HOAs and Transition from Developer Control – 101

June 23, 2014 on 11:31 am | In Business Law, Business Planning, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2013-11-12 15:58:04. Republished by Blog Post Promoter

Owners in most community associations—both homeowner associations and condominium associations—eventually reach the point where the developer transfers control of the Board of Directors to the owners. This blog post provides an introduction to the transition process and what owners can expect.

Susan Tarley

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Benefits of HOAs Part 2: How is Covenant Enforcement Good for Owners?

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, Jason Howell, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2011-08-09 11:59:33. Republished by Blog Post Promoter

The 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.

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HOAs and the Power to Adopt Rules and Regulations: Is it more limited than we think?

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, Unit Owners Association | No Comments

Originally posted 2012-09-10 11:46:45. Republished by Blog Post Promoter

Community 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55-513(B) should have counsel review the governing documents or condominium instruments, as applicable, in light of an unpublished Virginia Supreme Court order in Shadowood Condominium Association et al., v. Fairfax County Redevelopment and Housing Authority.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.

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Part 1 on Virginia’s Unauthorized Practice of Law Rules and HOAs – Where do we find guidance?

June 23, 2014 on 11:31 am | In Business Law, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2012-12-20 07:31:25. Republished by Blog Post Promoter

Mention the unauthorized practice of law when discussing homeowner and condominium associations and typically the room gets very quiet. Associations, board members and managers strive to keep their budgets low, but compliance with new laws and regulations, keeping up with the collection of assessments, and the upswing in litigation involving homeowner and condominium associations makes it very difficult. When matters become a “legal issue,” board members and managers are best advised to seek legal counsel to ensure that the association is being adequately protected and represented, and that the board members and the managers are not engaging in activities that the Commonwealth might find to be the unauthorized practice of law.

We previously blogged on questions of the unauthorized practice of law when an unlicensed attorney serves on the association’s Board of Directors. In our next two blogs, we will review other issues involving questions of the unauthorized practice of law. In this blog, we discuss where we look for guidance, and in a subsequent blog, we will review Virginia decisions and opinions on the unauthorized practice of law.

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4 Tips to help your HOA protect its Attorney-Client Privilege

June 23, 2014 on 11:31 am | In Common Interest Community, General Interest, HOA, HOA litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2011-09-20 11:59:39. Republished by Blog Post Promoter

The 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:

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

June 23, 2014 on 11:31 am | In General Interest, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2011-04-28 08:55:53. 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.


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HOAs and Mediation: Not always a viable alternative to Litigation

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | 3 Comments

Originally posted 2012-02-10 20:10:42. Republished by Blog Post Promoter

We have written extensively on the virtues of alternative dispute resolution, specifically mediation, to resolve disputes. Litigation is a time-consuming and expensive undertaking, and in the end, both sides are generally unhappy with the result because of the costs and time incurred.

But although we encourage mediation generally, mediation in HOA litigation is a much more complex and difficult undertaking. In this blog post, we will discuss difficulties with mediating HOA disputes.

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“Thank you” to Construction Law Musings – HOAs and the Association Lien

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | 1 Comment

Originally posted 2012-12-14 09:45:41. Republished by Blog Post Promoter

For the second time, my friend and colleague, Richmond Construction Law attorney Chris Hill, permitted me the opportunity to blog at his award-winning blog Construction Law Musings on the topic of liens for assessments filed by community associations. You can get a lot of great information on construction law, including the intricacies of mechanic’s liens, from Chris and his blog. You can also follow him on Twitter, @ConstructionLaw.

 

Here’s a brief excerpt of the post:

In this blog, I will discuss another lien that can be filed on real property in Virginia, a lien that I will refer to in this blog as the “Association Lien.” Virginia has two separate code sections that permit community associations to file liens for unpaid assessments. For condominium associations, Va. Code § 55-79.84 sets forth the procedures for filing a lien. For developments governed by the Property Owners Association Act (“POAA”), Va. Code § 55-516 provides the statutory requirements.

I greatly appreciate the opportunity to contribute to Chris’ blog, which, for me, is the “gold standard” for a proper lawyer’s blog. For the full post on filing a community association lien, please check out Chris’ Guest Post Fridays.

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HOA Litigation: Is it avoidable?

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, John Tarley, Mediation, Unit Owners Association | No Comments

Originally posted 2013-09-03 09:26:10. Republished by Blog Post Promoter

We have written previously on the costs—both in time and money—for homeowners and condominium associations to litigate cases. On one hand, boards of directors have a fiduciary duty to uphold the governing documents of associations, but on the other, the board must investigate alternatives to the divisive nature of litigation.

As it turns out, sometimes there is no alternative because a homeowner can sue an HOA, forcing the association to defend. But what efforts can or should a homeowners or condo association take to avoid the consequences of litigation?

A series of recent Virginia cases highlights the consequences associations can face in litigation cases. This blog posts provides a brief summary of those cases and some cautionary advice.

Williamsburg Virginia Business and HOA Lawyers

Board of Directors Meeting

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Benefits of Community Associations Part 1: Are HOAs really as bad as some portray?

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, Jason Howell, Real Estate Litigation, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

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.

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