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.

Continue reading “Smokin’ in the Condo”

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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.

Continue reading “2015 General Assembly Update for Virginia Community Associations”

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In litigation matters involving common interest communities (otherwise known as homeowners associations (“HOAs”) or condominium owners associations (“condo associations”)), the issue of awarding attorneys’ fees for prevailing parties ultimately arises. Generally, the HOA’s Governing Documents or the condo association’s Condominium Instruments contain such a provision. Otherwise, attorneys’ fees may be recoverable by statute for HOAs and condo associations.

These attorney fee-shifting provisions, either by contract or statute, are contrary to the typical “American Rule” cases in which each side pays their own attorneys’ fees. Because litigation has become so expensive to pursue, whether to award attorneys’ fees, and the amount of any award, has become separate litigation on its own at the conclusion of cases.

In the recent case of Dewberry & Davis, Inc. v. C3NS, Inc., the Virginia Supreme Court was faced with the issue of “whether the circuit court erred in applying an attorneys’ fees provision of a contract.” We had previously blogged about this case, because in the underlying contract between the parties, Dewberry & Davis, an engineering company, had limited its liability for damages. The trial court had determined the limitation of liability clause was void, pointing to a recent change to Virginia Code § 54.1-411that permitted an engineering company to include a limitation of liability clause. Because the contract predated the code change, the court determined that those changes “demonstrate that the General Assembly fully intended to alter the statute’s intent.”

The case continued to trial, and eventually, upon appeal, to the Virginia Supreme Court. This blog post explains that Supreme Court decision relating to the award of attorneys’ fees.

Continue reading “Attorneys’ Fees and Litigation – When fees get awarded to the “Prevailing Party””

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From time-to-time we have counseled clients whose companies were formed in other states, but they are also conducting business in Virginia. One task that sometimes gets overlooked is the necessity to properly register their corporation in Virginia. That oversight could have disastrous consequences, including personal liability for officers, shareholders, and agents for corporate actions. Fortunately, Virginia’s State Corporation Commission gives us an informative primer on the necessary requirements, including the relatively simple steps to register your foreign corporation. Remember that if you have a Virginia company doing business in other states, it is most likely that those states require a similar registration process. Among the reasons you form a company is to shield yourself from liability. Make sure you have taken care of all your responsibilities.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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The DPOR regulations require Class A Contractors to obtain written change orders “which are signed by both the consumer and the licensee.” This requirement sounds pretty reasonable and easy to maintain, yet the reality is that many contractors fail to fully comply with this provision, leading to possible problems down the road.

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Obviously the use of email has changed many aspects of our world, including the practice of law. As with all new technology, we sometimes learn hard lessons. The attorney-client privilege is the foundation of effective communication between counsel and clients. Only a client can waive that privilege. Although email has far more positives than negatives, to protect attorney-client communications, use these three tips.

Attorney-Client Privilege

Continue reading “3 tips for safe emailing with your attorney”

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No sooner had we posted our blog article on the enforceability of listing agreements even when they are not in writing, another recent case came to our attention. This case is from the New Kent County Circuit Court. This case is another example of the increasing acrimony between sellers and brokers in a tight real estate market.

Listing Agreements

Continue reading “Real Estate Listing Agreements are Contracts – Do you know your rights and obligations?”

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Virginia’s Attorney General, Mark R. Herring, published an advisory opinion concerning private security forces used by community associations (the “Opinion”). These security forces often act as quasi-police departments and help relieve localities by providing routine patrols in private communities. In the Williamsburg area, the local police often defer to HOA security forces for regular patrols, and health and safety checks. When it comes to more serious police action, like issuing traffic tickets and arresting homeowners, the roles and authority of HOA security forces becomes less clear. This blog post discusses the role of private security forces in homeowners’ associations and the Opinion that addresses some of these concerns.

Continue reading “Stop in the name of the…homeowner association! – Can private HOA security forces pull you over?”

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We’ve mentioned already the abundance of news articles criticizing community associations. If these news stories are to be believed, then associations are unpopular indeed. But is it true that residents living in community associations are unhappy with their association? Research by the Community Associations Institute suggests that it is not. In fact, the research suggests that more people than ever are choosing to live in communities with associations, and the overwhelming majority of those people are happy with their association.

Statistics compiled by the Community Associations Institute show that the number of associations continues to grow. In 1970, just ten thousand communities, with a combined 2.1 million residents, were governed by associations. Today there are over 309,000 communities governed by associations. More than 62 million Americans live in associations. 1.75 million volunteers serve on community association boards, and a full 26 percent of the eligible U.S. population volunteers for an association at some point during a year, according to one estimate. That kind of service simply would not happen if associations were as widely disliked as has been portrayed.

Common Interest Communities

Continue reading “Benefits of HOAs Part 4: What do homeowners really think about their associations?”

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