Virginia Community Association Law Blog

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.

Can a Dog Serve on Your HOA Board?

Will Sleeth — Tue, 29 Mar 2011 21:09:16 -0500

While many board members have likely been tempted at some point to utter under their breaths that a fellow director can at times be a "dog," reports of actual dogs being appointed as directors of community associations are few and far between.

So it raised a few eyebrows when the Washington Post reported the other week that a shaggy white dog named "Ms. Beatha Lee" was recently elected the president of the Hillbrook-Tall Oaks Civic Association in Annandale, Virginia. The Post reports that certain members, frustrated at the difficulty of having to continually recruit members to serve on the board, decided to offer the dog as a candidate.

While it does not appear that the Association is a property owners’ association or condominium association, as defined under Virginia law, certain smaller community associations may experience similar frustrations in attempting to recruit and retain board members.

Here’s our free legal advice for the day: don’t even think about trying to nominate a dog (or any pet for that matter) for a board position. There is a large list of reasons why it would be improper, not the least of which is that most association documents require directors to be members of the association, something animals can not be by virtue of the fact that they can’t own property. Furthermore, the law imposes upon directors duties of care and loyalty to the corporation. While dog lovers will universally agree that dogs are some of the most "loyal" creatures there are, the legal concept of "loyalty" is quite different from faithfully retrieving a frisbee or curling up on the couch.

Will Your Association "Fly" Into Trouble With the New Virginia Flag Law?

Lori Schweller — Thu, 24 Feb 2011 06:33:29 -0500

In a post several months ago, we noted the General Assembly’s adoption of amendments to the Property Owners’ Association Act and the Condominium Act　that address associations' ability to regulate the display of the United States flag.　 As we reported then, the amended Virginia Code sections (Va. Code § 55-513.1 [POAs] and § 55-79.75:2 [Condos]) follow the language of the federal Freedom to Display the American Flag Act of 2005, signed into law on July 24, 2006. It provides that no association (POA or condominium) shall prohibit an owner from displaying the U.S. flag on his own property (lot or unit) as long as the display conforms to federal law, rule or custom.　 You can find the official rules　governing flag display in Title 4, Chapter 1 at the U.S. House of Representatives' website at　http://uscode.house.gov/uscode-cgi/fastweb.exe?search.

One of the most significant changes effected by these amendments is the new provision that the association now bears the burden of proof to show that its "restrictions as to the size, place, duration, and manner of placement or display" of flags are "necessary to protect a substantial interest" of the association. Some commentators have questioned, however, the practical impact that the change in Virginia law will have on associations’ conduct, given the existence of the federal law that has been in place for almost the past five years.

The issue of what restrictions associations are permitted to place on flags and flag poles has been a hot-button issue for the past several decades, and has been the subject of some well-publicized litigation.

Flag Pole Litigation in Virginia

In Henrico County, Virginia, an association instituted a lawsuit against an owner for his failure to comply with its rules related to flag poles. In Re: The Wyndham Foundation, Inc. v. Oulton, et al., 56 Va. Cir. 217 (Henrico Co., 2001), decided prior to the enactment of the federal law and the recent Virginia law, the property owners’ association filed suit against homeowners who had erected a large flagpole on their lot without obtaining prior design approval, as required by the association’s governing documents.

The association argued that the flag pole did not comply with the association’s regulations regarding the erection of structures. Upon finding that the pole was a "structure" that was indeed regulated by the covenants and restrictions, the court readily concluded that the flag pole had been erected without the required preapproval from the association and, therefore, should be removed.

Recent Litigation in Georgia

Under the new Virginia law, associations’ restrictions on the display of the U.S. flag will be more closely scrutinized than restrictions on structures, the design of which an association has wide latitude to regulate. A recent Georgia case is helpful to cast light on the types of restrictions that may be impermissible. BridgeMill Community Association v. Tripodo, an unreported case decided in the Superior Court of Cherokee County, Georgia in August 2010, examined the interplay between restrictions on flags and flagpoles.

In 2007, Mr. Tripodo erected a 16-foot flagpole in his front lawn in the neighborhood of BridgeMill, a large master planned community in Canton, Georgia (outside Atlanta). The homeowners’ association notified Mr. Tripodo that the pole violated the association’s covenants and that he should have submitted the structure for approval by the neighborhood architectural committee. Mr. Tripodo refused to remove the flagpole or to mitigate its visual effects by, as the association suggested, relocating it to his backyard, and the association began charging him $25.00 per day, for a fine that totaled $32,000 by the time the association filed suit (note that in Virginia, such charges would have been capped at $900). The association sued Mr. Tripodo for the fines as well as for an injunction to order him to remove the flagpole. It argued that the fines and injunction request were based on the pole, not the flag itself, an argument likely stemming from the fact that the federal flag law addresses flags but not supporting structures.

