Virginia Community Association Law Blog

What Happens When a HOA Owner Dies?

Liz White — Tue, 10 Apr 2012 08:55:17 -0500

Our population is aging and studies now show that the nation-wide housing trend is for owners to "age in place." This trend has a lot of consequences for community associations and the boards and managers who oversee their operations. With more and more owners choosing to stay in their independent living homes (as opposed to moving into assisted living or continuing care facilities), many associations are now grappling with the consequences. These consequences include, for example, taking steps to ensure compliance with Federal and state Fair Housing laws which require associations to accommodate persons with disabilities. But what happens when an owner dies? Are there steps that the association should take? The national online magazine, HOAleader.com, addressed this sensitive issue in its article, "What Happens When a HOA Owner Dies?". LeClairRyan's national Community Association law practice leader, Elizabeth White, notes in the article, "This is an area in which you want to tread lightly and respectfully."

To read the article, click here.

How Intrusive Can You Be with HOA Owners?

Liz White — Tue, 10 Apr 2012 08:49:34 -0500

With pool season quickly approaching for many parts of the United States, some boards are taking the opportunity to review the rules and regulations for their communities. Rules like "no alcoholic beverages in the pool area" often present sensitive issues when it comes to enforcement. Can or should your association conduct bag checks when residents enter the pool? What about entering resident's units to conduct compliance checks? LeClairRyan's Community Association practice leader, Elizabeth White, shared her thoughts and analysis on these issues and more in the article, "How Intrusive Can You Be with HOA Owners?", published in the national online news magazine HOAleader.com.

To read the article, click here.

Should Managers Attend--and Participate In--HOA Meetings?

Liz White — Tue, 10 Apr 2012 08:44:06 -0500

What role should managers play in HOA board meetings? Elizabeth White, LeClairRyan's Community Association Law team leader, shares her advice with the national online newsmagazine, HOAleader.com, in it's article, "Should Managers Attend - and Participate In - HOA Meetings?"

To read the article, click here.

What Should You Share about Pending HOA Litigation?

Liz White — Tue, 10 Apr 2012 08:20:37 -0500

Have you struggled as a board with what, if anything, you should tell your members when your association is sued? The online publication, HOAleader.com, asked leading community association attorneys across the nation the question: "What Should You Share About Pending HOA Litigation?" and published their answers. LeClairRyan shareholder attorney, Elizabeth White, who leads LecLairRyan's national community association industry team, shares her expertise in the article.

To read a copy of the article, click here.

Are You Signed Up For The Virginia Leadership Retreat?

Will Sleeth — Sat, 07 Apr 2012 19:36:06 -0500

The annual Virginia Leadership Retreat will take place this year from July 27 - July 29, 2012 at the Homestead in Hot Springs, Virginia. This annual event has become the premier state-wide gathering for the community association industry in Virginia. Once again, LeClairRyan's community association team will be well represented there. Like most years, we'll be blogging live from the event. Also, this year we'll be tweeting live! If you're not currently following Will Sleeth (the Editor of the Virginia Community Association Law Blog) on Twitter, you can follow him @Will_Sleeth. For more information about the Leadership Retreat, click here.

Community Association Attorney Liz White Published in Currents Magazine

Liz White — Wed, 22 Feb 2012 20:42:31 -0500

Currents Magazine recently published an article by Liz White entitled "Best Practices Ensure the Best Outcome." The article contains a discussion of ways that community associations can run efficient elections and ensure that they comply with the legal requirements contained in their governing documents and in Virginia law.

To view a copy of the article, click here.

Avoiding the Perils and Pitfalls of the Fair Credit Reporting Act

Will Sleeth — Tue, 17 Jan 2012 08:09:01 -0500

On Thursday, February 16, 2012, LeClairRyan employment law attorney and Community Association Team member Brian Muse will present a one-hour webinar on the Fair Credit Report Act.

This webinar will provide practical advice to employers on what they need to know to conduct background checks and employee investigations without running afoul of the FCRA. It will address the types of notice that employers must provide prior to background checks and the required procedures for compliance. It will also offer practical advice to employers to avoid legal trouble in this constantly evolving area of the law.

For more information, and to register for this event, click here.

Are there Sociopaths in your Community?

Liz White — Sat, 07 Jan 2012 17:01:18 -0500

Find out by attending Southeastern Virginia CAI's professional luncheon: Sociopaths and Community Associations: Proceed with Caution! on January 31st and February 7th.

LeClairRyan's national Community Associations Team leader, Liz White, along with Dana Shotts-Neff, president of Chesapeake Bay Management, will speak about the real life dangers and pitfalls of dealing with sociopaths in community associations and practical and legal approaches to dealing with them. To learn more, click here.

