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.

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When we think of the challenges of overseeing homeowners associations, we might think of overgrown lawns, late assessment payments, and aggressive pets.  But another challenge has been waiting in the wings:  the aging of America’s “baby boomer” generation, many of whom are choosing to live out their golden years in their homes.  This rising trend is presenting new and unique challenges for Community Associations.  It is the wave of the future and the future is now.

Continue reading ““Aging In Place” – How can HOAs address aging communities?”

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Virginia’s Attorney General, Mark R. Herring, published an advisory opinion concerning private security forces used by community associations (the “Opinion”). These security forces often act as quasi-police departments and help relieve localities by providing routine patrols in private communities. In the Williamsburg area, the local police often defer to HOA security forces for regular patrols, and health and safety checks. When it comes to more serious police action, like issuing traffic tickets and arresting homeowners, the roles and authority of HOA security forces becomes less clear. This blog post discusses the role of private security forces in homeowners’ associations and the Opinion that addresses some of these concerns.

Continue reading “Stop in the name of the…homeowner association! – Can private HOA security forces pull you over?”

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Many boards of directors for community associations engage management companies to help the board operate their community. These relationships arise from written contracts negotiated by the parties. It is essential that homeowners’ associations and management companies have their contracts reviewed by their experienced HOA attorney.

When determining the terms of a contract, Virginia courts employ what is known as the “plain meaning” doctrine. This doctrine basically means that when an agreement is clear, a court will look to the ordinary meaning of the words of the contract itself. Consequently, the parties need to ensure that all of the terms they believe are part of an agreement are in the written contract itself.

A recent Virginia Supreme Court case presents a prime example of why it is important to have your association attorney review contracts between community associations and management companies. Continue reading “HOAs and Management Companies – Does your contract say what you think it says?”

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A short while ago we wrote a blog piece on the issues relating to community associations regulating service animals. In that blog we noted that the Fair Housing Act (“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.”  In Broward County, Florida, that county’s Civil Rights Division filed suit against a condominium association for violating the FHA by refusing to consider a person’s request for an “emotional servant animal,” a chihuahua.

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The “Shared Economy”— where economic and social activity occurs directly between individuals with the help of an online format— is reshaping our national economy. Today we can easily monetize everyday assets, including your car and home, in ways that were previously impossible.

This innovation and advancement has not occurred without growing pains, many of which have occurred in the context of real estate. Airbnb, FlipKey, HomeAway, VRBO, and others have made it relatively simple to use your house, apartment or condo as a source of income, by renting all or part of it, to temporary or transient guests.

Continue reading “Airbnb and VRBO and your Home: Regulating The Shared Economy”

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There are many issues that confront your common interest community as its board of directors and management company work hard to maintain the HOA. One issue that has recently come up is the need to be knowledgeable about the chemicals an HOA applies to its common areas.

The Property Owners’ Association Act in Virginia Code § 55-510.3 and the Condominium Act in Virginia Code § 55-79.80:01 both require that an association post notice of all applications of pesticide in or upon the common areas/elements. This notice must be provided by conspicuous signs placed in or upon the area where the pesticide will be applied, at least 48 hours prior to application. This blog post analyzes one particular question that an association should consider when applying chemicals to its common areas: What is a pesticide?

Continue reading “Pesticides, Fungicides, and Herbicides: Why do Virginia HOAs need to know the difference?”

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Well, it’s that time of year when signs start popping up in neighborhoods as election day draws near. In neighborhoods governed by a homeowner or condominium association, boards of directors are sometimes asked to enforce sign restrictions when one neighbor complains about another’s political sign (and probably, the neighbor’s choice of candidate).

A person’s first response typically is “I have the right to free speech and you can’t stop me from posting my political sign on my property!” However, is that the end of the discussion? This blog post reviews a community association’s rights and responsibilities regarding political signs.

Continue reading “Can an HOA prohibit the posting of political signs?”

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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:

Continue reading “4 Tips to help your HOA protect its Attorney-Client Privilege”

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In litigation matters involving common interest communities (otherwise known as homeowners associations (“HOAs”) or condominium owners associations (“condo associations”)), the issue of awarding attorneys’ fees for prevailing parties ultimately arises. Generally, the HOA’s Governing Documents or the condo association’s Condominium Instruments contain such a provision. Otherwise, attorneys’ fees may be recoverable by statute for HOAs and condo associations.

These attorney fee-shifting provisions, either by contract or statute, are contrary to the typical “American Rule” cases in which each side pays their own attorneys’ fees. Because litigation has become so expensive to pursue, whether to award attorneys’ fees, and the amount of any award, has become separate litigation on its own at the conclusion of cases.

In the recent case of Dewberry & Davis, Inc. v. C3NS, Inc., the Virginia Supreme Court was faced with the issue of “whether the circuit court erred in applying an attorneys’ fees provision of a contract.” We had previously blogged about this case, because in the underlying contract between the parties, Dewberry & Davis, an engineering company, had limited its liability for damages. The trial court had determined the limitation of liability clause was void, pointing to a recent change to Virginia Code § 54.1-411that permitted an engineering company to include a limitation of liability clause. Because the contract predated the code change, the court determined that those changes “demonstrate that the General Assembly fully intended to alter the statute’s intent.”

The case continued to trial, and eventually, upon appeal, to the Virginia Supreme Court. This blog post explains that Supreme Court decision relating to the award of attorneys’ fees.

Continue reading “Attorneys’ Fees and Litigation – When fees get awarded to the “Prevailing Party””

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