March 10, 2023
Court Declares Cryopreserved Human Embryos May be Partitioned, Auctioned, and Sold
When co-owners of cannot agree as what to do with property, the ordinary remedy is to bring a lawsuit for partition. In partition, the preference is for the property to be subdivided among the co-owners. If the property cannot be equitably divided among the co-owners (such as there being a single family dwelling that takes up the land), then the entire property may be sold at auction and the proceeds divided. This is a process that most people try to avoid because it can be time-intensive for the attorneys billing by the hour.
By statute, real estate is the only property that can be partitioned. Personal property (“chattels”) can also be partitioned. On February 8, 2023, Judge Richard E. Gardiner of Fairfax County Circuit Court issued an opinion that addressed the partition of something unusual: cryopreserved human embryos. This opinion discusses a number of my own interests: property litigation, bioethics, and Virginia history. Property law can “touch and concern” just about any aspect of human relations.
The use of IVF raises numerous ethical questions, such as what to do with “leftover” stored embryos after the couple conceives the number of children they both desire to have together. People are not property, at least not anymore. The law treats stored embryos as property. At some point, the parents must start thinking of their offspring as a person. The way parents relate to their child begins before the time that the law starts treating the offspring as a person. Otherwise, the notion of trying to have (or avoid having) children doesn’t make sense. These issues will continue to present thorny questions as these technologies evolve and human moral standards change. The law plays catch-up.
Honeyhline and Jason Heidemann divorced in 2018. During the marriage, the Heidemanns used in vitro fertilization due to difficulty conceiving. This resulted in three embryos. According to the paperwork, the parties agree to joint ownership of any embryos produced. The Heidemanns used one embryo to conceive one child (a daughter) during the marriage. In the divorce, the Heidemanns signed a property settlement agreement that addressed the embryos, basically deferring their disposition to be resolved by agreement or court order at a later date. The parties agreed to continue to jointly own the embryos and pay for their storage in the meantime. After the divorce, Ms. Heidemann wanted to use the remaining embryos to conceive more children because chemotherapy rendered her infertile. Mr. Heidemann did not agree, viewing this to interfere with his asserted right of “procreational autonomy.” In November 2021, Ms. Heidemann filed a Complaint for Partition of Personal Property. The lawsuit asked the Court to award her both or one of the stored embryos.
Mr. Heidemann opposed the lawsuit with numerous arguments. First, he asserted that the embryos could not be sold because they constitute “human fetal tissue” for purposes of federal statutes. Second, the embryos were not “goods or chattels” that having monetary value and therefore could not be partitioned by statute. Third, under the PSA there could be no use of the embryos without his consent. Fourth, allowing use of the embryos without his consent would violate his 14th Amendment rights. The Court found that none of these arguments warranted short circuit of the lawsuit in Mr. Heidemann’s favor.
Judge Gardiner disagreed that the PSA precluded the action. The PSA contemplated that the embryos be disposed of by agreement or a court order. The plain meaning of the PSA did not give Mr. Heidemann veto power that could prevent a judge from determining the parties property rights in partition.
The Court did not reject Mr. Heidemann’s argument outright that he had a right of personal “reproductive autonomy” under the 14th Amendment that would prevent partition of the embryos. Instead, the Court found that such arguments would have to be considered at a later stage in litigation. I would infer that Mr. Heidemann did not argue that the 14th Amendment requires treating the embryos as something other than property.
Mr. Heidemann argued that the embryos cannot be partitioned pursuant to Va. Code § 8.01-93 because they are not “goods or chattels,” observing that they are “distinct, unique and not fungible” and thus of a character different from parcels of land. Judge Gardiner observed that Mr. Heidemann had already agreed to treat the embryos as properties by signing the PSA.
The Court observed that the “goods or chattels” referenced in the statute is not limited to personal property laying upon or attached to real estate that is also being partitioned. The opinion letter discusses the history of the partition statute. Originally, only real estate could be partitioned. The statute expanded this to include personal property, and for many years it also included people enslaved within the definition of partitionable property. By 1849, enslaved persons were partitionable in kind (divided by individual among the co-owners) or subject to sale (for example, a single person sold and the proceeds divided among the former owners). Before 1819, the law was unsettled as to whether enslaved persons were considered to be property rights appurtenant to the real estate upon which they lived and worked for purposes of partition.
I will pause my summary of the opinion to add a few thoughts of my own: Its interesting that the opinion discusses the question as to whether enslaved persons are the “direct” property of their owners or “indirectly” as tied to the owned land. Serfdom was understood to be something related to landlord-tenant law, whereby the serfs were in a binding “contractual” relation to the land upon which they lived and did agricultural labor. Personal servitude was abolished in the context of the Civil War. Good riddance! Serfdom is compared to “sharecropping,” which also includes conflates notions of employment with ties to the land. All of this is alien to our modern understanding of a contract as a bargained-for meeting of the minds. Yet, the notion of “servitudes” continues in other forms, such as real (predial) servitudes, whereby one parcel of land is yoked to another parcel by a covenant or easement. Being a sharecropper, tenant or owner of servitude-burdened property is not the same as serfdom. Yet, the concepts are not alien to each other. Once land is burdened by obligations to another person’s interest in the same or appurtenant property, the person with an interest in land so burdened cannot retain the real estate interest and walk away from the burden without the other’s permission or adjudication of a legal right. This language of servitudes lives on in easement terminology. There is a “dominant” parcel that enjoys a privilege with respect to a “servient” parcel. After slavery was abolished, in the same time frame in which “Jim Crow” laws developed (including heavy use of “sharecropping” with many blacks, but also whites), use of real servitudes, particularly restrictive covenants, developed to manage subdivisions newly created to house in the suburbs a new middle class created by the industrial revolution. Some of these “servitudes” were expressly discriminatory against African-Americans, others were irksome to everyone. Real servitudes (together with landlord-tenant law and zoning laws) developed to control people through restrictions placed on land use. Real estate, development/construction, and land use law are used to indirectly control the movement and activity of people. The relationship between real and personal property in the context of partition is important, because partition does not “clean” or redefine property (beyond the dilemma of deadlocked common ownership), it merely divides, sells or disposes of a set of rights and duties that already exist. Also consider that in the event that the terms of condominium statutes or recorded instruments do not provide a streamlined framework for disposing of the property in termination, the property in the development goes into a cumbersome, time consuming process of partition.
Getting back to the Judge Gardiner opinion. In 1819, a statute declared that “all Negro and mulatto slaves . . . shall be held, taken, and adjudged to be personal estate.” From his study of the legislative history of the partition statute, with focus on its use with slavery, Judge Gardiner concludes that the present day partition statute, Va. Code § 8.01-93 must be interpreted to include personal property not attached to land, and its use with respect to the same in not limited to situations where the goods or chattels are found on or attached to the land being partitioned. Judge Gardiner did not find that the legal status of human embryos is analogous to slavery, but his opinion stimulates such thoughts.
Judge Gardiner rejected Mr. Heidemann’s argument that frozen embryos cannot be partitioned because they cannot be sold pursuant to federal law. There is a federal statute that says that “human fetal tissue” cannot be sold for consideration such as money. The problem with this argument is that the statute defines “human fetal tissue” as tissue or cells from a dead human embryo or fetus. The embryos fought over in this lawsuit were cryopreserved. Remarkably, dead embryos or fetal tissue have greater legal protection than the living, at least in the Commonwealth of Virginia. Rejecting all of these arguments, the court overruled Mr. Heidemann’s demurrers and permitted his ex-wife’s partition suit to proceed to the next stage. Personally, I find the application of the general laws for partition in the context of human embryos to be problematic, and warranting a legislative fix, because an auction to the highest bidder of embryos seems, in my view, susceptible to corrupting of morals. But, in the absence of any other legal process, this is the only way to handle it. When the parties are deadlocked in their negotiations, the law channels them into an existing system of procedures and remedies.
March 10, 2023 Addendum:
An interesting article about this case was published yesterday, March 9, 2023. The article focuses on an aspect of the opinion that some people found troubling, that Judge Gardiner made use of the legislative history regarding partition of enslaved persons in his attempt to try to interpret the current statute. That article is by Matthew Barakat and is entitled, Judge Uses Slavery Law to Rule Frozen Embryos are Property.” This is worthwhile reading. Barakat quotes Georgetown Professor Susan Crockin saying that, “she’s not aware of any other judge in the U.S. who has concluded that human embryos can be bought and sold. She said the trend, if anything, has been to recognize that embryos have to be treated in a more nuanced way than as mere property.” However, the article does not explain what other courts have held and on what basis. The history of Virginia legislation is replete with slavery references and other horrible policies. I would agree with Professor Crockin that embryos ought not to be treated as property, which leads to the appalling result that they can be auctioned off to the highest bidder. However, it is my impression that, based purely on reading the letter opinion, that Judge Gardiner believes that the governing law of Virginia is woefully inadequate. Laws are words written in code books, case precedents, and the like. The General Assembly really needs to take action. It is the judge’s job to apply the law, and not to engage in exercises of creative writing in order to achieve results that comport with abstract notions. People feel troubled because they should.