LeClairRyan Attorneys to Speak at 2012 Conference and Expo of the Washington Metro Chapter of CAI

Will Sleeth — Sat, 17 Dec 2011 13:49:02 -0500

LeClairRyan attorneys Doug Cuthbertson and Nicole Pszczolkowski were recently selected to give a presentation at the upcoming 2012 Conference and Expo of the Washington Metro Chapter of CAI. Their presentation, entitled "We've Been Sued! Now What?" will feature a discussion of practical tips for board members, community managers, and others on how to avoid litigation and what to do if they find themselves in litigation.

The 2012 Conference and Expo will take place on March 31, 2012, from 8 a.m. - 4 p.m. For more information about the Conference, please click here.

Community Associations and Stormwater Detention Pond Maintenance ("BMP") Responsibilities

Will Sleeth — Sat, 05 Nov 2011 13:15:59 -0500

Editor's Note: Guest blogger Steve Blaine, a LeClairRyan attorney practicing out of the firm's Charlottesville office, and focusing his practice on land use, zoning, and community association law, has contributed the following post.

BMPs: How to avoid an amenity from becoming a headache.

We frequently counsel clients, community associations, developers and builders, on various issues involving that ubiquitous ‘amenity’ known as the stormwater detention pond, or “BMP” (short for “Best Management Practices”). This article will briefly discuss how to avoid some of the more common pitfalls facing homeowners whose community’s common areas/elements include these useful, even if at times burdensome, features. At the end of the article is a “glossary of key terms” related to BMPs.

Why do we have BMPs anyway?

BMPs are used to improve the quality of water runoff from roads, parking lots, developed land, including residential neighborhoods, and to reduce peak stormwater runoff flow by providing temporary storage during larger storm events. If the BMP in your subdivision was constructed early in the development process, it was probably used to trap sediment from construction activities in the tributary drainage area, which also can be a very effective way to collect and remove pollutants. Hopefully, the BMP in your neighborhood happens to provide other benefits such as passive recreation and open space in addition to reducing peak runoff rates and improving water quality.

It is essential for those responsible for maintaining these BMPs to understand their important role and what to do to assure their continued proper function.

Who’s responsible for your BMP?

In Virginia, the designation of a responsible party for a residential subdivision BMP is typically found in the association’s declaration of covenants and restrictions (or declaration of condominium, if a condominium). At some point in the development process, the maintenance responsibility for the BMP will transfer to the association, as with other community, or shared common areas/elements. The association’s governing documents may not be express regarding the responsibility of maintaining such BMPs, but if the BMP is located on common area/element or land otherwise owned by the association, then the responsibility likely goes with that ownership.

The statutory scheme under the Flood Protection and Dam Safety chapter of Title 10.1 of the Virginia Code enables localities to adopt ordinances regulating BMPs’ construction, reporting, and maintenance standards. The State law, however, does not assign responsibility for maintenance or repairs. In rare instances where there are regional stormwater management benefits, the locality, (or a regional authority) will retain maintenance responsibilities. Ideally, long-term maintenance costs and association reserve allocations are factored into the association’s annual budget and reserve study (pursuant to Virginia Code Section 55-514.1) from when the association was first created. But even if this is not the case, certain steps, such as developing an operations and maintenance plan – discussed below – can be taken that may reduce costly repairs or even replacement in the future.

Why is maintenance important?
Studies show that poor operation and maintenance is the leading cause of BMP failure. Poor maintenance can also create unpleasant odors, nuisance insects, algae blooms and a generally unsightly, unkempt area. BMPs may fail due to:

- poor vegetation maintenance in terms of mowing and weed control,
- clogged inlets resulting from trash and debris, sediment accumulation,
- failed side slopes, and
- inadequate access for routine maintenance activities.

Knowing why your BMP was built in your community and the importance of all the components working together should reduce the chance of BMP failure.

Fortunately, help is available.

Most localities in Virginia that have adopted stormwater regulations under the State law have a local representative responsible for the program who can provide guidance. In addition, the Virginia Department of Conservation and Recreation (http://www.dcr.virginia.gov) has resources and links that can be useful in determining the functionality and maintenance features for your neighborhood.

Once the association knows what it owns, it should seek to develop an Operation & Maintenance (O&M) Program for its BMP facilities. An effective Operations and Maintenance Program should include:

- A plan that specifies what maintenance actions are needed, when they will be performed and how often they will be performed, inspection checklists and follow-up repair timetables.
- An understanding of the routine and non-routine activities to be employed.
- An understanding of the equipment and materials needed for maintenance.
- An identification of responsible parties for routine maintenance, non-routine maintenance, inspections and repairs.
- Adequate funding for the maintenance activities.

