Simple Tips for Effective HOA Due Process Hearings

October 30, 2014 on 12:59 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Unit Owners Association | No Comments

This blog post focuses on addressing one major source of discontent in community associations: due process hearings for alleged violations of the community’s governing documents or condominium instruments.

HOA Due Process Hearing

Homeowners want fairness

Complaints about HOA due process hearings can be split into at least three different categories:

  • Before the hearing, the Board
    • did not attempt to settle reasonably;
    • did not explain variance procedure; or
    • did not properly send notice of violation or opportunity to cure.
  • During the hearing,
    • The Board was disorganized;
    • A Board member was rude;
    • The Board was not prepared for the hearing;
    • The Board did not give owner time to gather/present case; or
    • The Board did not view property/alleged violation.
  • After the hearing,
    • The Board did not give valid reasons for decision; or
    • The penalty was unreasonable.

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Emails from work computer can waive rights to privileged communications

October 30, 2014 on 12:59 pm | In Business Planning, Construction litigation, General Interest, HOA litigation, John Tarley, Real Estate Litigation | No Comments

We have written on the issues that arise when employees use their work computer for personal business. In that blog article, we referred to a California case in which an appellate court ruled that an employee’s emails to her attorney were not protected by the attorney-client privilege because the company had a written policy that informed employees that computers were not to be used for personal matters, that emails could be monitored to ensure that employees complied with the policy, and that employees should not expect any privacy in the use of their computers.

In local news, former Delegate Phil Hamilton raised a “marital privilege” objection to the use at trial of emails he sent to his wife. Certain communications to and from a spouse can be protected from disclosure. There were complicating factors to this case’s analysis.

 

Email

 

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Can an advisor be held liable for the false statements in a prospectus made by another?

October 30, 2014 on 12:59 pm | In Business Planning, Contributors, General Interest, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

For all you accountants, investment advisors, and even attorneys who provide advice and guidance to companies or other entities raising money or other property for investment purposes, it might be a good idea to pay particular attention to the

United States Supreme Court opinion, when issued, in the case of Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.). This case was argued before the Court on December 7, 2010. The Court’s opinion should be issued sometime during the first half of 2011.

Janus Capital Group, Inc. is somewhat factually and legally complex. However, in very simplified terms, First Derivative Traders is attempting to assert primary Securities Exchange Act Section 10(b) fraud liability against an entity,

Janus Capital Management LLC, that “helped” and “participat[ed] in” preparing a prospectus. The prospectus was actually that of, and was issued by, Janus Funds, a separate entity. Janus Funds had its own lawyers review the prospectus. Further, the Funds’ Board of Trustees, which was primarily responsible for it, reviewed it, as did the outside Trustees of Janus Funds, who also had their own counsel review it.

The United States (i.e., the Securities and Exchange Commission) filed an amicus brief in this case advocating such indirect liability in private actions, never mind the right of private action was judicially, not statutorily, created.

Williamsburg Virginia Business Lawyers

United States Supreme Court

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Don’t Let the Bedbugs Bite. . .Your Condominium Neighbor!

October 30, 2014 on 12:59 pm | In Common Interest Community, Contributors, General Interest, HOA, HOA litigation, Real Estate Litigation, Real Estate Strategies, Unit Owners Association | No Comments

When water leaks from one condominium into another, determining the responsible party is usually not too difficult.  But what about when the hazard isn’t water, but bed bugs, parasitic insects of the cimicid family that feed exclusively on blood and often take up residence nearby or inside of beds, bedding and/or other sleep areas, who is responsible then? This blog post will review some of the issues regarding condos and bedbugs.

Bedbugs and Condos

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What Should You Expect From Your Attorney?

October 30, 2014 on 12:59 pm | In Business Planning, General Interest, HOA, John Tarley, Merger & Acquisition, Real Estate Strategies, State & Federal Litigation | No Comments

I read a recent article in the ABA Journal that differentiated between the teaching of “issue spotting” versus “problem solving” in law schools. This article strikes at the core of the services we provide as attorneys. We believe firmly that although it is our responsibility to help identify potential issues that you may face, our legal advice is fully realized when we help you solve your problems.

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Fictitious Name filings: Make sure you file properly for your business

October 30, 2014 on 12:59 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition | No Comments

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

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What are Condominium Instruments?

October 30, 2014 on 12:59 pm | In General Interest | No Comments

In our last blog we discussed Governing Documents for homeowners associations. Condominium communities also have governing documents. However, the terminology we use to refer to these documents is “Condominium Instruments. “

What comprises the Condominium Instruments?

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Lawsuits against HOAs are expensive and time-consuming for all

October 30, 2014 on 12:59 pm | In Common Interest Community, General Interest, HOA, John Tarley, State & Federal Litigation, Susan B. Tarley | No Comments

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

Williamsburg, Virginia

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Choosing your Virginia Business Entity

October 30, 2014 on 12:58 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition, Neal J. Robinson | No Comments

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There are many questions to ask and many issues to resolve when you decide to start your Virginia business entity. The time to ask those questions and resolve those issues is before you enter into your business agreement.

Neal’s 3-minute slideshow presentation gives an a brief primer on the forms of entities that are available and questions to start your dialog with your business attorney and business partners. This slideshow combines basic information with more advanced concepts for the more experienced entrepreneur.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

Neal Robinson

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Using your business’ computer to email your attorney may be a bad idea

October 30, 2014 on 12:58 pm | In Business Planning, Common Interest Community, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Email

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.
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