March 14, 2023 Addendum:
Note that there currently is partition reform legislation that the General Assembly passed in its 2023 that awaits the governor’s signature. House Bill 1755 does not address the issue of frozen embyros specifically, but it does add language that would likely be litigated in such cases. The bill, among other changes, adds a new subsection B to Va. Code § 8.01-81:
“If the court orders partition in kind, it shall consider: 1. Evidence of the collective duration of ownership or possession of any portion of the property by a party and one or more predecessors in title or predecessors in possession of the property who are or were related to the party; 2. A party’s sentimental attachment to any portion of the property, including any attachment arising because such portion of the property has ancestral or other unique or special value to the party; 3. The lawful use being made of any portion of the property by a party and the degree to which the party would be harmed if the party could not continue the same use of such portion of the property; 4. The degree to which a party has contributed to the physical improvement, maintenance, or upkeep of any portion of the property; and 5. Any other relevant factor.”
Of course, these reforms are woefully inadequate to address the controversies illustrated in the February 2023 Fairfax demurrer ruling. These legislative amendments have “normal” property in mind.
Heidemann v. Heidemann, CL-2021-15372, 2023 Va. Cir. Lexis 13 (Fairfax Feb. 8, 2023).
Note that the photograph used for this blog post is a stock image downloaded from Shutterstock and does not show anything specifically referenced in the article.
February 8, 2023
2023 Statutory Amendment Would Stimulate HOAs to Fine Virginia Homeowners Even More
Fines are one of the most unpopular features of Virginia community association law. Despite the well-known tendency for HOAs and condominiums to misuse fine systems, a 2023 statutory amendment would stimulate HOAs to fine Virginia homeowners even more. Yesterday, the House of Delegates approved H.B. 2098 by a vote of 91-7. It is unclear to me what the Virginia Senate will do. In the HOA context, fines are a process for imposing a charge, usually $10.00 per day, for a perceived rule violation. Americans are accustomed to being fined by their government. For example, parking tickets or zoning notices of violation. In such instances, the agency can impose a monetary charge for a violation without first taking the resident to court. Usually the citizen can “appeal” the fine to a review board or official as an intermediary step before a court challenge. In Virginia community associations, the homeowner may be able to “appeal” a decision by the committee to the board of directors, but to go above that they usually have to go to the courts.
HOA fines differ from governmental fines in other ways. Government officials don’t ordinarily have a personal stake in the way a perceived violation is handled. By contrast, the association directors are neighbors with strong personal opinions about the rules and what they see as a problem in the community. Its common for the directors and homeowners to know of each other. It is difficult for a volunteer homeowner to separate their personal interests from their “directorial” duties regarding a perceived violation on a neighbor’s lot. Covenant enforcement is often delegated to a manager and attorney to manage. This can help ease the “interpersonal,” but the managers and attorneys have business interests in the management of covenant enforcement procedures.
2023 Virginia House Bill 2098 would change the statutes to make authorization to fine a “default” power of HOAs and condos, instead of requiring enablement by specific language in the recorded instruments. Also, it would make it easier for the association to impose additional charges for “repeat” rule violations.
I would like to use a hypothetical example to explain why I think this proposed amendment would make the world of HOA fines worse. Imagine a person in a community association who struggles to manage his property because of a physical disability. He decides to temporarily store a few personal items in plastic boxes on his patio. The boxes are visible from the sidewalk if one happens to be peering into the guy’s backyard. Someone complains about the plastic boxes to the manager. The recorded instruments say nothing about outdoor storage boxes. The recorded covenants require committee approval of any outbuildings, additions, swimming pools or structural changes to the house itself. The recorded restrictions forbid accumulation of trash or building materials. The covenants allow the board to adopt additional rules in furtherance of those contained therein. The covenants do not allow for fines, they only talk about going to court for enforcement. Ten years ago, the board voted to approve a resolution that limits items that can be kept on patios and decks to plants, furniture, grills, small appliances or other items expressly approved by the architectural committee. The patio resolution has never been challenged legally.
The manager sends a letter to the homeowner, who doesn’t come to the next meeting because of the mobility problem. The attorney explains to the board that they cannot fine the homeowner, because the existing statutes require the power to impose fines to be enabled in the recorded instruments. Va. Code § 55.1-1819(B) & § 55.1-1959(B). The HOA would have to file a lawsuit to compel compliance. Such efforts would be doubtful because the recorded instruments don’t say anything about regulation of storage boxes on the patio. The language about trash and building materials don’t quite give them this. Va. Code § 55.1-1819(A) & § 55.1-1959(A). The board has an unwritten policy to only sue homeowners as a last resort when they really want to come down hard on somebody. No suit is filed. No extrajudicial fines are imposed.
Suppose we add to the facts that H.B. 2098 is enacted as an amendment to the statutes. The HOA’s attorney sends all of her clients a newsletter announcing that the statutes no longer require the recorded instruments to specifically authorize the association to conduct fines according to Va. Code § 55.1-1819 & § 55.1-1959. With this change, the law is now the opposite: “The board of directors shall also have the authority, unless the declaration provides otherwise, to . . . assess charges against any member for any violation . . .” H.B. 2098. According to this new enactment, silence in the instruments regarding fines means that fines are allowed (instead of meaning that they aren’t allowed). In our hypothetical, the board of directors gets excited, because it seems to provide a work around. No longer would the HOA have to spend its own money pursuing a homeowner in court, with an uncertain outcome. With fines, the HOA can conduct its own hearing, where its agents act as the prosecutors, witnesses and judges of the notices of violation. With the power to conduct extrajudicial fines, the board shifts the burden to challenge onto the homeowner. As a practical effect, this emboldens the associations to be more aggressive in their approach to covenant enforcement, asserting broad, favorable interpretations of their own instruments. One of the problems of the fine statutes is that it stimulates fanciful readings of recorded instruments and adoption of regulations by the boards that go beyond what the covenants reasonably authorize.
H.B. 2098, if adopted, would present a difficulty when it comes to previously created HOAs and condos where the authority to fine was not discussed at all in the recorded instrument. Under current law, the omission of fine authorization language is construed to mean that the drafter-developer intended for the association to not have the power to fine. Given the current language of the statutes, the rules that the courts use to interpret legal texts, and the drafting of such a declaration or bylaw, it would be preposterous to read into the “contract” an understanding that the legislature could later adopt an amendment that would cause the document to switch its meaning to the exact opposite of its intended effect. A contract or deed is normally interpreted to include by implication all relevant law in existence at the time it is made. H.B. 2098, as presently worded, would seem to invite litigation regarding any retroactive effect where the association tries to use it when the declaration or bylaws are silent on the issue of fines or reference such enforcement mechanisms in a manner made confusing or uncertain by statutory changes. Contracts would be cheapened if their intentional silence on an issue is later used as an opening for the legislature to completely reverse the meaning. In a hypothetical lawsuit challenging the retroactive application of H.B. 2098, our homeowner is demonized by others in the community for selfishly attacking the HOA’s volunteer efforts to promote good order in the community. The lawsuit drags on for years, coming down to an issue of how to construe the statutes, covenants, and handbooks.
H.B. 2098, if enacted, would render community associations law “wonky-donkey” regarding fines. Ordinarily the homeowners expectations regarding the subdivision are defined by how the developer physically constructed things, what the initial purchase contracts require, and what the disclosure packet of HOA documents says. After the developer implemented such plans, and the buyers join in by purchases, to then turn that upside down by such legislation turns the tables on the homeowners unfairly. Any changes to the recorded instruments and handbooks ought to conform to the “reasonableness” requirement (already used by the courts), so that communities can make adjustments to the “contract” as a consensus and changing circumstances allow, and not by a legislative trick.
The fine statutes are important for another reason. Once imposed, the fine can be used to pursue a foreclosure against the unit owner, or it can be used to initiate a lawsuit to convert it into a money judgment from which garnishments can issue. The fines are not just irksome pieces of paper, they can be used to harass or dispossess homeowners.
H.B. 2098 also proposes to no longer require the HOA to send out an additional notice for a “repeat” violation of the same rule or covenant in the same 12-month period. I also oppose this. More “due process” is needed, not less. With this wording, associations are going to start imposing fines for things that are not the same as the initial “violation,” the only commonality being the section cited in the rules.
