Time:  3:00 PM to 5:00 PM

Location:  VB Central Library Auditorium, 4100 Virginia Beach Boulevard, Virginia Beach

THIS IS A FREE PROGRAM sponsored by the Southeastern Virginia Chapter of the Community Associations Institute.

Does your Virginia Beach Association have a Swimming Pool?

An Important Update on Community Association Swimming Pools in Virginia Beach

Representatives from the Virginia Beach City Attorney's Office and Department of Public Health have volunteered to present information regarding new pool regulations in Virginia Beach.

Topics will include:

Water Reading and Other Requirements

Private vs. Public Pools

Impact of Amended Ordinance

Friday, April 18, 2008
3:00pm - Registration and Networking
3:30pm to 5:00pm - Program

Get the Latest from the City of Virginia Beach
City Attorney’s Office and Department of Public Health

Virginia Beach Central Library
4100 Virginia Beach Blvd
Virginia Beach VA 23452
Auditorium

SPACE IS LIMITED TO 150 ATTENDEES
REGISTRATIONS ARE REQUIRED!

Reservations & Cancellations must be made by noon on Monday, April 14, 2008.
Questions? Please call the Chapter @ 558-8128.

Who Should Attend?
Everyone having anything to do with community associations. This program will provide participants with the opportunity to learn about the current status of the law as well as emerging trends in the law and proposed legislation.

This seminar is sponsored by the Southeastern Virginia Chapter of the Community Associations Institute.  Additional information and registration information can be found on their website at www.sevacai.org

Reservations & Cancellations must be made by 12:00 p.m. on Monday, May 12, 2008. Those who register but do not show will be billed. Questions? Please call the Chapter @ 558-8128.

IS BOARD MEMBER EMAILING A VIOLATION OF THE OPEN MEETING REQUIREMENTS?

        With more frequency I am being asked whether, and to what extent, Board Members are entitled to communicate with each other by email.  A typical questions that is asked is: "After a solicitation of bids, we received a couple of bids for a major project in the community and the board members have been given a copy of the proposals.  There then ensued an email exchange amongst the board members analyzing and discussing the bid packages.  In order to get the project going before the next board meeting which is three weeks away, the President wishes to poll the board members on which contract to accept in order to move forward with the project.  is this permissible?"    

        The answer is clearly no, but the subsidiary question is, if that is the case, how much discussion can be held by board members via email (or telephone conference call, for that matter) without violating the open meeting requirements?

"All meetings of the board of directors shall be open to all members of record. The board of directors shall not use work sessions or other informal gatherings of the board to circumvent the open meeting requirements of this section. Minutes shall be recorded and shall be available as provided below etc."

            So, are you having a "session" or "gathering" when you do emails? One could make an argument that you are circumventing the open meeting requirements. One could also argue it's not a "gathering" or a "work session". If a majority of the board participates in the email discussion, then there is a quorum and, arguably, a meeting of the board. You are probably not in violation if no votes are taken and the subjects discussed are on the agenda for discussion and "rediscussion" at a face-to-face regularly called meeting where minutes are taken.  But one could argue that the secrecy from the members afforded by the email "discussion" is exactly what the 2001 amendment to the law was trying to prevent.

            Please note that the same sections of the Condominium Act and the Property Owners Association Act also contain the following provisions which have been added within the last three years:

"If a meeting of the board of directors is conducted by telephone conference or video conference or similar electronic means, at least two board members shall be physically present at the meeting place included in the notice. The audio equipment shall be sufficient for any member in attendance to hear what is said by any board member participating in the meeting who is not physically present.

"Voting by secret or written ballot in an open meeting shall be a violation of this chapter except for the election of officers."

            It is obvious from these recent amendments that the General Assembly is intent on a high degree of openness.

            Further, the Virginia Supreme Court has considered a case involving emails amongst City Council members. The Court decided that where there were fast and nearly immediate email responses back and forth it constituted a meeting which violates the Freedom of Information Act which governs public bodies.

            I think a reasonable test for whether or not the intent of the statutes is being violated is this: Assume that one board member does not have email. Is there anything that was stated in the email exchanges that would not likely be repeated or is not repeated in an open discussion later which would be important for that board member to know and consider in coming to his or her own decision on how to vote on the matter? If the answer is "yes", then clearly the purpose of the open meeting requirement has probably been violated and both that board member and any other members of the association who would be present to listen to the deliberations of the board would be deprived of knowing important information that was utilized in arriving at a decision of the board. This would defeat the purpose of open meetings. It is easy for email exchanges to go too far.

