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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

HOAs and Mediation: Not always a viable alternative to Litigation

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.

It is most accurate to think of “mediation” as “assisted negotiation.” In mediation, parties continue to negotiate, but they benefit from the assistance of a third-party mediator. This mediator cannot make any decisions, nor can the mediator bind either party. A good mediator can help the parties get “over the hump” and negotiate a resolution that seemed hopelessly beyond reach.

However, there are certain matters for which an HOA cannot negotiate, and therefore mediation will not be effective. Restrictive covenants comprise a contract relied upon, and enforceable by all of the owners in a community association. Deleting or modifying restrictive covenants requires an amendment that must be approved by a specific percentage of the owners in a community. Consequently, the Board of Directors may lack the authority to modify or waive restrictions through mediation.

The following table highlights some of the issues faced by the Board of Directors for a homeowners association, decreasing the likelihood that an association can reach a mediated resolution.

  • Disputes over payment of assessments – Associations have limited ability to compromise the payment of assessments. These assessments are determined by the association’s governing documents. The governing documents probably do not permit the Board of Directors to waive assessments. However, mediation can be a benefit only as it pertains to structuring payment plans.
  • Disputes over covenant violations – Again, many violations of the recorded covenants cannot be overlooked or compromised. A Board of Directors does not have the authority to waive restrictive covenants. For example, if the governing documents prohibit livestock and poultry, the Board may not be able to “mediate” away the restriction and permit a homeowner to house a goat.
  • Disputes over architectural requirements – Prohibitions on signs, solar panels and clotheslines cannot be mediated by the Board of Directors. If the Board attempted to waive these restrictions, the HOA could find itself involved in additional litigation by another homeowner claiming that the Board lacked the authority to modify or waive the restriction.
  • Boundary Line disputes – Sometimes, a homeowner may build a structure that extends into the Common Area owned by an HOA. These boundary line disputes probably cannot be negotiated or mediated, because the Board of Directors has the duty to protect the association’s property rights.

Parties are always well-advised to seek resolution through reasonable discussion and negotiations with your attorney. When that fails, mediation is a viable alternative. However, because of the nature of homeowners associations, Boards of Directors have limited authority to negotiate rights owned in common by all the homeowners.

Have you had success in mediating disputes with HOAs? If so, let us know the circumstances.

John Tarley

John Tarley


Susan Tarley

 

Tarley Robinson, PLC,  Williamsburg, VA



John Tarley

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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Filed under: Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association by John Tarley

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