Yesterday, H.B. 2098 was passed by the House of Delegates, by a vote of 91-7. The bill now goes to the Virginia Senate. I don’t see this bill helping anyone other than those people who like fining people or are paid to manage the process. This bill, if enacted, will solidify some of the things that give HOAs a bad name. I don’t think that people want to wake up in early July 2023 and find a Notice of Violation in mailboxes all across Hoaville, Virginia.
I would like to see the General Assembly delete the fine language out of the statutes. No more fines, prove your damages or basis for an injunction. If a HOA wants to tell a homeowner what to do with their own property, they ought to have to stand in line at the courthouse for a hearing date, and then prove their case under the rules of evidence. The practical effect of this would be to stop certain misuses of covenant enforcement from moving forward on doubtful grounds in the first place. This would not prevent the HOA from performing its core function of common area maintenance.
UPDATE: On February 21, 2023, H.B. 2098 was DEFEATED by a vote of 8-32 after Virginia Senate floor debate. Hopefully this bill will not be brought back next year.
January 12, 2023
Are New Rail Stations Good or Bad for Neighboring Condo Unit Owners?
Many people would beam with excitement if someone told them that a new metro station will pop up within a mile of their property. If they have a condominium or cooperative, their home ownership is full of surprises because they are in a business relationship with strangers. Are new rail stations good or bad for neighboring condo unit owners? Decades ago, the Northern Virginia communities of Tysons, Reston, Herndon, Dulles and Ashburn developed around transportation infrastructure that allowed residents to easily commute to Washington, D.C.. Local streets and the Dulles Toll Road connected these homeowners to Metro’s orange line. The lower density in these communities reflected demand for quiet neighborhoods and the lack of immediate rail transport. In time, the region suffered a crush of automobile traffic. Addition of housing congests key roads. Regional leaders teamed together to bring in the silver line. Opening in 2014, Phase 1 extended the metro from Falls Church to Tysons Corner and portions of Reston. Phase 2 extended to Herndon, Dulles Airport and Ashburn. Phase 2 opened in November 2022. The extension of the silver line did more than allow more people to access public transportation closer to their homes. This new infrastructure impacted the property owners whose properties are within walking distance. Such lands became significantly more valuable. The silver line prompted local government to change the way they regulate development. Because of rail extension, more density became possible. Anyone who drives along the Dulles toll road or elsewhere along the sliver line can see construction cranes and large trucks bringing materials.
Construction of Silver Line Rail Stations: A casual observer might conclude that these changes present a financial windfall (or at least a new convenience) to anyone with land located within a mile of any new station. However, reality it is not so simple when you have dozens or hundreds of co-owners. Decades ago, many properties in Tysons, Reston, Herndon, and Ashburn were developed as residential or commercial condominiums. The builders did not plan for the construction of new metro stations where they now appear. Most of the owners who purchased units in these condominium associations did not anticipate how the addition of a metro station would later change their communities. Many of these condominium unit owners rely upon their units as their primary housing or business location. As families and businesses grow, they become more settled in. Humans naturally resist being kicked out to suit the interests of others.
Other people have their own reasons for wanting to embrace the changes. Some unit owners may already be ready to sell. Potential buyers see old buildings cluttering valuable land. Redevelopment may add taller buildings.
This tends to divide condominium associations into factions. Many unit owners want to go using the properties they chose to buy, and do not want to be pushed out. Successful people purchase their homes or locate their businesses for thoughtful reasons. There are specific reasons why a particular condo unit might be ideal for aging in place. If they wanted a temporary arrangement, they would have just signed a lease. When developers eye these pieces of land that happen to have people living or working in them, there are usually some association members who would rather sell the property to a developer now at market rates. Some see no reason to continue to maintain the aging structures as neighboring buildings are torn down and holes are filled with newer, larger buildings. However, there are numerous reasons why a unit owner’s share of the proceeds of a termination sale might be inadequate. For example, specialized health professions require expensive buildouts to make use of generic condominium units. County planners don’t really understand the value of or needs of “light industrial” land uses.
Dramatic Assessment Increases: For silver line condominium unit owners, the construction of the rail stations is not the only complication. In 2022, the General Assembly directed the Department of Professions and Occupational Regulation to establish a Work Group to develop recommended legal reforms for condominiums and HOAs. The legislature did this out of a concern that many communities need major renovations to avoid structural failure or repairs to present building system failure. On November 23, 2022, I posted an article to this blog, “Virginia Structural Integrity and Reserves Work Group.” The work group will probably recommend reforms which will lubricate the process of condominium termination, sales, and deconversion. Also, the Work Group will probably recommend legal reforms that will encourage boards to collect more money and spend that money on capital improvement projects. If fulfillment of such requirements is opposed or unsuccessful, many communities may slide towards condominium termination.
Problem of Inflation: Things are more expensive now. While the Washington, D.C. metro area has a strong real estate market, inflation impacts condominiums more than single family houses. Rising interest rates put downward pressure on sales. Inflation drives up the cost of labor and materials for construction projects. My June 6, 2022 blog post, “Renovation of Condominium Limited Common Elements” discusses how such projects are financed and managed.
Baby Boomers on the Move: The perfect storm has yet another factor. Many baby boomers have already retired or are planning to change their careers. When workers retire or shift their careers into a new phase, their interests in property refocuses. The nature of condominium unit ownership presents particular challenges to retirement age owners, which I discussed in my October 20, 2022, post, “Are Condominium Units Good for Retirement-Age Buyers.”
How Condominium Termination Rules Work: Condominium law provides procedures to bring an end to the condominium, sell the entire property and split the proceeds. This is called condominium termination or deconversion. What many people don’t understand is that if a certain amount of support exists, then the opposing unit owners can be kicked out of their units and given a share of the sale that was not negotiated with their consent. I blogged in more detail about the mechanics of condo termination in a May 14, 2015 post, “You May Be Targeted for Condominium Termination” and on February 6, 2020, “Proposed Virginia Legislation Would Empower Developers to Oppress Rights of Unit Owners in Sale of Terminated Condominium Developments.” The statutes provide few protections to insure that unit owners will obtain fair market value in termination or other considerations of their unique situation. The developer and their friends on the board tend to “drive the bus.” The statutes assume that free-market forces and the democratic governance of the association will protect the unit owners rights. However, the business of a community association is rife with conflicts of interest. Depending upon how the termination is conducted, an individual unit owner may experience a windfall or, in some cases, financial ruin.
The Virginia Condominium Act (Va. Code § 55.1-1937) provides “default” termination procedures. In residential developments, termination requires a 4/5 (80%) agreement among unit owners, or such larger majority as the instruments may specify. If no units are residential, the instruments May specify a majority smaller than 4/5 (80%). Termination is achieved by a written contract that provides for the termination of the condominium association, the sale of the property to the buyer, and the disposition of the proceeds. The real estate industry succeeded in convincing the General Assembly to streamline condominium termination to make it easier to force the sale of the units. Things get complicated when the unit owner has a mortgage that exceeds the value of the proceeds for that unit or a long-term lease.
As interest in deconversion grows, the proponents may try to use nondisclosure agreements to control the flow of information. The proponents of termination may seek to amend the declaration or bylaws to facilitate termination. Officers or directors favoring termination sale may neglect repairs or allow reserves to deplete, or they may aggressively pursue renovations because that increases the purchase value of the property. Typically interested purchasers will buy at least one unit so that they can participate in the meetings of the association as a member, or they will work closely with allied members. This can disrupt ordinary life and interfere with a family’s ability to make plans.
What can unit owners whose condominiums are located near a new rail station do to protect their interests? There are many options, including:
- Selling one’s unit before change accelerates.
- Communicating with one’s state or county elected officials about pending or anticipated legislation or ordinances.
- Litigation with the condominium association if they breach the statutes or bylaws.
- Developing alliances with other unit owners to elect friendly directors, put pressure on the board, or bring certain petitions for vote by the membership at a special meeting.
- Stay informed about things that are happening in the community.
Are new rail stations good or bad for neighboring condo unit owners? There will be loud, poorly informed voices in the community that will make themselves heard. If a condominium association is going through a major dispute or transition related to capital improvements, special assessments or a termination, such matters are usually too complicated to handle on one’s own, because there are multiple technical issues. On the legal side, an attorney is necessary to review the declaration, bylaws, amendments and the statutes to determine if what the proponents or an amendment or termination agreement is legal. Cowherd PLC leverages experience in these matters so that the unit owners can protect their own interests in an ecosystem where large groups of people and money can threaten their plans and peace of mind.
