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

On Thursday, February 16, 2012, LeClairRyan employment law attorney and Community Association Team member Brian Muse will present a one-hour webinar on the Fair Credit Report Act.

This webinar will provide practical advice to employers on what they need to know to conduct background checks and employee investigations without running afoul of the FCRA. It will address the types of notice that employers must provide prior to background checks and the required procedures for compliance. It will also offer practical advice to employers to avoid legal trouble in this constantly evolving area of the law.

For more information, and to register for this event, click here.

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Find out by attending Southeastern Virginia CAI's professional luncheon: Sociopaths and Community Associations: Proceed with Caution! on January 31st and February 7th.

LeClairRyan's national Community Associations Team leader, Liz White, along with Dana Shotts-Neff, president of Chesapeake Bay Management, will speak about the real life dangers and pitfalls of dealing with sociopaths in community associations and practical and legal approaches to dealing with them. To learn more, click here.

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LeClairRyan attorneys Doug Cuthbertson and Nicole Pszczolkowski were recently selected to give a presentation at the upcoming 2012 Conference and Expo of the Washington Metro Chapter of CAI. Their presentation, entitled "We've Been Sued! Now What?" will feature a discussion of practical tips for board members, community managers, and others on how to avoid litigation and what to do if they find themselves in litigation.

The 2012 Conference and Expo will take place on March 31, 2012, from 8 a.m. - 4 p.m. For more information about the Conference, please click here.

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Editor's Note: Guest blogger Steve Blaine, a LeClairRyan attorney practicing out of the firm's Charlottesville office, and focusing his practice on land use, zoning, and community association law, has contributed the following post.

 BMPs: How to avoid an amenity from becoming a headache.

We frequently counsel clients, community associations, developers and builders, on various issues involving that ubiquitous ‘amenity’ known as the stormwater detention pond, or “BMP” (short for “Best Management Practices”). This article will briefly discuss how to avoid some of the more common pitfalls facing homeowners whose community’s common areas/elements include these useful, even if at times burdensome, features. At the end of the article is a “glossary of key terms” related to BMPs.

Why do we have BMPs anyway?

BMPs are used to improve the quality of water runoff from roads, parking lots, developed land, including residential neighborhoods, and to reduce peak stormwater runoff flow by providing temporary storage during larger storm events. If the BMP in your subdivision was constructed early in the development process, it was probably used to trap sediment from construction activities in the tributary drainage area, which also can be a very effective way to collect and remove pollutants. Hopefully, the BMP in your neighborhood happens to provide other benefits such as passive recreation and open space in addition to reducing peak runoff rates and improving water quality.

It is essential for those responsible for maintaining these BMPs to understand their important role and what to do to assure their continued proper function.
 

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May your community association legally conduct meetings via webcast? Should it conduct meetings in that manner? What are some of the legal risks related to using emerging technology in the context of meetings? HOAleader recently interviewed LeClairRyan's Liz White on this topic. Check out the full article here.

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The Fee Simple law journal (the journal of the Virginia State Bar's Real Property Section) recently published an article by LeClairRyan's Will Sleeth related to developer transition issues. The article, titled "The Transition from Developer-Control of a Property Owners' Association and the 2002 Attorney General's Opinion," examined whether Virginia law imposes a time-limit on when a developer must transition control of the board of directors of a property owners' association to the owners, if there is not a specific provision requiring such in the association's governing documents. The article examines the current state of the law, with a special focus on a controversial opinion issued by the Virginia Attorney General in 2002. To read a copy of the article, click here.

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What are some duties that HOA boards should ensure that they perform as opposed to delegating to their manager?  Liz White was recently interviewed by HOAleader.com on this topic. In the interview, Liz discusses 9 responsibilities that boards should ensure they perform. Check out the full article here.

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While many board members have likely been tempted at some point to utter under their breaths that a fellow director can at times be a "dog," reports of actual dogs being appointed as directors of community associations are few and far between.

So it raised a few eyebrows when the Washington Post reported the other week that a shaggy white dog named "Ms. Beatha Lee" was recently elected the president of the Hillbrook-Tall Oaks Civic Association in Annandale, Virginia. The Post reports that certain members, frustrated at the difficulty of having to continually recruit members to serve on the board, decided to offer the dog as a candidate.

While it does not appear that the Association is a property owners’ association or condominium association, as defined under Virginia law, certain smaller community associations may experience similar frustrations in attempting to recruit and retain board members.

Here’s our free legal advice for the day: don’t even think about trying to nominate a dog (or any pet for that matter) for a board position. There is a large list of reasons why it would be improper, not the least of which is that most association documents require directors to be members of the association, something animals can not be by virtue of the fact that they can’t own property. Furthermore, the law imposes upon directors duties of care and loyalty to the corporation. While dog lovers will universally agree that dogs are some of the most "loyal" creatures there are, the legal concept of "loyalty" is quite different from faithfully retrieving a frisbee or curling up on the couch.

