Liability - Insurance & Risk Management Issues

Given the worldwide coronavirus pandemic, many states have issued stay-at-home orders, and taken action to limit public gatherings. Given this sudden and extraordinary legal change, many community associations are facing difficulty in scheduling their meetings (annual and special meetings of members). Specifically, many community associations are facing the logistical challenge of conducting these meetings, via remote or electronic means, to accomplish community association business, minimize legal and health risks, and comply with the various stay-at-home orders.

2018 Legislative Changes to Remote Meeting Requirements

Before transitioning all meetings to remote or electronic means, community associations need to be careful and discuss the issue with their counsel to develop a workable plan. Back in 2018, we previously posted about a recent legislative amendment enacted by Virginia’s General Assembly permitting remote meetings under certain circumstances. The law has been codified as Virginia Code Section 13.1-844.2.

Under that statute law, nonstock corporations (which many community associations are) may conduct annual and special meetings of members via electronic means, provided that the governing documents (articles of incorporation and bylaws) do not require the meetings to take place at a particular location.
Continue Reading COVID-19 and Remote Community Association Meetings: A Closer Look at the Legal Requirements, and an Update on Virginia General Assembly’s Emergency Action

Most people are generally familiar with the concept that hotels, restaurants, and other places of public accommodation are subject to the Americans with Disabilities Act (“ADA”). However, as we have mentioned before on this blog, community associations can fall under the scope of the ADA as well.

The ADA is a sweeping set of federal statutes that applies to places of public accommodation, amongst other entities. The ADA framework seeks to prohibit discrimination against disabled persons. As a general matter, a community association may be a place of public accommodation for purposes of the ADA if it is open to the general public, if its common areas are available for rent by members of the public, or if there are portions of the common area open to the public, such as restaurants or a golf course. The legal inquiry as to whether an association is a “covered entity” is rather fact intensive. Ultimately, the analysis turns on how open the Association is to members of the general public, not just its own owners. The more a community association is open to the public, the higher the chance that the community association will fall under the scope of the ADA.
Continue Reading ADA and Community Associations: Best Practices in Handling Requests

Even the most careful community association is bound to have the occasional dispute with an owner, a municipality, or vendor. Typically, documents are created, records are made, and emails and letters are exchanged. What records, if any, should a community association retain?

In some circumstances, parties are under a legal obligation to preserve relevant documents and evidence for purposes of potential litigation. Importantly, this duty can apply regardless of whether a lawsuit has been filed. The failure to comply with that duty is known as “spoliation”.

When dealing with spoliation, courts are empowered to impose a variety of punitive sanctions. These sanctions are varied and may range from an award of attorney’s fees to an adverse inference instruction, which is an instruction to the jury that they must infer that the litigant’s failure to preserve the evidence means that the evidence was unfavorable to the litigant. Needless to say, such an instruction to a jury could lead to a substantially increased damages award.
Continue Reading Spoliation and Records Retention Best Practices: When Parties Have A Legal Duty to Preserve Relevant Documents/Evidence

The internet has undoubtedly changed the way people work, shop, travel, and consume.  The internet, specifically Airbnb, is also changing how people view and arrange for housing.  According to AirBnb’s website, over two million people book on AirBnB each and every night.  AirBnB has listings in over 81,000 cities in over 191 countries. Short-term rentals of houses, apartments, and condominium units are becoming ubiquitous and a profitable way to use one’s real estate.

For community associations, short-term rentals are a hot topic in today’s legal and association governance landscape.  Courts and localities are attempting to deal with the unique challenges presented by short-term rentals.  Some jurisdictions are seeking to limit or otherwise tax short-term rentals.  Community associations are also faced with regulating short-term rentals, responding to potential objections by certain owners, as well as planning to minimize the potential risks posed by short-term rentals.
Continue Reading Tort Liability and Short-Term Rentals: What Owners and Community Associations Should Know

In a previous post, we discussed Dexter the (almost) flying emotional support peacock.  In this post, we turn our attention to Maybelline the emotional support pig in the great state of Florida.  Maybelline is at the center of a dispute between her owner and her owner’s HOA.  The owner claims that she suffers from certain conditions with which Maybelline helps, as an emotional support animal.  The HOA has notified the owner that Maybelline is “livestock,” the presence of which the HOA’s governing documents prohibit.

So who is right?  Under certain circumstances, Maybelline may be allowed to stay.  This post will focus on the legal background surrounding community associations and emotional support animals.
Continue Reading Emotional Support Animals and the FHA: What Community Associations Should Know

Though not legally required, most condominium instruments provide that the association must carry hazard and liability insurance in order to protect the membership from disaster and the financial strain of litigation. The instruments may also specify the amount of the deductibles that the association’s various types of coverage will have; if not, the deductibles may be set by the board of directors.

The most common condominium insurance question I hear is what, exactly, should the association’s master casualty policy cover? There are three approaches to master casualty coverage.  The most comprehensive type covers all condominium improvements – common elements, units, and all fixtures and finishes within the units, even if upgraded by the owners.  The second type of coverage insures all condominium improvements – both common elements and the units, but the units are insured only to a certain level and will not cover upgrades made by the owner.  The third approach to master hazard coverage is to insure only the common elements. 
Continue Reading What should our Condominium Association Insurance Cover? Part II – Condominium Instruments & Association Insurance

Insurance is one of those necessities of life that we avoid thinking about until a problem occurs. At that point, we realize that the details of our policies do matter and that we probably should have spent more time reviewing them before it was too late.

Fortunately, many insurance providers are knowledgeable about the types of coverage that condominium associations may purchase and can advise your association as to the pros and cons of those options.
Continue Reading What should our Condominium Association Insurance Cover? Part I – Intro and Statutory Framework

Many may recall the recent story about the airline traveler seeking to bring an emotional support peacock (Dexter) on board an airplane.  While the story received much national publicity, the reality appears to be that assistance animals and emotional support animals are becoming more commonplace in everyday life.  Stories such as Dexter’s present some interesting legal questions for non-profits, governments, and businesses alike.

Assistance animals and emotional support animals are sometimes (incorrectly) used interchangeably.  They involve different sources of law and require different analyses.  This next series of posts will seek to provide some clarity on the legal issues relating to both categories.  In part one of this series, we will focus on the legal issues surrounding the Americans with Disabilities Act (“ADA”) and assistance animals for purposes of community associations.  Our next post will address emotional support animals and the federal and state fair housing acts.
Continue Reading Assistance Animals and the ADA: What Community Associations Ought to Know

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".

  Amazon.com’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.


Continue Reading Drones and HOAs: How Homeowners Associations and Condominium Associations Can Be Prepared to Deal with the New Technology