Benefits of HOAs Part 2: How is Covenant Enforcement Good for Owners?

October 30, 2014 on 1:17 pm | In Common Interest Community, HOA, HOA litigation, Jason Howell, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

The enforcement of covenants, conditions, and restrictions (“CC&R’s”) is among the most criticized of the duties performed by the Board of Directors of community associations, but is also the most important responsibility. CC&R’s govern many activities in a community including house designs, parking regulations, maintenance and repair of the common areas, and collection of assessments. Sensational “Gotcha” type news stories highlight enforcement practices of some associations, which contribute to a false perception that associations in general lack common sense. However, studies repeatedly show that the overwhelming majority of people  living in neighborhoods governed by HOAs believe that the rules in their communities benefit them.

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Can your business enforce an employee noncompete agreement?

October 30, 2014 on 1:17 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

The analysis of the enforceability of noncompete agreements begins with the question “How did the covenant not to compete arise?”  Employee covenants not to compete generally arise in one of two ways:  1) solely as a result of employment; and 2) arising as ancillary to another agreement, such as an agreement to purchase the prospective employee’s business.

 

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Smokin’ in the Condo

October 30, 2014 on 1:17 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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Can I cut down my neighbor’s tree when its branches overhang my property?

October 30, 2014 on 1:17 pm | In Common Interest Community, John Tarley, Real Estate Strategies, State & Federal Litigation | 4 Comments

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 happens if a tree falls from my property onto a public highway causing damage?

October 30, 2014 on 1:17 pm | In Common Interest Community, General Interest, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

“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.

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Can an engineering firm limit its liability by contract?

October 30, 2014 on 1:17 pm | In Business Planning, John Tarley, State & Federal Litigation | No Comments

 

Maybe not, in certain circumstances. A Fairfax County judge has determined that an engineering firm cannot limit its liability by contract in a case involving a 2008 fee contract. The typical fee agreement for an engineering firm includes some form of “limitation of liability” in which the firm seeks to limit its liability “to the amount of fees paid” to the firm, whether the claim is for breach of contract or warranty, or for negligence. In the case of Dewberry & Davis, Inc. v. C3NS, Inc., the engineering services firm, Dewberry, filed a fee claim against C3NS. C3NS filed a counterclaim for breach of contract. Dewberry had a limitation of liability clause in its fee agreement. It sought summary judgment to prevent C3NS from claiming that the limitation of liability paragraph was void. The Court sided with C3NS.

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HOAs, ADA, and FHA: regulating “Service or Assistance Animals”

October 30, 2014 on 1:17 pm | In General Interest, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

Recent amendments to the Americans with Disabilities Act (the “ADA”) regulations limit the definition of “service animal” to any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The amendments specify that providing “emotional support, well-being, comfort, or companionship do not constitute work or tasks” under the new definition.

On the other hand, if your situation is not an ADA issue but rather a Fair Housing issue, a recent memo clarifies that the new definition is not applicable to the Fair Housing Act (the “FHA”). The FHA does not contain a specific definition of “service animal.” Under the FHA, animals that provide emotional support have, in certain instances, been recognized as necessary assistance animals as a reasonable accommodation. The FHA permits individuals with disabilities to keep an assistance animal as a reasonable accommodation when there are limitations imposed by the homeowner or condominium association on animals and pets.


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

October 30, 2014 on 1:17 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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Part 1 on Virginia’s Unauthorized Practice of Law Rules and HOAs – Where do we find guidance?

October 30, 2014 on 1:17 pm | In Business Law, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Mention the unauthorized practice of law when discussing homeowner and condominium associations and typically the room gets very quiet. Associations, board members and managers strive to keep their budgets low, but compliance with new laws and regulations, keeping up with the collection of assessments, and the upswing in litigation involving homeowner and condominium associations makes it very difficult. When matters become a “legal issue,” board members and managers are best advised to seek legal counsel to ensure that the association is being adequately protected and represented, and that the board members and the managers are not engaging in activities that the Commonwealth might find to be the unauthorized practice of law.

We previously blogged on questions of the unauthorized practice of law when an unlicensed attorney serves on the association’s Board of Directors. In our next two blogs, we will review other issues involving questions of the unauthorized practice of law. In this blog, we discuss where we look for guidance, and in a subsequent blog, we will review Virginia decisions and opinions on the unauthorized practice of law.

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HOA Case Study: A Board’s statements or conduct may establish the enforceability of its governing documents

October 30, 2014 on 1:17 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

An article in the Washington Post discussed a pending case in the Virginia Supreme Court regarding a dispute between property owners and a community association regarding the owners’ operation of a vineyard and retail store on their property. In an unpublished Order, the Virginia Supreme Court upheld a Fauquier County jury verdict for the property owners that had been set aside by the trial court.

Although unpublished orders do not have “precedential value or . . . significance for the law or legal system,” this case does provide us with a look at how difficult it can be for community associations to interpret their governing documents and also how a board’s previous actions may have an effect upon future enforcement of the community’s declarations and covenants. This blog post will review the facts of that case and its applicability to your HOA.

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