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Lori Schweller and Will Sleeth to Speak at Upcoming CA Day in Richmond

LeClairRyan attorneys Lori Schweller and Will Sleeth will be speaking once again at this year's Community Association Day trade event sponsored by the Central Virginia Chapter of CAI, which will take place this Tuesday the 18th. The two will be giving a presentation titled "Common Area, Common Problems -- Parking, Drinking, and Other Liability Issues".

For more information about this year's CA Day, including information about how to register, please click here.


Drones and HOAs: How Homeowners Associations and Condominium Associations Can Be Prepared to Deal with the New Technology’s recent announcement – that in the future it may utilize unmanned drones to deliver packages to individual residences – has created a host of novel legal issues that all homeowners associations should consider and plan for. Although commentators believe that the commercial use of delivery drones may be a few years off, associations should begin planning now for whether they should regulate the use of drones within the association; how they should regulate the use of drones; and how they can minimize potential liability arising from the use of drones.

While the public has so far only been provided with bits and pieces of information about the make-up and capabilities of unmanned delivery drones, some general information is available: a drone will carry a package and will fly from a warehouse to an owner’s house, with the goal of attempting to deliver the package in a very short amount of time right after it has been ordered. The drone is designed to land, helicopter style, on an owner’s lawn and drop off the package. The drone will then use its helicopter-style propellers to vertically ascend from the owner’s lawn and return to the warehouse.

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Collections Options Regarding Owners Who Fail To Pay Their Assessments

How should a homeowners association or a condominium association deal with an owner who fails to pay his dues or assessments? There are three main remedies that associations have under Virginia law: (1) file a lawsuit against the owner, (2) file a memorandum of lien against the owner’s lot or unit, and (3) suspend an owner’s privilege to use certain portions of the common area or common element (we’ll address this third remedy in a future post).

Filing a Lawsuit

Associations have a right to file a lawsuit against delinquent owners, seeking a judgment for the delinquent amount. Many associations’ governing documents will also provide that the association is entitled to recover its court costs and attorneys’ fees too. In practice, some courts are occasionally reluctant to award associations the full amount of attorneys’ fees incurred in attempting to collect delinquent assessments, so the association may only be able to recover a certain dollar figure, or a certain percentage of the delinquent amount. While each court (and judge within that court) is different, it’s been our experience that in most situations, associations are usually able to recover most of the attorneys fees incurred in attempting to collect delinquent assessments.

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Removing a Mechanic's Lien (In the Condominium Context) May Be Easier Than You Think

As any condominium association that has had to deal with one knows, the mechanic’s lien is a powerful hammer to force payment to a contractor. Once it is filed in the land records, a lien often makes it impossible for condominium unit owners to sell or refinance, costs the condominium association time and money (in legal fees) to defend, and generally embroils the condominium association in much unwanted litigation.

The good news is that removing a mechanic’s lien can be easier than you might think. Filing a lien, especially on a large condominium association, is not an easy task. The contractor has to conduct a title search and bring down for each condominium unit. And the Virginia mechanic’s lien statute is full of traps for the unwary. Because the Virginia courts view mechanic’s liens as "purely a creature of statute" and "in derogation of the common law," the mechanic’s lien statute is strictly construed. That is, it must be followed meticulously, or the lien will be invalid. Thus, painstaking analysis is required to ensure that the lien complies with Title 43 of the Virginia Code.

As a result, mechanic’s lien claims can be very defensible. Aside from the critical timing issues, which affect all mechanic’s liens (they must be filed within 90 days, and may only include work done within 150 days, of completion of the work), there are certain property identity and allocation issues that are specific to condominiums.

Here are some important points to remember:

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Remember Who the Client Is When Meeting with an Attorney


When consulting with an attorney on behalf of a legal entity, such as a homeowners association or condominium unit owners association, or a developer that is a limited liability company or corporation, it is easy to lose track of who is being represented by the attorney. The attorney’s engagement letter should clearly state who the client is and, even better, will also state related parties whom the attorney will not be representing. Representation of an entity does not typically include representation of managers, individual officers, members, or shareholders of such entity unless such relationship is expressly or implicitly established.

If you are an officer, member, manager, director, or shareholder of a Declarant or Association, remember that, in your consultations with the attorney for such entity, you are acting as an agent of such entity, which is the client. Remembering that you personally are not the client will help you to avoid divulging confidences that are personal to you and that you may not want the others in the organization to know. In order to represent her Association or Declarant client diligently, the entity’s attorney may not be able to ethically keep your confidences from the client.

Has Your Homeowner's Association Adopted an Owner Complaint Policy Yet?

If your homeowners association has not yet adopted an owner complaint policy, it should move quickly. Recently, Virginia's Common Interest Community Board promulgated regulations to implement a recent law (Virginia Code Section 55-530(E)) requiring all homeowners associations in Virginia to adopt a policy for receiving and reviewing owner complaints.

Under the regulations, all homeowners associations must adopt a policy by the end of this September. Associations will be required to certify, in their annual report to the Virginia Department of Professional and Occupational Regulation, that a policy has been adopted and is in effect. Moreover, associations are required to include the complaint policy in their disclosure packets. As the regulations contain some fairly detailed requirements as to what terms and conditions must be included in the policy, associations should ask their legal counsel for assistance in drafting a policy.

HOAs and Pool Lifts: Compliance Deadline Extended

LeClairRyan Community Association Team member Brian Muse recently blogged about the time extension under the ADA (Americans With Disabilities Act) for compliance with pool lift requirements, something that every HOA with a pool should be aware of. Check out Brian's post over at his new blog ADA Musings. While you're there, you'll find that his blog contains many other helpful articles that HOA community managers, board members, and developers should be aware of.