December 4, 2022
Activists Use Proxies to Change Their Community Associations
Proxies are the currency of power in HOA and condominium governance. Homeowners first discover such forms enclosed with meeting notices. Proxies allow the member to cast an instructed vote on an issue or chose among candidates. Proxies can also be used to delegate one’s vote to another person participating in the meeting. Sometimes proxies are used merely to establish a quorum. Virginia statutory law imposes rules for proxies. Most HOA or condominium instruments include additional rules. Owners whose associations are incorporated can also enter into a “voting agreement” with other mutually interested members to achieve common objectives. Incumbent leaders like to use proxies as means of maintaining continuity. The board enjoys an advantage in soliciting proxies because the management company works for them. Members who may not agree with the board majority can use proxies in elections or other business. Allied homeowners can explore achieving their objectives through elections and governance as an alternative to litigation. How do activists use proxies to change their community associations for the better? The validity of proxies can make or break an important vote. The board majority and opposition groups may compete for proxies amongst the same pool of undecided members. Understanding proxies is essential to “community organizing” in community associations. Proxies may be used in conjunction with efforts to override board action through a meeting of the members.
A proxy is not to be confused with a mail in ballot, although they may function in a similar way. A proxy is an instrument that designates a particular person, be it another member, a director or some other person the “representative” of the homeowner for purposes of an item of business or meeting. A “general” proxy allows the holder to do all the member could do at the meeting. General proxies are not always wise. The interests of the owner and the delegate are not necessarily aligned. With an instructed proxy, the designee is told how to vote. A proxy is not the same thing as an opinion survey. The latter solicits feedback and does not bind the decisionmakers. A proxyholder is an agent of the homeowner granting the proxy. Like any agent, the proxyholder is a fiduciary, for purposes of the scope of the agency granted.
The Property Owners Association Act, Nonstock Corporation Act, and Condominium Act allow for use of proxies in community association matters, unless the instruments for that community provide otherwise. Adult children who take care of their elderly parents may be familiar with the Uniform Power of Attorney Act. Unless the community’s instruments provide otherwise, homeowners are not required to sign a formal power of attorney instrument to designate a proxy. A proxy (or other delegation to exercise voting rights) ordinarily does not need to comply with the UPOAA. That said, POAs are one way of delegating voting rights.
Use of proxies is more regimented in condos than in HOAs. The Virginia Condominium Act states that,
The votes appertaining to any unit may be cast pursuant to a proxy duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such unit owners. No such proxy shall be revocable except by actual notice to the person presiding over the meeting, by the unit owner or by any of such persons, that it be revoked. Except to the extent otherwise provided in the condominium instruments, any proxy is void if it is not dated, or if it purports to be revocable without the required notice. Any proxy shall be void if not signed by or on behalf of the unit owner. If the unit owner is more than one person, any such unit owner may object to the proxy at or prior to the meeting, whereupon the proxy shall be deemed revoked. Any proxy shall terminate after the first meeting held on or after the date of that proxy or any recess or adjournment of that meeting. The proxy shall include a brief explanation of the effect of leaving the proxy uninstructed. Va. Code § 55.1-1953(D).
The issue of revocability is important. Unit owners sometimes submit proxies and later change their minds before a meeting. In some associations, all owners are encouraged to submit a proxy of some kind, even if they plan on attending the meeting. This practice helps to ensure that business gets done.
Attempts to “pool” voting authority in a private entity to certain members acting as representatives of a “voting block” can be confusing. In an October 14, 2022 letter opinion, Fairfax Judge David Oblon considered whether members of an LLC who granted their voting rights to another member through an agreement, which is silent as to revocability, can unilaterally revoke their assignments. Voting agreements are also called “voting trusts” or “pooling agreements.” With stock corporations, a proxy is irrevocable only if coupled with an interest, made part of a voting agreement, or given as security. Judge Oblon discussed the legal principle that a “naked agency” is freely revocable, but if the agency is “coupled with an interest,” it is irrevocable. This distinguishes situations where the agent acts for the principal from those where someone gets the power to act as the principal. Judge Oblon distinguished between the shareholder agreement with a proxy. A proxy votes for someone. A voting agreement vested the assignee with the assignors’ voting interests.
The authority to vote in an organization is a feature of the membership interest. Whether a membership interest is freely assignable depends upon what kind of entity it is and the terms of its governing instruments (such as covenants or bylaws). LLC statutes allow voting interests to be severed from economic rights in the company. The nonstock corporation act allows two or more members to make an enforceable, written (or electronic) agreement regarding the manner in which they will vote. By contrast, membership interest in an unincorporated association is ordinarily not transferrable without the consent of the association itself (or as provided in its governing instruments). In a community association, be it incorporated or not, membership in the association is appurtenant to title to the home.
HOA or condominium association meetings in Virginia are governed by open meeting statutes that generally require all business of the association be conducted in properly noticed meetings that members can attend, record and speak at. When communities handle elections by mail in ballot or proxies, the actual election meeting may be sparsely attended, but it is still a meeting. If a vote is contested the homeowners ought to ask to review the votes and proxies cast to determine if there are any irregularity.
The use or exclusion of proxies plays a powerful role in the conduct of community association member meetings. It can be difficult to navigate a proxy contest without the assistance of someone familiar with the unique legal and practical features of HOA voting. Activists use proxies to change their community associations as a feature of an overall strategy of engagement and teamwork. In incorporated community associations, the ability to make a voting agreement allows groups of homeowners to pool their voting power in ways that is different from a proxy. The voting agreement is an underutilized means of achieving solidarity among similarly interested homeowners that is less cumbersome that soliciting proxies every time a vote is scheduled to be taken. A voting agreement is something that can be made as an electronic document.
Selected Legal Authority:
Va. Code § 13.1-847. NSCA – Proxies.
Va. Code § 13.1-852.2. NSCA – Voting agreements.
Va. Code § 55.1-1815. POAA – Access to association records; association meetings; notice.
Va. Code § 55.1-1823. POAA Designation of authorized representative.
Va. Code § 55.1-1953. Condo. Act – Meetings . . . voting by unit owners; proxies.
Va. Code § 55.1-1962. Condo Act- Designation of authorized representative.
Va. Code § 64.2-1601. Applicability of the UPOAA
Roscigno v. Deville, 28 Va. Cir. 96 (Fairfax Co. 1992)
AV Automotive, LLC v. Bavely, CL-2019-2804, Fairfax Co. Cir. Ct., Oct. 14, 2022 Letter Op.
7 Corpus Juris Secundum, Associations § 40
Wrightington, Law of Unincorporated Assn’s and Business Trusts, § 55
November 23, 2022
Virginia Structural Integrity and Reserves Work Group
On June 24, 2021, high-rise condominium Champlain Towers South in the Surfside suburb of Miami, Florida partially collapsed, killing 98 people and injuring eleven others. One factor identified by investigators was the failure of a section of reinforced concrete damaged by water infiltration. This was truly a horrific tragedy.
Following Surfside, condominium communities and state governments across the country gave added consideration to avoiding similar disasters elsewhere. Many condominiums did not wait for government to act first. The problem of aging, deteriorating buildings and inadequate reserves is nothing new. However, Surfside was a sea-change moment in the community association world. There are certainly lessons to learn from what happened on June 24, 2021. The question is what ought to be done. Most proposals would require unit owners to pay significantly higher assessments.
Virginia initiated a process to carefully identify what, if any, legislative reforms are warranted. In April 2022, the general assembly enacted legislation sponsored by Senator Scott Surovell. Senator Surovell’ s district encompasses portions of Virginia’s Washington, D.C. suburbs. Mr. Surovell is also a well-regarded trial attorney. Senate Bill 740 required the Department of Professional and Occupational Recreation to establish the Virginia Structural Integrity and Reserves Work Group to study:
- How common interest communities are initially developed to self-finance.
- Governing documents.
- Reserve study requirements and disclosure of the same to purchasers.
- Budget requirements.
- Board authority to budget reserves, spend money, make assessments and borrow.
- Liability of associations and boards.
- Building inspections by localities.
- Insurance coverage and inspections.
- Education of directors and members of communities.
- Judicial remedies, including those involving assessments or funding.
- Self-management and professional management.
The Virginia Structural Integrity and Reserves Work Group is supposed to report to the legislature by April 1, 2023. This work group was formed earlier this year. It is chaired by Lucia Anna “Pia” Trigiani, an Alexandria HOA attorney. The Work Group includes people who are knowledgeable about HOA matters. Many are involved in selling services to common interest communities. I am not a member of the Work Group, not affiliated with it and do not speak for it in any way. Information about the Virginia Structural Integrity and Reserves Work Group is publicly available through the DPOR’s website and “Townhall” email notifications. The activities of the Work Group are relatively low-profile, despite the fact that, according to trade industry data, over 2,000,000 Virginians live in approximately 9,000 community associations. The large packet of documentation accessible through DPOR does not give the reader a sense of what the Work Group ‘s views and recommendations might be.