An O&M Manual may already have been prepared for your association’s BMP. The developer or declarant may possess an O&M Manual from the installer. If the declarant no longer possesses one, or is no longer in existence, your locality’s water resources representative may supply the particular O&M Manual for that BMP, or a reasonable facsimile.

What to look for in an effective O&M Manual.

An effective O&M Manual should describe routine maintenance including:

Inspections: Periodic scheduled inspections with specified checklist, and inspections after major rainfall events, to check for obstructions/damage and to remove debris/trash.

Vegetation Management: Mowing on a regular basis to prevent erosion or aesthetic problems. Limited use of fertilizers and pesticides in and around the BMP to minimize entry into the BMP and subsequent downstream waters.

Trash, debris and litter removal: Removal of any trash, etc. causing any obstructions at the inlet, outlet, orifice or trash rack during periodic inspections and especially after every runoff producing rainfall event. General pickup of trash, etc., in and around the BMP during all inspections.

Mechanical Equipment check: Inspecting any valves, pumps, fence gates, locks or mechanical components during periodic inspections and appropriate replacement/repair.

Structural Component check: Inspecting the outlet works, inlet, orifice, trash rack, and trickle channel on a regular basis for additions to the annual non-routine maintenance list.

It should also delineate non-routine maintenance, including:

Bank erosion/stabilization: Maintaining effective ground cover on all vegetated areas will ensure the benefits of proper infiltration of runoff, and effective filtering of pollutants.

Sediment removal: Removing accumulated sediment periodically from the bottom of the outlet structure and the pond depths checked at several points.

Structural Repair/Replacement: Eventually the outlet structure or other structural components like the trickle channel or trash rack may need repair or be replaced.

Conclusion.

Hopefully, with some of the resources that we have identified here your association can avoid some of the pitfalls that many encounter with BMPs. If you have particular legal concerns regarding these or other aspects of your association’s roles, responsibilities or governance, please contact the author.

Glossary of Terms:

Dry detention pond: A BMP designed to not have a significant pool of water remaining after a storm event.

Easement: A set-aside area with various restrictions to provide open access for inspection or repair of drainage feature.

Emergency spillway: Conveyance feature of a BMP to discharge excess stormwater flows to maintain the integrity of the BMP structure during substantial runoff events.

Impervious area: A solid surface that does not allow rain to enter.

Inlet: The point where stormwater enters the BMP.

Outlet: A structure that controls the rate of release from the BMP and the water depth and storage volume in the BMP.

Regional Pond: A BMP designed to capture stormwater runoff from a larger, regional area.

Rip rap: Rock material typically used to stabilize conveyance channels.

Stormwater runoff: Runoff that occurs as a result of a rain or storm event hitting an impervious surface and running off.

Trash Rack: A structural feature of the outlet that filters stormwater by trapping debris before runoff is discharged (selected BMPs).

Tributary drainage area: The total land area that drains to the BMP.

Trickle channel: A channel that efficiently conveys stormwater from the inlet to the outlet structure (selected BMPs).

Wet detention pond: A BMP designed to have a remaining permanent pool of water after a storm event.

Will Sleeth Quoted in Virginia Lawyers Weekly Magazine on HOA Litigation

Will Sleeth — Tue, 18 Oct 2011 20:35:53 -0500

LeClairRyan attorney Will Sleeth was recently quoted in a Virginia Lawyers Weekly magazine article reporting on a Virginia state court case in which the trial judge awarded homeowners their attorney’s fees for prevailing in their suit against their property owners’ association. The article (subscription required) discussed how the ruling was a significant decision in interpreting the provision of the Virginia Property Owners’ Association Act that provides for an award of attorney’s fees in certain contexts. In the litigation, the association attempted to argue that the attorney’s fees provision of the Virginia Code only applies if an association sues an owner and loses (as opposed to if an owner sues an association). The judge ruled, however, that the provision can permit an award of attorney’s fees when an owner sues his association and prevails.

The article illustrates an important lesson that all associations should keep in mind: associations should be proactive in seeking out legal advice to ensure that they don’t become ensnared in potentially costly litigation in the first place.

Readers should be mindful that this ruling was a Virginia Circuit Court decision, and not a Virginia Supreme Court decision. Many community associations may likely continue to maintain that the Virginia Property Owners' Association Act does not provide for an award of attorney's fees to an owner in a situation similar to that at issue in this case.

HOA Meetings Via Webcast?

Liz White — Mon, 05 Sep 2011 14:49:08 -0500

May your community association legally conduct meetings via webcast? Should it conduct meetings in that manner? What are some of the legal risks related to using emerging technology in the context of meetings? HOAleader recently interviewed LeClairRyan's Liz White on this topic. Check out the full article here.

