Flying the flag is an important way that Americans celebrate their liberty and the sacrifices of past and present heroes who defend it. There were news stories about a dispute between an Ohio homeowners’ association and a Vietnam veteran over a flagpole that brought an important issue to the forefront.

In Ohio, a homeowner erected a large flagpole on his property to fly the flag. The homeowners’ association told him that the flagpole (not the flag) violated the declaration of covenants for the neighborhood, and asked him to take the flagpole down. It offered to place flagpoles in common areas in the neighborhood, and suggested that the covenants would allow him to fly a flag on a pole attached to his house. He refused. After a firestorm of publicity, the HOA averted litigation by permitting the homeowner to keep his flagpole. The underlying question remains: can a homeowners’ association really prohibit an owner from flying the American Flag?

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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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“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.

Continue reading “What happens if a tree falls from my property onto a public highway causing damage?”

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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”

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Courtroom

With the downturn of the housing industry, we have seen a dramatic increase in the number of construction disputes, especially in residential construction. Owners are battling with the contractors, and subcontractors are trying to get paid by somebody. These cases lead inevitably to litigation.

The property owners and the building contractor should have a written contract. However, the subcontractors sometimes find themselves in a difficult situation, unpaid by an insolvent building contractor. It is usually then that we will receive a call from a subcontractor asking about their mechanic’s lien rights. Unfortunately, it may be too late for that subcontractor to preserve their mechanic’s lien rights because they failed to provide proper notice at the outset of the work performance. This blog post provides a brief overview of the notice requirements for subcontractors to preserve mechanic’s lien rights. Continue reading “Residential construction and mechanic’s liens; how you can protect your mechanic’s lien rights”

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The short answer is, rarely. Virginia is an at-will employment state. This means that an employer can discharge an employee for any reason or for no reason at all, just not for an unlawful reason. An employer who terminates an employee for an unlawful reason may be liable to the employee. The question answer in this blog post is: when is a reason unlawful?

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Sometimes commercial tenants, unable to stay current with their lease obligations, decide to close up shop and abandon their leased premises. In those circumstances, commercial landlords need to know their options. This blog post discusses a commercial landlord’s options when a commercial tenant abandons its lease.

Continue reading “My Commercial Tenant is gone . . . should I re-enter the Property?”

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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.

Continue reading “Virginia Supreme Court upholds arbitration award granted to homeowners who sued their HOA”

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An all-too-common scenario occurs when a homeowners association attempts to collect past dues and the homeowner files bankruptcy. The law is clear that the bankrupt homeowner is still liable for those post-petition dues. The United States Bankruptcy Code at Section 523(a)(16) makes the homeowner liable for “a fee or assessment that becomes due and payable after the order for relief to a [homeowners association] for as long as the debtor . . .  has a legal, equitable, or possessory ownership interest in such unit.”

In other instances the homeowner decides to walk away from the property and surrenders the property to the lender. Instead of foreclosing, however, the lender simply does nothing. Therefore, the title of the property is still in the name of the bankrupt homeowner who walked away from the property, and they are not paying the assessments. The lender has not foreclosed so they are not paying the assessments. How can the homeowners association collect these past due post-petition assessments?

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I read a recent article in the ABA Journal that differentiated between the teaching of “issue spotting” versus “problem solving” in law schools. This article strikes at the core of the services we provide as attorneys. We believe firmly that although it is our responsibility to help identify potential issues that you may face, our legal advice is fully realized when we help you solve your problems.

Continue reading “What Should You Expect From Your Attorney?”

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