The Work Group works in conjunction with DPOR, O.D.U.’s Dragas Center for Economic Analysis and Policy, G.M.U.’s Center for Regional Analysis, and Virginia Tech’s Center for Housing Research, and the Community Association Institute. CAI is a trade association of HOA managers, attorneys, directors, and vendors that lobbies congress and state legislators across the country to strengthen board powers.
Mr. Surovell observed that the risk that something like the Surfside tragedy might happen in Virginia is unknown, because of lack of public data. Surovell observed that associations are failing to raise dues to maintain reserves, there is a lack of transparency, localities are not involved in inspections, professional management is lacking, and there is “zero accountability for boards that fail to honor their fiduciary responsibilities to other property owners.” Senator Surovell calls for, (a) “enhanced insurance products,” (b) requiring directors to follow recommendations of reserve studies and inspections to enjoy legal immunity, (c) transparency regarding underfunded reserves, and (d) increased regulation of community managers.
I follow what the Virginia Structural Integrity and Reserves Work Group is doing because I advise individual HOA lot owners and condominium unit owners. Any reforms this Work Group may recommend will likely have an impact on owners. Anyone who owns a home in a HOA or condominium in Virginia ought to consider what the Work Group may recommend. In early December, an academic institute partnering with the Work Group will send out written surveys to all state-registered condominium and HOA boards across Virginia to solicit input from the public. I hope that any readers who has an opportunity to submit such a survey will take it seriously. I am not certain what weight or interpretation the Work Group will ascribe to any results. In February and March, 2023, the Work Group will determine what their focus and legislative recommendations will be. By the time a bill is introduced in the 2024 general assembly, it will be unlikely that the Virginia Structural Integrity and Reserves Work Group will go back to and rehash its work based on citizen input to the legislators. It’s possible that some members of the Work Group already have an idea of what reforms they will recommend.
On November 16, 2022, I attended their meeting in Arlington, Virginia as an observing member of the public. What is reported here ought not to be taken verbatim as the opinions of DPOR, the Work Group, any of its members, or myself. I’m trying to summarize the issues so that my readers can have a basic understanding of what is being deliberated.
The Work Group discussed use of reserve studies. Virginia condominiums are supposed to conduct reserve studies every five years. Reserve studies identify the remaining useful life of the components of the condominium and calculate an estimate to renovate or repair the component towards the end. Ideally, reserve studies are conducted by professionals. The board is supposed to use the reserve study in its budget process, so that a component of the annual assessment includes an appropriate amount to fund the reserves needed for major projects. Boards tend to succumb to pressure to keep assessments from increasing dramatically. In so doing, they ignore reserve studies or other recommendations that would require major increases. This approach underfunds reserves. Later when expensive deferred maintenance projects are overdue, there is insufficient funds. In such situations, the board is left to evaluate a variety of unpleasant alternatives, such as a major additional assessment (which many may be unable to afford), borrowing money, selling off a portion of the common areas, losing insurance, or termination of the condominium. To complicate matters, there are differently constructed communities and buildings that fall under the heading of “common interest communities.” This ranges from huge subdivisions of single-family homes to small condominiums with only two units, to little HOAs with only a short driveway to take care of, to high rise multifamily buildings. One challenge recognized by members of the Work Group is that given this wide variety, it’s difficult to adopt a one-size-fits-all legal reform. Any changes to require boards to take reserve studies seriously is going to lead to dramatic increase in assessments.
There was a presentation about Common Interest Community Insurance. This topic can be very technical, and I am not going to try to outline all of the issues here. There were discussions about whether insurance companies ought to use inspections to help associations identify maintenance issues that could result in future claims, and whether premium adjustments ought to be associated with such inspections. The Work Group discussed how many HOA directors are unaware of what insurance may be required or practically necessary. Some favor legislative changes to require boards to diligently conduct risk management assessments in the process of insurance renewals. Some governing instruments have detailed insurance requirements, which were put into the documents to address concerns by lenders, and not consumer demand. It would not surprise me if the Work Group were to recommend that the statutes require or strongly encourage purchase of more insurance. Robust insurance coverage is important, but like anything else, this will lead to higher assessments.
The Work Group discussed legislative action to make it easier for boards to use loans to finance capital renovation projects. The POAA and Condominium Act do not specifically authorize boards to borrow money. The statutes contemplate that project financing would come from assessment income. I would anticipate that the borrowing issue would be seriously considered by this Work Group as something that could be facilitated by statutory amendment.
The Virginia Structural Integrity and Reserves Work Group discussed condominium terminations. I previously wrote about condominium terminations, the last time that the General Assembly amended the laws. Condominiums consider termination for a variety of reasons. One reason is that the cost of renovating the condominium property is beyond what the unit owners want or are able to handle, and there is a developer who wants the land for redevelopment. Condominium unit owners are unaware of the possibility of future termination when they buy. Many condominium unit owners on fixed or limited incomes have few alternatives to own their own homes. Loss of a condominium unit with compensation of only a fraction of the investment cost can be a catastrophic loss for the owner. Unit owners are inadequately prepared for such a turn of events.
There was a discussion about provisions in the Condominium Act that pertain to additional assessments. If the board determines that the existing funds are inadequate to pay for necessary renovations, they can vote to impose an additional assessment on all of the unit owners, without waiting for the next annual budget. These additional assessments can be lump sum or installment payments. There was discussion about removing language from the condo statute that allows unit owners to call a special meeting to vote to reduce or rescind the additional assessment. Some people think that this recission option presents a moral hazard, whereby a majority of unit owners motivated by financial concerns can prevent essential renovations from being funded. According to this view, directors ought to be required to fulfill fiduciary duties to raise money through assessments and spend that money, and the unit owners at large should not interfere with the decisions being made about the who, what, when, where why and how much money of assessing and spending. Such a change will mean that the unit owners will have less say in such situations. A fundamental question is, “Who gets to participate in the decisions of what assessments are imposed and what projects are pursued? A board can dramatically raise assessments, even to the point of forcing out several owners, and identify a long list of projects, and nonetheless mismanage the whole thing, to the harm of the unit owners and the community’s future. A board can be ambitious while failing to be wise. If the balance of power shifts further away from the unit owners and onto a board increasingly constrained by statutory obligations, not only is it no longer much of a “mini-democracy,” its not going to be an environment where private property rights will be cherished. Condos become more like a speculative group of financial investments.
Even without any legislative reforms, community associations are already facing budget crises driven by inflation and aging buildings. I recently posted an article to this blog about the risks and challenges of using condominium units as retirement homes. The reforms being discussed may save some developments from a tragedy, and that is a good thing. However, whatever the Virginia Structural Integrity and Reserves Work Group proposes, it will most likely put strong upward pressure on community association budgets, make it more difficult for homeowners to assert certain kinds of challenges, facilitate aggressive collection mechanisms such as liens and foreclosures, and probably drive many communities into termination. These changes will push many people on reduced or limited incomes, particularly retired people and struggling families out of the communities due to financial hardship, replacing them with other owners, many of whom will be investors who will rent out the units, driving down owner occupancy and owner engagement with the board and committees.
Does this mean that all hope is lost, and that homeowners should give up on realizing their dreams of making a home in a community association their long-term future? No. Selling and moving, when a viable option, is often less uncertain than staying and having to spend large sums on assessments (or legal fees). But not always. Many adults’ despairs when they feel that they have little control over decisions made by people around them that impact them directly. Most people want a sense of control when it comes to their own home, in both the investment and daily living aspects.
If these communities function as social contracts of self-government, at the end of the day they will have to solve their own problems. Certainly, the state or local governments may be able to help. The physical characteristics of construction, governing instruments and people in each common interest community are unique, such that none of the 9,000 statewide are the same. I think that the Virginia Structural Integrity and Reserves Work Group understands that the same therapeutic regimen cannot be imposed on all of them. What is needed is a system of methods through which the leaders of approximately 9,000 can formulate customized plans to safeguard their properties in a way that considers both public safety, health and the economic shock effect of a large additional assessment. This is a policymaking process that everyone ought to participate in, on both a state and community level.
Disclaimer: The author of this blog post is NOT a member, affiliate or spokesman of the Structural Integrity and Reserves Work Group.
The building depicted in the photo associated with this blog post does not have any structural problems known to the author of this blog. The photo was chosen at random.
November 14, 2022
Fair Housing Laws Help Condominium Unit Owners Who Need Disability Accommodations
Fair housing laws provide homeowners with protection from discrimination that can easily arise if a HOA board feels that the most recent election gives them a broad mandate to make changes to protect “property values” in the community without due regard for the personal impact of their policies. Anti-discrimination scrutiny of community association activity can lead to confusion – the laws are technical and don’t always comport to ordinary intuitions. Often, HOAs will argue that fair housing law doesn’t apply because the owner “agreed” to the governing instruments when they purchased their unit, that the method employed by the HOA to enforce restrictions somehow is not regulated by ant-discrimination laws, or that the board doesn’t have the discretion to grant the accommodation requested. Filling an important gap in public policy, fair housing laws help condominium unit owners who need disability accommodations.