            As one can easily observe, these provisions are not easily interpreted and working with these laws calls for good judgment on the part of officers and managers of associations to insure that the requirements of the open meeting law are respected. 

Response:  You ask: can an HOA dictate what an owner can do within his own home? But the question really is: can recorded restrictive covenants which prohibit carrying on a business in a residence be enforced? The answer is yes, because it is a recorded covenant. It was a matter of record when the buyer decided to purchase a home in this HOA. He should have known from the title search and/or resale disclosure that there is such a covenant in the recorded declaration. So it is enforceable. It may or may not be considered a reasonable restriction, but covenants of record are not required to be reasonable. HOA Rules must be reasonable.

Michael A. Inman, Esquire

Response:  That's a good question, and it sounds like you already have the right basic idea.

Condominium associations, under a section of the Condominium Act, are authorized to assess charges against owners for any violation of the condominium instruments or the rules and regulations, and property owners' associations, under the Property Owners' Association Act, are authorized to assess charges for any violation of the declaration or rules and regulations. It is important to note that the applicable instruments or rules and regulations must expressly authorize the association to assess these charges; if the documents are silent on this, the statutes do not provide independent authority.

An offense of a continuing nature, on the other hand, might be maintaining an unpermitted fence (as you mentioned), having a front door of an unapproved color, or violating a rental cap by leasing your unit without obtaining approval.

Admittedly, the lines can get blurred. What if my governing documents prohibit smoking in the common area, yet I flaunt this restriction and do it every day? Is this a continuing offence subject to a $10 per diem assessment charge (for a maximum of 90 days under the statute)? Or, is this a series of single offenses, for which I am subject to being found guilty of multiple violations and the assessment of any number of $50 charges? In my opinion, this would be a series of single offenses because there is a break in between them, but I think reasonable minds could disagree. There is currently no Virginia case law deciding this particular point, so if in doubt associations will have to use their best judgment after consultation with counsel.

The statutes also contain important "due process" requirements that cover things like the necessity of a hearing and notice, and they both provide that the assessment of charges is suspended if a lawsuit is filed challenging the charges.

Steven L. Lauer, Esq.

Within the past several months, my next door neighbors have installed hardwood flooring throughout their home, to the point that every movement - including chairs sliding and children running - is heard through the walls and floors (lower-level unit). Additionally, the neighbors constantly use power tools, including drills, hammers and saws, throughout the day (before 8 am on weekends and after midnight on weekdays). I have complained to the Board and management company, and the neighbor reluctantly agreed to purchase rugs in the coming months. Although fines are associated with these violations, the management company believes that enforcement of the bylaws is limited (and has indicated that we may be limited to removing community rights, such as parking, to address violations.)

RESPONSE: If you are in Virginia, and probably most other states, the bylaws are recorded and part of your covenants. The requirement for covering of hard flooring with carpets is enforceable by court action if necessary. We would recommend giving the upstairs owner 30 more days to comply by written demand for full compliance with the covenants emphasizing the degree of nuisance you are experiencing and indicating that you will be retaining counsel to take it to court if necessary. Don't expect the association to do this for you, although it could. The board may be reluctant to spend association funds for the abatement of what amounts to a private nuisance. It is likely that you will get compliance as a result of your letter or your attorney's letter, or at worst, the receipt of the suit papers by your neighbor. We cannot imagine this would actually go to a court hearing in that if your neighbor seeks legal counsel he will likely be told to comply. Your documents (and, in Virginia, a statute) provide for you or the association to recover attorneys fees from the offending party.

Mike Inman

RESPONSE: Thanks for your question.  This isn't necessarily a community association question, but is instead a general contract law question.  In other words, the advice I might give your association would be the same I might give an individual homeowner who got a bad paint job but doesn't live in an HOA or condo.  Therefore, if your association is looking to hire an attorney to go after this contractor, it wouldn't necessarily have to be one who specializes in community association law.

Arbitration clauses aren't necessarily good or bad.  Theoretically, handling a dispute before an arbitrator is supposed to be cheaper and quicker than court (although that is not always the case).  Another upside with arbitration is that you can have some say in who the arbitrator will be (as opposed to court, where you don't get to help pick the judge).  Finally, the rules of evidence are not as strict as in court, which could help or hurt you depending on the circumstances.  In the end, however, a mandatory arbitration clause would not theoretically make any recovery against the contractor more difficult.

Greg Montero

RESPONSE: 

 Greg Montero

As a practical matter, most "homemade" proxies contain some flaw that violates one of the above-referenced laws.  It is therefore strongly advised that owners use the proxy form provided, and that Associations seek the advice of legal counsel to review their proxy forms before they are used in any meeting even if prepared by your association manager.