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Tree Trouble – Part II, Self-Help

In part one of our three-part series on Tree Trouble, my colleague David Silver wrote about Timber Trespass. In this post, I’m going to discuss self-help. Self-help is the legal term that describes “taking the law into your own hands”—literally.

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Rigged (HOA!) Elections

A few months ago, the Chairman and Secretary of a Pennsylvania community association were convicted by a jury of election fraud. The directors schemed to fill out ballots to stack the deck in upcoming board elections. An attorney in Las

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I Don’t Think We’re in Kansas Anymore

Kansas, of course, is in the heart of Tornado Alley and home to the most famous tornado of them all: the one that swept Dorothy into the Land of Oz. Recently, however, Oregon and Washington felt the effects of multiple

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Financial Review Requirements for Oregon Planned Communities

The following outlines the requirements for financial reviews in Oregon Planned Communities. The requirements are found in ORS 94.670.  Read the article…………

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Adverse Possession and Community Associations

There are several ways to acquire ownership of land. The most common form, of course, is by purchase. A buyer and seller enter into an agreement, and at closing of the transaction title is conveyed to the new owner.  But

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Neutrality

Association boards deal with a variety of unit owner behaviors and personalities. Some are positive, some are negative, and some are downright inexplicable. This can lead to both real and perceived bias.  Regardless of the behavior or how much the

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Fractions and Votes Under Robert’s Rules

Condominium and homeowner association documents contain many different voting requirements. For example, the required number of votes to elect a director is usually different than the number of votes required to adopt an annual budget.   The math involved in determining

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Directors vs. Officers

There is often confusion about the difference between directors and officers in condominium and homeowner associations. Much of the confusion stems from the corporate world. In large corporations the board members of a corporation are often different individuals than the

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The Business Judgment Rule

Community Association board members frequently ask, “What is the standard we’re held to when we vote and make decisions?” The standard of conduct in Oregon and Washington is colloquially known as the “Business Judgment Rule.” Application of the Business Judgment

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Cumulative Voting

Some community association bylaws or articles of incorporation authorize the use of cumulative voting for the election of directors. Under this type of voting, owners may cast multiple votes for a single candidate.  Read the article………….

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Reductions in Property Value Due to the Presence of Construction Defects

Last month the Oregon Supreme Court recognized and seemingly affirmed a strategy to reduce taxable property value due to the existence of construction defects. In Oakmont, LLC v. Oregon Dept. of Revenue (2016), the owner of an apartment complex valued

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The Good, the Bad, and the Ugly of the Insurance Discovery Rule

I have a number of “First Party Insurance” claims sitting on my desk (e.g. an Association pursuing its own carrier for discovered property damage). Many of these involve the “discovery rule.” Having dealt with this rule on a number of

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Dealing With Short Term Rentals

The rise of short-term lease websites (AirBnB, VRBO) has caused significant concern among condominium and homeowner associations. Repeated, short-term rentals may cause parking issues, noise, and other nuisances which disturb community residents. What can an association do to restrict these

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The First Amendment and Community Associations

For the most part, community associations are not bound by the First Amendment, either. CC&Rs and Bylaws often restrict owners’ rights to display signs, even political signs. In a well-known Pennsylvania case a unit owner wanted to place a “for

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Now Might be a Good Time for an Association Loan

Interest rates have never been better. As a result, many owners have jumped at the chance to refinance their homes or condos at seriously low rates. Yet, individual owners are not the only ones who can benefit from these low

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Transitional Advisory Committees

The Oregon Planned Community Act (ORS Chpater 94) and the Oregon Condominium Act (ORS Chapter 100) provide for the formation of a transitional advisory committee to facilitate the transition of the association from the developer to the owners.    

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Drone Registration

Last December the Federal Aviation Administration implemented a rule requiring the registration of small unmanned aircraft systems (drones). Under the FAA Modernization and Reform Act of 2012, Section 333, the Administration is authorized to adopt rules and regulations governing most

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Understanding Easements

Easements are very common in condominium and homeowner associations throughout Oregon and Washington. Simply put, an easement is the right of someone to use or access the property of another.    Read the article…………

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Enforcement of CC&R’s

Condominium and homeowner association CC&Rs are, in many ways, similar to contracts. If one party breaches the terms of the contract, the other party may seek the help of the legal system for damages or to require the breaching party

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Methods of Voting

There are numerous methods of taking a vote in community associations. For issues which may be challenged, it’s wise to use a written paper ballot. For other non-controversial matters, associations may choose from a variety of voting methods.    Read

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Special Owner Meetings

Community associations typically have three types of meetings: board meetings, annual owner meetings, and special owner meetings. The notice requirements, quorum provisions, and subject matter are very different for each type of meeting.    Read the article………….

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Changes Coming in FHA Condominium Guidelines?

If you’re a listener to “Condo and HOA Buzz” you heard over the past two weeks that Congress recently passed a bill that includes important provisions affecting all condominiums in the country. On February 2, 2016, HR 3700 was approved

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The Importance of Mediation (OR)

Engaging in mediation implies that something between the parties has broken down. There’s a disagreement, an argument, a conflict. Mediation provides a mechanism to settle the conflict by conversation and voluntary agreement.   Read the article…………

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Explosions in the Sky

Setting off fireworks is a bright, colorful way to celebrate certain special occasions. While most commonly associated with the 4th of July, it is not unusual for people to set off fireworks on New Year’s Eve and other holidays, as

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Drones in Community Associations

Drones are no longer exclusive to the military. The prices continue to plummet and the technology has improved to allow even the not-so-tech-savvy consumer to easily pilot the flying devices. But when drones land on the White House lawn or