In 1997, the U.S. District Court for New Jersey considered whether a board must relax the parking rules in the condominium instruments to allow a disability accommodation where it seemed that the recorded rules were black and white. Albert Gittleman owned a home in the Woodhaven Condominium. Mr. Gittleman requested that the board assign him a parking space near his home, to accommodate his disability. The board refused, pointing to a provision in the master deed (declaration) stating that all parking spaces were non-exclusive. The board presented an amendment to the unit owners to allow for assigned exclusive parking. The initiative failed to carry because less that 2/3 of the owners supported it. The board argued that under the N.J. condominium act, they could not doll out a portion of the common elements to the exclusive use of a particular unit owner without a valid amendment. Condominium unit owners, as a group, own the common elements as tenants-in-common (joint owners). The association board has the authority to control, manage and repair the common elements, in a similar fashion to a landlord. State condominium statutes prevent the board from conveying portions of the general common elements for exclusive use by unit owners except as the declaration may allow assignment of limited common elements. Woodhaven argued that it was not discriminating because their hands were tied.
Mr. Gittleman filed a Federal Fair Housing Act Amendment lawsuit. He argued that the denial of the assigned handicap parking spot violated antidiscrimination laws. The FHAA makes it unlawful to, “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or the provision of services or facilities in connection with such a dwelling, because of a handicap of that person.” Discrimination may be shown through disparate treatment, disparate impact, or refusal to make a reasonable accommodation. The discrimination at issue in the Gittleman case was, “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Side note: Under the federal laws, “disability” is the only protected class that is entitled to a “reasonable accommodation.” The N.J. federal court sided with Mr. Gittleman. Woodhaven’s parking covenants were enforced by a parking policy. The Woodhaven board could not revise the master deed without a 2/3 vote, they could decline to enforce a policy in a discriminatory manner. The FHAA may be enforced against all sorts of private agreements, including master deeds, declarations, covenants, bylaws, land use regulations, special uses permits, terms, conditions, and the like. Enforcement of the FHAA is not limited to recorded covenants. The District of New Jersey observed that by statute, the association was tasked with managing the common elements and to adopt and enforce rules and regulations governing the use of the common elements. “The Association cannot seek to avoid liability under the FHAA by using the terms of the Master Deed as a shield. Rather, . . .. the FHAA was clearly intended to reach and invalidate those aspects of private agreements, such at the Master Deed, that have discriminatory effects.” Where the association has the authority to adopt rules and regulations, they are required to make those rules comply with fair housing protections.
There are quite a few takeaways from the Gittleman case:
- Each fair housing case is fact specific. The language of the community’s instruments matters. The FHAA does not provide blanket, standard exceptions to HOA covenants, rules, or enforcement actions.
- In a fair housing case, the court may be willing to look past the “plain meaning” of the state statutes and community instruments and forbid discriminatory enforcement, even if the language of the instruments does not target protected classes of persons.
- FHAA protections do not only apply to restrictions in deeds or recorded declarations of covenants. They apply to a wide variety of rules or private agreements. A community cannot evade fair housing laws through use of handbooks or enforcement policies. This makes sense, because state laws generally say that the governing instruments of a community association are viewed as a kind of private “contract.”
- Community association boards and their representatives will fight hard (i.e., allow their insurance defense lawyers to fight hard) when the official resolutions of the board are scrutinized, or community leaders are accused of prejudice, discrimination, or bigotry. Homeowners seeking to protect their rights, be they a member of a protected class or not, must be prepared for extensive litigation to achieve a favorable result.
- Disability discrimination cases illustrate incidents at the intersection of health and land use. People say that good policies balance personal liberty and choice against the community’s interest in preservation of cohesiveness and property values. This formulation is flawed. Association rules that interfere with the health of the residents, including disability issues and mental health, hold the community back from thriving. Housing is more than a coordinated grouping of speculative investments that people try their best to put a nest in.
- Antidiscrimination protections also exist on a state level, such as Virginia’s Fair Housing Law. To the extent possible, courts are required to give full effect to both the Virginia Fair Housing Law and the Virginia community association statutes. There is nothing in the VFHL that excludes HOAs and condominiums from its provisions.
- According to case law in Virginia and some other states, where a recorded declaration gives a board or committee authority to make additional rules and decide the merits of architectural approval applications, the association must conduct such regulatory activity according to a standard of “reasonableness.” Public policies reflected in the enactments of the general assembly inform notions of what is “reasonable” in a private land use context, particularly if those statutes speak to discriminatory recorded covenants.
Gittleman v. Woodhaven Condo. Assn, Inc., 972 F. Supp. 894 (D.N.J. 1997)
Friedberg v. Riverpoint Building Committee, 218 Va. 659 (1977)
Unit Owners Assn of BuildAmerica-1 v. Gillman, 223 Va. 752 (1982)
Taylor v. Northam, 300 Va. 230 (2021)
October 20, 2022
Are Condominium Units Good for Retirement-Age Buyers?
Contemporary home buyers think less in terms of a “forever home” and more in terms of a “now home.” Americans buy “starter homes” when they first achieve a certain salary level. They graduate to larger homes when their wealth and families grow. Later, many people seek different properties with retirement in mind. More people are now retiring in an unmarried state, with less purchasing power and space needs. Many retirement-age Americans are not actually retiring, they just evolve their careers to suit life changes. Developers respond to the changing desires of buyers with an expanding array of options. Most of these housing products include a governing association. Are condominium units good for retirement-age buyers? First, one must consider what these older buyers want. They tend to have similar interests, which define their expectations and preferences post-closing as they engage in the voting and meetings of the unit owner’s association. Let’s take a look at reasons why buyers look at condos:
- Ease of ingress and egress as the owners’ mobility declines. Many condominiums are wheelchair accessible and allow unit owners to go about their daily life with a minimum of walking up and down stairs.
- Proximity to healthcare. Many people avoid remote areas with few doctors, hospitals and clinics. Many retirees want to live close to businesses that provide in-home support as an alternative to assisted or independent living.
- In urbanized areas, such as the Washington, D.C. suburbs, condominiums are typically the most affordable home option. But not all condominiums are really, “affordable housing.” Some luxury condominiums include lavish features and amenities not found in conventional single-family communities.
- Ease of maintenance. A 2,000-3,000 square foot house on a 1/3 to ½ acre lot has substantial maintenance and repair costs. A condominium unit has smaller square footage. The community is in charge of the roof, parking and exterior grounds. Many retirees do not want or are not able to handle the cleaning and repair of a larger home. Adult children don’t want the parent to struggle with cleaning and repair obligations.
- Social opportunities. Condominiums are communitarian enterprises. This is not strictly business. The building may have facilities such as a swimming pool or other recreation where unit owners can get to know each other. If a retiree is moving to a new area to be closer to family, a built-in social outlet may be attractive.
- Confidence that other people will take the lead to make sure things are taken care of. There is a board, a management company, concierge, and so on. The selling point for condominiums, especially in the 55+ options, is often the “care-free living.” Many people are attracted to the idea that the community takes care of the operation, cleaning and repair of everything except the owner’s unit.
- Rules that promote safety, quiet and attractiveness. Many 55+ people have lifestyle preferences that are different from young adults. They don’t want to hear loud noise at off hours. They don’t want a lot of renters or short-term lodgers moving in and out. This shapes their expectations when it comes to the rules enforced within the community.
The housing preferences of seniors, however reasonable they may be, often run up against the practical limitations of the condominium buildings, the other people who live there, and what the condominium instruments require or allow. To answer the question, “Are Condominium Units Good for Retirement-Age Buyers?” one ought to consider the challenges and obstacles of using a condominium unit as a retirement or empty-nester home:
- The cost to the community of maintaining the buildings and improvements on the property continually rises. There are many systems in a condominium building which will one day require expensive repair: elevators, parking lots, plumbing, HVAC vents, sewer pipes, insulation, roofs, windows, balconies, boilers, chillers, even structural components. Condominium leaders tend to defer major renovations and underfund reserves. Condominiums are supposed to base assessments on the operating budget and five-year reserve study. However, boards frequently ignore reserve studies for a variety of reasons. Many people are not able to handle a $10,000-$40,000 special assessment without major life changes. Most 55+ Americans who purchase condominium units for retirement do so to avoid large, unexpected repair bills. Home ownership is supposed to fit into one’s retirement plan. The retirement plan is not supposed to be dictated by the financial burdens imposed by the board. However, in the wake of the Surfside Florida condominium tragedy, the community association industry is lobbying state legislatures all around the country to give condominium boards more powerful tools to collect special assessments. If the condominium building has reoccurring problems there may be an expensive assessment to deal with it, or the deductibles for insurance will continue to rise.