Has Your Homeowner's Association Adopted a Records Copying Policy Yet?

If your homeowners association has not yet adopted a records copying policy, it should move quickly. On July 1, 2012, a new law in Virginia goes into effect that requires boards of directors of associations to have adopted a cost schedule if the association wants to charge owners for the costs of copies and labor related to producing books and records for inspection, pursuant to records requests by owners. Under the current law, associations are not required to have adopted a formal cost schedule in order to impose such charges.

Section 55-510(D) states that the cost schedule must: (i) specify the charges for materials and labor, (ii) apply equally to all members in good standing, and (iii) be provided to such requesting member at the time the request is made. Because some owners make very broad records inspection records, and because some owners make frequent requests, every association should have a cost schedule in place in order to pass the costs (which can sometimes be substantial) along to the owners. If your association has not yet adopted such a policy, it should contact its attorney shortly so that it can put one it place as soon as possible.

What Should Your HOA Do to Prevent Hoarding?

Hoarding is a growing problem for associations because of the increased risk of fire in multi–family buildings like condos.

What obligation—and right—do you have to regularly inspect your association's units for dangers that would prevent first–responders from doing their job in an emergency? Here we discuss best practices to prevent hoarding.

"The hoarding concern is a new issue in terms of public awareness, and the consideration of what that means in a condo building hasn't been undertaken by a lot of boards," says Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. "When you're talking to someone and asking to, in their mind, snoop around and evaluate how they live, it's a really touchy circumstance. But it's definitely worth thinking about."

It's also a difficult issue because it may implicate mental health issues. "Very often, you're dealing with someone with a mental illness, which means boards have the whole issue of accommodation of a disability, where you have to tread carefully," says Elizabeth White.  "As Americans are aging in place, associations could encounter more problems because of mental health issues like early– or late–onset of dementia.

Click here to read the entire article.

We've Been Sued! Now What?

This session will present a checklist of actions to avoid and manage homeowner litigation, including how to avoid claims, maintain confidential communications, preserve discoverable documents and electronic data, and evaluate the merits of the case and settlement options.

Presented by:

  • J. Douglas Cuthbertson, Esq., LeClairRyan 
  • Nicole Pszczolkowski, Esq., LeClairRyan

View the slide deck from this presentation.

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 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.

How Intrusive Can You Be with HOA Owners?

With pool season quickly approaching for many parts of the United States, some boards are taking the opportunity to review the rules and regulations for their communities.  Rules like "no alcoholic beverages in the pool area" often present sensitive issues when it comes to enforcement.  Can or should your association conduct bag checks when residents enter the pool?  What about entering resident's units to conduct compliance checks?  LeClairRyan's Community Association practice leader, Elizabeth White, shared her thoughts and analysis on these issues and more in the article, "How Intrusive Can You Be with HOA Owners?", published in the national online news magazine

To read the article, click here.

Avoiding the Perils and Pitfalls of the Fair Credit Reporting Act

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.


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.

LeClairRyan Attorneys to Speak at 2012 Conference and Expo of the Washington Metro Chapter of CAI

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.

Will Sleeth Quoted in Virginia Lawyers Weekly Magazine on HOA Litigation

LeClairRyan attorney Will Sleeth was recently quoted in a Virginia Lawyers Weekly magazine article reporting on a Virginia state court case in which the trial judge awarded homeowners their attorney’s fees for prevailing in their suit against their property owners’ association. The article (subscription required) discussed how the ruling was a significant decision in interpreting the provision of the Virginia Property Owners’ Association Act that provides for an award of attorney’s fees in certain contexts. In the litigation, the association attempted to argue that the attorney’s fees provision of the Virginia Code only applies if an association sues an owner and loses (as opposed to if an owner sues an association). The judge ruled, however, that the provision can permit an award of attorney’s fees when an owner sues his association and prevails.

The article illustrates an important lesson that all associations should keep in mind: associations should be proactive in seeking out legal advice to ensure that they don’t become ensnared in potentially costly litigation in the first place.

Readers should be mindful that this ruling was a Virginia Circuit Court decision, and not a Virginia Supreme Court decision. Many community associations may likely continue to maintain that the Virginia Property Owners' Association Act does not provide for an award of attorney's fees to an owner in a situation similar to that at issue in this case.

What Duties Should An HOA Board Not Delegate to Its Manager?

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 on this topic. In the interview, Liz discusses 9 responsibilities that boards should ensure they perform. Check out the full article here.

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 on this topic. In the interview, Liz explains how associations should always first contact their legal counsel. Check out the full article here.

Upcoming Webinar on "Alternative Dispute Resolution"

On Thursday June 24th, LeClairRyan's attorneys will be addressing a cutting-edge procedure that community associations are increasingly using to attempt to resolve disputes outside of litigation: "alternative dispute resolution" or "ADR".

Brian Muse, a member of LeClairRyan's Community Association Industry Team, will be co-hosting the free webinar entitled "Making Alternative Dispute Resolution Work For You: Successfully Mediating Employment Disputes." Although the firm's attorneys will be discussing ADR in the context of employment law, many of the principles of ADR that they will discuss are highly applicable to community association disputes, and therefore the webinar will be helpful to board members, developers, property managers, and other interested parties.

We encourage you to plan on joining Brian on June 24th from noon to 1 P.M. EST as he explains the pro's and con's of utilizing mediation as a means to settle disputes, and provides practical tips on how to prepare for and effectively participate in mediations so as to increase the likelihood of a positive result.

To register for this free event, click here.


Does Your Association Have a Plan for Dealing with Potentially Harmful Animals?

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.

The Importance of a Good Emergency Plan

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.