The fight began one evening over Mr. X not cleaning his dog’s feces from the common element sidewalk of ABC condominium. Mr. Y stepped in it – and fourteen months worth of fighting, board hearings and a federal Fair Housing complaint ensued. The disagreement between Mr. X and Mr. Y escalated far beyond the bathroom […]
Legal Counsel’s Two Cents on Community Association Budget Considerations (VA)
It is that time of year. Summer vacations are in the books, schools are in session, and pumpkin spice lattes are back on tap. These signs of Fall also mean many Virginia community associations are in budget season. Community association boards rely on their budget committees, management team, accountants, auditors, and/or reserve specialists for input […]
Virginia Fair Housing Law and Community Associations: Procedural Background and Best Practices in Handling Complaints
Many people are generally familiar with the concept that housing providers, real estate agents, and property management companies are subject to state and federal fair housing laws. However, it is important to know that community associations are also subject to those laws. State fair housing laws vary from state to state. These laws typically set […]
What the Beep?! New Law Changes Community Association Treatment of Accessible Parking Requests (VA)
For Virginia community associations, requests for accessible parking to accommodate a disability come in many forms. Requests range from asking for a designated handicap parking space to a parking space closer to one’s residence to curb cuts to reconfiguring and/or restriping a parking space. These requests involve a change in a rule or policy of […]
Enforcing Covenants – New Virginia Statutes Affect Court Actions
Two new changes in the law have an impact on community associations court actions. The first is an increase in the jurisdictional limit of the general district court from $25,000 to $50,000 (exclusive of interest and attorneys’ fees.) It is very helpful to be enabled by this statutory change to pursue larger claims in the […]
Can HOA Boards be Overridden through Group Action by Owners? (VA)
Many owners want to know what options they have to overturn bad board decisions without using litigation and when waiting to the annual director election isn’t an option. This raises the issue of what legally binding results “community organizing” can accomplish when the board majority appears to have already made up their mind. Many try […]
Can a Board of Directors Make Decisions for the HOA by Unanimous Emails? (VA)
Condominium and HOA leaders usually expect the owners and tenants to do what they tell them to do, and often struggle to back down when their authority is questioned. At the same time, boards and committees like to make decisions that affect others without being monitored or disclosing what was done. I recently published an […]
Worlds are Colliding! When Attorneys Sit on HOA Boards (VA)
Before Jaime Harrison ran for U.S. Senate or became chair of the Democratic National Committee, he was a director on the board of a condominium in Alexandria, Virginia while I was an owner-occupant. We had annual elections for board positions. Sometimes there was an election, other times we left without voting because there was not […]
2021 Legislative Changes Impacting Virginia Community Associations
July 1 means new laws become effective in Virginia. The 2021 legislative session and special sessions were busy and resulted in sweeping changes—many of which impact Virginia community associations. Of significance to property owners’ associations (“POAs”) and condominium associations are the following laws that become effective July 1, 2021: Read the entire article……………………………….
Resolving HOA Enforcement Through Voluntary Compliance
When a homeowner receives a notice of violation from their HOA or condominium, they must decide if they are going to fight it, comply or file an architectural application to receive formal approval. There are many instances when the homeowner can and ought to keep the installed improvement. However, there are other situations in which […]
General Assembly Makes Virtual Member Meetings Legal – With Conditions (VA)
Last Spring as part of emergency legislation the General Assembly authorized association boards of directors to meet virtually but did not include member meetings. This has caused significant delays in elections and other important meetings requiring a membership vote. I am pleased to report that new amendments, just signed by the Governor, will make life […]
Spring Cleaning For Virginia Community Associations Top 10 Policies and Procedures
The pandemic that took hold in 2020 created uncertainty and required community associations to adapt to new norms and its policies and procedures. The country looked forward to a new year with new hope. A new year usually brings resolutions. With Spring around the corner and the vaccine rollout providing a light at the end […]
The Almighty Injunction (VA)
In the world of enforcing covenants, deeds, and restrictions, injunctions are one of the most powerful tools association managers have in their arsenal. An injunction is an order from a Court either requiring a homeowner to comply with particular rules or restrictions or ordering the homeowner to cease violating the restrictions. Associations can request injunctive […]
How to Protect Your Association
Every association should carry a workers’ compensation policy – whether the association has employees or not. If your association issues 1099’s to contractors, then you can be held liable for injuries or liability from an uninsured contractor. (Scroll down to page 30 of magazine…………………..)