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CAI will be hosting its annual Community Association Law Seminar on January 13 - 15 in Las Vegas. The LeClairRyan Community Association Team will once again have a strong showing at the conference. We will be blogging live from the seminar, so be sure to tune in to the blog for updates throughout the weekend.

For more information on the seminar, including registration information, click here.

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How should your board respond to an accident? Who should you call first? Liz White was recently interviewed by HOAleader.com on this topic. In the interview, Liz explains how associations should always first contact their legal counsel. Check out the full article here.

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We recently received a question from a reader: how lax should homeowners associations be these days in their rules when it comes to helping homeowners sell units or keep them occupied with renters?

Answer: homeowners associations have to be very careful here. On the one hand, it’s in everybody's best interest to ensure that homes are occupied and that what was once a "field of dreams" doesn't become a field of "For Sale/Rent" signs.

Depending on the circumstances, associations may want to seriously consider relaxing some of their rules/covenants. For example, a very restrictive pet rule which limits the number of pets to one or to a particular size, may limit the number of eligible buyers/renters at a time when qualified buyers/renters are few and far between to begin with.

Similarly, many associations are living to regret the adoption of rental restrictions which in many cases were adopted under a much different economic climate and which were intended to limit the number or percentage of homes which could be non-owner occupied.

On the other hand, the enforcement of rules and covenants may be what is keeping property values up in spite of the economic crisis. Many people move into covenant-restricted neighborhoods because they like the appearance of these neighborhoods. An attempt at relaxing the aesthetic and other standards might backfire on the board of directors.

It should be noted that boards should not just ignore their rules and covenants even if they determine that they are in need of change. In most states, and under most declarations (i.e., the legal, contractual document that contains the covenants and which runs with the title to every lot), the board may have the authority to change certain rules by board vote followed by publication, but the board typically must put changes to the covenants in the declaration to a vote of the members. In some cases, a vote, or at least a survey, of the members may be preferable notwithstanding the board's authority, if any, to unilaterally amend the rule or covenant.

Lastly, the new regulations in effect for federal mortgage agencies (such as FHA and VA) are making it harder to get loans in condominiums by imposing additional requirements on owner occupancy and other matters typically overseen by the associations. Any condominium board seeking to relax its covenants should first consult with an experienced Community Association attorney.

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LeClairRyan's Liz White was recently featured in an article on Board Meetings that was featured by several national media outlets, including Forbes magazine, the Atlanta Business Chronicle, the Baltimore Business Journal, the Business Journal of Phoenix, and the Cincinnati Business Courier. Locally, the article was featured by NBC12. To view the article, in which Liz discusses tips for an effective board meeting (and in which she shares some humorous tidbits about board meetings gone awry), click here.

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Did you happen to miss last month's Fair Housing Act webinar put on by LeClairRyan's Liz White and Brian Muse? No problem -- the webinar is available for viewing at your convenience. Just click here to be linked to the blog's "Webinars" section to find links to this webinar as well as all of the team's other webinars.

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On Wednesday, May 19^th, LeClairRyan's Community Association Industry Team will be hosting a free webinar entitled "The Fair Housing Act: Keeping your Community Association in Compliance and Out of Court.”

On Wednesday the 19^th from noon to 1 P.M. EST, attorneys Liz White and Brian Muse will provide an overview of the Fair Housing Act and how it applies to Community Associations, and offer practical advice for how Associations can avoid fines, penalties, and lawsuits.

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

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If you serve on the board of directors of a property owners’ association or a condominium association, or are a property manager, you need to ensure that you are looking at the correct law – the Property Owners’ Association Act, or the Condominium Act, respectively. Although both acts contain many similar provisions that bear on issues common to both types of associations, on some key issues the provisions of the acts differ, and pose a potential stumbling block to the unwary.

The potential for confusion is especially pronounced among directors in a certain type of association who frequently discuss community association issues with friends who serve as directors of a different type of association (e.g., a director of a property owners’ association discussing issues with a director of a condominium association), as well as property managers who may manage several associations, a few of which may be property owners’ associations, and a few of which may be condominium associations.

For example, § 55.510(F) of the Property Owners’ Association Act provides that a property owners’ association’s “bylaws shall specify an officer or his agent who shall, at least 14 days in advance of any annual or regularly scheduled meeting [of the members]… send to each member notice of the time, place, and purposes of such meeting.”

§ 55.79-75(A) of the Condominium Act, on the other hand, provides that a condominium association’s “bylaws shall specify an officer or his agent who shall, at least 21 days in advance of any annual or regularly scheduled meeting [of the members]… send to each unit owner notice of the time, place, and purposes of such meeting.”

The two acts differ in their provisions relating to a variety of other issues as well, such as proxies (§ 55-79.77 of the Condominium Act contains detailed provisions concerning proxies that are not found in the Property Owners’ Association Act).

The lesson is that board members and property managers need to pay close attention to the provisions of the specific applicable act, and can not just assume that the provisions of one act apply to the other form of association. When in doubt, always make the safe choice of spending a few minutes to review the provisions of the applicable act. And if you’re ever confused by or unsure of the applicability of a certain provision, don’t hesitate to contact your legal counsel for clarification.

