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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 Transition from Developer Control – 101

October 30, 2014 on 1:29 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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4 things your HOA needs to know about Virginia’s complaint process

October 30, 2014 on 1:29 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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What can an HOA Board do if members question whether the President acted properly?

October 30, 2014 on 1:29 pm | In General Interest | No Comments

Susan Tarley answered a question that was published in the March/April 2013 issue of the Common Ground, the Community Association Institute’s Magazine for Community Association Leaders. Here is the question and answer.

Question

Our bylaws state that no reimbursement shall be given for services rendered by any board member unless voted and agreed on amongst the board members. I am a board member, and our association president has submitted bills totaling more than $600 to our management company without board approval and has been paid. A review of the past years minutes indicate no such vote was taken. We feel the president has his own monetary agenda and does not care about our community. I understand we can file a petition with 67% of the unit owners signing to have him removed, but we just want our money. What can we do?

Williamsburg Virginia HOA Lawyers

Board of Directors

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HOA Litigation: Is it avoidable?

October 30, 2014 on 1:29 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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Virginia Attorney General opinion on HOAs

October 30, 2014 on 1:29 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, Unit Owners Association | No Comments

In Virginia homeowner associations, the governing documents permit a developer to continue control of the HOA’s Board of Directors for a specific period of time, or until a specific number of lots are sold. The length of that period depends upon the governing documents of each association.

HOA

This issue has generated litigation in Williamsburg, and now, thanks to Peter Vieth from Virginia Lawyer’s Weekly, we have learned of a formal opinion from the Virginia Attorney General. In an opinion dated January 11, 2013, the AG answered two questions posed by Virginia Senator Bryce E. Reeves. This blog post takes a look at that opinion.

Is the Property Owners Association Act Unconstitutional?

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What Does It Mean to be on the Board of Directors of your HOA? Potential Liability (Part 2 of a Series)

October 30, 2014 on 1:29 pm | In Common Interest Community, General Interest, HOA, State & Federal Litigation, Susan B. Tarley | No Comments

We frequently are asked whether volunteer board members can be civilly liable for actions taken while a board member. This issue is of serious concern because lawsuits tend to be over inclusive, naming every possible defendant in the initial complaint. Why sign up as a volunteer board member if it could bankrupt you?

 

 

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General Partnerships, The Way To Go . . . Financially Under

October 30, 2014 on 1:28 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

 

Though the majority of businesses in the United States are sole proprietorships, those of you who read an earlier post know that I recommend, for a myriad of good reasons, that an entity of some kind be placed between a person doing business and the rest of the world. Find an experienced business attorney to help establish your business entity.

In this post, I address briefly the general partnership form of business entity, the only form I consider more dangerous to the financial health of an individual than the sole proprietorship.  Why, you ask?  Because with the sole proprietorship, the sole proprietor is personally liable for the acts of the sole proprietor, the business and the business employees.  In the general partnership, the partners are personally liable for the acts of the business, the employees and each other.  What partners do can be fairly unpredictable, like contracting to purchase or lease things that cannot possibly be paid for out of the profits of the business, or like contracting to do that which cannot possibly be done profitably.

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

October 30, 2014 on 1:28 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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Lawsuits against HOAs are expensive and time-consuming for all

October 30, 2014 on 1:28 pm | In Common Interest Community, General Interest, HOA, John Tarley, State & Federal Litigation, Susan B. Tarley | No Comments

A Virginia Circuit Court case highlights the expense and time commitment required when a homeowner sues a common interest community (referred to as “HOA” in this article). Furthermore, this case illustrates that HOAs can rarely predict or control when they may be dragged into a lawsuit.

In this case, Hornstein v. Federal Hill Homeowners Association, a homeowner had her house for sale with a pending sales contract. Pursuant to Va. Code Ann. § 55-509.5, the HOA provided a disclosure packet that revealed that the homeowner’s fence was not located on her property. In fact, the homeowner’s own survey confirmed that fact. The pending sales contract fell through.

The homeowner sued the HOA in Fairfax Circuit Court for slander of title and tortious interference with contract, including a claim for “bodily injury,” and “mental anguish.” The HOA prevailed in the case, leading to the homeowner’s petition for appeal to the Virginia Supreme Court. [UPDATED: The Virginia Supreme Court refused to hear the case, meaning that the Circuit Court’s decision stands].

Another battle has been waged regarding whether the HOA’s insurance carrier had a duty to defend the HOA in the underlying litigation. When the HOA’s insurance carrier denied coverage and representation, the HOA sued the insurance carrier. The case was removed to the federal court. The 4th Circuit District Court agreed with the insurance carrier. The HOA appealed and the 4th Circuit Court of Appeals reversed the trial court and held that the insurance carrier had a duty to defend. The insurance carrier has appealed for a rehearing. [UPDATED: the insurance carrier lost its appeal and was ordered to pay the HOA $217,308.86 for the attorneys’ fees the HOA incurred].

For a brief review, the HOA provided the disclosure packet in February 2006. After the homeowner’s pending sale fell through, she sued the HOA in August 2007. As we near August 2010, the underlying case may be close to resolution, but litigation with the insurance company may be far from resolving. Based upon the amount of litigation, we can assume that the HOA’s attorneys’ fees have reached six figures. Obviously, payment for these attorneys’ fees is then passed onto the homeowners (unless the case shifts payment of the attorneys’ fees to the losing party, but even then, courts rarely award the full 100% of the incurred fees).

Many lessons can be drawn from this experience. Most importantly, HOAs need to review their insurance policies to make sure they are covered fully for worst case scenarios. Our experience has shown that “anybody can sue anybody for anything at any time.” Although the plaintiff may not win (and did not win in this case), the ensuing litigation will take abundant resources. We can help you review your documents and insurance policies with the necessary professionals to protect your HOA, and homeowner interests.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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HOAs and a Reserve Study…it’s the law! (Part 1 of a 3 part series on Reserves)

October 30, 2014 on 1:28 pm | In Common Interest Community, HOA, Susan B. Tarley | No Comments

Yes, Virginia, property owners’ associations and condominium associations are required to have a reserve study.  At least once every five years an association must obtain a study to determine the necessity and amount of reserves (i.e. financial savings) required to repair, replace and restore capital components.  Capital components are those items, regardless of whether they are part of the common area or common elements, for which a) the association has an obligation to repair, replace or restore, and for which b) the board or executive organ determines that funding is necessary.

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