February 6, 2017
The Surface Water Diversion Blame Game
According to the Bible, water is both the fountain of life and a destroyer by flood. Water naturally plots its own course, creating wetlands to store excess storm water. Human development, for better or worse, seeks to maximize the value of property and minimize land set aside for natural wetlands or artificial drainage purposes. The proximity of water can enhance or damage the value of real estate. For example, waterfront properties tend to fetch higher sale values. Sometimes neighbors will improperly channel water off their own land onto that of another in an effort to fend off unwanted surface water diversion. Lawyers and judges describe unwanted surface water as a “common enemy” because both neighbors seek to avoid it. The common law tradition developed a system of rules whereby judges can resolve disputes between neighbors over the reasonableness of surface water diversion.
Sometimes it is not a family or business that owns the uphill parcel that is diverting surface water. A property owner might find herself contending with a governmental or community association neighbor in a surface water diversion dispute. In a recent Southwest Virginia lawsuit, owner Consortium Systems, LLC sued two contractors, Lane Engineering, Inc. & W-L Construction & Paving, Inc. who constructed a sediment pond on a neighboring technology park owned by Scott County Economic Development Authority (“County EDA”). Rural counties like to build technology parks to attract out of town businesses to relocate there. Consortium alleged that the EDA’s contractors built the sediment pond without a proper outlet or outfall.
Owning property beside a public or private common area can be an advantage or a risk. Businesses want to locate themselves near parking, amenities and potential sources of customers or vendors. However, if a dispute arises between an owner and a governmental neighbor, the private party may find themselves facing additional legal obstacles. Sometimes governmental entities enjoy sovereign immunity, shortened lawsuit filing deadlines or additional notice procedures. Consortium tried to sue the contractors for negligence, trespass and negligent surface water diversion. The owner argued that the contractors should be liable to damage to neighboring properties because they faultily constructed the drainage facilities on the County EDA property. In his January 9, 2017 ruling on the contractors’ pretrial motions, Judge John C. Kilgore made findings illustrating an owner’s challenges to sue its neighbor’s contractors:
- Common Enemy Doctrine. Because surface water must go somewhere in developed areas, the common law tradition allows neighboring owners to “fight off” the “common enemy” onto neighboring parcels. Virginia, like many states, has an exception requiring surface water diversion to be done, “reasonably and in good faith and not wantonly, unnecessarily or carelessly.” Virginia courts find improper surface water diversion where the neighbor collects water into an artificial channel and redirects it onto someone else’s land.
- Sovereign Immunity. Virginia counties enjoy the sovereign immunity of the commonwealth. Municipal corporations are also entitled to sovereign immunity when exercising governmental functions. This immunity extends to contractors working for a governmental body. However, sovereign immunity does not protect the negligent performance of the government’s contractor. Judge Kilgore found the Economic Development Authority’s construction of the technology park to enjoy sovereign immunity without discussion in his opinion letter. Consortium’s negligence claims had been previously dismissed.
- Who is Responsible, the Neighbor or their Contractor? Judge Kilgore observed that the two defendants, Lane & W-K were working on behalf of the EDA. Generally speaking, the owner of a neighboring parcel is responsible for the acts of its representatives and contractors. The Court did not find authority for holding the neighbor’s contractor liable for the surface water diversion, in this situation.
The court previously dismissed Consortium’s claims for negligence as not being timely brought. In its January 2017 ruling, Judge Kilgore dismissed Consortium’s other claims, which were for trespass and diversion of surface water as barred by sovereign immunity.
The Consortium Systems, LLC v. Lane Engineering, Inc. case contains several surface water diversion takeaways in addition to the judge’s legal rulings. First, when flooding occurs, the suffering owner should investigate the causes and potential remedies for the drainage problem. Sometimes the answer is not obvious. In serious cases, this may require the assistance of an engineer or other expert. Second, all flooding problems should be addressed promptly before additional damage occurs. If a neighbor is to blame, they should be notified promptly. Third, the law may apply a standard of care that is different from what may appear as ground water diversion best-practices. The flooded owner or her attorney may need to consult HOA documents, covenants, deed restrictions, easements, county storm water management guidelines, state case law and other authorities to determine the parties’ relative rights and responsibilities.
