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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Bills recently passed in the Virginia General Assembly extend the list of items for inclusion in property owners’ association disclosure packets and condominium association resale certificates, and also broaden non-association disclosure requirements.  Effective July 1, 2013, disclosure packets may or must (depending on the item) include the following new items:

 Restrictions on Solar Panels (HB 2305): Disclosure statements for lots within property owners’ associations and resale certificates for condominiums must include a statement setting forth any restriction, limitation, or prohibition on the right of a unit owner or lot owner to install or use solar energy collection devices on the owner’s property or unit. Va. Code §§ 55-79.97(C)(17), 55-509.5(A)(12).

Further, Va. Code  § 55-519(B)(9) provides that the disclosure form required under the Virginia Residential Property Disclosure Act (a Virginia law that spells out, among other things, certain disclosures that most sellers of property must provide, regardless of whether the property is within a community association) must include language to notify purchasers that by delivering the residential property disclosure statement, the owner makes no representations with respect to any right to install or use solar energy collection devices on the property.

Of course, it is always incumbent on the purchaser to read the declaration, bylaws, and rules and regulations for a community association to determine whether the association has established any restrictions concerning the size, place, and manner of placement of solar energy collection devices; or, for an association with a restrictive covenant adopted prior to July 1, 2008, any restriction or prohibition on the installation or use of a solar collection device. 


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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

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,

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

 

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.


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 Are your association’s governing documents free of typos? Many are not. The danger that typos pose to association documents was brought home with force recently when LAW.com published an article about a $16 million lawsuit related to a typo in the public offering statement for a condominium in New York City.

According to the article,

 

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

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