We all know that a homeowners association (HOA) can create rules regulating the uses of property within the association, but can an HOA amend its governing documents to alter fundamental property rights? This is the issue that has arisen in a litigation pending in Fairfax County, which is pending trial. DGW's clients filed suit against the HOA for implementing a discriminatory parking policy that prevented certain association members from parking in the majority of the common area parking spaces. The HOA attempted to avoid liability by amending its Declaration to allow for a discriminatory parking policy and then reenacting the policy under the amended declaration.

The problem for the HOA, DGW argued, is that all of the owners have an easement to use and enjoy all of the common areas equally. An easement is a property right that is recorded in the land records office and attaches to the property, passing from owner to owner. Unlike a rule about what colors homeowners can paint their houses, the HOA's amendment actually purported to alter this fundamental property right without the consent of the homeowners. DGW argued that, if an HOA could alter easement rights by amending a declaration, there would be nothing to prevent them from redrawing property lines or commandeering a portion of a homeowner's house or yard through such an amendment. In striking the HOA's affirmative defense based on the easement, the Fairfax Judge agreed with DGW and ruled that the amendment was unenforceable.