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 the authority to regulate holiday decorations? If not, your inquiry stops here.” As it turns out, that is the basis for the Court’s decision in Sainani v. Belmont Glen Homeowners Association.

In Sainani, the association adopted guidelines for “Seasonal Holiday Decorations” (the “Guidelines”) to regulate various aspects of homeowners’ display of exterior lighting. The trial court found that the homeowners violated the Guidelines by having the “lights . . . on 24/7” for “at least 300 days a year.”

On appeal, the homeowners argued that the Guidelines exceeded the HOA’s authority and were unenforceable. The Virginia Supreme Court agreed. In essence, the Court specifically stated that “None of the covenants in the amended declaration can be construed to authorize the seasonal guidelines, and thus, the seasonal guidelines exceed the scope of the HOA’s authority.”

As we wrote in another blog post analyzing an unpublished order from the Virginia Supreme Court in the case of Shadowood Condominium Association et al., v. Fairfax County Redevelopment and Housing Authority, “Unless the . . . governing documents specifically permit the common interest community to impose the charges and/or suspension of rights for violations of the documents . . . it is likely that a court may find against the association where the owner contests such actions.” The Sainani case will have ramifications for HOAs who do not follow those guidelines.

No sooner had we posted our blog article on the enforceability of listing agreements even when they are not in writing, another recent case came to our attention. This case is from the New Kent County Circuit Court. This case is another example of the increasing acrimony between sellers and brokers in a tight real estate market.

Listing Agreements

Continue reading “Real Estate Listing Agreements are Contracts – Do you know your rights and obligations?”

Republished by Blog Post Promoter

A case out of Virginia Beach underscores the deviousness of those who engage in identity theft. As reported in Virginia Lawyers Weekly, Guy Gugliotta owned two lots in Virginia Beach. A local realty company maintained contact with Gugliotta via mail in case he was interested in selling the lots. In 2012 someone purporting to be Gugliotta notified the tax assessors office to change the mailing address for tax bills. Then they notified the realty company that they had decided to sell the lots. The lots were listed for sale and in August, a purchaser made an offer.

The seller documents were handled via mail with the fraudulent seller executing documents in Florida and sending them to the closing agent. Deeds to transfer property require that the seller’s signature be notarized so surely this was the end of the road for the fraudster.

But no, not only did the thief take the identity of the owner; he also took the identity of a notary public in Florida. The notary public declared under oath that it was not his signature and that he had never notarized the documents.

Continue reading “A New Twist on Identity Theft and Fraud: How can Realtors, Lenders, Title Companies and Law Firms Protect Your Clients and Yourselves?”

Republished by Blog Post Promoter

I read a story in the Virginia-Pilot in which it described an incident of Citizen’s Arrest. In the story, a fire inspector, using a flashing blue light on his car, stopped a female driver. He claimed the driver had been swerving, and he stopped her because of his concern she may have been drinking.

A Suffolk, Virginia detective witnessed the incident. After consultation with fellow police officers, the police department urged the Commonwealth’s Attorney to press charges against the fire inspector for impersonating an officer.

The Commonwealth’s Attorney declined. He cited a Virginia case, Hudson v. Commonwealth, for the legal principle that private citizens have a common law right to make a “Citizen’s Arrest.”

I will not go into all of the other complicating legal issues relating to a Citizen’s Arrest, like what obligations does a person have to obey the citizen making the arrest, what force can the citizen use to make the arrest, etc. No, my purpose is more of humorous nature, because the incident reminded me of my childhood, watching Mayberry RFD. In this particular episode, Gomer Pyle shows the proper way to make a Citizen’s Arrest of Deputy Barney Fife:

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

Republished by Blog Post Promoter

We have written previously on the litigation of homeowner association cases. Generally, homeowner associations can file a lawsuit in the General District courts to enforce collection of assessments. However, If an HOA needs to enforce a covenant, seeking an injunction to require a homeowner to comply with the restrictive covenant, as of 2011, the HOA must file a lawsuit in the Circuit Court can now file a lawsuit in the General District Court, as well. Virginia Code sections 55-79.80:2, and 55-513 give jurisdiction for those matters to the General District Court. Those lawsuits can be expensive and time-consuming.

