Maintenance & Common Area Issues

By recent decision, the Virginia Supreme Court weighed in on an insurance subrogation dispute arising out of a fire at a Virginia condominium. The case is illustrative as to situations that sometimes face community associations when there are casualty losses.

Subrogation: A Basic Explanation

Subrogation is a legal doctrine where a party who pays a loss on another’s behalf is permitted to “step into the shoes” of the payee (person receiving the funds) and enforce their rights as to a legal claim. An elementary principle of subrogation is that an insurer may not subrogate against its own insured. In other words, an insurer cannot sue its own insured for negligence under a subrogation theory. This is intuitive because if an insurer could sue an insured to recover such losses then there would not be much of a concept of insurance coverage (as any time the insurer paid a loss to an insured, there would be a strong incentive for the insurer to sue its own insured to recover the loss). Subrogation may be waived by contract.
Continue Reading Subrogation: Stepping into the Shoes of Another to Enforce Claims: the Virginia Supreme Court Hands Down an Opinion on Subrogation in the Context of a Condominium Fire

“When will the community association pools open?” No question has been on the forefront of community association board members and frazzled parents more. On March 12, 2020, Governor Northam issued an executive order, declaring a state of emergency due to the coronavirus. Five days later, the Governor limited capacity to fitness facilities, and on March 23, completely closed all recreational and entertainment businesses, which included public pools. Then, on June 30, Governor Northam issued his executive order regarding Phase 3 of reopening Virginia, which included the following provision:

Outdoor and indoor swimming pools may be open, provided occupancy is limited to no more than 75% of the lowest occupancy load on the certificate of occupancy and all swimmers maintain at least ten feet of physical distance from others who are not family members.

Community association residents rejoiced, but board members began handwringing at the prospect of potential liability. This article is intended to provide clarity to the issue and give community associations the knowledge and tools they need to decide if and how to open community pools safely.
Continue Reading Opening HOA Pools in the Pandemic: Community Association Considerations in Opening Pools in Virginia Amongst the COVID-19 Pandemic

The Virginia General Assembly passed hundreds of bills during the 2020 legislative session. For those who lead, live in, or associate with community associations, many of these changes could impact the day to day operations of how individuals and these associations interact. Below is a summary of some of the General Assembly’s more significant recent bills that effect community associations.

House Bill 176 – Contract Disclosure Statement with regards to the Property Owners’ Association Act and Virginia Condominium Act

With House Bill 176, the Virginia General Assembly updated Virginia Code Section 55.1-1808. Section 55.1-1808 is a provision that requires the seller of a lot to disclose that the lot is located within a development that is subject to the Property Owners’ Association Act and provide to the purchaser of the lot an association disclosure packet. Under certain terms, the purchaser has the right to cancel the contract to purchase the lot upon receipt of this disclosure packet. The new law updates the language of the statute to include the term “ratified real estate contract.” Generally, the purchaser previously had the right to cancel the contract within three days of receiving the association disclosure packet. Now, the purchaser also has the right to cancel the contract of purchase for a period of up to seven days if specified in a ratified real estate contract.
Continue Reading Summary of New Virginia Legislation Impacting Community Associations in 2020

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

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".