We blogged about the extension granted by the Department of Justice for existing pools to comply with the new ADA Standards for providing accessible entry and exits. Just days after issuing its “Final Rule,” the Department of Justice published a fact information page with Questions and Answers regarding Accessibility Requirements for Existing Swimming Pools at Hotels and other Public Accommodations. The DOJ’s Q&A attempts to answer questions regarding whether your pool shall require accommodations. This blog post analyzes the Q&A.

Continue reading “(Yet Another) Update on ADA Compliance regarding HOAs, Condos and Swimming Pools”

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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.

Board of Directors Meeting

Continue reading “HOA Litigation: Is it avoidable?”

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Clients sometimes come to us with disputes regarding real estate litigation matters involving boundary line and easement encroachments. We provide legal advice and counsel, trying to balance your real estate rights with neighborly harmony, always looking to avoid a lawsuit when possible.

Easements provide a broad range of legal rights and obligations. In a fairly recent Virginia Supreme Court case, Snead v. C&S Properties Holding Company, a landowner blocked access to a validly recorded easement. The easement holder filed a lawsuit, asking the court to order the obstruction removed. The Virginia Supreme Court ordered the fence removed, concluding that “a significant portion of the easement would be rendered unusable for ingress and egress if injunctive relief were denied.”

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The Common Interest Community Board (the “CICB”) revoked a management company’s license for regulatory violations.  In a case reported in the September issue of the Community Associations Institute Law Reporter (Virginia Common Interest Community Board v. Sarraga t/a Lakeside Community Management, File No. 2010-00562, June 24, 2010), the CICB revoked the license of Sarraga t/aLakeside Community Management and issued fines totaling $2,000.

Continue reading “Common Interest Community Board revokes a management company’s license”

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We have blogged about new requirements under the Americans with Disabilities Act (“ADA”) that may affect Homeowners Associations and Condominium Associations that own swimming pools, wading pools, or spas. Subsequently, we updated our previous post to report upon an update to the required compliance date.

The Justice Department has now issued a “final rule” revising “the Department of Justice regulations implementing the Americans with Disabilities Act to extend until January 31, 2013” as the compliance date for the ADA Standards for Accessible Design for existing pools and spas.

Consequently, if your HOA or Condo Association allows non-members of the association to use its pool in exchange for some form of compensation, your pool may fall under the definition of a public accommodation. If it does, the association would have to comply with the new ADA Standards and provide accessible entry and exits no later than January 31, 2013. What does that mean for your HOA?

Continue reading “ADA Compliance – (Another) Update on HOAs, Condos and Swimming Pools”

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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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In a case from the Chesterfield Circuit Court, the circuit court judge determined that a homeowner could not be forced to pay association dues to a voluntary association. This result is not surprising.

Continue reading “Homeowner cannot be forced to join a voluntary HOA”

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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)”

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As a follow-up to our post on the costs and benefits of the arbitration process, the Federal Trade Commission (“FTC”) recently issued a report indicating that the litigation and arbitration practices for resolving consumer debt need major reform.

Debt collection cases are on the rise.  We have seen a tremendous increase in the number of cases we are filing on delinquent homeowner association dues. In James City County/Williamsburg, the local courts have seen a 27% increase in civil filings from 2006 to 2008.  Other courts in Virginia and other states are experiencing similar increases in civil filings.

The FTC has made specific recommendations that the Federal government and the states consider new laws to protect consumers including a recommendation that a temporary ban be placed on the use of binding arbitration until such time that the arbitration forums have initiated changes to address deficiencies in arbitration. The FTC has suggested that state legislatures adopt measures to make it more likely that consumers will defend themselves in litigation, decreasing the prevalence of default judgments; require debt collectors to include more information about the alleged debt in their complaints; take steps to make it less likely that collectors will sue on debt on which the statute of limitations has run; and change laws to prevent the freezing of a specified amount in a bank account including funds exempt from garnishment.

We do not believe that these changes, if they occur, will effect our current practice areas and clients. However, we have also seen instances in which perceived procedural unfairness can lead to overreaching legislation. For example, it is fair to say that when the Fair Debt Collection Practices Act was passed, legislators did not intend for it to reach into the wide-ranging areas it now does, including the collection of homeowner dues. See, e.g., Barry v. Board of Managers of Elmwood Park Condominium II, NT Slip Op 27506, http://caselaw.findlaw.com/ny-civil-court/1211140.html (December 12, 2007, NY Civil Court City of New York, Richmond County) (Judge Philip S. Straniere writing that “Somehow I think that Adams, Jefferson and Madison must be turning over in their graves at the thought that the federal government is regulating such a local activity as the collection of condominium association dues between the homeowner and the association”).

Arbitration tends to release pressure on state courts by handling cases that otherwise would be brought in court. However, if the process continues to be perceived as unfair, restrictions on the use of arbitration could be forthcoming.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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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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