Continue reading “Enforcing HOA covenants important for common interest communities”

Republished by Blog Post Promoter

Recent amendments to the Americans with Disabilities Act (the “ADA”) regulations limit the definition of “service animal” to any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The amendments specify that providing “emotional support, well-being, comfort, or companionship do not constitute work or tasks” under the new definition.

On the other hand, if your situation is not an ADA issue but rather a Fair Housing issue, a recent memo clarifies that the new definition is not applicable to the Fair Housing Act (the “FHA”). The FHA does not contain a specific definition of “service animal.” Under the FHA, animals that provide emotional support have, in certain instances, been recognized as necessary assistance animals as a reasonable accommodation. The FHA permits individuals with disabilities to keep an assistance animal as a reasonable accommodation when there are limitations imposed by the homeowner or condominium association on animals and pets.

Continue reading “HOAs, ADA, and FHA: regulating “Service or Assistance Animals””

Republished by Blog Post Promoter

In Virginia homeowner associations, the governing documents permit a developer to continue control of the HOA’s Board of Directors for a specific period of time, or until a specific number of lots are sold. The length of that period depends upon the governing documents of each association.

This issue has generated litigation in Williamsburg, and now, thanks to Peter Vieth from Virginia Lawyer’s Weekly, we have learned of a formal opinion from the Virginia Attorney General. In an opinion dated January 11, 2013, the AG answered two questions posed by Virginia Senator Bryce E. Reeves. This blog post takes a look at that opinion.

Is the Property Owners Association Act Unconstitutional?

Continue reading “Virginia Attorney General opinion on HOAs”

Republished by Blog Post Promoter

There are many issues that confront your common interest community as its board of directors and management company work hard to maintain the HOA. One issue that has recently come up is the need to be knowledgeable about the chemicals an HOA applies to its common areas.

The Property Owners’ Association Act in Virginia Code § 55-510.3 and the Condominium Act in Virginia Code § 55-79.80:01 both require that an association post notice of all applications of pesticide in or upon the common areas/elements. This notice must be provided by conspicuous signs placed in or upon the area where the pesticide will be applied, at least 48 hours prior to application. This blog post analyzes one particular question that an association should consider when applying chemicals to its common areas: What is a pesticide?

Continue reading “Pesticides, Fungicides, and Herbicides: Why do Virginia HOAs need to know the difference?”

Republished by Blog Post Promoter

Many businesses operate under a fictitious name, otherwise referred to as “doing business as” or “d/b/a.” There are many reasons for this use, but primarily, a company can use a catchy business name, like when a franchise opens a “T.G.I.F.” or “McDonalds,” but the company’s actual corporate name is not as exciting.

According to the Virginia Supreme Court, Virginia requires a company operating under a different name to file that name with the court and the State Corporation Commission “to prevent fraud and to compel an individual or a corporation to disclose the name of the real owner of the business, in order that the person or corporation may sue in or be sued by the proper name.”

Virginia statutes set forth the process for registering your fictitious name. For restaurants or other single location businesses, the process is pretty simple. First, you file a fictitious name certificate with the court clerk in the jurisdiction where your business is located. After the certificate is recorded, you file the certified copy with the State Corporation Commission.

Problems can arise for construction companies and other types of businesses who transact business in several localities. For those companies, you must file a fictitious name certificate in each county or city where you conduct business. We have had several matters in which these types of businesses failed to properly register their fictitious names in all the jurisdictions where they conduct business. For one thing, those entities cannot bring a lawsuit to collect monies due until they rectify that problem.

“Doing business as” is just another issue to consider when you set up your company. Make sure you fully advise your lawyer so all of your filings can be completed early, and correctly.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

Republished by Blog Post Promoter

Clients sometimes come to us with disputes regarding real estate litigation matters involving boundary line and easement encroachments. We provide legal advice and counsel, trying to balance your real estate rights with neighborly harmony, always looking to avoid a lawsuit when possible.

Easements provide a broad range of legal rights and obligations. In a fairly recent Virginia Supreme Court case, Snead v. C&S Properties Holding Company, a landowner blocked access to a validly recorded easement. The easement holder filed a lawsuit, asking the court to order the obstruction removed. The Virginia Supreme Court ordered the fence removed, concluding that “a significant portion of the easement would be rendered unusable for ingress and egress if injunctive relief were denied.”

Republished by Blog Post Promoter