?
The answer to your question depends on whether your property is located with a development that is subject to the disclosure requirements of the Virginia Property Owners Association Act. That Act, which became effective July 1, 1989, applies to developments that have a recorded declaration or master deed that imposes responsibility on a property owners association for the maintenance or operation of common areas and creates the authority in the association to impose dues for those purposes. It is possible that your property is not subject to the Act in that there exists no recorded declaration establishing a property owner fs association. It is also possible that your association was created by declaration recorded prior to January 1, 1960, in which case it is exempt from the Act.
I should point out that it does not matter whether you pay homeowners dues or not. It is the authority to impose the dues that subjects the association to the Act.
Your situation, if you are in a development that is subject to the Act, illustrates the practical difficulties that the Act engenders. You may have to undertake measures to activate the homeowners association in order to sell your house. However, you are not required by law to sell to a buyer who insists that a disclosure packet be provided. Your buyer may waive his right to receive the information, and the inactivity of your association, if one even exists, may persuade the buyer to do so.
H. Kent Kidwell is a partner at the law firm KIDWELL, KENT & CURRAN in Fairfax City and President of OLD DOMINION TITLE SERVICES,INC. Readers with questions may write to Mr. Kidwell at Woodson Square, 9695 C Main Street, Fairfax, Virginia 22031. Fax him at (703) 764-2194, or E-mail him at [email protected].