Originally posted 2011-10-11 08:45:38. Republished by Blog Post Promoter
In other posts we have discussed a homeowner association’s governing documents. Many communities were established 20-40 years ago with governing documents that worked well for the developer, and for the most part the community association. However, many of these governing documents are outdated. Virginia and federal laws pertaining to community associations have changed substantially. If your board of directors has not engaged in an audit of your communities governing documents in the past 5-7 years, it should.
What is an “audit” of our governing documents?
An “audit” of your documents is an in-depth review by your HOA’s board of directors in conjunction with your association attorney. The Board reviews each document noting any sections that lack clarity, are no longer enforced, appear to not apply to your community, protect a long-gone developer, or do not provide the association with adequate remedies. The Board prepares a list of concerns or issues facing the community, such as homes that are not being maintained, large amounts of delinquent assessments, or enforcement capabilities of the association. The Board provides this information to the association attorney.
Originally posted 2010-09-22 05:35:58. Republished by Blog Post Promoter
The Common Interest Community Board (the “CICB”) revoked a management company’s license for regulatory violations. In a case reported in the September issue of the Community Associations Institute Law Reporter (Virginia Common Interest Community Board v. Sarraga t/a Lakeside Community Management, File No. 2010-00562, June 24, 2010), the CICB revoked the license of Sarraga t/aLakeside Community Management and issued fines totaling $2,000.
Originally posted 2014-04-08 08:44:24. Republished by Blog Post Promoter
You are elected Secretary of your homeowners’ association. Congratulations! Someone hands you the minute book, owner roster, and the governing documents. You think, hey this is not overwhelming at all. Then the retiring Secretary mentions in passing that “If you’re home tomorrow I’ll deliver the boxes.” You ask “What boxes?” “Oh, all of the HOA’s records are boxed up and have been in my garage – I’ll bring them by,” replies the retiring Secretary.
What do you do with the boxes? What records and documents do HOAs need to keep? How long do you need to keep them? How should they be stored? This blog post provides some basic guidance on best practice tips for community association record retention.
Originally posted 2010-07-20 09:31:06. Republished by Blog Post Promoter
A Virginia Circuit Court case highlights the expense and time commitment required when a homeowner sues a common interest community (referred to as “HOA” in this article). Furthermore, this case illustrates that HOAs can rarely predict or control when they may be dragged into a lawsuit.
In this case, Hornstein v. Federal Hill Homeowners Association, a homeowner had her house for sale with a pending sales contract. Pursuant to Va. Code Ann. § 55-509.5, the HOA provided a disclosure packet that revealed that the homeowner’s fence was not located on her property. In fact, the homeowner’s own survey confirmed that fact. The pending sales contract fell through.
The homeowner sued the HOA in Fairfax Circuit Court for slander of title and tortious interference with contract, including a claim for “bodily injury,” and “mental anguish.” The HOA prevailed in the case, leading to the homeowner’s petition for appeal to the Virginia Supreme Court. [UPDATED: The Virginia Supreme Court refused to hear the case, meaning that the Circuit Court's decision stands].
Another battle has been waged regarding whether the HOA’s insurance carrier had a duty to defend the HOA in the underlying litigation. When the HOA’s insurance carrier denied coverage and representation, the HOA sued the insurance carrier. The case was removed to the federal court. The 4th Circuit District Court agreed with the insurance carrier. The HOA appealed and the 4th Circuit Court of Appeals reversed the trial court and held that the insurance carrier had a duty to defend. The insurance carrier has appealed for a rehearing. [UPDATED: the insurance carrier lost its appeal and was ordered to pay the HOA $217,308.86 for the attorneys' fees the HOA incurred].
For a brief review, the HOA provided the disclosure packet in February 2006. After the homeowner’s pending sale fell through, she sued the HOA in August 2007. As we near August 2010, the underlying case may be close to resolution, but litigation with the insurance company may be far from resolving. Based upon the amount of litigation, we can assume that the HOA’s attorneys’ fees have reached six figures. Obviously, payment for these attorneys’ fees is then passed onto the homeowners (unless the case shifts payment of the attorneys’ fees to the losing party, but even then, courts rarely award the full 100% of the incurred fees).
Many lessons can be drawn from this experience. Most importantly, HOAs need to review their insurance policies to make sure they are covered fully for worst case scenarios. Our experience has shown that “anybody can sue anybody for anything at any time.” Although the plaintiff may not win (and did not win in this case), the ensuing litigation will take abundant resources. We can help you review your documents and insurance policies with the necessary professionals to protect your HOA, and homeowner interests.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Originally posted 2012-04-16 08:22:32. Republished by Blog Post Promoter
We wrote earlier about a Charlottesville case in which the court analyzed the duty to disclose for a seller of residential real estate. Although Virginia follows the general rule of caveat emptor, the court ruled that the seller, who was also a licensed real estate agent, may have violated a duty to disclose material adverse facts.