Sit, Stay, and Learn: Assistance Animal and Virginia Common Interest Communities
Virginia common interest communities (property owners’ associations, condominium associations, cooperatives, and time-shares (individually, “CIC”, and collectively, “CICs”)), are subject to the federal Fair Housing Amendments Act of 1988 (“FHA”) and the Virginia Fair Housing Law (“VFHL”). Together, the FHA and VHFL prohibit discriminatory housing practices against individuals based on their race, color, religion, sex, national […]
Our New Board Just Inherited a Host of Old Violations – What Should We Do? (VA)
We often get calls from new board members after transition from developer control. They have questions like this one: Some of the homeowners have added fences, above ground pools and sheds without getting approval from the Association. Many of these changes do not appear to meet the standards that are part of our documents. No […]
When a HOAs Entity Status becomes Inactive by Automatic Termination (VA)
Under Virginia law, a nonstock corporation must submit annual filings to avoid having its corporate status automatically “terminated” by the State Corporation Commission pursuant to Va. Code § 13.1-914. When people see that a corporation’s status is deemed “inactive” as terminated by a regulatory agency, they wonder if it no longer “exists,” particularly in the […]
Presenting to HOA Boards and Committees in Remote Hearings (VA)
Following enactment of 2020 General Assembly legislation, most HOAs and condominiums in Virginia carry on business through “remote” videoconferencing technology such as Zoom, WebEx and Microsoft Teams. Because of the Coronavirus, Americans of all ages are now more familiar with this technology. In the HOA context, boards and committees use remote hearings to decide matters […]
The Voluntary Payment Doctrine and HOA Liens
Homeowners disputes with HOAs and condominium associations frequently revolve around disputed demands for payments, large and small. Homeowners often wonder if they have to pay their monthly assessments if their HOA failed to fulfill an obligation. Generally speaking, if the assessments were legitimately determined by the HOA’s board of directors pursuant to its recorded instruments, […]
Dead Tree Lawsuit Against HOA Arborist Dismissed
Contemporary land development policies would not work well without trees. Lot owners use trees for shade, ornamentation, and to screening. Subdivisions, especially cluster developments, often include common areas where trees or shrubs provide dense visual screening of the development. Vegetation can be more attractive and taller than fences. When a tree dies, it transforms from […]
James Cawlo. v. Rose Hill Reserve Homeowners Association, Inc. et al. (Fallen tree) (VA)
New Fairfax Circuit Court opinion in a case where a landowner sued the HOAs tree inspector for failing to determine that a tree in their backyard was dead (the tree fell and hit someone after inspection) Read the opinion (PDF)………………………………….
Circuit Court Upholds Rule Requiring Residents to Sign Assumption of Risk Form As a Condition to Using Certain Common Areas During the Pandemic (VA)
A Charlottesville Circuit Court held that a rule promulgated by a Virginia property owners’ association requiring residents to sign an assumption of the risk form prior to using certain common areas was reasonable. See Norman v. Foxchase Owners’ Assoc., Inc., Case No. CL20-1481 (Albemarle Cnty., Oct. 30, 2020). From what can be gleaned from a […]
Is the Architectural Control Committee a Government of Laws or of Men? (VA)
Founding father John Adams observed that a republic is, “a government of laws, and not of men.” Adams contrasted a republic with an empire, where, “what pleases the prince has the force of law.” In Adams view, a government of laws surpasses one where a single individual (or a small group) holds unlimited power. If […]
Permissible Prohibitions on Campaign Yard Signs by HOA and Condo Associations (VA)
With only weeks before the election, Northern Virginia residents continue to engage in the high-stakes battle of the placement of campaign yard signs. But, can they be asked to remove these signs? For the thousands of residents who live in one of the hundreds of homeowners and condominium associations throughout the region, the answer is […]
Understanding the Legal Aspects of Privacy in the Age of Smart Phones and Residential Security Cameras (VA)
With most people in modern society having smart phones that have cameras and video recording capability coupled with the soaring popularity of residential security cameras, one may wonder to what extent does one have a right of privacy should their image and/or behavior be captured. One may also ponder such question when perusing through ample […]
Subrogation: Stepping into the Shoes of Another to Enforce Claims: the Virginia Supreme Court Hands Down an Opinion on Subrogation in the Context of a Condominium Fire (VA)
By recent decision, the Virginia Supreme Court weighed in on an insurance subrogation dispute arising out of a fire at a Virginia condominium. The case is illustrative as to situations that sometimes face community associations when there are casualty losses. Read the article……………………………..