Case Citation:
Consortium Systems, LLC v. Lane Engineering, Inc., 2017 Va. Cir. Lexis 2 (Lee Co., Jan. 9, 2017).
Photo Credit:
KevinsImages New 2016 drainage Juniper rd. via photopin (license)(does not depict any facts discussed in blog post)
January 24, 2017
What’s left of Virginia’s HOA Open Meeting Policy?
Promoters of community associations tout them as “mini-democracies,” reflecting the American tradition of public participation in governmental activity on a local level. One hallmark of “representative government” is that constituents may openly observe and review what their elected officials are doing with the money and property controlled for common benefit. Norman Rockwell enshrined this in his famous illustration of a working-class gentleman standing up to speak during a “town hall” meeting. If a citizen could not review proposed enactments and observe the deliberations of their rulemaking bodies, a fundamental element of democracy and the rule of law would disappear.
Lack of transparency and accountability between the management group and the owners is a widespread problem. With every news report about a condo building collapsing, managers embezzling thousands of dollars or the board awarding lucrative contracts to affiliated vendors, questions arise about how effective oversight could cure these ills. Today, the Washington Post ran an article about a Maryland HOA case where the judge found that the board improperly enforced a resolution requiring all owners to replace their mailboxes with a new $500.00 design. Fair elections, open meeting policies and freedom of information are the supposed safeguards for a resident’s peace of mind. Given Americans’ love affairs with democracy, truth, home ownership and their own pocketbooks, one would expect legislative efforts to strengthen HOA boards’ transparency to their members. Unfortunately, legislation passed by the 2016 Virginia General Assembly and a new bill introduced in the 2017 session trend in the opposite direction. This blog post examines the HOA open meeting principle, legislative and board governance trends limiting transparency, and whether the proposal currently before the General Assembly will promote openness.
According to the “open meeting” requirement, HOA boards and committees may not conduct deliberations and decisions outside of a publicized meeting. One exception to the “open meeting” requirement is the power of the board to meet in “executive session” to discuss certain sensitive matters such as the status of anticipated or pending litigation. The board must exit executive session and make an open resolution about any matter covered behind closed doors. When the election of board members and the open meeting policy work, board members are accountable to owners. When it works, the only way the owner can lose his voice is by avoiding the meetings. Quite often, these rules are simply ignored by directors and managers who either don’t know or care about them. The failure to observe these formalities leaves many attorneys who represent boards concerned that this might have adverse effects on the outcome of owners’ lawsuits challenging the decisions.
Many HOA bylaws and statutes appeared decades ago when people communicated by paper and the telephone and met in-person. In 2017, there are many ways that people can meet through communication technology. In person meetings by groups have mostly been replaced by “staying in touch by group e-mail.” HOA board members are not paid. Most would like to minimize in person meetings to save time. Attorneys and managers like to accommodate their boards’ requests while maintaining regulatory compliance. Owners who attend meetings who are not directors tend to not say much, ask time consuming questions or directly challenge the decisions and practices of the board and management. Management’s motive to limit the “open meeting” duty is obvious. The risks of this to the community are well known. The board is supposed to oversee the property management company and other employees, contractors and agents that take care of things on a day-to-day basis. Without effective board oversight, a HOA can easily devolve into one where the president and/or the property management company is running things without accountability.