The purchasers alleged two other counts, alleging that the seller failed “to disclose the adjacent drain problems and history of flooding, constituting both fraudulent misrepresentation and constructive fraud.” The court dismissed those claims while providing a nice, succinct history of the law of fraud in the sale of a home. This blog post reviews the general rules of fraudulent misrepresentations in residential real estate sales.
Originally posted 2012-02-21 09:00:58. Republished by Blog Post Promoter
We know that in Virginia, the parties to a contract are bound to the terms of that contract. We also know that Virginia courts look to the terms of that contract to determine each party’s rights and obligations. But what is a “contract?” This blog post looks at a recent Virginia Supreme Court case that gives a little guidance to answer that question.
Originally posted 2011-10-18 08:45:32. Republished by Blog Post Promoter
In the Greater Williamsburg area, many small businesses face seasonal layoffs when the summer tourism season ends. For small businesses, these layoffs lead to questions regarding unemployment compensation. In this blog post, we will discuss the issue of when an employer can be liable for the unemployment compensation for a terminated employee.
Generally speaking, an employee terminated by you may be otherwise eligible for unemployment benefits, chargeable to your company if:
- you were the last employer for the employee, and
- that employee worked at least 30 days or 240 hours, and
- that employee was not terminated for cause.
The basic qualifications for unemployment compensation are:
- The employee must have been employed and earned a certain amount of wages. The Virginia Employment Commission publishes requirements for wages earned or time worked during an established period of time referred to as a “base period.”
- The employee must be determined to be unemployed through no fault of their own. An employee terminated for cause is not eligible for unemployment.
Once you have been determined to be the “employer” liable for unemployment compensation, you are responsible for all the benefits payable to that former employee. Unless extended benefits have been approved, the maximum benefit is 26 times the weekly benefits payable to the employee.
The weekly benefits are found in a table at Virginia Code § 60.1-602. This table is regularly updated, it tells you how much a person would receive per week in unemployment, based upon the amount they made when employed. For example, if a person made $6,300 in the prior twelve weeks when employed, he would receive $125 per week in unemployment, and a total of $3,250, if he were employed for the entire 26-week period.
The possibility of being liable for unemployment compensation worries many small business owners. Discuss the issue with your business attorney so that you can plan properly for your employment needs.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Originally posted 2010-06-18 12:30:24. Republished by Blog Post Promoter
Though the majority of businesses in the United States are sole proprietorships, those of you who read an earlier post know that I recommend, for a myriad of good reasons, that an entity of some kind be placed between a person doing business and the rest of the world. Find an experienced business attorney to help establish your business entity.
In this post, I address briefly the general partnership form of business entity, the only form I consider more dangerous to the financial health of an individual than the sole proprietorship. Why, you ask? Because with the sole proprietorship, the sole proprietor is personally liable for the acts of the sole proprietor, the business and the business employees. In the general partnership, the partners are personally liable for the acts of the business, the employees and each other. What partners do can be fairly unpredictable, like contracting to purchase or lease things that cannot possibly be paid for out of the profits of the business, or like contracting to do that which cannot possibly be done profitably.
Originally posted 2011-07-26 08:30:49. Republished by Blog Post Promoter
Community Associations have been the subject of a lot of bad press lately. An Associated Press article is typical of news reports that lambast associations. The article tells about a 55-and-older condo complex in Florida. According to the article, units in the Inlet House condo complex used to be worth $79,000, but sold for as little as $3,000 after rats started chewing through toilet seats and sewage started leaking from the ceiling. The article goes on to vilify the condo association for levying a $6,000 special assessment on residents and then foreclosing on owners who don’t pay their dues.
In its eagerness to blame the condo association for the woes of these senior citizens, the article and many blogs pointing out the “abuses of HOAs” miss an important point: the association may be the only group really looking out for the interests of the owners. Let’s look at what the article does not allege: it does not allege that the Association was responsible for the rat infestation or the sewage leak and it does not allege that the Association could have prevented the housing meltdown that contributed to the decline in property values.
Originally posted 2011-01-20 08:30:43. Republished by Blog Post Promoter
Well, we have written about protecting the attorney-client privilege and about safe emailing tips when emailing your attorney. Although we thought we had it pretty well covered, a recent decision from a California appellate has given us something more to think about.
Continue reading “Using your business’ computer to email your attorney may be a bad idea”