A Summary of Collecting Delinquent Community Association Assessments (VA)
For those who live in a community with a homeowners association (also referred to in Virginia as a “property owners’ association” or a condominium association (an “Association”), you are no doubt familiar with assessments that go toward landscaping, parks, and pools, and declarations and bylaws that govern architectural changes to the exterior of the homes. […]
Insurance Subrogation Case Impacts Condominium Associations
In May, the Supreme Court of Virginia ruled that an insurer did not waive its subrogation rights (the process by which an insurance company collects money from the party at fault) against tenants of a unit owner in a condominium insurance policy. The insurance company can pursue a claim for damages against the tenant even […]
Virginia Legislative Update 2020
Dring its 2020legislative session, the General Assembly approved a number of bills that create changes to the Property Owners’ Association Act (“POAA”), the Condominium Act and the Code of Virginia. The legislation addressed in this newsletter will take effect on July1, 2020, unless otherwise noted below. Read the PDF………………………………
Virginia Allows Condominium Association’s Insurer to Subrogate Against a Condominium Tenant
In Erie Insurance Exchange v. Alba, Rec. No. 190389, 2020 Va. LEXIS 53, the Supreme Court of Virginia considered whether the trial court erred in finding that a condominium association’s property insurance provider waived its right of subrogation against a tenant of an individual unit owner. The Supreme Court reversed the lower court’s decision, holding […]
Implied Coinsured? Subrogation Actions Against Condominium Tenants (VA)
When considering a claim’s subrogation potential, insurance carriers are often confronted with contractual waivers of subrogation that potentially bar the claim. One of the most common waivers carriers face are those involving property damage claims in condominium buildings. In a recent decision, the Virginia Supreme Court held that in the absence of specific language otherwise, […]
Memorandum of Association Assessment Lien (VA)
HOAs and condominiums continually chase after their members for unpaid assessments imposed for maintenance of common areas and amenities. Normally, a creditor who wants to go after a defaulting “customer’s” property or assets needs to sue them for a judgment if they want to record a lien in the land records. Association boards grew tired […]
Summary of New Virginia Legislation Impacting Community Associations in 2020
The Virginia General Assembly passed hundreds of bills during the 2020 legislative session. For those who lead, live in, or associate with community associations, many of these changes could impact the day to day operations of how individuals and these associations interact. Below is a summary of some of the General Assembly’s more significant recent […]
Virginia 2020 Legislative Update for Common Interest Communities
The Virginia General Assembly approved a number of bills during its 2020 legislative session. Several of the bills, directly or indirectly, impact common interest communities. The Governor of Virginia signed the following bills into law in March, which will take effect on July 1, 2020. We have outlined the legislative action taken by the Virginia […]
HOA Design Review Application Form (VA)
Most homeowners’ associations require owners to submit a Design Review Application Form to approve changes to exterior features of their lots, be it a deck, patio, fence, driveway, or addition. Some even require approval to remove or add trees or change the grading. Owners often misunderstand their rights because the Design Review Application form includes […]
The Impact Of Coronavirus On Virginia Community Associations – FAQs
The responses to the FAQs questions are general in nature and are not specific to any association governing documents. The responses should not be construed as legal advice or do not create an attorney-client relationship. As always, we strongly recommend that community association boards and managers consult with legal counsel in any particular situation and […]
Virginia Temporarily Relaxes HOA Open Meeting Statutes for Coronavirus
On April 24, 2020, Governor Northam signed House Bill 29 into law during a special legislative session. The General Assembly added to this budget bill some temporary laws facilitating use of remote meetings for official business. While HB 29 is in effect, when the Governor declares a state of emergency, any public body, including the […]
Coronavirus: Additional Consideration for Protecting Community Associations and Continuing to Operate (VA)
Since our last posting, the impact of coronavirus on community associations has become real. Health and safety are paramount. While Association-related matters may seem trivial compared to a worldwide health crisis and corresponding job losses, basic business and operations must continue, albeit with new considerations. This supplements the prior article. Read the article…………………………..