On January 11, 2017, Delegates David Bolova & Joseph Lindsey introduced House Bill 1553 into the Virginia General Assembly that addresses this very issue. HB 1553 would amend a section of the Property Owners Association Act, Va. Code § 55-510.1 regarding meetings of the board of directors. HB 1553 proposes how 2016 legislation allowing for nonstock corporation board action by written consent without a public meeting would apply in the HOA context. The General Assembly amended Va. Code § 13.1-865 in 2016 to greater facilitate “action without meeting of board of directors” of a nonstock corporation. Almost all Virginia HOAs are nonstock corporations. Previously, a nonstock corporation board could only act without a meeting where the governing documents didn’t specifically require it and all of the directors signed a written consent to the resolution without the meeting. The 2016 amendments relaxed the onerous unanimous consent requirement. Now, if the articles of incorporation so allow, a board can act by written consent in lieu of a meeting if accepted by a majority of the directors (or by a quorum if larger). The directors may indicate their consent by paper or electronic means. A few sentences in the governing documents can greatly limit the duty to conduct business in open meetings.
The 2016 amendments contain an interesting privilege for directors who do not want the board to act outside of the public meeting. If any director doesn’t like the proposal, she can either abstain from it or submit a written objection within 10 days that forces the board to take up the matter in a future open meeting. This statute allows directors to initiate new proposals outside of the open meetings. If the proponent has enough director consents, the only way that a non-director owner could comment on it would be if one director submits a timely objection. One or more directors who disapprove of the majority’s policies would have to decide if they want to force an open meeting on the subject or simply allow the likely outcome to run its course without a meeting. Where the articles of incorporation allow, this legislative amendment creates a potent exception to the open meeting requirement.
A written consent without a meeting cannot be made casually by a majority hashing things out informally by email. The directors’ entitlement of 10 days’ notice is a practical impediment if the board meets once a month. While powerful, these new procedures are not a free-for-all to the board majority enjoying a favorable set of governing documents.
HB1553 proposes how these 2016 amendments to the Nonstock Corporation Act would apply within the context of the statutory requirements for board meetings. Va. Code § 55-510.1 requires that all board and committee meetings be open to all owners. The statute forbids directors from using “work sessions” or other informal gatherings to circumvent the open meeting requirements. Boards must take and keep written minutes of the director’s meetings. HB1553 would require any written consents without a meeting pursuant to the amendments to the nonstock corporation act to be added to the agenda packet for the next HOA board meeting. Members would be permitted to make comments on these consents, which by that time may already be valid and in force. The board has the authority to rescind any consent made without a meeting. Of course, it is a lot harder for an owner to argue against a resolution once it is already adopted and valid.
I have several questions about how this proposed 2017 legislation would work with the 2016 amendments and the realities of HOA governance:
- How Do Board Open Meeting Requirements Reconcile with Power to Act by Written Consents without a Meeting? The proposed amendment does not eliminate the open meeting requirement, it just clarifies a significant exception for certain written consents executed outside of meetings. Are directors permitted to deliberate and debate the proposed consents outside of meetings, despite the open meeting requirement? Or are they only allowed to accept, decline or object to the proposed consent, with no questions asked or information given? Is the “consent without a meeting” option a narrow exception to the “open meeting” requirement, prohibiting any back-and-forth other than the notice, text, acceptance or objection? Would this drive boards to make ill-informed or erratic decisions without regular meetings? Some dissident directors might feel compelled to exercise their “objection” privilege to force all such proposals into an “open meeting.” This could easily strain tenuous director relationships.
- Could Written Consents without a Meeting Deprive Owners of their Rights to Educate Themselves and Engage their Concerns? None of these statutes require any proposed written consents to be circulated to the owners before consideration by the directors. The legislation doesn’t require the proposal to go before the owners or an open meeting before circulation for approval. The proposal might greatly affect certain owners’ interests. An owner whose rights or interests are infringed by the written consent would later find herself fighting to undo resolutions that have already been adopted. There are many decisions that a board can make that are difficult to reverse once a contract is awarded. This legislative relaxation of requirements for consent without a meeting is ripe for abuse by boards and managers who don’t like people asking questions about what they are doing.
- Are Owners Entitled to Review Electronic Mail Between Directors Related to Written Consents without a Meeting? I’m concerned that that where these practices are adopted, the exception will practically swallow the open meeting requirement whole. If directors exchange emails or text messages with each other regarding a proposed written consent without a meeting, are owners entitled to review those messages as minutes, books and records of the association? As a practical matter, the HOA’s attorney may struggle to explain to the board what types of email communication are permitted and which ones aren’t under these laws.
