Posts by Susan Tarley:
4 Tips to help your HOA protect its Attorney-Client Privilege
October 30th, 2014The Attorney-Client Privilege protects confidential communications between an attorney and his or her client. This privilege includes communications made to the attorney and communications from the attorney. The Attorney-Client Privilege is designed to encourage clients to communicate with their attorney freely, without fearing disclosure of those communications made in the course of representation. The Attorney-Client Privilege is important because it permits clients to give their attorney complete and uncensored information, enabling their attorney to provide informed and thorough legal advice.
For community associations, the Attorney-Client Privilege belongs to the association and can only be expressly waived by the a decision of the association board or executive organ. However, the privilege can be impliedly waived based on the client’s conduct. A determination on whether the privilege has been waived will depend on the specific facts of each case. The association will have to establish that the attorney-client relationship existed, that the communication is privileged, and that the privilege was not waived.
Here are four basic tips for the board of your Common Interest Community to follow so that it protects the association’s Attorney-Client Privilege:
Republished by Blog Post Promoter
Benefits of HOAs Part 2: How is Covenant Enforcement Good for Owners?
October 30th, 2014The enforcement of covenants, conditions, and restrictions (“CC&R’s”) is among the most criticized of the duties performed by the Board of Directors of community associations, but is also the most important responsibility. CC&R’s govern many activities in a community including house designs, parking regulations, maintenance and repair of the common areas, and collection of assessments. Sensational “Gotcha” type news stories highlight enforcement practices of some associations, which contribute to a false perception that associations in general lack common sense. However, studies repeatedly show that the overwhelming majority of people living in neighborhoods governed by HOAs believe that the rules in their communities benefit them.
Republished by Blog Post Promoter
Arbitration in debt collection: FTC says it’s a broken system
October 30th, 2014As a follow-up to our post on the costs and benefits of the arbitration process, the Federal Trade Commission (“FTC”) recently issued a report indicating that the litigation and arbitration practices for resolving consumer debt need major reform.
Debt collection cases are on the rise. We have seen a tremendous increase in the number of cases we are filing on delinquent homeowner association dues. In James City County/Williamsburg, the local courts have seen a 27% increase in civil filings from 2006 to 2008. Other courts in Virginia and other states are experiencing similar increases in civil filings.
The FTC has made specific recommendations that the Federal government and the states consider new laws to protect consumers including a recommendation that a temporary ban be placed on the use of binding arbitration until such time that the arbitration forums have initiated changes to address deficiencies in arbitration. The FTC has suggested that state legislatures adopt measures to make it more likely that consumers will defend themselves in litigation, decreasing the prevalence of default judgments; require debt collectors to include more information about the alleged debt in their complaints; take steps to make it less likely that collectors will sue on debt on which the statute of limitations has run; and change laws to prevent the freezing of a specified amount in a bank account including funds exempt from garnishment.
We do not believe that these changes, if they occur, will effect our current practice areas and clients. However, we have also seen instances in which perceived procedural unfairness can lead to overreaching legislation. For example, it is fair to say that when the Fair Debt Collection Practices Act was passed, legislators did not intend for it to reach into the wide-ranging areas it now does, including the collection of homeowner dues. See, e.g., Barry v. Board of Managers of Elmwood Park Condominium II, NT Slip Op 27506, http://caselaw.findlaw.com/ny-civil-court/1211140.html (December 12, 2007, NY Civil Court City of New York, Richmond County) (Judge Philip S. Straniere writing that “Somehow I think that Adams, Jefferson and Madison must be turning over in their graves at the thought that the federal government is regulating such a local activity as the collection of condominium association dues between the homeowner and the association”).
Arbitration tends to release pressure on state courts by handling cases that otherwise would be brought in court. However, if the process continues to be perceived as unfair, restrictions on the use of arbitration could be forthcoming.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
Republished by Blog Post Promoter
Virginia Statute – HOAs must adopt “Cost Schedule” to recover copy costs
October 30th, 2014The Virginia Code has provisions that provide members of condominium associations and homeowner associations with the ability to request copies of books and records. The statutes have also permitted associations to recover the costs of copying the requested books and records.
This blog post highlights a new statutory provision affecting common interest communities. On July 1, 2012, HOAs and condo associations will only be able to recover these copying costs if the association has adopted a cost schedule.
Republished by Blog Post Promoter
Get your fence off my property!
October 30th, 2014Clients 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
Unauthorized Practice of Law: When unlicensed attorneys serve as HOA board members
October 30th, 2014An article in the Virginia Gazette featured a story regarding the indictment of a local attorney for the unauthorized practice of law; a criminal charge classified as a class 1 misdemeanor. Although those allegations did not involve a homeowner association, it highlights a recurring issue for volunteer boards of directors for many organizations including homeowner associations and not-for-profit organizations on which attorneys serve. This article focuses on those issues facing boards for homeowner associations (“HOAs”) but the issues are similar for other volunteer boards of directors.
Republished by Blog Post Promoter
2015 General Assembly Update for Virginia Community Associations
October 30th, 2014The legislation that passed the 2015 General Assembly Session is mostly helpful to Virginia HOAs–clarifying issues created by some legislation, and providing solutions for owner apathy and bank foreclosure problems for associations.
Republished by Blog Post Promoter
Comments Off on 2015 General Assembly Update for Virginia Community Associations
HOAs – What are your Governing Documents?
October 30th, 2014
It’s the beginning of a new year so let’s start with some basic nuts and bolts information regarding homeowners associations. We’ll begin this series of blog articles with a discussion of the phrase “Governing Documents” which is used by board members, managers and homeowners.
What are the Governing Documents? Read the rest of this entry “
Republished by Blog Post Promoter
HOAs and the Power to Adopt Rules and Regulations: Is it more limited than we think?
October 30th, 2014Community Associations that have adopted rules and regulations that permit the association to avail itself of the enforcement capabilities found in Va. Code Ann. § 55-79.80:2 or § 55-513(B) should have counsel review the governing documents or condominium instruments, as applicable, in light of an unpublished Virginia Supreme Court order in Shadowood Condominium Association et al., v. Fairfax County Redevelopment and Housing Authority. In Shadowood, the Court determined that community associations do not have the authority to impose charges or suspend owner’s rights unless the authority is specifically granted in the condominium instruments or governing documents. This blog post analyzes that Court order.
Republished by Blog Post Promoter
HOAs and a Reserve Study…it’s the law! (Part 1 of a 3 part series on Reserves)
October 30th, 2014Yes, Virginia, property owners’ associations and condominium associations are required to have a reserve study. At least once every five years an association must obtain a study to determine the necessity and amount of reserves (i.e. financial savings) required to repair, replace and restore capital components. Capital components are those items, regardless of whether they are part of the common area or common elements, for which a) the association has an obligation to repair, replace or restore, and for which b) the board or executive organ determines that funding is necessary.
Republished by Blog Post Promoter