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Deciphering Association Records Requests

This past weekend I spoke at the Community Association Institute’s (“CAI”) South Sound Law Day on the topic of association records. Based on the number of questions from the audience on owner requests to obtain or review records, I thought

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Board Member Resignations

Suppose that during the middle of a board meeting a director stands up and says “I quit!”. Immediately, the director leaves the meeting. Does this constitute a resignation from the board of directors? And what if the director returns to

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Marijuana in Communities

We are often asked whether a condominium association may prohibit cigarette smoking in common areas, or in units or single family homes. Now that using marijuana is legal in Oregon and Washington, some associations are wondering if they can or

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The Importance of Bids

Most homeowner and condominium associations engage the services of professionals to help with the operations of the community. These professionals include accountants, landscapers, contractors, and managers. As board members, you have a duty to ensure that association funds are spent

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Resolution, Rules & Regulations

This is a broad category, and refers to those documents that are typically adopted by the board of directors without a vote of the owners (note: some associations may have owner approval requirements). Examples include: architectural guidelines, collections resolutions, enforcement

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Architectural Review Guidelines

Many community associations are governed by architectural design guidelines. Often, those guidelines are enforced by an architectural review committee (sometimes called architectural control committees or architectural design committees). The guidelines allow owners to know what types of changes require approval,

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Board Members & Proxies

Occasionally board members of homeowner or condominium associations may not be able to attend board meetings. In most cases it is appropriate for absent board members to participate by telephone.   Read the article………….

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Association Records Requests

It is common for issues between community associations and owners to escalate into disputes when there is a request by the owner to review association records. On the one hand, a board may not understand the obligation and elect to

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Online Voting for Community Associations

We recently concluded a membership vote to adopt an entirely new set of CC&Rs and Bylaws. The CC&Rs require 75% of all owners to approve, and the Bylaws require 51%. With nearly 300 lots in the community, it was a

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Can’t We All Just Get Along?

There are certain situations in life that tend to bring out the worst in people, and one of those is when neighbors just cannot seem to get along. Whether at an HOA or condominium, when people of diverse personalities and

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FHA Certified Condominiums

Many condominiums throughout the United States are Federal Housing Administration (“FHA”) certified. This allows prospective buyers to receive FHA-insurance loans and mortgages. If a condominium is FHA certified, that means that the condominium meets all of the FHA legal, financial,

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Builder’s Pact Doesn’t Nix Insurer Liability, Ore. Justices Say

An Oregon condominium association’s agreement to not execute part of a judgment against a builder in construction defect litigation doesn’t automatically erase the builder’s liability or that of its insurer, the Oregon Supreme Court ruled Thursday, upending a 42-year-old precedent.

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Government Affairs Alert

The Amateur Radio Parity Act (S. 1685) is scheduled for mark-up in the U.S. Senate Commerce Committee today (November 18). Your Senator serves on the Senate Commerce Committee and it is very important he/she hears from you today to oppose

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Components of and Effective Board Meeting

Board meetings can easily turn into chaos. State law and governing documents often provide guidance on running board meetings. Parliamentary procedure, most importantly, should be used to keep order and allow the meeting to proceed efficiently. The following is a

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Announcing a Special Assessment

It’s always difficult when a condominium or homeowners association must levy a special assessment against the owners. Sometimes there’s no choice. If the association failed to reserve money for major repairs or an unexpected cost arises, a special assessment may

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Security Cameras in Community Associations

Much of the case law involving an association’s duty to provide security relies on long standing landlord-tenant laws and cases. In general, an association has a duty to provide safety and security against foreseeable risks. There are many cases involving

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Common Legal Terms in Governing Documents

Community association CC&Rs and Bylaws contain numerous legal terms. Some of those terms have common meanings, others have very specific and legal meaning. Here is a list of common legal terms, along with plain English definitions:    Read the article………….

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Oregon Supreme Court bars plaintiff from executing on covenant judgment against the defendant’s insurer

The Oregon Supreme Court recently answered a question certified to it by the Ninth Circuit Court of Appeals, which asked whether a settlement agreement that released an insured from liability could be amended to revive the liability of the insured

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Tips for Collection Policies

The authority to levy and collect assessments is found in the Declaration/CC&Rs of community associations. However, there aren’t typically specific procedures to follow if an owner is delinquent in the payment of assessments. Most condominium and homeowner associations adopt a

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Marijuana in Community Associations

For some condominium and homeowner associations, marijuana (smoking and growing) is becoming a concern. There are a handful of tools the board of directors may consider to handle these issues.    Read the articles……………….

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Collecting On Judgments

Sometimes owners in a community don’t pay their assessments. Often, the Board of Directors must file a lawsuit to collect the delinquent assessments. The lawsuit is filed in small claims court or the civil court in the county where the

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Association Record Inspection

Community associations often have voluminous records. Owners, who are members of the association, have a right to inspect and review those records. Financial records, meeting minutes, and governing documents are some of the items which constitute official “association records.” For

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Robert’s Rules & Small Boards

Robert’s Rules of Order is designed to keep control of large groups or assemblies. Members must stand and be recognized by the chair, motions must be seconded, and members may not speak out of turn. However, sometimes that level of

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The Meaning of Quorum

Most community association bylaws state a specific quorum requirement for owner or membership meetings. The purpose of a quorum is to avoid binding owners to decisions made by an unrepresentatively small number of individuals. Simply put, quorum is the minimum

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An Update on Hoarding

A couple of years ago Barker Martin anticipated that hoarding would be an issue for community associations to contend with under laws like the Americans with Disabilities Act and Fair Housing Act. [Link] Since then, the issue has continued to

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