- What is Left of HOAs as a “Mini-Democracy?” What is left of the “town hall” model in HOAs where the governing documents and state statutes allow board majorities to act outside of the “open meeting” ideal? This trend runs a strong risk of leaving owners with a level of transparency and accountability lower than what they enjoy with their city or county government. With regulatory agencies, the public has minimal “notice and comment” protections in administrative rulemaking. This new consent without an open meeting exception would offer even less protections to owners affected by adverse board decisions.
House Bill 1553 does not go far enough to keep all of the “tentpoles” up on the open meeting policy. I hope that the general assembly improves this bill so that the accountability of managers to boards and boards to members does not stray even further from the “Town Hall” civil ideal.
For Further Reading:
2017 House Bill 1553 to amend Va. Code 55-510.1, Meetings of the Board of Directors
2016 enacted Chapter 382, amending Va. Code 13.1-865, Action without Meeting of Board of Directors
January 13, 2017
Check Your Privilege, HOA
The attorney-client privilege is frequently misunderstood in the community associations context. When many owners request information, sometimes their board, board’s attorney or property manager asserts the attorney-client privilege. This may seem to obstruct their attempts to assess their property rights or how community funds are being spent. I recently had a conversation with a friend about an issue she raised at a HOA meeting. She asked the directors whether certain assessments were valid under the governing documents. The board consulted with their attorney, who answered them by e-mail. My friend suspected that the attorney advised the board that a judge would deem these assessments invalid. When asked, the board and their attorney refused to disclose the email, claiming attorney-client privilege (“ACP”). Since the board answers to the owners and the attorney works for the HOA, are the owners entitled to the attorney’s answering email? Does it make sense for any non-director owners to pursue copies of the attorney’s email?
In Virginia we have a court decision that addresses this issue that I will discuss. But first, let’s cover the basics. Anyone who deals with lawyers must understand how the ACP generally works. If an owner understands the ACP, she can more effectively pursue the information to which she is entitled and side-step unnecessary quarrels over confidentiality. This blog post will focus on the attorney-client privilege as applied by the courts in Virginia. The basic principles are similar in states across the country. Does this doctrine really allow boards to conceal important plans and communications in a shroud of secrecy? Not really, but it is often, baselessly asserted in many disputes, including HOA and condominium matters.
The purpose of the ACP is to encourage clients to communicate with attorneys freely, without fear of disclosure. This way attorneys can give useful legal advice based on the facts and circumstances known to the client. The Supreme Court of Virginia defines the ACP as follows:
Confidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney’s employment are privileged from disclosure, even for the purpose of administering justice . . . Nevertheless, the privilege is an exception to the general duty to disclose and is an obstacle to the investigation of the truth, and should be strictly construed.
The burden is on the party asserting the attorney-client privilege to show that it is valid and not waived. The privilege can easily be waived by disclosure of the communications to third parties. Waiver may be intentional or negligent, where the disclosing party failed to take reasonable measure to ensure and maintain the document’s confidentiality. Judges will consider waiver of privilege questions on a case by case basis. In general, the courts are reluctant to weaken the privilege by finding waiver in doubtful circumstances.
Contrary to popular belief, the privilege does not apply to every document or communication transmitted between an attorney and client. For example, if the client sends the lawyer corporate or business documents related to the facts of the case, those items would not be protected by the privilege by the mere act of transfer. It is quite possible that only the cover letter would be privileged. Generally, the privilege covers the seeking and delivery of legal advice.
Related to the attorney-client privilege is the “work-product doctrine.” The work product doctrine protects from disclosure the interview notes, office memoranda, internal correspondence, outlines, mental impressions and strategy ideas of the client’s lawyers prepared with an eye towards litigation.
When the client is an incorporated association and not an individual, questions arise as to which people function as the “client” as far as the privilege is concerned. Corporations can only act by means of their human representatives. This will often extend beyond the officers and directors of the corporation. Courts have found the privilege not waived when employees were privy to the communications. While the privilege is sacrosanct, it is narrow in scope and easily waived.