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By way of introduction, I am the team leader for LeClairRyan's national Community Association Industry Team. It is my pleasure to welcome you to the Virginia Community Association Law Blog hosted by our team.

Our clients and colleagues in this industry - whether they be developers, property managers, board members, attorneys or lenders - have repeatedly told us that they and/or their respective clients and customers have a strong, recurring need for free, up-to-date, and easily accessible information on community association law. This blog will serve as one of several resources provided by our team for such information.

Our team attorneys and guest bloggers will regularly update the blog with new posts on a wide range of relevant and timely topics. Our firm's library of webinars on community association law can be accessed by clicking on the "Webinars" tab. Our Community Association Industry Team frequently hosts live seminars and our team members speak at national and local events throughout the year, and we will be posting information about upcoming events and seminars on the blog so please stay tuned and check our blog regularly.

If you have any questions about our firm's Community Association law practice, or have any general suggestions about how we can improve the blog, I encourage you to contact me. Enjoy.

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Welcome to the Virginia Community Association Legal Blog! LeClairRyan’s Community Association Team is excited to launch this resource that we hope will prove to be valuable to board members of community associations, property managers, developers, lenders, and local governing bodies. We’ll be constantly updating the blog with posts that will discuss topics of interest to our readers. Our bloggers will be discussing topics related to the governance, management, and creation of associations, as well as providing updates on all of the latest cutting-edge developments in the world of community association law.

I’d encourage you to read the “About Us” section to become more familiar with our team’s experience, and to check out the “Blogger Bios” section for each team member’s biography. Also, feel free to click on the “Webinars” tab to be linked to the database of our team’s webinars on a wide variety of topics.

Thank you for visiting our blog, and we hope that you’ll continue to check back in with us as constantly update it. We hope to be your “go to” source for information and resources on community association law.

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We recently received a question regarding a community association board’s consideration of contracts in executive session. A contractor's bid can come in many forms, e.g. a formal written contract, a written proposal, or even an oral statement.  Regardless of the form, a contractor's "bid" is ordinarily the contractor's "offer" to perform a designated scope of work for a specified price.  An enforceable contract is formed when an offer is accepted.  The manner in which the offer is accepted will vary and may depend on the form of the contractor's bid or the level of formality required in light of the nature or scope of the work to be performed.

When a property owners’ association or condominium association requires the services of a contractor, bids will typically be solicited by its board of directors from several contractors.  The purpose of soliciting bids is to obtain "offers" to perform the required services - which offers, if accepted by the board, will form a contract between the association and the contractor.  The Condominium Act, at Virginia Code Sec. 55-79.75, and the Property Owners’ Association Act, at Virginia Code Sec. 55-510.1, each provide that the respective association's board may convene in executive session to "discuss and consider contracts."  It is therefore appropriate for an association's board to convene in executive session to discuss the terms of various bids received by contractors, in the course of considering whether to enter into a contract with any of the bidding contractors on the terms proposed in their bids.

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We recently received a question regarding the ability of condominium boards to legally convene in executive session pursuant to § 55-79.75 of the Virginia Code. Specifically, the question asked whether § 55-79.75’s provision stating that boards may convene in executive session to “discuss and consider contracts” grants boards the authority to discuss and consider bids.

Answer:

The discussion and consideration of bids for contracts relating to the provision of goods and/or services to a Virginia condominium is an important exception to the general requirement that condominium boards meet in the open. The bid process is an integral part of the contracting process. An association's ability to competitively bid out work is largely dependent on its ability to obtain bids from reputable contractors.

Discussing bids in an open session of the board risks contaminating this process and destroying the association's ability to get competitive contracts from licensed, reputable contractors. Many quality contractors would be reluctant to engage in the competitive bid process if they thought that their competitors would have access to their bids. In the case of competitive bidding, information is power. A condominium board in Virginia is acting responsibly and within its rights to discuss and consider contract bids in closed (executive) session. In fact, there is a strong legal argument that the board would violate its fiduciary duty if it were to discuss such bids in open session.

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On April 17, 2010, LeClairRyan's Community Association Team will be presenting a free seminar in Williamsburg, Virginia, entitled "Advanced Legal Aspects of Community Associations."

We invite you to join attorneys Liz White, Dan Quarles, Megan Scanlon, and Will Sleeth as they will discuss four topics that board members and managers frequently encounter as they govern and manage associations: 

• Leasing Restriction Amendments
• Enforcement and Collection of Assessments and Fines
• Board Meetings
• Rules and Regulations and Architectural Guidelines

Resource and reference materials will be provided free of charge on a cd.

Again, the seminar will take place on April 17th, from 9 A.M. to 1 P.M., at Jamestown High School in Williamsburg, Virginia.

Space is limited and registration is required, so please click here to register, if you have not already done so. We look forward to seeing you, and encourage you to contact us if you have any questions.

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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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