The court did not accept that argument, stating that "the flag and the instrument for flying it are intertwined in the display of the flag, and the Covenants require association pre-approval for both." The court proceeded to explain that the association’s regulation did not withstand scrutiny under the federal flag act because the association’s attempts to enforce restrictions on the flag pole amounted to attempts to enforce "restrictions that prevent the display of the American flag." The court found that the association’s pre-approval process was "a purely arbitrary system with no specific time, place, or manner restrictions… (the association) is the sole arbiter of construction or modification plans, and it may withhold approval for any reason. By applying broad, varying, and subjective considerations, Plaintiff (the association) imposes unreasonable restrictions that are not necessary for protecting its interests."

Although the Georgia state court held that certain restrictions on flag poles could come within the reach of the federal law, some other commentators believe that the language of the federal flag act should not be read to apply to poles, but only to flags. This unreported state court decision is certainly not the last word on this issue, and we can very likely expect more litigation on this issue in the future.

Lesson for Associations

The lesson for community associations is that, though a homeowner can waive certain rights when he exercises his freedom to contract and willingly accepts the restrictions of his association’s declaration and other governing documents, public policy in the form of federal (or state) law can trump such contract. Given that the federal law (and now the state law) has singled out display of the U.S. flag as a specially protected form of speech, associations will need to review their flag restrictions to ensure they are narrowly tailored in terms of time, place, and manner to protect a substantial, expressed interest of the association.

LeClairRyan Team Attends the CAI National Law Conference

Will Sleeth — Mon, 17 Jan 2011 22:03:26 -0500

This weekend, several members of LeClairRyan's Community Association Industry Team attended the CAI National Law Conference in Las Vegas. The conference featured speeches, panel presentations, and educational sessions presented by a variety of industry speakers on topics ranging from the federal mortgage agencies, to new legislation affecting the industry, to cutting edge issues such as transfer-fee covenants.

One of the highlights of the conference featured a mention of this blog! During one of the first sessions of the conference, the speaker discussed recent trends in the industry, and commented that community associations were facing unique issues, including "rent a goat" issues. The speaker proceeded to mention the blog post on this very blog, which discussed the issue.

All in all, the conference was very informative. Below is a picture of St. Mark's square in the Venetian hotel (where the conference was held).

Blogging Live from the Upcoming CAI Law Seminar

Will Sleeth — Mon, 20 Dec 2010 23:10:41 -0500

CAI will be hosting its annual Community Association Law Seminar on January 13 - 15 in Las Vegas. The LeClairRyan Community Association Team will once again have a strong showing at the conference. We will be blogging live from the seminar, so be sure to tune in to the blog for updates throughout the weekend.

For more information on the seminar, including registration information, click here.

How Should Your HOA Board Respond to an Accident?

Liz White — Mon, 06 Dec 2010 21:43:20 -0500

How should your board respond to an accident? Who should you call first? Liz White was recently interviewed by HOAleader.com on this topic. In the interview, Liz explains how associations should always first contact their legal counsel. Check out the full article here.

Watch For Those Governing Document Typos!

Will Sleeth — Thu, 11 Nov 2010 20:57:49 -0500

Are your association’s governing documents free of typos? Many are not. The danger that typos pose to association documents was brought home with force recently when LAW.com published an article about a $16 million lawsuit related to a typo in the public offering statement for a condominium in New York City.

According to the article, the attorney who drafted the offering statement inserted a provision that said that the buyers of condominiums would receive their deposits back if the first closing in the condominium didn’t occur by September 1, 2008. The attorney intended to draft the statement so that it provided a deadline of September 1, 2009. When the first closing did not occur until February 2009, several buyers filed suit demanding a return of their deposits. Litigation is currently pending before the federal Second Circuit Court of Appeals.

Though a public offering statement is directed towards the initial purchasers of a condominium unit, typos in associations’ articles of incorporation, declaration of restrictive covenants, and bylaws can wreck havoc on a community for years to come. If your association knows that it has a typo or typos in your governing documents, it should consult with its legal counsel to determine whether the typo can be fixed through a corrective amendment.

And if you haven’t read through your association’s governing documents lately to check for typos, we’d strongly recommend that you do so. It’s always smarter to take a proactive approach than to allow a small typo to lead to major legal problems.