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.
Originally posted 2010-09-20 21:56:35. Republished by Blog Post Promoter
It is relatively routine for developers or “declarants” to include arbitration provisions into the declaration of restrictive covenants recorded to establish a common interest community. Generally, arbitration clauses are preferred by developers for a variety of reasons including avoiding a jury and having a say in the choice of the fact-finder. However, those decisions made by the developers have long lasting effects upon homeowner boards following transition, because it is difficult for a board to effect a change in the documents.
Originally posted 2011-02-07 13:54:56. Republished by Blog Post Promoter
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.”
Originally posted 2010-07-20 09:31:06. Republished by Blog Post Promoter
A Virginia Circuit Court case highlights the expense and time commitment required when a homeowner sues a common interest community (referred to as “HOA” in this article). Furthermore, this case illustrates that HOAs can rarely predict or control when they may be dragged into a lawsuit.
In this case, Hornstein v. Federal Hill Homeowners Association, a homeowner had her house for sale with a pending sales contract. Pursuant to Va. Code Ann. § 55-509.5, the HOA provided a disclosure packet that revealed that the homeowner’s fence was not located on her property. In fact, the homeowner’s own survey confirmed that fact. The pending sales contract fell through.
The homeowner sued the HOA in Fairfax Circuit Court for slander of title and tortious interference with contract, including a claim for “bodily injury,” and “mental anguish.” The HOA prevailed in the case, leading to the homeowner’s petition for appeal to the Virginia Supreme Court. [UPDATED: The Virginia Supreme Court refused to hear the case, meaning that the Circuit Court's decision stands].
Another battle has been waged regarding whether the HOA’s insurance carrier had a duty to defend the HOA in the underlying litigation. When the HOA’s insurance carrier denied coverage and representation, the HOA sued the insurance carrier. The case was removed to the federal court. The 4th Circuit District Court agreed with the insurance carrier. The HOA appealed and the 4th Circuit Court of Appeals reversed the trial court and held that the insurance carrier had a duty to defend. The insurance carrier has appealed for a rehearing. [UPDATED: the insurance carrier lost its appeal and was ordered to pay the HOA $217,308.86 for the attorneys' fees the HOA incurred].
For a brief review, the HOA provided the disclosure packet in February 2006. After the homeowner’s pending sale fell through, she sued the HOA in August 2007. As we near August 2010, the underlying case may be close to resolution, but litigation with the insurance company may be far from resolving. Based upon the amount of litigation, we can assume that the HOA’s attorneys’ fees have reached six figures. Obviously, payment for these attorneys’ fees is then passed onto the homeowners (unless the case shifts payment of the attorneys’ fees to the losing party, but even then, courts rarely award the full 100% of the incurred fees).
Many lessons can be drawn from this experience. Most importantly, HOAs need to review their insurance policies to make sure they are covered fully for worst case scenarios. Our experience has shown that “anybody can sue anybody for anything at any time.” Although the plaintiff may not win (and did not win in this case), the ensuing litigation will take abundant resources. We can help you review your documents and insurance policies with the necessary professionals to protect your HOA, and homeowner interests.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Originally posted 2013-09-11 07:58:21. Republished by Blog Post Promoter
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.
HOA Case Study: A Board’s statements or conduct may establish the enforceability of its governing documents
Originally posted 2012-05-30 08:57:51. Republished by Blog Post Promoter
An article in the Washington Post discussed a pending case in the Virginia Supreme Court regarding a dispute between property owners and a community association regarding the owners’ operation of a vineyard and retail store on their property. In an unpublished Order, the Virginia Supreme Court upheld a Fauquier County jury verdict for the property owners that had been set aside by the trial court.
Although unpublished orders do not have “precedential value or . . . significance for the law or legal system,” this case does provide us with a look at how difficult it can be for community associations to interpret their governing documents and also how a board’s previous actions may have an effect upon future enforcement of the community’s declarations and covenants. This blog post will review the facts of that case and its applicability to your HOA.
Originally posted 2010-09-28 06:26:21. Republished by Blog Post Promoter
In 2008, Virginia enacted legislation requiring condominium and property owners’ associations to establish reasonable procedures for resolving member and citizen complaints. The legislation further required the Common Interest Community Board (the “CICB”) to establish regulations for the associations to govern the complaint process.
What does this mean for your association? You will need to establish, or amend, your written procedures to comply with the regulations.
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.
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.
Originally posted 2012-08-01 19:58:28. Republished by Blog Post Promoter
“Tree law” fascinates us. I guess part of the reason is because many of us have at least one tree on our property, and during severe storms, we fear what would happen if one of those trees fell on our house, our neighbor’s house, or the street. Once the fear subsides, the next question we ask ourselves is “Who would pay if the tree fell on our neighbor’s property or vice versa and caused damage?” Or our neighbor’s tree may overhang our property or its roots may cause damage to our property, “What can we do then?” These issues are important considerations for property owners and community associations when reviewing their insurance policies.
The Virginia Supreme Court added to the small body of Virginia “tree law” cases. In this case, Cline v. Dunlora South, LLC, a man driving on a public road was struck and injured by a tree that fell from private property. The man sued the property owner, claiming that the property owner’s “conduct constituted a nuisance because [its] lack of care, inspection, servicing, and/or maintenance of the subject property and tree was a condition that imperiled the safety of the public highway immediately adjacent to the property and tree, creating a danger and hazard to motorists and/or pedestrians.” The trial court dismissed the lawsuit, and on appeal the Virginia Supreme Court agreed that the property owner did not have “a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.” This blog post reviews that decision and what it means for us.