There seems to be some confusion about this new addition to the resale provisions in the Condominium Act and the Property Owners Association Act. As of July 1, 2017 there is a new Virginia law, passage of which was promoted by the Virginia Association of Realtors, which will impact unit owners and lot owners in nearly all community associations as to “For Sale” signs. (No other types of signs, like “For Rent” signs, are covered by these new laws.).
Inverse condemnation is valuable tool for property owners and associations and can be relevant and useful in many situations. State and local governments and their agencies appear to operate with absolute immunity leaving property owners with no recourse when private property is damaged by a government entity. While it is true that a government entity is generally free from liability for its negligent actions, the doctrine of inverse condemnation is a little known remedy available to property owners when their private property is damaged. This doctrine of inverse condemnation originates in Article I, Section II of the Virginia State Constitution. Under this doctrine, recovery is permitted when private property is taken or damaged for public use, thereby bestowing on the owner a right to sue for such amount as would have been awarded if the property had been condemned under the eminent domain statute.
Revock v. Cowpet Bay West Condominium Association
Third Circuit Court of Appeals, 2017
A very instructive case was decided last month in a Federal Appeals Court which will demonstrate almost everything not to do with respect to compliance with the Fair Housing Act relative to emotional support animals. This case dealt with a suit brought by two emotionally disabled unit owners in a condominium community that had a no pet rule. The association had no policy regarding service animals or emotional support animals. The residents seeking approval of their dogs provided appropriate paperwork supporting their need for the dogs. Certain residents were upset by the violation of the no pet rule expressing their views on strongly worded and insulting blog postings and called for these violators to be fined.
A few months ago we informed you that both houses of Congress voted unanimously to pass the Housing Opportunity Through Modernization Act (HOTMA) which, in part, required FHA to lower the required percentage of owner occupied units in condominiums from 50% to 35% unless FHA could prove that a higher percentage of owner occupancy was justified.
By: Lindsey Flaherty
What exactly is limited residential lodging? It is, in essence, renting of rooms or entire homes or condo units for short term occupancy i.e. less than 30 days. Airbnb provides a searchable online marketplace that enables homeowners to list for rent all or a portion of their homes and prospective customers can choose to rent from one night to several months. While this type of rental may present a great economic opportunity for some homeowners it causes increased traffic and parking issues in associations and has resulted in excessive noise and damage to common areas. Essentially the problem seems to be that homeowners who choose to participate in it are introducing a business in to residential neighborhoods. This business involves providing lodging to transient people who are primarily on vacation.
Just before the summer recess, in an amazing moment of bipartisanship, both houses of Congress voted unanimously to change the required percentage of owner occupancy in condominiums from 50% to 35% (unless FHA can prove that a higher percentage is justified within 90 day of this legislation becoming law on July 29, 2016) and made several other helpful changes. They are as follows:
SADDLEBROOK ESTATES COMMUNITY ASSOCIATION, INC.
CITY OF SUFFOLK
TRIAL AND APPEAL HANDLED BY INMAN & STRICKLER
On June 1, 2016, the Supreme Court ruled on a case decided by a Suffolk Circuit Court Judge regarding the taxation of open space in a homeowners association. The Court unanimously overturned the Circuit Court ruling finding that the judge misinterpreted the law by upholding the City’s taxation of the Association’s open space. This decision provides an interpretation of a statute that applies to all POAs which have open space designated on their subdivision plats, whether leased to a third party or used by the association members for recreation or otherwise.
Rentals; resale disclosure; condemnation
These changes are effective on July 1, 2016:
“Realtor Bill.” HB684 was legislation introduced by Delegate Peace having been requested by the Virginia Association of Realtors. CAI’s Virginia Legislative Action Committee (VALAC) worked very hard to get concessions on this prior to session beginning and sought significant amendments as it went through the process to ensure a fair and balanced approach vs. the original bill which went well beyond the ultimate changes to the statute. According to the VALAC at the end of the day the bill has a lot of moving parts but does little harm in terms of new policies impacting our group – much of it is clarification of the existing statute or standard practice. https://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+HB684
HB684, amending Sections 55-79.87:1 and 55-509.3:1 of the Code, provides that unless expressly provided in the Act or the recorded governing documents, an association may not:
Condition or prohibit the rental of a unit to a tenant by a unit owner or make an assessment or impose a charge, except as provided in 55-79.42:1 of the Act;
Charge a rental fee, application fee, or other processing fee of any kind in excess of $50 as a condition of approval of such a rental during the term of any lease;
Charge an annual or monthly rental fee or any other fee not expressly authorized in Section 55-79.42:1 of the Act;
Require the unit owner to use a lease or a lease addendum prepared by the Association;
Charge any deposit from the unit owner or the tenant of the unit owner; or
Have the authority to evict a tenant of any unit owner or to require any unit owner to execute a power of attorney authorizing the unit owners’ association to so evict.
The Virginia Attorney General can issue opinions concerning statutory interpretation if requested to do so by an array of government officials from the Governor to a member of the Senate or House of Delegates to a local sheriff. These opinions are not binding on a judge but are persuasive when considering the law affecting a given case. In this case a member of the General Assembly asked: Is it legal under the Virginia Property Owners’ Association Act (the "Act") for an association ("POA") to deactivate a member’s barcode decal if he or she is more than sixty days late paying an assessment. Deactivation of the barcode decal will restrict, but not completely deny, entry in to the neighborhood due to the existence of two access points, one manned and one not.
HUD PROPOSES RULE TO CLARIFY PROTECTIONS FOR VICTIMS OF
HARASSMENT IN HOUSING
Rule would formalize standards for bringing harassment claims under the Fair Housing Act
WASHINGTON – The U.S. Department of Housing and Urban Development announced today that it is issuing a proposed rule that would formalize standards for victims of harassment in housing to bring claims under the Fair Housing Act. The proposed rule, "Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act," was published in the Federal Register today for public comment.