Virginia Community Association Law Blog : Virginia Condo & HOA Lawyers & Attorneys in Williamsburg & York & Newport News & Hampton VA / Property Management Issues

This Wednesday, March 31st, LeClairRyan's Community Association Industry Team will be hosting a free webinar entitled "What You Need to Know About Property Owner Association Disclosure Packets."

On Wednesday from noon to 1 P.M. EST, attorneys Lori Schweller and Liz White will discuss the Virginia Property Owners' Association Act's requirements, including when disclosure packets are required, who is responsible for requesting and providing them, what they should include, the costs of producing them, and the ramifications of non-compliance.

If you haven't already registered for this free event, click here to register now.

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Anyone selling a lot or home that is part of a Property Owners’ Association (POA) is responsible for providing potential lot purchasers with information about the POA, referred as a “disclosure packet.” Sellers rely on their associations to provide complete and current disclosure packets to prospective purchasers. If a POA is managed by a POA manager, the POA’s contract with the manager typically gives the manager this responsibility. 

It’s not always obvious that a property is or is not part of a POA, so it’s a good idea for the seller to know and to share this information with his realtor. A purchaser’s first clue that a property is part of a POA comes from the property listing prepared by the seller’s realtor. And, of course, the residential purchase contract must disclose whether or not the property is part of a POA. 

Unfortunately, sometimes sellers and realtors are not sure which box to check when preparing property listings and residential contracts. To avoid unintentional misrepresentation, here are some guidelines from the Virginia Code:

The Virginia POA Act does not apply to every subdivision subject to a recorded declaration. It applies only to “developments” (a defined term) subject to a “declaration” (another defined term) initially recorded after January 1, 1959 and to subdivisions created under the former Subdivided Land Sales Act (§ 55-536 et seq.), which is superseded by the POA Act.

The following five elements must be present for a “development”:

1. lots, at least some of which are
2. residential or recreational;
3. common area;
4. automatic membership in an association; and
5. (potential) obligation to pay assessments.

And, a “declaration” must do one or both of the following:

1. impose responsibilities on the association to maintain or operate the common area; and/or
2. give the association authority to impose on lots or their owners a mandatory obligation to pay money in connection with such responsibilities. (I stress “authority” because sometimes an association may have the authority but not have a regular assessment in place.)

So, even if a neighborhood looks like a development and is subject to a recorded declaration, it is not a “development” for purposes of the Property Owners Association Act unless each lot owner is a member of an association, the association has a duty to maintain common area, and the declaration gives the association the power to charge mandatory assessments against the lot owner.

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Your association's governing documents may address the topic of dangerous animals and give your governing body authority to require their removal.

In a recent case, a Newport News Circuit Court Judge unequivocally recognized the validity of such rules and enforced them against a recalcitrant owner without reservation.

What happened?

The case involved a dog that had bitten the adjacent homeowner on one occasion, and charged her on another. The association directed the owner to remove the dog, but the owner refused to do so.  Thereafter, the association held a due process hearing, again directed the owner to remove the dog and imposed the maximum charges allowable in the event the owner did not comply.  Still the owner refused to remove the dog.

We filed suit on behalf of the association to enforce the governing documents and to compel the removal of the dog.  At a pre-trial hearing, the Judge explained in no uncertain terms that, although he was a dog-lover, the association's rule was enforceable and if the dog bit the neighbor it had to go.  On the trial date, the owner finally conceded the dog-bite had occurred.  The Judge entered an injunction requiring the removal of the dog, and awarded the association attorney's fees. 

Takeaway point:

If your association is dealing with a similar situation related to a dangerous animal, don't hesitate to review your governing documents to see if the association has any options for dealing with the animal and its owner. If the situation is serious, you should contact your legal counsel to discuss the best way to approach the situation.

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The wind was howling. The rain was pelting the windows. Twigs and sticks struck the rooftop. My cell phone rang and the caller i.d. showed it was a client who lived 200 miles to the north and maintained a second home in Virginia Beach. Odd time to call, I thought, in the middle of the hurricane/no’easter now known as Nor'Ida, the storm that dumped significant rain on our fair city, brought severe winds, and caused the governor to declare a state of emergency for our state.

“Pam, the beach condo is leaking like a sieve! And it is not only mine! What do we do?” asked my client, also a member of his condo board, which board I represent. “Half the owners are there, and the other half are not. Absentee owners’ units are leaking onto some who are there. Can we go in? I can’t reach the manager, but the handyman is around.”

This phone call probably was repeated many times over that day, pointing out that many associations do not have and may have never thought about a formal “Disaster” Plan.

After all, some “disasters” are not natural disasters. For example, here are some questions to consider:

• What about a gunman on the loose? -- Which happened in a nearby neighborhood to my own last fall.  Yes, we have a City police force, but some communities I represent have their own police forces.
  • What are the best ways for an association to proceed?
    
  • What if there is no plan?
    
  • Is there liability on the part of the board for the failure to HAVE a plan?

And what happens AFTER the immediate disaster passes?

• Who interfaces with the insurance companies?
• Who coordinates the insurance claim process as between the Condominium’s policy issuer and the individual owners’ policy issuers so that the facts are presented consistently?

Every association, whether condominium or property owners, should have an Emergency Plan. Consideration must be given to a host of factors such as defining an “emergency,” utilization of technologies and available resources, post-disaster safety and preservation, among others. If your association does not have such a plan in place, it should contact its legal counsel to assist it in formulating and drafting one that is both technically proficient and legally sound.

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