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Many people are generally familiar with the concept that housing providers, real estate agents, and property management companies are subject to state and federal fair housing laws. However, it is important to know that community associations are also subject to those laws. State fair housing laws vary from state to state. These laws typically set forth a statutory procedure for the resolution of complaints of violations of those laws.

This post will focus mainly on the Virginia Fair Housing Law (“VFHL”) (Virginia Code Section 36-96.1, et seq.) and the Virginia process for complaint resolution.

What VFHL Covers

Virginia has a stated policy to provide fair housing throughout the Commonwealth. Va. Code § 36-96.1. The VFHL prohibits covered persons or entities from engaging in unlawful discriminatory housing practices. Va. Code § 36-96.3.
Continue Reading Virginia Fair Housing Law and Community Associations: Procedural Background and Best Practices in Handling Complaints

For more than a year, community associations have been struggling with managing the use of their pools amidst the COVID-19 pandemic. With ever-changing regulations, vacillating infection rates, and differing opinions on boards and within communities, the decision may be overwhelming. However, with some simple education and adherence to guidelines, community associations can feel confident in reopening their pools while at the same time limiting liability. Last year, we provided information to assist community associations, and this year, with updated orders from the Governor, we hope to provide the most current information for community associations to make fully informed decisions.

On April 21, 2021, Governor Northam issued his Fifth Amended Executive Order Seventy-Two. The language in the Order mirrored that of last year’s order regarding pools:

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.Continue Reading 2021 Update: Opening HOA Pools in the Pandemic: Community Association Considerations in Opening Pools in Virginia Amongst the COVID-19 Pandemic

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

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

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