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Is A Member Legally Allowed To Review Voting Records Relating To Elections For An HOA Board Of Directors?

Recently, we had a reader ask whether a member of a homeowners association is legally permitted to review and inspect voting records relating to elections for the board of directors of the member's HOA.

The short answer is that it depends on the nature of the records requested as well as other factors. Virginia Code Section 55-510 spells out when an owner can review certain records for a property owners' association. If an owner (i) is in good standing with the association, and (ii) makes a records inspection request "for a proper purpose related to his membership in the association," then he is entitled to review association "books and records" that do not fall under any statutory exemptions. Section 55-510's discussion of "books and records" needs to be read in conjunction with other provisions of the Virginia Code (and chiefly, the Virginia Nonstock Corporation Act) that elaborate on what exactly constitutes "books and records" (as not every document in an association's possession constitutes a "book and record" as the term is defined in the Virginia Code). As a result, this analysis can sometimes be rather technical, and associations should consult with their legal counsel to ensure that they don't provide for the inspection of any records that they're not legally required to provide.

Under this analysis, assuming that the owner is in good standing with the association, and makes the request "for a proper purpose related to his membership in the association" (and does not, for example, submit the request for the purpose of attempting to pursue litigation against the association), then it would be appropriate for an association to provide the owner with a copy of the vote tally sheet that the association used to count all of the votes. Arguably, ballots and proxies do not constitute "books and records" as defined under Virginia law, and therefore should not be produced by the association. Moreover, if an association's governing documents require or permit voting by secret ballot, producing ballots with names on them or directed proxies would essentially defeat the goals behind such.

Keep in mind that if the association has adopted a records inspection and copying policy, it could charge the owner a monetary fee for expenses related to searching for the records and copying them.

Small HOA, Big Problem: Too Much Inclusion?

The good thing about some small associations is that they allow all owners to get involved in decision making. The bad thing? They allow all owners to get involved in decision making. In this week's tip, we weigh the pros and cons of small–HOA boards over–sharing with owners.

The practice of opening decisions to a discussion among all owners is very common at small condo or homeowner associations. "You see it a lot in associations made of three–family buildings," explains Samuel "Sandy" Moskowitz, a partner at Davis, Malm & D'Agostine PC in Boston who represents 30–40 community associations at any given time. "Often everything works fine when everyone is reasonable and has pretty much the same financial status. But if someone loses a job or sells to someone who's unreasonable, then it gets very frustrating. The guy on the top floor says the roof is leaking and water is coming into his unit; but the guy on first floor says he doesn't have money for a new roof and his unit's dry. You wind up really hamstringing the association."

Click here to read the entire article.

Small-HOA Challenges: The Pros and Cons of Getting Everybody's Input

One common problem at small associations is that it takes seemingly forever to make decisions because many small-association boards solicit input from all owners on major decisions—even if their governing documents don't require them to. Here we discuss the benefits and drawbacks of that practice.

It's Wrong to Give Everyone a Voice?
The practice of opening decisions to a discussion among all owners is very common at small associations. "You see it a lot in associations made of three-family buildings," explains Samuel "Sandy" Moskowitz, a partner at a Boston firm who represents 30-40 community associations at any given time. "Often everything works fine when everyone is reasonable and has pretty much the same financial status. But if someone loses a job or sells to someone who's unreasonable, then it gets very frustrating. The guy on the top floor says the roof is leaking and water is coming into his unit; but the guy on first floor says he doesn't have money for a new roof and his unit's dry. You wind up really hamstringing the association."

Click here to read the entire article.

2012 Virginia Leadership Retreat

LeClairRyan hosts Treena Gibson, General Manager of R & A Management & Referral, LLC, at the Virginia Leadership Retreat

Can an HOA Board Go Into Executive Session to Dodge Controversy?

