A recent case reported in Virginia Lawyers Weekly highlights the significant financial risk to homeowners associations (“HOAs”) when sidewalk maintenance is neglected. In this case, a resident tripped on an uneven sidewalk—maintained by the HOA—and suffered severe injuries. The injuries required surgery and 10 months of treatment, resulting in $200,000 in medical expenses. The plaintiff also lost valuable time from their online retail business. Ultimately, the case was settled for $650,000 before a lawsuit was even filed.
This scenario serves as a reminder HOAs to evaluate their responsibilities under their governing documents. Here are several steps HOAs can take to reduce liability and protect their communities from similar claims:

1. Conduct Regular Inspections

HOAs should establish a schedule for inspecting sidewalks and other common areas. Look for hazards such as uneven pavement, cracks, and other trip-and-fall risks. Inspections should be documented, as records can serve as evidence of diligence in case of a claim.

2. Prioritize Repairs Promptly

When issues are identified, repair them as soon as possible. In the case mentioned, the sidewalk had a two-inch height discrepancy—a tripping hazard that could have been addressed through grinding, leveling, or slab replacement. Delaying repairs increases the risk of accidents and makes claims harder to defend.

3. Enhance Lighting

Poor visibility can exacerbate sidewalk hazards. Installing streetlights or sidewalk lights can help residents navigate safely at night and deter potential accidents. Lighting improvements are a relatively small investment compared to the cost of a personal injury claim.

4. Consider Risk Transfers

HOAs should review their insurance policies to ensure adequate coverage for premises liability. Additionally, HOAs may consider hiring third-party contractors for sidewalk maintenance and ensuring these contractors carry proper insurance.

5. Communicate with Residents

Encourage residents to report hazards promptly. Open communication creates a partnership between the HOA and the community to maintain safety.

6. Consult Legal Counsel

If your HOA is unsure about its responsibilities or how to implement these steps, consult an attorney experienced in HOA law. Proactive legal advice can help reduce risk and ensure compliance with applicable regulations.

Lessons from the Case

This $650,000 settlement underscores how expensive negligence can be. By implementing regular maintenance schedules, prioritizing safety improvements, and ensuring proper insurance coverage, HOAs can mitigate these risks. Taking proactive measures is not just about avoiding lawsuits; it’s about creating a safe and welcoming community for all residents.

Many of us can attest to the stress and lost time that results when working on, for, or with a dysfunctional Board of Directors. Boards that do not operate as a team fail to accomplish the tasks that need to be accomplished, and greatly increase the potential liabilities of a community association.

The healthy leadership of a board is essential to the strength of a community. Community associations can build a strong team if board members and owners better understand the roles and responsibilities of their association, the board and each owner. To start building a team, the board needs to lead. The goal of team building is to establish a strong association and build a sense of “community.”

We have written previously on the litigation of homeowner association cases. Generally, homeowner associations can file a lawsuit in the General District courts to enforce collection of assessments. However, If an HOA needs to enforce a covenant, seeking an injunction to require a homeowner to comply with the restrictive covenant, as of 2011, the HOA must file a lawsuit in the Circuit Court can now file a lawsuit in the General District Court, as well. Virginia Code sections 55-79.80:2, and 55-513 give jurisdiction for those matters to the General District Court. Those lawsuits can be expensive and time-consuming.

Continue reading “Enforcing HOA covenants important for common interest communities”

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”

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”

Board members are told that they have fiduciary duties to the community association, but what does that really mean?  Fiduciary duties arise because the members of the association entrust a board member to act in the best interest of the association when handling the association’s business.

There are three components that are important to understand fiduciary duty.  First, the Virginia Code, at § 13.1-870, imposes on directors a requirement that a director exercise her duties in good faith and in the best interest of the association.  This requirement is the so-called “business judgment” rule. Second, Virginia case law imposes duty of care that requires a board member to act as a reasonable person would under similar circumstances.  Third, Virginia case law imposes a duty of loyalty that requires a board member to put the association before any personal interest.  These last two duties are referred to as “common law” duties. Continue reading “What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)”

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

The legislation that passed the 2015 General Assembly Session is mostly helpful to Virginia HOAs–clarifying issues created by some legislation, and providing solutions for owner apathy and bank foreclosure problems for associations.

Continue reading “2015 General Assembly Update for Virginia Community Associations”

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””

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.