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.

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.

 

In a post several months ago, we noted the General Assembly’s adoption of amendments to the Property Owners’ Association Act and the Condominium Act that address associations’ ability to regulate the display of the United States flag.  As we reported then, the amended Virginia Code sections (Va. Code § 55-513.1 [POAs] and § 55-79.75:2 [Condos]) follow the language of the federal Freedom to Display the American Flag Act of 2005, signed into law on July 24, 2006. It provides that no association (POA or condominium) shall prohibit an owner from displaying the U.S. flag on his own property (lot or unit) as long as the display conforms to federal law, rule or custom.  You can find the official rules governing flag display in Title 4, Chapter 1 at the U.S. House of Representatives’ website at http://uscode.house.gov/uscode-cgi/fastweb.exe?search.

Continue Reading Will Your Association “Fly” Into Trouble With the New Virginia Flag Law?

 

The other week the Wall Street Journal published an interesting and somewhat amusing article about the latest trend in upscale neighborhoods: renting a goat as a means to trim a yard and eliminate weeds.

Apparently renting a goat constitutes an environmentally-friendly "carbon-emission-free" way to trim grass. The Journal reports that: "Prices can range from $200 a day for a dozen goats to upward of $1,000 for larger herds of 100 or more."

If this trend catches on, it will pose some unique issues for associations throughout Virginia. Many associations will likely look skeptically upon goat trailers carting goats smack into the middle of their neighborhood as they’re let loose to chew-up the grass throughout a lot. Many associations’ covenants contain restrictions on maintaining or raising cattle, livestock, and non-domesticated animals on lots, but those covenants may not explicitly prohibit those animals from coming on to a lot for short periods of time. Therefore, if an association encounters this situation, it may want to consider amending its covenants to prohibit non-domesticated animals from coming on to lots.

So if you serve on the board of an association and wake up tomorrow morning to the sight of a flock of goats roaming around a yard, it might be smart to try to have the association address the situation through the covenants rather than having neighbors become angry with each other and try to "chew each other out".

The General Assembly recently adopted amendments to the Property Owners’ Association Act and the Condominium Act that address associations’ ability to regulate the display of the United States flag.  The amended Virginia Code sections follow the language of the U.S. Code (The Freedom to Display the American Flag Act of 2005), which is the federal law regarding the U.S. flag in Title 4, Chapter 1.  POA and condominium boards and managers, and declarants and their attorneys who are preparing covenants and rules for POAs and condominiums, need to be aware of the new law.  The amendments to Va. Code Sec. 55-79.75:2 of the Condominium Act and Va. Code Sec. 55-513.1 of the POA Act are essentially the same, so I will discuss them together.

The new law provides that no association (POA or Condominium) shall prohibit an owner from displaying the U.S. flag on his own property (lot or unit) as long as the display conforms to federal law, rule or custom.  You can find the official rules governing flag display in Title 4, Chapter 1 at the U.S. House of Representatives’ website ( http://uscode.house.gov/search/criteria.shtml).  (There are also several helpful non-governmental sites run by non-profit organizations that you can find by performing an internet search of "flag protocol.")  However, an association may continue to "establish reasonable restrictions as to the size, place, duration, and manner of placement or display of the flag on such property provided such restrictions are necessary to protect a substantial interest of the (unit owners’) association."

In addition, be aware that, in any legal action brought by an association for violation of a community flag restriction, the association bears the burden of proving in court that its restrictions as to size, place, duration, and manner of placement are necessary to protect a substantial interest of the association.  Therefore, these criteria should be carefully considered when drafted, and existing regulations should be evaluated to ensure they protect your association’s substantial interests.  If not, you may want to consider amending or revoking them.

Associations may continue to restrict the display of flags in the common elements/areas of the community, but any limited common element (i.e. any area over which an owner has "exclusive possession or use"), such as, for example, typically a unit’s balcony or porch, should be treated the same as the lot or unit with respect to flag display. 

Remember that POAs must disclose any community restrictions regarding flag display in the disclosure packet.  If an association fails to do so and then brings an action against a homeowner for flag display in violation of the association’s rules and/or covenants, the homeowner can assert as a defense that the required disclosure was not contained within the disclosure packet.

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.

On Wednesday, May 19th, 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 19th 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.

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.