An HOAleader.com reader writes:

"I participate on a board of managers (BOM) for an HOA in New England. The complex consists of 12 buildings and 140 units. The BOM (for which I am one of five) are authoritative and condescending at times to unit owners. We are involved in litigation with an adjoining marina and have several collections and foreclosure challenges as well. We are attempting to hire a new management company as the previous company (for the past five years) has resigned after I exposed them for billing improprieties. There was also a conflict of interest as it was the son of one of our board members.

"The BOM brought back the previous management company who was fired for other infractions on a temporary basis until a new management company can be hired. The BOM organized a search committee, which also included one BOM to keep consistency with the board's wishes. The committee did an excellent job and selected one of the six candidates by an overwhelming margin. The BOM balked at the selection and is now going to meet in executive session to block out unit owners from the decision process.

"Although I know we have bigger problems than this, it's frustrating for people to volunteer, exceed at the task that was asked, only to be knocked down with a multitude of challenges to their decision. Any state law (in Massachusetts) that prohibits executive sessions for something that's not legally or financially (individual unit owner) sensitive?"

Here, our experts give our reader some insight.

Executive Session: States Vary

What's executive session? It's a process by which a board meets privately to discuss matters that shouldn't be revealed generally. Each state has different rules on the practice.

Some don't permit it. "In Florida, we don't have this executive session concept," says Jed L. Frankel, a partner at Eisinger, Brown, Lewis, Frankel & Chaiet PA in Hollywood, Fla., who advises community associations. "Everything is open unless there's an attorney–client privilege issue. Maybe there's litigation or there need to be confidential communications between the board and its counsel. That would be an exception where only board members and possibly the manager would be permitted to attend. Other than that, everything in Florida is going to be an open meeting."

Many other states, however, permit use of executive session in specific circumstances. "There are times when boards can and should go into executive session depending on state law and the governing documents," says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. "In Virginia, we have open meeting requirements, which compel boards to meet in the open. So members should have notice of the meeting and an opportunity to attend and observe. Then there's a list of exceptions, which say a board may go into executive session to discuss things like legal advice, pending litigation, contracts under negotiation, and anything required by law to be confidential."

Click here for the entire article.

When a Board Is Afraid to Take the Heat on a Controversial Topic

In this week's tip, we answer a reader's question about whether his board can slink away into executive session simply because there's a controversial topic—which management company to hire—on the agenda.

What's executive session? It's a process by which a board meets privately to discuss matters that shouldn't be revealed generally. Each state has different rules on the practice.

Some don't permit it. "In Florida, we don't have this executive session concept," says Jed L. Frankel, a partner at Eisinger, Brown, Lewis, Frankel & Chaiet PA in Hollywood, Fla., who advises community associations. "Everything is open unless there's an attorney–client privilege issue. Maybe there's litigation or there need to be confidential communications between the board and its counsel. That would be an exception where only board members and possibly the manager would be permitted to attend. Other than that, everything in Florida is going to be an open meeting."

Click here for the entire article.

Distributing Minutes: Can Your HOA Save Money?

Does your HOA print and snail mail meeting minutes? If so, is it required to do that, or would email or posting online or in a common area do the trick and save your HOA money? Here's some insight.

Do States Require Snail–Mailing?

Your first question should be whether your state law requires you to snail mail meeting minutes to owners. Many don't.

"In Florida, we don't have any statute that says you need to mail minutes out to owners," reports Jed L. Frankel, a partner at Eisinger, Brown, Lewis, Frankel & Chaiet PA in Hollywood, Fla., who advises community associations.

That's also true in Virginia, says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va.; neither the state's condo act nor its property owners association act has such a requirement.

Ditto in Minnesota, says Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. "There's an open meeting law, and I'm actually borrowing that term from government meetings, but in a commonsense manner, it does apply to associations," he explains. "They're required to have meetings open, but they're not required to send out minutes after meetings are completed."

To read the entire article, click here.

What Should HOAs Learn from the Trayvon Martin Tragedy?

What does the tragic death of Trayvon Martin have to do with HOAs?