Do HOAs Have to Meet Openly During the Coronavirus? (VA)
Landowners frequently complain that the board for their HOA or condo association makes important decisions in secret. Virginia law imposes significant “open meeting” requirements on community associations, allowing for attendance and participation by members. This is almost always in person. Open meeting laws can protect landowners from arbitrary or self-interested board action. The Coronavirus pandemic […]
Be Safe When Property Disputes Coincide with a Public Crisis (VA)
When a public crisis occurs, pre-existing problems don’t go away. The crisis falls on top of all other burdens and conflicts of life. The Coronavirus epidemic is no different. This pandemic poses unique challenges not present in other crises. No one knows how long this will last, how many people will be affected or how […]
HOA Records and the Exclusion of Hearsay from Evidence (VA)
HOAs and condominiums, as legal entities, are creatures that derive their power from documents. Governing documents must be in writing. Rules, regulations, policies, and resolutions must be put into writing. To maintain and manage the common areas, the board must make contracts with vendors. Covenant enforcement requires data collection and issuance of notices to lot […]
Appeals Court Deems Association Street a First Amendment Public Forum (TN)
Disputes between individuals and HOAs frequently occur on the roads or sidewalks owned by the Association. The rights of way are usually the HOA’s largest budgetary and operational responsibility. The lot owners and their invitees rely upon the roads to access properties. State and local governments benefit financially by shifting the maintenance burden of the […]
Can I cut down my neighbor’s tree when its branches overhang my property? (VA)
In our ever crowding residential areas, more of us experience the situation in which the limbs of a neighbor’s tree overhang our property line. Most of the time, these limbs do not pose us any concern, but questions do arise as to whether we have the right to prune our neighbor’s trees. In the past,the […]
Holiday Lights and your HOA (VA)
The Virginia Supreme Court has issued another ruling specifying the limitations of homeowners associations to enact guidelines, rules, and regulations that exceed the scope of their authority. We had written previously about attempts by HOAs to regulate holiday decorations. The first item on our suggested checklist to assist homeowners association was “Does the Board have […]
Holiday Lights and your HOA (VA)
The Virginia Supreme Court has issued another ruling specifying the limitations of homeowners associations to enact guidelines, rules, and regulations that exceed the scope of their authority. Read the article……………………..
Supreme Court of Virginia Opinions: Sainani v. Belmont Glen Homeowners Association
The trial court in this case erred in awarding a monetary judgment, injunctive relief, as well as attorney fees and costs to a homeowners association in an action against lot owners for violations of the HOA’s guidelines governing the use of holiday decorations. The HOA’s seasonal lighting guidelines were not enforceable under the HOA’s declaration […]
ADA and Community Associations: Best Practices in Handling Requests (VA)
Most people are generally familiar with the concept that hotels, restaurants, and other places of public accommodation are subject to the Americans with Disabilities Act (“ADA”). However, as we have mentioned before on this blog, community associations can fall under the scope of the ADA as well. Read the article………………………..
Minimize the Legal Risks of Association Meeting Minutes (VA)
Associations need to pay close attention to the format and content of the minutes of all Association meetings. This guidance applies to minutes of regular meetings, special meetings and closed executive sessions of the Board, all committee meetings, as well as an Association’s annual membership meeting. Read the article………………
Emotional Support Animals and Dangerous Dogs in Cooperative Apartment and Condo Communities
An emotional support animal (ESA) is a companion animal (typically a dog or cat) that provides therapeutic benefit to an individual with a mental or psychiatric disability. An ESA is not the same thing as a pet. Rather, for a resident of a co-op or condo who is living with a mental or psychiatric disability, […]