What can an HOA do to collect past dues when a bankrupt homeowner surrenders property but the lender does not foreclose?
An all-too-common scenario occurs when a homeowners association attempts to collect past dues and the homeowner files bankruptcy. The law is clear that the bankrupt homeowner is still liable for those post-petition dues. The United States Bankruptcy Code at Section 523(a)(16) makes the homeowner liable for “a fee or assessment that becomes due and payable after the order for relief to a [homeowners association] for as long as the debtor . . . has a legal, equitable, or possessory ownership interest in such unit.”
In other instances the homeowner decides to walk away from the property and surrenders the property to the lender. Instead of foreclosing, however, the lender simply does nothing. Therefore, the title of the property is still in the name of the bankrupt homeowner who walked away from the property, and they are not paying the assessments. The lender has not foreclosed so they are not paying the assessments. How can the homeowners association collect these past due post-petition assessments?
Republished by Blog Post Promoter
Who pays when a tree falls on my property?
Hurricane Irene left a lot of damage in Virginia. Although the damage was not as great and widespread as caused by Hurricane Isabel, many of us had in excess of ten inches of rain and suffered from many fallen trees. This tree fell in my back yard.
We previously blogged about issues arising when a neighbor’s vegetation, including trees, encroaches upon our property. In that situation, we can cut the offending vegetation, including roots, back to the common property line. However, if the vegetation is also damaging our property, the Court can order the complete removal of the offending vegetation and award us compensation for our expenses, including compensation for damages.
After Hurricane Irene, we should visit another question: who pays for damage when my neighbor’s tree falls on my property? Generally speaking, this property law question involves an issue of negligence and insurance. Each situation would require a review of the facts, and a review of your homeowner’s insurance policy, but here is some general guidance:
Republished by Blog Post Promoter
Zoning and “Adaptive Reuse” – What does that actually mean?
While growing up in western Virginia, one of my favorite restaurants was in a converted train depot. On several occasions my parents walked me through the tobacco warehouses in Farmville, Virginia filled with fine furniture and rugs. There was even a bed and breakfast nearby with rooms in a grain silo. Although I did not realize it at the time, these businesses were examples of “adaptive reuse.”
DOG Street Pub, the former SunTrust Bank
Continue reading “Zoning and “Adaptive Reuse” – What does that actually mean?”
Republished by Blog Post Promoter
Can an advisor be held liable for the false statements in a prospectus made by another?
United States Supreme Court
Previously we blogged about a pending case before the Supreme Court that had the possibility to significantly increase the liability of persons for assisting in the preparation of a “prospectus.” As of June 13, 2011, the Supreme Court handed down an opinion in that case, styled as Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.).
The determination of this case is relevant to accountants and business lawyers who assist in the preparation of documents for the purpose of raising money for investment. The Janus Capital Group, Inc. case presented the question of who may be deemed to have “made” an untrue statement for the purposes of Rule 10b-5, and specifically whether someone who assisted in the preparation of a prospectus could “make” a statement through such assistance. As the result of a 5-4 decision, accountants and business attorneys may breathe a little easier. Continue reading “Can an advisor be held liable for the false statements in a prospectus made by another?”
Republished by Blog Post Promoter
Unauthorized Practice of Law: When unlicensed attorneys serve as HOA board members
An 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
Implementing an HOA Complaint Procedure – Slideshow Presentation
Still need information for your association’s required Complaint Procedure? Here is the slideshow for the Complaint Procedure Seminar Sept 2012 revised Susan Tarley presented in Williamsburg in September 2012.
This slideshow presentation is provided for informational and educational purposes only. This presentation does not constitute legal advice and should not be relied on. Legal advice can only be provided after consultation with an attorney with experience in the area in which your concern lies. This is so because each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and/or documents at issue. Your use of this slideshow presentation and the information in it does not create an attorney-client relationship. Such a relationship can be created only with a written agreement signed by us and by you.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
Republished by Blog Post Promoter
Smokin’ in the Condo
Imagine if someone told Don Draper and Roger Sterling of Mad Men that they could no longer smoke in their apartments. They would look at you curiously, smirk and light up a cigarette. But Mad Men, the television show about a Madison Avenue advertising agency is set in 1965 and as the ad for Virginia Slims said, “[we’ve] come a long way, baby.” Almost half of all adults smoked in 1965 but that percentage has dropped to 18% by 2012.
The negative health effects have been documented and the reported adverse health effects caused by second-hand smoke has resulted in smoking bans in restaurants. One of the next areas in which smoking bans have been put in place is in condominium communities. Some of the smoking bans address common elements only but others have imposed a ban on smoking in the condominium unit.
Continue reading “Smokin’ in the Condo”
Republished by Blog Post Promoter
A New Twist on Identity Theft and Fraud: How can Realtors, Lenders, Title Companies and Law Firms Protect Your Clients and Yourselves?
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.
Republished by Blog Post Promoter
HOAs, ADA, and FHA: regulating “Service or Assistance Animals”
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
What Does It Mean to be on the Board of Directors of your HOA? Potential Liability (Part 2 of a Series)
We frequently are asked whether volunteer board members can be civilly liable for actions taken while a board member. This issue is of serious concern because lawsuits tend to be over inclusive, naming every possible defendant in the initial complaint. Why sign up as a volunteer board member if it could bankrupt you?
Republished by Blog Post Promoter