The Feb. 26, 2012, fatal shooting of the teenager by an informal neighborhood watch leader, George Zimmerman, occurred on the grounds of The Retreat at Twin Lakes Association, a Sandford, Fla., homeowners association where Martin was visiting and Zimmerman lived.

Martin's death has triggered soul–searching throughout the country. It should also prompt reevaluation among HOA boards if, as many news outlets have reported, Martin's parents are contemplating a lawsuit against the HOA because it allegedly endorsed Zimmerman's crimewatch activities.

Why is that a problem, and what should HOAs do when it comes to crimewatch programs? Here are some answers.

HOA May Be in Trouble

"The very tragic Martin case leads to interesting issues for HOAs, but they're not new," says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. "We've seen instances like this before, where neighborhood watch individuals have crossed the line and taken on the role of law enforcement. HOAs have been dealing for years with neighborhood watch issues and how to structure neighborhood watches."

An HOA isn't liable for damages simply because a crime happens on its grounds. Where The Retreat may have gone wrong is in allegedly holding Zimmerman out as a resource for residents to contact regarding crime. The evidence, if numerous reports are true, is a newsletter sent to The Retreat's residents the same month Zimmerman fatally shot Martin. Though no media outlets have produced a copy of the newsletter, many report that under the heading "Neighborhood Watch," the HOA recommended that residents who become crime victims first call police and then contact "our Captain, George Zimmerman...so he can be aware and help address the issue with other residents."

Click here to read the entire article.

Trayvon Martin Tragedy Hits Close to Home for HOAs

In this week's tip, we offer lessons for HOAs from the very sad death of Trayvon Martin.

The Feb. 26, 2012, fatal shooting of the teenager by an informal neighborhood watch leader, George Zimmerman, occurred on the grounds of The Retreat at Twin Lakes Association, a Sandford, Fla., homeowners association where Martin was visiting and Zimmerman lived.

"The very tragic Martin case leads to interesting issues for HOAs, but they're not new," says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. "We've seen instances like this before, where neighborhood watch individuals have crossed the line and taken on the role of law enforcement. HOAs have been dealing for years with neighborhood watch issues and how to structure neighborhood watches."

Click here to read the entire article.

What Should You Share about Pending HOA Litigation?

Have you struggled as a board with what, if anything, you should tell your members when your association is sued?  The online publication, HOAleader.com, asked leading community association attorneys across the nation the question: "What Should You Share About Pending HOA Litigation?" and published their answers. LeClairRyan shareholder attorney, Elizabeth White, who leads LecLairRyan's national community association industry team, shares her expertise in the article.

To read a copy of the article, click here.

Are You Signed Up For The Virginia Leadership Retreat?

The annual Virginia Leadership Retreat will take place this year from July 27 - July 29, 2012 at the Homestead in Hot Springs, Virginia. This annual event has become the premier state-wide gathering for the community association industry in Virginia. Once again, LeClairRyan's community association team will be well represented there. Like most years, we'll be blogging live from the event. Also, this year we'll be tweeting live! If you're not currently following Will Sleeth (the Editor of the Virginia Community Association Law Blog) on Twitter, you can follow him @Will_Sleeth. For more information about the Leadership Retreat, click here.

Are there Sociopaths in your Community?

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.

HOA Meetings Via Webcast?

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.

LeClairRyan Attorneys Helping Habitat for Humanity Create Planned Development

LeClairRyan attorneys Lori Schweller and Tara Boyd are assisting Habitat for Humanity with the legal work related to Habitat's Sunrise Park development in Charlottesville, Virginia.  Specifically, Schweller and Boyd are drafting the documents for the master property owners' association for the whole community as well as the condominium documents for the 4-story condominium building and its two subcondominiums.  The mixed-use condominium will be home to the legacy Sunrise Park residents, who will lease units, and will include units for sale at market rates.

To learn more about this valuable public-service project, and the exciting new development that will result, click here.

