Zoning and “Adaptive Reuse” – What does that actually mean?
DOG Street Pub, the former SunTrust Bank
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Arbitration instead of Court? Be careful what you ask for
Over the past 15 years or so, “arbitration” provisions have appeared with increasing frequency in a wide variety of contracts. For example, declarations of covenants and restrictions recorded for homeowners associations, construction contracts, employment contracts, and commercial leases all may contain arbitration clauses. Arbitration may be a good idea, but you should know what “arbitration” means before you agree to be bound by such a provision.
Many people confuse the terms “mediation” and “arbitration.” Mediation refers to a process whereby a third-party helps facilitate a negotiated settlement between two or more parties. A mediator does not make decisions, does not take evidence, and does not conduct hearings. Parties simply negotiate and the mediator helps foster those negotiations.
Conversely, arbitrations are conducted like regular trials, with a judge-like arbitrator (or arbitrators) making a final decision based upon the evidence presented, and hopefully the law of your jurisdiction. Appeals of an arbitrator’s decision are virtually nonexistent.
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Fight over beer-pong game covered by insurance?
It’s an unfortunate fact of life that you may get involved in a lawsuit. If you are at fault in an automobile accident, your auto insurance provides protection. For other types of cases, your homeowners insurance policy can protect you.
Recently our litigation lawyers counseled clients who had been sued. We routinely ask to review their insurance policies. As it turned out, this occurrence was covered by their homeowners policy, saving them tens of thousands of dollars in attorneys’ fees.
This insurance coverage issue was highlighted in a recent Virginia Supreme Court case, Copp v. Nationwide Mutual Insurance Co. In that case, a Virginia Tech student was sued for his actions in a beer-pong game gone bad. His parents thought the costs for his attorneys should be covered by their homeowners policy or their umbrella policy, but Nationwide Mutual declined. On appeal, the Virginia Supreme Court held that because the student alleged he was “trying to protect person or property” when he caused bodily injury, “Nationwide has the duty under its umbrella policy to defend.”
You pay for your insurance policy, make sure that you use the coverage you paid for.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
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Can I cut down my neighbor’s tree when its branches overhang my property?
In our ever crowding residential areas, more of us experience the situation in which the limbs of a neighbor’s tree overhang our property line. Most of the time, these limbs do not pose us any concern, but questions do arise as to whether we have the right to prune our neighbor’s trees. In the past,the Virginia rule has been that you could trim the branches of your neighbor’s tree up to your property line. However, the Virginia Supreme Court expanded that long-standing rule when it decided that an owner whose property was damaged by the root system of a neighbor’s tree may be entitled to more relief than simply cutting back the roots and overhanging branches to the property line.
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What Should You Expect From Your Attorney?
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.
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A Checklist to improve the effectiveness of your HOA Board of Directors
For your homeowners association, here’s a simple, but effective and invaluable checklist of suggested resolutions to improve the Board of Directors in your community association.
Board Checklist
- Set-up your board of director orientation with Tarley Robinson, PLC. This service is provided at no charge to our clients. We will send out a an email and letter to schedule an orientation shortly after your board of director elections. Email us to make sure you are on our mailing list.
- Review your documents with your manager and attorney, or if self-managed, with your board and attorney, to determine whether you are operating in compliance with your documents and whether your documents comply with the law.
- Encourage civility, applaud the good deeds of neighbors and provide solid leadership. Remember that you are part of a community.
- Schedule an appointment with your insurance agent to review your current policies. Confirm that your policies comply with any insurance requirements in your documents. Find out if you should change your deductibles. Determine if you are paying the best price.
- Implement your Complaint Policy and Copying Policy. You are required to have them.
- Conduct efficient and effective board meetings. Spend some time working on the processes and procedures for your board meetings. Seek input from your board members, manager and attorney.
- Follow the legislation affecting community associations. The Virginia Legislative Action Committee will be working hard to review proposed legislation and determine its impact on community associations. Updates will be posted at http://www.cai-valac.org/
- Review your Reserve Study. Virginia law request annual review of your Reserve Study. If you do not have a Reserve Study to review, resolve to obtain one. It is the law.
- Conduct a risk assessment relative to safety and the use of your Common Areas or Common Elements. Follow-up with appropriate action, be it implementing safety rules, repairing an unsafe area or item, or posting a warning sign.
- Attend seminars provided by CAI. The Central Virginia Chapter Community Association Day, for example, is a daylong event that includes some great educational opportunities.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
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“Aging In Place” – How can HOAs address aging communities?
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.
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HOA Boards of Directors: Two Essential Tips to Effective Management
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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How does our HOA hire a Reserve Study specialist? (Part 3 of a 3 part series on Reserves)
Although Virginia law does not address who can perform a reserve study, it is clearly in the best interest of an association to hire a credentialed professional to conduct a reserve study for the community. Professionals who provide reserve studies include licensed Professional Engineers (PE), Architects (AIA and/or RA) and experts such as a Reserve Specialist (RS) or Professional Reserve Analyst (PRA).
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What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)
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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