2015 General Assembly Update for Virginia Community Associations

October 30, 2014 on 1:19 pm | In HOA, HOA litigation, Land Use Planning, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | Comments Off on 2015 General Assembly Update for Virginia Community Associations

The legislation that passed the 2015 General Assembly Session is mostly helpful to Virginia HOAs–clarifying issues created by some legislation, and providing solutions for owner apathy and bank foreclosure problems for associations.

Virginia General Assembly - Legislation

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Who pays when a tree falls on my property?

October 30, 2014 on 1:19 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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Okay, how do we establish a funding plan for our HOA’s Reserves? (Part 2 of a 3 part series on Reserves)

October 30, 2014 on 1:19 pm | In Common Interest Community, HOA, Susan B. Tarley | No Comments

 

Once an association has obtained a reserve study, two questions arise: 1) Do we have to fund a reserve account?   and 2) If so, how do we fund a reserve account?

The statutes for condominiums and property owners associations require an association’s budget to include, among other things, an annual amount to fund the reserve account that is consistent with the obligations in the reserve study.  This means that an association should be placing funds into the reserve account that permits it to meet is obligations to repair, replace and restore capital components based on the estimated replacement cost, the estimated remaining life and the estimated useful life of the capital component.

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The Same Employer But a Different Result in this Virginia Supreme Court Case Regarding the Enforceability of Noncompete Agreements

October 30, 2014 on 1:19 pm | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

Over the course of the past 20 years, the Virginia Supreme Court has tweaked the law governing non-compete agreements. In its latest case, the Court came full circle by invalidating a noncompete agreement that used the same language the Court had upheld 20 years earlier in a case involving the same company.

As we have written before, trial courts will enforce noncompete agreements when the agreements (1) are narrowly drawn to protect the employer’s legitimate business interest, (2) are not unduly burdensome on the employee’s ability to earn a living, and (3) are not against public policy. Importantly, the employer has the burden to prove each of these elements. When evaluating whether the employer has met that burden, trials courts should consider the “function, geographic scope, and duration” elements of the noncompete restrictions.  These elements are “considered together” rather than “as three separate and distinct issues.”

Further, if the noncompete agreement is too broad or otherwise unenforceable, a Virginia court will not rewrite, or “blue pencil” the agreement to make it enforceable. Therefore, it is important that you work with your business attorney to draft an enforceable non-compete agreement.

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How is starting a business like getting married?

October 30, 2014 on 1:19 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

I have often been struck by how much business counseling and marriage counseling can be alike.  “He said he was really good at marketing and was going to handle all the sales.  We haven’t seen a worthwhile sale in months.  All he does is drive around, I GUESS making sales calls, but mostly just spending money.”  “She said she was going to keep the books and handle the personnel issues.  I didn’t know that meant a row of shoe-boxes full of receipts and employee turnover at seventy percent!  This place is a disaster!”  “Turnover is at seventy percent because we don’t have enough sales to keep anyone employed.  If you did your job, then maybe I could do mine.”

Williamsburg Virginia Business Lawyers

Starting a Business

He said, she said.  And so it goes.  It is estimated that fifty-five percent of all first marriages fail and approximately 56% of new businesses fail within four years.  Here are some of the reasons most often given for start-up business failures.

 

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Can HOAs Prohibit Owners From Flying the American Flag?

October 30, 2014 on 1:19 pm | In General Interest, HOA, HOA litigation, Jason Howell, John Tarley, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Flying the flag is an important way that Americans celebrate their liberty and the sacrifices of past and present heroes who defend it. There were news stories about a dispute between an Ohio homeowners’ association and a Vietnam veteran over a flagpole that brought an important issue to the forefront.

In Ohio, a homeowner erected a large flagpole on his property to fly the flag. The homeowners’ association told him that the flagpole (not the flag) violated the declaration of covenants for the neighborhood, and asked him to take the flagpole down. It offered to place flagpoles in common areas in the neighborhood, and suggested that the covenants would allow him to fly a flag on a pole attached to his house. He refused. After a firestorm of publicity, the HOA averted litigation by permitting the homeowner to keep his flagpole. The underlying question remains: can a homeowners’ association really prohibit an owner from flying the American Flag?

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ADA, FHA, and HOAs And Service Animals: Florida Association Sued for housing discrimination

October 30, 2014 on 1:19 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, State & Federal Litigation, Unit Owners Association | No Comments

A short while ago we wrote a blog piece on the issues relating to community associations regulating service animals. In that blog we noted that the Fair Housing Act (“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.”  In Broward County, Florida, that county’s Civil Rights Division filed suit against a condominium association for violating the FHA by refusing to consider a person’s request for an “emotional servant animal,” a chihuahua.

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Does Virginia law require an HOA to transition automatically to homeowner control of the Board of Directors?

October 30, 2014 on 1:19 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Over the course of the past few years, homeowners in the Williamsburg development of Kingsmill on the James have become more vocal over the continued control by the community’s developer, Busch Properties, Inc. In May 2010, Kingsmill resident and a William & Mary Law School professor filed a lawsuit against Busch Properties. On August 20, 2010, the Williamsburg/James City Circuit Court heard the demurrer filed by Busch Properties. The court granted the demurrer. The Plaintiff appealed to the Virginia Supreme Court. The Court declined to hear the appeal. The Plaintiff filed a petition for rehearing that the Court refused to hear by an order dated June 16, 2011.

Williamsburg Virginia HOA Lawyers

HOA Transition

 

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4 things your HOA needs to know about Virginia’s complaint process

October 30, 2014 on 1:19 pm | In Common Interest Community, General Interest, HOA, Real Estate Strategies, Susan B. Tarley | No Comments

In 2008, Virginia enacted legislation requiring condominium and property owners’ associations to establish reasonable procedures for resolving member and citizen complaints. The legislation further required the Common Interest Community Board (the “CICB”) to establish regulations for the associations to govern the complaint process.

 

What does this mean for your association? You will need to establish, or amend, your written procedures to comply with the regulations.

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HOA Litigation: Is it avoidable?

October 30, 2014 on 1:19 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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