In Batt, et al. v. Manchester Oaks HOA, a group of owners challenged their board’s policy whereby parking spaces were assigned in a community where some townhouses had garages and others didn’t. Parking is a precious commodity. The plaintiff owners sought correspondence between the HOA’s leaders and their attorney. The owners asked the Circuit Court of Fairfax to order Manchester Oaks to produce the documents. They argued that the directors were fiduciaries of the owners and the suit asserted that the board acted inimically to the owner’s interests. In some other states, this is a judicially recognized exception to the ACP in some contexts. Judge Terrence Ney, who was highly respected within the local bar, declined to adopt the “Fiduciary-Beneficiary Exception” because that would “chill” communications between parties and their attorneys for fear the exchanges could be used against them in the future. I think he got this right. Properly understood, this does not infringe upon owners’ rights. Here’s why:
- Owners Need Boards to Act Competently. Owners need their boards to freely share their concerns with their attorney without fear that someone could later obtain the emails and use them against them. Community associations law is complex. For HOAs to work properly, boards need legal counsel to help them accomplish worthy goals while complying with the law and the governing documents. Owners need the HOA’s lawyer to tell the board what they can’t do, so that they can avoid doing bad things.
- The Director’s Fiduciary Duties Are Primarily Defined by the Governing Documents. If a fiduciary-beneficiary exception applies to a communication, that would be shown in the covenants, bylaws or perhaps a statute.
- The Board’s Lawyer is Not the Community’s Judge. When new owners visit HOA meetings and see directors defer to the association’s counsel on legal matters, this may lead to a misconception that the written opinions of the HOA’s lawyer are the “law of the land,” subject only to review by a judge. The opinions of the board’s attorney are simply her advice. Sometimes attorneys are wrong. Trial judges and appeals courts exist to make final determinations on contested legal disputes.
- “What Did the Board’s Attorney Advise” is Not the Best Question. This is really the most important point here. Requesting the HOA to disclose its attorney-client communications is not the best question to ask. Instead, the owner should ask the board to explain its authority to adopt or enforce a resolution. A HOA or condominium’s legal authority is public. It is written in a declaration, covenant, bylaw, statute, etc. The written legal authority and the official policy cannot be privileged. If the owner and board were to end up in litigation, sooner or later this would have to be spelled out in court. Chasing after what the attorney confidentially advised the board is not the direct path to solving the owner’s problem. If the board or its managers object on grounds of privilege when an owner asks them to point to the section in the governing documents that undergirds the policy, then the owner needs a lawyer of her own.
Ultimately the owners challenging the directors’ parking policy in the Manchester Oaks HOA case prevailed in Court, invalidating the board’s parking resolution. They didn’t need the attorney’s advice letter to achieve this. In other cases, owners don’t need to invade the board’s privilege, when it is properly invoked. However, it is very common for corporate parties to try to abuse the attorney client privilege in litigation. When someone invokes the attorney-client privilege in a HOA dispute, that is a good time to retain qualified legal counsel. If a party doesn’t back down when called out on an improper invocation of privilege, the dispute can be put before a judge. This “Check Your Privilege, HOA” blog post is the first in a series about how the attorney-client privilege is used and misused in the community association context. In future installments, I plan on discussing a couple hot topics. Does the Property Manager qualify as the client for purpose of the ACP or is it waived if the manager participates in the discussions with the attorney? Are the HOA’s lawyers’ billing statements protected from disclosure to the owners by the ACP or are they fair game?
For Further Reading:
Batt v. Manchester Oaks Homeowners Ass’n, 80 Va. Cir. 502 (Fairfax Co. 2010)(Ney, J.)(case reversed on appeal on other issues).
Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113 (2010).
Michael S. Karpoff, “The Ethics of Honoring the Attorney-Client Privilege” (CAL CCAL Seminar Jan. 31, 2009)
Photo Credit:
