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.

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

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We’ve mentioned already the abundance of news articles criticizing community associations. If these news stories are to be believed, then associations are unpopular indeed. But is it true that residents living in community associations are unhappy with their association? Research by the Community Associations Institute suggests that it is not. In fact, the research suggests that more people than ever are choosing to live in communities with associations, and the overwhelming majority of those people are happy with their association.

Statistics compiled by the Community Associations Institute show that the number of associations continues to grow. In 1970, just ten thousand communities, with a combined 2.1 million residents, were governed by associations. Today there are over 309,000 communities governed by associations. More than 62 million Americans live in associations. 1.75 million volunteers serve on community association boards, and a full 26 percent of the eligible U.S. population volunteers for an association at some point during a year, according to one estimate. That kind of service simply would not happen if associations were as widely disliked as has been portrayed.

Common Interest Communities

Continue reading “Benefits of HOAs Part 4: What do homeowners really think about their associations?”

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Selecting an attorney is one of the more significant decisions made by the board of directors for a community association. Often times, the association makes its decision based upon price alone. Although “price” is a valid factor to consider, there are other important factors the board should review during its selection process. This article addresses three of the major considerations.

First, the board should determine the prospective attorney’s experience level in the representation of community associations. Attorneys for common interest communities are similar to the general counsel in major corporations because of the wide range of issues that arise. Extensive experience in many of the possible legal issues facing community associations should be a prerequisite.

Continue reading “Three Factors An HOA Should Consider When Hiring An Attorney”

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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”

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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.

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

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Over the course of the past few years, homeowners in the Williamsburg development of Kingsmill on the James have become more vocal over the continued control by the community’s developer, Busch Properties, Inc. In May 2010, Kingsmill resident and a William & Mary Law School professor filed a lawsuit against Busch Properties. On August 20, 2010, the Williamsburg/James City Circuit Court heard the demurrer filed by Busch Properties. The court granted the demurrer. The Plaintiff appealed to the Virginia Supreme Court. The Court declined to hear the appeal. The Plaintiff filed a petition for rehearing that the Court refused to hear by an order dated June 16, 2011.

HOA Transition

Continue reading “Does Virginia law require an HOA to transition automatically to homeowner control of the Board of Directors?”

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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.

Continue reading “HOAs and Mediation: Not always a viable alternative to Litigation”

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The Virginia Supreme Court’s opinion in Tvardek, et al v. Powhatan Village Homeowners Association, Inc. highlights how critical it is to not only amend your HOA documents in compliance with the law and your existing documents, but to make sure that the amended document that gets recorded properly memorializes that you did so.

The Tvardeks filed a declaratory judgment action in 2013 against Powhatan Village Homeowners Association, Inc. (“Powhatan Village”) to challenge a 2008 amendment to the association covenants that included a provision restricting the owners’ ability to rent their homes. Powhatan Village filed a special plea in bar requesting dismissal of the action as untimely citing the one-year statute of limitations in Va. Code Ann. § 55-515.1(E). Declining to hear any evidence, the Circuit Court made a decision on the pleadings and argument of counsel, ruling in favor of Powhatan Village’s argument that the claim was time-barred. The Circuit Court also awarded Powhatan Village $12,000 in attorney fees.

The Tvardeks appealed the case. The Virginia Supreme Court reversed the Circuit Court’s ruling, determining that the case was not barred by the one-year statute of limitations. The attorney fee award was also reversed.

Continue reading “Make sure HOA Document Amendments are properly certified”

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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.

Continue reading “Don’t Let the Bedbugs Bite. . .Your Condominium Neighbor!”

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It’s that time of year when we start to see holiday decorations.  Yes, the stores have begun displaying Halloween items along with Thanksgiving, Christmas, Hanukkah, Kwanzaa, and other holiday decorations at the same time. As we start to see the orange mini-lights for Halloween, condominium associations and property owner associations begin to deal with the issue of whether holiday decorations are permissible and if so, how long can they be displayed. Although when we read these stories, we may think that homeowners are over-reacting to a small issue, but what looks like a celebration of Halloween to one owner may seem way over-the-top to another. Rules for holiday decorations need to take into account ALL owners to be fair, effective, and enforceable. This blog post provides some common-sense guidance for your community association regarding holiday decorations.

Continue reading “Community Associations and Holiday Decorations: Trying to Preserve Holiday Cheer”

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