LeClairRyan Attorneys Helping Habitat for Humanity Create Planned Development

Will Sleeth — Fri, 19 Aug 2011 16:28:40 -0500

LeClairRyan attorneys Lori Schweller and Tara Boyd are assisting Habitat for Humanity with the legal work related to Habitat's Sunrise Park development in Charlottesville, Virginia. Specifically, Schweller and Boyd are drafting the documents for the master property owners' association for the whole community as well as the condominium documents for the 4-story condominium building and its two subcondominiums. The mixed-use condominium will be home to the legacy Sunrise Park residents, who will lease units, and will include units for sale at market rates.

To learn more about this valuable public-service project, and the exciting new development that will result, click here.

Liz White Named One of Virginia's Most Influential Women 2011

Megan Scanlon — Mon, 15 Aug 2011 19:51:13 -0500

Congratulations to Liz White for being recognized as one of Virginia's "most influential women"! Virginia Lawyers Media recently announced its list of "individuals who are making notable contributions to their chosen professions, their communities and society at large." We are proud to announce that on the list of impressive honorees was our very own "city attorney for private cities," Liz White. Liz received the award, along with 46 other accomplished women from across the Commonwealth, at the Annual "Influential Women of Virginia" gala at the Richmond Marriott on May 19, 2011.

Here is a photo of Liz at the awards ceremony with several other members of LeClairRyan's Community Association Industry Team Debra Dowd, Pam Faber, Megan Scanlon, and Andrea Nixon.

The First Day of Presentations at the Virginia Leadership Retreat

Will Sleeth — Sat, 30 Jul 2011 15:51:32 -0500

Today marked the first day of presentations at the Virginia Leadership Retreat, located at the Homestead in Hot Springs, Virginia. LeClairRyan's Megan Scanlon delivered a presentation called "Aging-in-Place -- The Boomer Community", which described some of the challenges community associations will face as their populations age.

Participants listened to a wide-variety of presentations and heard from an array of industry-leaders. The following is a picture of the main lobby of the historic Homestead resort.

LeClairRyan Community Association Team to be Blogging Live from the Virginia Leadership Retreat

Will Sleeth — Tue, 26 Jul 2011 21:05:36 -0500

Members of LeClairRyan's Community Association Industry Team will be blogging live from the Homestead this weekend, at the annual Virginia Leadership Retreat. The conference will run from July 29 -31, and will feature an array of networking events and presentations by some of the leaders of the community association industry in Virginia. LeClairRyan will be making the largest showing by any law firm in Virginia, with 8 of its attorneys attending.

If you're unable to make the retreat, be sure to check-in with the blog for updates on the events. If you're attending the retreat, feel free to check-in too!

LeClairRyan's Will Sleeth Published in "The Fee Simple" Regarding Developer Transition Issues

Will Sleeth — Sun, 19 Jun 2011 14:41:33 -0500

The Fee Simple law journal (the journal of the Virginia State Bar's Real Property Section) recently published an article by LeClairRyan's Will Sleeth related to developer transition issues. The article, titled "The Transition from Developer-Control of a Property Owners' Association and the 2002 Attorney General's Opinion," examined whether Virginia law imposes a time-limit on when a developer must transition control of the board of directors of a property owners' association to the owners, if there is not a specific provision requiring such in the association's governing documents. The article examines the current state of the law, with a special focus on a controversial opinion issued by the Virginia Attorney General in 2002. To read a copy of the article, click here.

Can Your HOA Restrict Pets From The Common Area?

Liz White — Sun, 19 Jun 2011 14:29:52 -0500

Are associations allowed to prohibit pets in the common area? Liz White was recently interviewed by HOAleader.com on this topic. In the interview, Liz discusses which restrictions may be permissible, and which ones may not be permissible. Check out the full article here.

HOAleader Offers Free 30-day Access

Will Sleeth — Thu, 19 May 2011 21:04:08 -0500

The LeClairRyan Community Association Team has enjoyed a strong relationship with HOAleader.com, a web-based pulication devoted to the community association industry. The Team's attorneys are frequently quoted in the publication's articles. The subscription-based website, has just offered a free 30-day trial. If you would like to take advantage of that, click here.

What Duties Should An HOA Board Not Delegate to Its Manager?

Liz White — Thu, 19 May 2011 20:44:14 -0500

What are some duties that HOA boards should ensure that they perform as opposed to delegating to their manager? Liz White was recently interviewed by HOAleader.com on this topic. In the interview, Liz discusses 9 responsibilities that boards should ensure they perform. Check out the full article here.