Liz White Named One of Virginia's Most Influential Women 2011

Congratulations to Liz White for being recognized as one of Virginia's "most influential women"! Virginia Lawyers Media recently announced its list of "individuals who are making notable contributions to their chosen professions, their communities and society at large." We are proud to announce that on the list of impressive honorees was our very own "city attorney for private cities," Liz White. Liz received the award, along with 46 other accomplished women from across the Commonwealth, at the Annual "Influential Women of Virginia" gala at the Richmond Marriott on May 19, 2011.

Here is a photo of Liz at the awards ceremony with several other members of LeClairRyan's Community Association Industry Team Debra Dowd, Pam Faber, Megan Scanlon, and Andrea Nixon.

 

 

 

The First Day of Presentations at the Virginia Leadership Retreat

Today marked the first day of presentations at the Virginia Leadership Retreat, located at the Homestead in Hot Springs, Virginia. LeClairRyan's Megan Scanlon delivered a presentation called "Aging-in-Place -- The Boomer Community", which described some of the challenges community associations will face as their populations age.

Participants listened to a wide-variety of presentations and heard from an array of industry-leaders. The following is a picture of the main lobby of the historic Homestead resort.

 

 

HOAleader Offers Free 30-day Access

The LeClairRyan Community Association Team has enjoyed a strong relationship with HOAleader.com, a web-based pulication devoted to the community association industry. The Team's attorneys are frequently quoted in the publication's articles. The subscription-based website, has just offered a free 30-day trial. If you would like to take advantage of that, click here.

LeClairRyan Team Attends the CAI National Law Conference

This weekend, several members of LeClairRyan's Community Association Industry Team attended the CAI National Law Conference in Las Vegas. The conference featured speeches, panel presentations, and educational sessions presented by a variety of industry speakers on topics ranging from the federal mortgage agencies, to new legislation affecting the industry, to cutting edge issues such as transfer-fee covenants.

One of the highlights of the conference featured a mention of this blog! During one of the first sessions of the conference, the speaker discussed recent trends in the industry, and commented that community associations were facing unique issues, including "rent a goat" issues. The speaker proceeded to mention the blog post on this very blog, which discussed the issue.

All in all, the conference was very informative. Below is a picture of St. Mark's square in the Venetian hotel (where the conference was held).

 

How Should Your HOA Board Respond to an Accident?

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.

LeClairRyan's Liz White Quoted in National Media Article on Board Meetings

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.

Check out the Webinars Database for Helpful Resources

Do you think your fellow board members could use some training in the basics of community association law? Could the associations you manage benefit from several 1-hour teaching sessions? If so, then check out the LeClairRyan Community Association Team webinar library on the blog. With an ever-expanding array of webinars on topics ranging from board meeting minutes, to disclosure packets, to the Fair Housing Act, the webinar library can be accessed at any time and the webinars viewed at your convenience.

Also, stay tuned to the blog in the next few weeks for several announcements about new upcoming webinars.

Departure from the Virginia Leadership Retreat

The second annual Virginia Leadership Retreat came to a successful conclusion on Sunday. The LeClairRyan Community Association team departed from the Homestead around noon, along with the other conference attendees. The team would like to thank all of the participants who stopped by the exhibit table, entered the prize drawing, or attended Liz's presentation.

We've now concluded our live blogging from the Retreat. Thanks for tuning in, and be sure to check back with the blog regularly for a wide variety of posts on cutting-edge topics related to community associations, as well as announcements about upcoming speaking events, webinars, and other free resources.

 

The Exhibits at the Virginia Leadership Retreat

Day 2 of the Virginia Leadership Retreat at the Homestead. At lunchtime on Saturday, in the exhibit room, the vendors set up their displays. LeClairRyan's Community Association Team spoke to the conference attendees about the firm's Community Association practice, and handed out a wide variety of prizes ranging from golf balls, to umbrellas, to leather travel mugs. Below, Pam Faber and Dan Quarles staff the exhibit table.

 

 

Friday Evening: Welcome Reception

 

Members of our LeClairRyan Community Association Industry Team have arrived at the 2nd Annual Virginia Leadership Retreat being hosted by the Community Associations Institute at The Homestead in Hot Springs, Virginia this weekend. Approximately 120 CAI members and their guests from around the state gathered this evening for the welcome reception. Pictured below are members of our Community Association Industry Team. From left to right: Lori Schweller, Pam Faber, Will Sleeth, Megan Scanlon, Dan Quarles, and Elizabeth White, our team leader.

 

 

Pictured above are our CAI Team members with family member guests. Pictured, left to right: John Faber, Rachel Sleeth, Will Sleeth, Lori Schweller, Pam Faber, Valerie McDonald, Megan Scanlon, Dan Quarles, Jennifer Quarles, Elizabeth White, and Dean Short.

 

Arrival at the Homestead!

It's Friday afternoon, and the attendees are beginning to arrive to the Homestead for the annual Virginia Leadership Retreat conference. Under clear skies and cool weather, the participants get ready for the welcome reception. The following are some photos of the Homestead snapped by the LeClairRyan Communtiy Association Team.

Tune In To The Blog This Weekend For Live Updates From the Virginia Leadership Retreat!

The LeClairRyan Community Association Team will be blogging throughout the weekend live from the Virginia Leadership Retreat at the Homestead. (For those of you unfamiliar with the Virginia Leadership Retreat, it's the annual Virginia weekend conference/event sponsored by CAI that is exclusively devoted to the Community Association industry).

For those of you unable to attend the event, feel free to check in frequently for updates. Even if you're attending the event, we encourage you to check in with the blog for the latest reporting from the LeClairRyan team.

Records Inspection Requests by Members: An Overview

 A reader recently asked us to comment on members' rights to inspect their property owners’ association’s books and records, such as financial information and meeting minutes, pursuant to the Property Owners’ Association Act.

A member’s right to inspect records is not only governed by the provisions of the Property Owners’ Association Act, but also by the provisions contained within the Virginia Nonstock Corporation Act. The provisions of the two acts must be read in conjunction with each other, and therefore the interested member should review not only § 55-510 of the Property Owners’ Association Act in order to understand his rights, but also §§ 13.1-932 – 934 of the Virginia Nonstock Corporation Act as well.

This blog post is limited to a discussion of the provisions contained within the Property Owners’ Association Act, and at some future time we will likely make a post regarding the inspection provisions contained in the Virginia Nonstock Corporation Act.

Continue Reading...

Blogging live from the Virginia Leadership Retreat

Have you signed up yet for the annual Virginia Leadership Retreat sponsored by CAI? This year's Retreat will be held on July 30, 2010 -- August 1st at The Homestead in Hot Springs.

The LeClairRyan Community Association Team will be blogging live from the Retreat with updates on all of the key events. If you can't attend the Retreat, be sure to check in regularly with the blog for timely posts on conference events and key speaker presentations.

Can Owners View Draft HOA Meeting Minutes?

Editor's note: Liz White was recently quoted in the following article on HOAleader.com, concerning owners' ability to view draft meeting minutes.

A reader on the HOAleader.com discussion board asks: "A member requested a copy of the board meeting minutes prior to the approval. We conduct open board meetings, and [agendas] are posted in advance. Does a member have the right to these unapproved minutes?" Fellow HOAleader.com readers were split in their responses to our reader's quandary. Here, experts tell us how they'd approach the issue. 

The Simple Answer

 "That's a real sticky wicket," says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. White doesn't just mean the distribution of draft meeting minutes. Our reader's question brings together several difficult issues, including who's entitled to see minutes when and what should be in meeting minutes.

Continue Reading...

The Property Owners' Association Act and the Condo Act: Be Aware of Subtle Differences

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.

Free Seminar by the LeClairRyan Attorneys -- April 17th

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.

 

Upcoming Webinar on POA Disclosure Packets

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.