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

October 30, 2014 on 1:07 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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HOAs and Transition from Developer Control – 101

October 30, 2014 on 1:07 pm | In Business Law, Business Planning, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Owners in most community associations—both homeowner associations and condominium associations—eventually reach the point where the developer transfers control of the Board of Directors to the owners. This blog post provides an introduction to the transition process and what owners can expect.

Susan Tarley

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Unauthorized Practice of Law: When unlicensed attorneys serve as HOA board members

October 30, 2014 on 1:07 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Merger & Acquisition, Real Estate Strategies, Susan B. Tarley | No Comments

An article in the Virginia Gazette featured a story regarding the indictment of a local attorney for the unauthorized practice of law; a criminal charge classified as a class 1 misdemeanor. Although those allegations did not involve a homeowner association, it highlights a recurring issue for volunteer boards of directors for many organizations including homeowner associations and not-for-profit organizations on which attorneys serve. This article focuses on those issues facing boards for homeowner associations (“HOAs”) but the issues are similar for other volunteer boards of directors.

 

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7 reasons to consider amending your HOA’s governing documents

October 30, 2014 on 1:07 pm | In Common Interest Community, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

In other posts we have discussed a homeowner association’s governing documents. Many communities were established 20-40 years ago with governing documents that worked well for the developer, and for the most part the community association. However, many of these governing documents are outdated.  Virginia and federal laws pertaining to community associations have changed substantially.  If your board of directors has not engaged in an audit of your communities governing documents in the past 5-7 years, it should.

What is an “audit” of our governing documents?

An “audit” of your documents is an in-depth review by your HOA’s board of directors in conjunction with your association attorney.  The Board reviews each document noting any sections that lack clarity, are no longer enforced, appear to not apply to your community, protect a long-gone developer, or do not provide the association with adequate remedies.  The Board prepares a list of concerns or issues facing the community, such as homes that are not being maintained, large amounts of delinquent assessments, or enforcement capabilities of the association.  The Board provides this information to the association attorney.

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How long should your HOA retain its records?

October 30, 2014 on 1:07 pm | In Common Interest Community, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

You are elected Secretary of your homeowners’ association. Congratulations! Someone hands you the minute book, owner roster, and the governing documents. You think, hey this is not overwhelming at all. Then the retiring Secretary mentions in passing that “If you’re home tomorrow I’ll deliver the boxes.” You ask “What boxes?” “Oh, all of the HOA’s records are boxed up and have been in my garage – I’ll bring them by,” replies the retiring Secretary.

What do you do with the boxes? What records and documents do HOAs need to keep? How long do you need to keep them? How should they be stored? This blog post provides some basic guidance on best practice tips for community association record retention.

HOA Filing Information

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Have You Updated Your HOA Management Contract Lately?

October 30, 2014 on 1:07 pm | In Business Law, Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

Many of us are so busy in performing the work that we are hired to do that we often neglect the housekeeping we should do for our businesses. Management agreements with community associations may fall into this category. As with many agreements in which sections are revised but the whole contract is not reviewed, management agreements can take on a life of their own as they are tweaked here and there. In this blog, we discuss the need to take time to have your forms and contracts reviewed to ensure that your management company is protected by the agreement, that it reflects current law, and that it comports to any required regulations.

 Contract

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Make sure HOA Document Amendments are properly certified

October 30, 2014 on 1:07 pm | In Common Interest Community, HOA, HOA litigation, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | Comments Off on Make sure HOA Document Amendments are properly certified

The Virginia Supreme Court’s opinion in Tvardek, et al v. Powhatan Village Homeowners Association, Inc. highlights how critical it is to not only amend your HOA documents in compliance with the law and your existing documents, but to make sure that the amended document that gets recorded properly memorializes that you did so.

The Tvardeks filed a declaratory judgment action in 2013 against Powhatan Village Homeowners Association, Inc. (“Powhatan Village”) to challenge a 2008 amendment to the association covenants that included a provision restricting the owners’ ability to rent their homes. Powhatan Village filed a special plea in bar requesting dismissal of the action as untimely citing the one-year statute of limitations in Va. Code Ann. § 55-515.1(E). Declining to hear any evidence, the Circuit Court made a decision on the pleadings and argument of counsel, ruling in favor of Powhatan Village’s argument that the claim was time-barred. The Circuit Court also awarded Powhatan Village $12,000 in attorney fees.

The Tvardeks appealed the case. The Virginia Supreme Court reversed the Circuit Court’s ruling, determining that the case was not barred by the one-year statute of limitations. The attorney fee award was also reversed.

Williamsburg Courthouse

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HOA Litigation: Is it avoidable?

October 30, 2014 on 1:07 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Mediation, Unit Owners Association | No Comments

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.

Williamsburg Virginia Business and HOA Lawyers

Board of Directors Meeting

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Simple Tips for Effective HOA Due Process Hearings

October 30, 2014 on 1:06 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Unit Owners Association | No Comments

This blog post focuses on addressing one major source of discontent in community associations: due process hearings for alleged violations of the community’s governing documents or condominium instruments.

HOA Due Process Hearing

Homeowners want fairness

Complaints about HOA due process hearings can be split into at least three different categories:

  • Before the hearing, the Board
    • did not attempt to settle reasonably;
    • did not explain variance procedure; or
    • did not properly send notice of violation or opportunity to cure.
  • During the hearing,
    • The Board was disorganized;
    • A Board member was rude;
    • The Board was not prepared for the hearing;
    • The Board did not give owner time to gather/present case; or
    • The Board did not view property/alleged violation.
  • After the hearing,
    • The Board did not give valid reasons for decision; or
    • The penalty was unreasonable.

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Who pays when a tree falls on my property?

October 30, 2014 on 1:06 pm | In General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

Hurricane Irene left a lot of damage in Virginia. Although the damage was not as great and widespread as caused by Hurricane Isabel, many of us had in excess of ten inches of rain and suffered from many fallen trees. This tree fell in my back yard.

We  previously blogged about issues arising when a neighbor’s vegetation, including trees, encroaches upon our property. In that situation, we can cut the offending vegetation, including roots, back to the common property line. However, if the vegetation is also damaging our property,  the Court can order the complete removal of the offending vegetation and award us compensation for our expenses, including compensation for damages.

After Hurricane Irene, we should visit another question: who pays for damage when my neighbor’s tree falls on my property? Generally speaking, this property law question involves an issue of negligence and insurance. Each situation would require a review of the facts, and a review of your homeowner’s insurance policy, but here is some general guidance:

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