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

Association (both property owners’ association and condominium association) meetings are typically held at the community clubhouse or other local building.  However, with the increasing availability and utility of technology, virtual meetings are becoming more commonplace.

Virginia’s General Assembly (Virginia’s state legislature) recently passed legislation, House Bill 1205 (the “Amendment”), amending the Virginia Nonstock Corporation Act, that may increase the use of virtual meetings for property owners’ associations in the Commonwealth.  Note: property owners’ associations are typically non-stock corporations, subjecting them to the Virginia Nonstock Corporation Act.  Continue Reading Virtual HOA Meetings?: Virginia’s General Assembly Makes It Easier For Property Owners’ Associations To Hold Entirely Electronic Meetings

In a previous post, we discussed the advantages and disadvantages of a memorandum of lien foreclosure.

In this post, we will focus on the process of enforcing an Association’s judgment lien.

When an Association sues a delinquent owner, the Association seeks a monetary damages award (plus attorney’s fees and costs usually) from a court.  If the Association wins, the court awards the Association a monetary judgment.

What’s a Judgment? 

A judgment is merely a piece of paper that states that the delinquent owner owes the Association the delinquent amounts.  A judgment is not a court order to pay.  With the exception of child support or tax debts, delinquent debtors are generally not court-ordered to pay debts. Continue Reading Stepping Up The Pressure: Using a Judgment Creditor’s Suit to Enforce an Association’s Lien

In our previous post, we considered one method a Community Association may use to preserve and collect its lien for unpaid assessments: the memorandum of lien.

In this post, we will focus on the process of foreclosing on a Community Association’s memorandum of lien.  As we discussed last time, once the memorandum of lien is recorded, it acts as an encumbrance on the property’s title.  Once recorded, the memorandum of lien will be valid for a period of 36 months.

So what may a Community Association do with a memorandum of lien to collect delinquent assessments?  As we discussed in the previous post, simply recording the memorandum of lien does not necessarily mean that the Community Association will be paid.  However, the General Assembly has provided the Community Association with a powerful statutory tool to enforce its memorandum of lien: the nonjudicial foreclosure.

Continue Reading Persistence Can Lead to Dollars Part II: Foreclosing on a Memorandum of Lien

One of the most common questions we receive from Community Association clients is how do we preserve our lien for and recover delinquent assessments?

The frustrating reality is that some owners in Community Associations fail to pay their assessments in a timely manner.  These delinquencies can create serious financial issues within the community.  There are a few ways for Community Associations to pursue delinquent assessments.  In part one of this series on collection remedies, we will discuss one method of collection, or rather, preservation, of a Community Association’s lien: the memorandum of lien.

What is a memorandum of lien?

A memorandum of lien is a document that is recorded in the land records of the Circuit Court Clerk’s Office in the city or county where the real property is located.  The memorandum of lien essentially states that the Community Association has a lien encumbering the property for delinquent assessments.  The operative statutes require the Community Association to include certain information on the memorandum of lien, including, but not limited to, the name of the development, a description of the lot, the delinquent amounts and their due dates, and the names of the owners.  Moreover, the Community Association must provide written notice (sent via certified mail at least ten days prior to the filing of the memorandum of lien) to the delinquent owner that a memorandum of lien will be filed if the amounts remain delinquent. Continue Reading Persistence Can Lead to Dollars: Preserving the Community Association’s Lien for Delinquent Assessments – Part One