RD721 - Office of the Common Interest Community Ombudsman - Annual Report 2020-2021

Executive Summary:

In 2008, the General Assembly created the Office of the Common Interest Community Ombudsman (“Office"), and the Common Interest Community Board (“CICB"), at the Department of Professional and Occupational Regulation (“DPOR"). In accordance with statutory requirements, this document reports on the activities of the Office for the period from November 27, 2020, through November 26, 2021.

This year was a repeat of last year in many ways: the pandemic continued and teleworking was the norm. The Office continued to respond in a timely manner to all inquiries, and ultimately received many more common interest community complaints than in the past. We also transferred the handling of time-share complaints to the DPOR Complaint Analysis and Resolution section for general processing, since time-shares are not technically common interest communities, and the Office has no authority over time-share owners’ associations.

Surprisingly, it appears that associations are still struggling to adopt complaint procedures and to carry out their responsibilities under those procedures. The Office continues to advise associations on their obligations under the Common Interest Community Ombudsman Regulations (“Regulations"). We provide resources for associations to understand the complaint process and review draft complaint procedures for adherence to the Regulations. This year the Office received a significant increase in allegations that associations failed to respond to complaints submitted through their association complaint procedures.

As has always been the case, associations continue to struggle to carry out the three necessary components of the internal complaint procedure: (1) acknowledge receipt of the complaint; (2) provide consideration of the complaint; and (3) provide a final decision on the complaint. Even after the Office advises an association of the necessary steps, the same association will often continue to ignore the required sequence the next time it receives a complaint. This results in ongoing monitoring by this Office as we work toward ensuring that everyone who submits a valid association complaint not only can trust their complaint will be addressed properly, but also will be able to use their right to “appeal" the decision to this Office by filing a Notice of Final Adverse Decision.

On a very positive note, the Office obtained full compliance with all Determinations issued pursuant to a submitted Notice of Final Adverse Decision. This confirms that the complaint procedure is effective and helpful, as it appears that in most (if not all) cases, associations failed to follow the law unknowingly rather than out of willfulness.

Last year, we reported on the difficulty in helping with solar panel issues because the laws governing them fell under Title 67, the Virginia Energy Plan, rather than common interest community law. Effective October 1, 2021, the Property Owners’ Association Act, the Condominium Act, and the Virginia Real Estate Cooperative Act incorporated provisions of Virginia Code § 67-701, meaning that these solar panel matters now fall under the authority of this Office, but only to the extent that any issues that arise do not pertain to the governing documents of the association.

During the 2021 Session of the General Assembly, the legislature also cemented associations’ rights to hold fully or partially virtual meetings, for both board meetings and owner meetings, which has helped to bring more owners to meetings and provides a safe environment for those who do not wish to attend in-person meetings.