4 Tips to help your HOA protect its Attorney-Client Privilege

October 30, 2014 on 1:26 pm | In Common Interest Community, General Interest, HOA, HOA litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

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:

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HOA Boards of Directors: Two Essential Tips to Effective Management

October 30, 2014 on 1:26 pm | In Common Interest Community, General Interest, HOA, Real Estate Strategies, Susan B. Tarley | 2 Comments

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.”

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Three Factors An HOA Should Consider When Hiring An Attorney

October 30, 2014 on 1:26 pm | In Common Interest Community, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

Selecting an attorney is one of the more significant decisions made by the board of directors for a community association. Often times, the association makes its decision based upon price alone. Although “price” is a valid factor to consider, there are other important factors the board should review during its selection process. This article addresses three of the major considerations.

First, the board should determine the prospective attorney’s experience level in the representation of community associations. Attorneys for common interest communities are similar to the general counsel in major corporations because of the wide range of issues that arise. Extensive experience in many of the possible legal issues facing community associations should be a prerequisite.

Tarley Robinson

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Smokin’ in the Condo

October 30, 2014 on 1:26 pm | In Common Interest Community, General Interest, HOA, HOA litigation, State & Federal Litigation, Susan B. Tarley | No Comments

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.

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Homeowner cannot be forced to join a voluntary HOA

October 30, 2014 on 1:26 pm | In Common Interest Community, HOA, John Tarley, Real Estate Strategies, State & Federal Litigation | No Comments

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.


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Benefits of Community Associations Part 1: Are HOAs really as bad as some portray?

October 30, 2014 on 1:26 pm | In Common Interest Community, HOA, HOA litigation, Jason Howell, Real Estate Litigation, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

 

Community Associations have been the subject of a lot of bad press lately. An Associated Press article is typical of news reports that lambast associations. The article tells about a 55-and-older condo complex in Florida. According to the article, units in the Inlet House condo complex used to be worth $79,000, but sold for as little as $3,000 after rats started chewing through toilet seats and sewage started leaking from the ceiling. The article goes on to vilify the condo association for levying a $6,000 special assessment on residents and then foreclosing on owners who don’t pay their dues.

In its eagerness to blame the condo association for the woes of these senior citizens, the article and many blogs pointing out the “abuses of HOAs” miss an important point: the association may be the only group really looking out for the interests of the owners. Let’s look at what the article does not allege: it does not allege that the Association was responsible for the rat infestation or the sewage leak and it does not allege that the Association could have prevented the housing meltdown that contributed to the decline in property values.

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Pool Season: Is Your Association Ready to Take the Plunge?

October 30, 2014 on 1:26 pm | In Common Interest Community, HOA, HOA litigation, Unit Owners Association | Comments Off on Pool Season: Is Your Association Ready to Take the Plunge?

Many Community Associations prepare to open their neighborhood pool by adding chemicals and performing maintenance to ensure the health and safety of the Owners. But just as HOAs take care in measuring chlorine and skimming leaves, Boards of Directors are well-advised to take care in preparing the Association’s Pool Rules. This blog post reviews the possible “rules” that HOAs may implement for pool safety.

HOAs, Swimming Pool and the ADA

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Virginia Attorney General opinion on HOAs

October 30, 2014 on 1:26 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, Unit Owners Association | No Comments

In Virginia homeowner associations, the governing documents permit a developer to continue control of the HOA’s Board of Directors for a specific period of time, or until a specific number of lots are sold. The length of that period depends upon the governing documents of each association.

HOA

This issue has generated litigation in Williamsburg, and now, thanks to Peter Vieth from Virginia Lawyer’s Weekly, we have learned of a formal opinion from the Virginia Attorney General. In an opinion dated January 11, 2013, the AG answered two questions posed by Virginia Senator Bryce E. Reeves. This blog post takes a look at that opinion.

Is the Property Owners Association Act Unconstitutional?

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Smile! You’re on HOA Meeting Camera! Can I videotape my HOA meeting?

October 30, 2014 on 1:26 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Unit Owners Association | No Comments

If you work with community associations in Virginia as a board member, manager or attorney, you probably know that Virginia law permits HOA members to record any open meeting of the association. The relevant statute, Virginia Code § 55-510.1(B) of the Virginia Property Owners’ Association Act, contains one short paragraph which outlines the recording requirement as follows:

Any member may record any portion of a meeting required to be open. The board of directors or subcommittee or other committee thereof conducting the meeting may adopt rules (i) governing the placement and use of equipment necessary for recording a meeting to prevent interference with the proceedings and (ii) requiring the member recording the meeting to provide notice that the meeting is being recorded.

The provision gives associations the authority to adopt rules with respect to the recording of meetings, however, the authority to enact rules is very narrow in scope:

1. The association is permitted to establish rules regarding only the placement and use of the equipment; and

2.  The member recording is required to provide notice that they are recording the meeting.

Association rules that reach farther than these two items violate the Property Owners’ Association Act according to a recent Determination issued by the Office of the Common Interest Community Ombudsman (“Ombudsman”).

 

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What can an HOA do to collect past dues when a bankrupt homeowner surrenders property but the lender does not foreclose?

October 30, 2014 on 1:26 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

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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