- Condominiums with serious problems tend to experience intense conflict over managerial control. Most people do not want to spend their retirement years in conflict with their neighbors. In theory, the statutes and recorded instruments give the board the power to do what is necessary to manage the business of the association while insuring sufficient checks and balances on the exercise of such power. However, 30–40-year-old legal documents may not adequately foresee tomorrow’s challenges.
- In a worst-case scenario, the unit owner may face loss of their unit through foreclosure or termination of the entire condominium project. Legislative action tends to strengthen remedies such as foreclosure or termination in response to input of lobbyists and action committees for the HOA and developer industries.
- A large number of participating unit owners may not share the same views as the retirement-age buyers. The board of directors may be made up of unit owners with a variety of perspectives: retirees, young persons, real estate agents (or other vendors) looking to build a referral network, unit owners looking to have their own personalized concern addressed, or non-occupants who own a large number of units as investments. No matter how pure or conflicted their motives are, the directors are likely to look at themselves as non-profit volunteers who, unlike other unit owners, won the most recent election.
- Many condominium bylaws include indemnification provisions that protect the association against money damages claims for water infiltration. This is a burden shifting device that lowers the overall operating cost of the association, at the expense of the members. This is one way that condominium unit ownership can create a serious problem for a unit owner.
- Many people assume that there are laws and agencies that provide regulatory oversight preventing homeowners from unduly suffering from condominium governance problems. Government officials looking to be re-elected don’t send citizens written demands to pay $20,000.00. However, the idea behind community associations is that they are self-governing. Many states have boards or ombudsmen that play some role in the legal affairs of community associations. However, such officials often have close ties with the industry. Usually, their legal authority it limited.
- Most condominium disputes go into the courts if they cannot be solved within the association. The statutes and recorded instruments define the enforceable “contract” between the unit owners and the association itself. The obscurity of condominium law and equitable remedies makes it difficult for a general practitioner to navigate the courts for the unit owner client. Yet, condominium unit owners can successfully vindicate their rights vis-à-vis the board where the facts and circumstances allow.
Are condominium units good for retirement-age buyers? Based on my experience representing condominium unit owners, I have concerns about the realities of this form of housing investment. That said, there are many people who have good experiences buying condominium units, living in them or renting them out, and in a few years selling them above purchase price.
Most smart home buyers adequately research and review the potential investment. The process of reviewing the listing online, visiting the property, making an offer, and reviewing the disclosure packet, and considering a home inspection report can be inadequate for a buyer to rightfully feel a high level of certainty. The buyer does not have the experience to understand what they are reviewing (if they even bother to look). Even if they do possess the legal, accounting and engineering acumen, it may not disclose key information, such as the likelihood of a major future assessment or risk of system failure. If there are particular community features or rules which are a “must have,” the buyer ought to confirm that is set out in the recorded instruments, and not rely upon assurances provided during the sales process. Also, disclosure packets cannot predict what a future board might do. Newer condominiums are less likely to require major expenses necessary to replace entire building systems. But new buildings have defects too.
For a condominium unit to fit within a limited retirement budget, the purchaser needs to have a plan for how to deal with potential unpleasant surprises. If the buyer has the financial resources to set aside for a potential future special assessment and/or to litigate disputes, and they carefully review and consider the disclosures and find them unobjectionable, then perhaps they can ride out future obstacles.
Unless the buyer plans on sitting on the board of directors for the entire time they own the unit, they need a strategy for monitoring and engaging in what the board and committees are doing. Otherwise, it’s easy to become blindsided by a new development which had been discussed but not widely broadcast until after a decision is made. Many unit owners find it easiest to network with other unit owners (including some directors or committee members) who share their interests so that they don’t have to listen to or read every document or meeting. The retiree’s plan for purchasing and owning the condominium unit ought to include an exit strategy. Without adequate planning with respect to the condominium investment, the retiree risks having a board of directors overturn the personalized retirement plan.
July 20, 2022
Awards of Attorney’s Fees in Community Association Litigation
I am frequently asked if the winner of a lawsuit between a community association and a homeowner will get an award of attorney’s fees at the end. For many property owners, the cost of litigating for months or years is burdensome, especially if it cannot be recovered. Virginia, like most states, follows the “American Rule” requiring each side bear their own fees, unless there is a statute, contract or other exception that allows fee shifting. The Virginia Condominium Act and Property Owners Association Act (HOAs) allow for prevailing party attorney fee awards in actions to enforce the statutes or instruments. Also, some recorded instruments (declarations, bylaws, amendments) provide a “contractual” basis for attorney fee awards. In most community association litigation, there is a statutory or contractual basis for an award of prevailing party attorney’s fees and costs. However, the statutes may not apply if the development does not meet the statutory definition of a condominium or property owners association. In such cases, the homeowner ought to consider whether another exception to the American Rule applies.
There are judicial opinions that address attorney fee awards in the HOA context. I discussed an important Supreme Court of Virginia case in my April 28, 2017 blog post, “Condo Owner Prevails on Her Request for Attorney Fees” That case, Lambert v. Sea Oats Owners Association, restates the seven factors that courts weigh in considering the reasonableness of a petition for attorney’s fees:
- The time and effort expended by the attorney.
- The nature of the services rendered.
- The complexity of the services.
- The value of the services to the client.
- The results obtained.
- Whether the fees incurred were consistent with those generally charged for similar services
- Whether the services were necessary and appropriate.
In Lambert v. Sea Oats, the trial judge decided to reduce the fee award on the grounds that the underlying amount of compensatory damages was much lower than the attorney’s fees. The trial judge decided that the attorney’s fee ought not to be out of proportion to the claim on the merits. This presented a problem to the unit owner, whose victory was hollowed by having her attorney’s fees award drastically reduced. This practice could encourage some to “stonewall” their opponent in a way that practically deprives them of their rights. In Lambert the Supreme Court disallowed cutting fees on such grounds.
In today’s post I would like to focus more on the procedural aspects of attorney’s fees petitions, because there are things are party is required to do if they want to avail themselves of the statutory or contractual provisions that entitle them to fees. Fulfilling these procedural requirements are important in part because many trial judges in Virginia are inclined not to award attorneys fees, even when the prevailing party is entitled to such an award by a contract or statute.
The procedural requirements for presenting a petition for attorney’s fees in Virginia vary from those used in the federal courts and some other states. In Virginia, the basis for the attorney’s fees claim must be specifically alleged the lawsuit. The parties are entitled to obtain copies of their opponent’s attorney fee invoices in discovery. Unless an order is entered otherwise, any party asserting an attorney fee claim must submit evidence in support of it at trial, otherwise the claim is waived. The rules allow for bifurcation of attorney’s fees. This allows the court to declare a victor and decide the attorneys fees at a subsequent hearing. However, bifurcation is supposed to be made by the parties mutual consent or by a pretrial order. In many cases, the party seeking fees will call an expert witness to testify regarding the reasonableness of the fee. In many lawsuits regarding property, by the time the case goes to trial, recovery for the cost of litigating becomes an important issue for the parties. Attorneys and their clients often prefer dealing with attorney fee petitions post-trial for a number of reasons. Trying to win on the merits requires a tremendous amount of attention to detail. If a party presents a large fee petition as a part of their trial presentation, the judge or jury may view their case as more about the attorneys fees and less about the merits. Also, its easier to calculate the attorneys fees award a couple weeks after trial because the trial is already concluded.
By contrast, in the federal courts a claim for attorneys fees is made by a post-trial motion filed in usually a couple weeks, unless a statute or scheduling order requires it to be presented at trial. As you can imagine, attorneys accustomed to the federal rules may miss the pretrial requirements imposed by the Virginia court rules, and later discover that they are procedurally barred from presenting their attorney’s fees claim.
Many attorneys mistakenly believe that if their client prevails, they can add all of their assorted litigation costs to the attorney fee and costs award. I’m talking about things like court reporter appearance or transcript fees, hotel fees, rental cars, expert witness fees, overnight delivery charges, and so on. Many of these things, such as court reporters and photocopies are as essential to the clients case. However, the only costs that are ordinarily recoverable under Virginia law are the court filing fees and the service of process fees. Depending upon the subject matter of the case and the contract documents, other costs may be made part of an award.
The attorneys fees statutes for HOAs and condominiums don’t just apply to claims by the homeowner against the association. The association can assert the same basis for attorneys fees, be it as a plaintiff or defendant. Also, the statute can apply to claims brought by a homeowner against another homeowner under the acts or the governing instruments.
