Community association management contracts play a crucial role in defining the relationship between community associations and their management companies. This is the second installment of the series focusing on some key provisions of community association management contracts. In the first post, we discussed the concept of indemnification and indemnification provisions in such contracts.
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Community associations are engaged in multi-faceted and dynamic operations, often handling a wide assortment of items from handling reserve funds to arranging for swimming pool operations. There are also considerable administrative burdens in the operation of a community association such as handling communications with owners, payment of insurance premiums, collection of assessments, and preparing Virginia State
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
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
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
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
