Dear Managers and Board Members...
Once again we bring you a smorgasbord of information for you to digest! In this edition we will talk about leasing restrictions, tree encroachments, and a new lawyer in our group.
NEW ADDITION TO COMMUNITY ASSOCIATION LAW TEAM
First, let us tell you how pleased we are to have Steve Lauer join our Community Association Law Team. Steve is husband to our long time member and CAI Board Member, Jeanne Lauer. Steve has been in both private practice and the corporate world since obtaining his law degree in 1990 from William & Mary Law School. Most recently he worked for an international legal research organization analyzing court decisions. He has attended several seminars in preparation for joining our team and has proven to be a quick study as he has gotten involved in some of the work for our association clients. Steve is also big on soccer as a coach and local organizer of youth soccer for many years.
TREES OUTGROWING THE YARD?
Next let's talk trees....or more specifically - encroaching tree limbs. Many of you have encountered the issue of the rights of property owners to cut off or trim limbs of neighbors trees and/or the damage resulting from a limb (or entire tree) falling from neighboring property causing damage to property on the other side of the property line. The general rule in Virginia is that you may trim any portion of a neighbor’s tree that crosses the property line onto your property. But what about roots that are damaging your driveway or limbs that are very high and threaten to cause serious damage if they fall due to their nearly dead condition? Fortunately last month the Virginia Supreme Court came out with a new decision with a new rule about damage to neighboring property by tree roots and limbs. I have attached a summary of the case for your reading pleasure, but the bottom line is that the court says that encroaching trees and plants can be regarded as a nuisance when they caused actual harm or posed an imminent danger of actual harm to adjoining property. In those cases , the owner of the tree or plant not only could be held responsible for harm caused to adjoining property, but he could be required to cut back the encroaching branches or roots that constituted a nuisance. In other words, an injunction was an available remedy. In fact, the Supreme Court noted that requiring the owner to cut off the invading roots and branches, with an award of damages, might not afford an adequate and permanent remedy, so that requiring complete removal of the tree could be required.
LEASING RESTRICTIONS – THE TIME IS RIPE
Finally we want to revisit the subject of leasing restrictions. This remains a very popular topic especially in this current real estate market where folks who need to move for employment or other reasons cannot sell their homes quickly forcing them to rent their current residence AND rent a home at their destination. First we wish to emphasize that leasing restrictions are not simple and require a vote of the members to amend the declaration. For those two reasons they should not be written by the board of directors unless counsel reviews them to ensure they are enforceable as written. There are numerous issues to be addressed in a proper leasing restriction amendment: How many units can be rented? Who is defined as a tenant, and does it include, for example, children living in the unit for free? Are all current owners grandfathered, or just those who are currently renting, and for how long? What happens when all the "leasing slots" are used up? How long can a lease term be? What is the penalty for violating the covenant? These and other issues peculiar to your community must be considered when writing this amendment document. As counsel we can tell you our experience with many other communities in their efforts to pass a leasing restriction so that you can avoid some of the "potholes in the road". If you are considering leasing restrictions we hope you will call us to help with that before you get started so there is no wasted time on your part on this important issue. We can help you come up with the complete list of issues to be determined by your board in order to draft the proposed amendment and advise you on the steps that must be taken, based on your documents and the state law, in order to pass the amendment.
We continue to operate our blog site - www.vahoalaw.com - and hope you will visit it to obtain other good information to help you better manage your community.
Also, we invite you to visit our firm website - www.inmanandstrickler.com. - to learn more about the various areas of expertise in the firm and the attorneys who provide those services.
The Community Association Law Team
Mike Inman
Jeanne Lauer
Greg Montero
Steve Lauer
757-486-7055