When a homeowner files a lawsuit against the community association, other owners are often concerned about payment of attorney fees in defense of the suit. Ordinarily, when an association is sued, they place a claim with their insurance, who appoints them a lawyer to defend the case. The insurance defense attorneys are ordinarily seasoned trial attorneys who different kinds of civil defense work in addition to defending HOAs. Often, the board will assure residents that the insurance is taking care of the attorney’s bills. However, the association is likely to incur additional attorneys fees, because the board’s regular general counsel ordinarily participates in the communications between the board and the insurance defense attorney. The general counsel’s fees are not ordinarily reimbursed by the insurance.
Given how expensive it can become to litigate a HOA case to the end, the parties ought to give careful consideration to how a petition for fees will be supported or opposed. One must also consider that in the event that the case can be resolved through a negotiated agreement, the attorney fee claims have to settled or released in the context of the settlement of the case.
Va. Code § 55.1-1828 (POAA – Attorney’s Fees)
Va. Code § 55.1-1915 (Condominiums – Attorney’s Fees)
Prospect Dev. Co. v. Bershader, 258 Va. 75 (1999)
Lambert v. Sea Oats Condo. Ass’n, 293 Va. 245 (2017)
Federal Rules of Civil Procedure, Rule 54
Fairfax Square LLC v. Hermes of Paris, Inc., 89 Va. Cir. 406 (Fairfax 2015)
Advance Marine Enterprises, Inc. v. PRC Inc., 256 Va. 106 (1998)
July 12, 2022
Homeowner Injunction Claims Against HOAs
In property cases, many parties seek an injunction. An injunction is a court ruling directing a defendant do something specific or to refrain from doing something. Violations of an injunction order may be enforced by contempt proceedings. Injunctions contrast with other remedies such as awards money damages. Injunctions are important in condominium and HOA cases. Sometimes boards sue to force an owner to obey a restrictive covenant. Someone may be obstructing an easement. The board may be acting in a fashion that is contrary to the statutes or declaration. While a party may believe that injunctive relief is the obvious answer, obscure doctrine may hinder the use of this “extraordinary” remedy. Today’s post covers considerations for bringing or opposing homeowner injunction claims against HOAs. On May 24, 2019, I posted an article, “Injunctions in HOA cases.” I am blogging about this again today because of how important this remedy is to homeowners seeking legal solutions in HOA matters.
Virginia law usually requires, (1) irreparable harm and, (2) an inadequate remedy at law to warrant an injunction. The harm doesn’t have to threaten life, limb or entire loss of the property to be deemed “irreparable” or to be absolutely permanent. But it must be some sort of substantial threat or actual, continuing infringement of a legal right. “Inadequate remedy at law” means that the problem cannot be sufficiently resolved by means of an award of possession, money damages, or some sort of appropriate legal process defined by law.
For enforcement of property rights, the Supreme Court of Virginia recognizes that an injunction is an appropriate remedy. The violation of a real property interest is deemed “irreparable”, and the owner ought to be protected in the enjoyment of his property. Yet, the other party may avoid the imposition of an injunction if it can demonstrate that it would create a hardship or injustice that is out of proportion to the relief sought. Although there are many published judicial opinions regarding injunctions, the distinctions may seem “fuzzy.” This is because the relevant facts, recorded instruments and statutes will vary. Injunctions involve judicial discretion.
There are other exceptions to the requirement of irreparable harm and inadequacy of a legal remedy. Neither must be proven when a statute or ordinance expressly empowers a court to grant injunctive relief. In that case, all that is required is proof that the statute or regulation has been violated. This is important in homeowner injunction claims against HOAs because the statutes allow such relief to enforce the VPOAA or Condominium Act.
A party seeking to enforce a real covenant is entitled to the equitable remedy requested upon showing the validity of the covenant and its breach. In such instances, the plaintiff is not required to prove damages or the inadequacy of a remedy at law. The relative equities of the parties do not need to be “balanced” by the judge. The courts will grant injunctions to enforce contracts for the sale of real estate. But the common law requires that restrictive covenants be clear in their express meaning to be enforced. Sometimes HOA or condominium boards act in an “ultra vires” fashion, exercising powers that the covenants don’t actually authorize them to use. Courts will enter injunctions against ultra vires activity.
Because homeowner injunction claims against HOAs focus on state statutes and recorded covenants, courts are likely to find injunctive relief appropriate. This is not to say that it is automatic. There are many defenses that may be asserted against an injunction suit. For example, the language of the statute or covenant may not entitle the plaintiff to a remedy. Relevant facts or other legal authority may provide much needed context for the court to ascertain whether an injunction is appropriate.
The defendant may be able to prove that the plaintiff is not entitled to an injunction because she slept on or relinquished her rights. There may be a statute of limitations barring the claim as too stale. The party may have affirmatively waived their claim or acted in such a way as to induce the defendant to treat it as abandoned. Such circumstances could give rise to a defense of waiver, estoppel, laches or condonation. Such defenses can be difficult to prove in the absence of a written or electronic communication by the plaintiff that constitutes an express waiver or consent.
Ordinarily, claims for injunctions are resolved at trial. But a claimant can ask for what is called a temporary or preliminary injunction pre-trial. A temporary injunction allows a court to preserve the status quo between the parties while litigation is ongoing. Many circuit court judges in Virginia expect litigants to prove the four elements of the federal courts’ test. To obtain a preliminary injunction Plaintiffs must establish they are likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in their favor, and an injunction is in the public interest. Many judges require strict proof of these four elements if the motion is made pretrial, even if it is a property right or the statute allows for injunctive relief. The merits of preliminary injunction motion are dependent upon the unique facts and circumstances of the case.
Sometimes an injunction order may be enforced against tenants, purchasers or other successors to the party enjoined. For example, if a property owner is found to be causing a stormwater diversion nuisance, and the injunction requires them to make changes to the property by abating the nuisance, the defendant cannot avoid the effect of the order by leasing or conveying the property to another party who did not participate in the injunction lawsuit.
Boards of directors have a variety of remedies they can pursue that don’t necessarily require them to go to court, such as fines, privilege revocation or liens. Absent major legal reforms, homeowners remain reliant on other strategies, such as winning elections, negotiation, self-help or litigating to vindicate their rights. But these cases are winnable because the rights are set forth in recorded instruments, contracts or statutes that unless an exception or defense applies, can be enforced by injunction. Many lawyers are unfamiliar with the case law that facilitates homeowner injunction claims against HOAs. Showing that the landowner is entitled to and intending to pursue such relief may lead to faster and stronger results in resolving such disputes.
Norfolk Southern Ry. Co. v. E.A. Breeden, Inc., 287 Va. 456 (2014)
May v. R.A. Yancey Lumber Corp., 297 Va. 1 (2019).
Ticonderoga Farms, Inc. v. County of Loudoun, 242 Va. 170 (1991)
The Real Truth About Obama, Inc. v. F.E.C., 575 F.3d 342 (4th Cir. 2009)
Farran v. Olde Belhaven Towne Owners’ Assn, 83 Va. Cir. 286 (2011)
Calamos v. Comm., 184 Va. 397 (1945)
Gottlieb v. Economy Stores, Inc., 199 Va. 848 (1958)
This post was updated on Sept. 29, 2022.
June 6, 2022
Renovation of Condominium Limited Common Elements
Rights and responsibilities regarding renovation of condominium limited common elements (LCE) are a frequent source of legal conflict among unit owners. LCEs can be of practically anything, frequent examples being balconies, patios, porches, or parking areas. The Virginia Condominium Act defines, “Limited common element” as, “a portion of the common elements reserved for the exclusive use of those entitled to the use of one or more, but less than all, of the units.” Contrast LCEs with general common elements, which are also common property, but not designated for exclusive use by anyone. Generally speaking, the unit owner’s association board controls the use, maintenance, and assessment of cost for repair to the common elements, including the LCE. LCEs can be something that the unit owner enjoys as living space, relies upon for the normal use of the unit, or required for access to and from home. When LCEs need to be repaired or replaced, disputes frequently arise regarding the method of renovation of condominium limited common elements and the assessment of costs. It makes sense to handle the cost of maintaining LCEs differently that “general” expenses. The other unit owners do not enjoy or benefit from the LCE. Cost of replacement or renovation of condominium limited common elements can, in some instances, be astronomical. For example, replacing all balconies at the same time can be expensive, but overall, if handled properly, more cost effective and produce more visually uniform results. Many people don’t like having a committee of self-interested non-experts decide when, in what design, and at what cost their balconies or patios will be replaced. Large, unforeseen special assessments for projects mostly benefitting others are a frequent source of conflict. Sometimes unit owners will mount campaigns to get rid the of the board if a special assessment project is objectionable.
When controversies regarding liability for renovations to LCEs arise, affected unit owners want to know what rights they have. Because every condominium property and recorded instrument is different, there are no stock answers to these questions.
Some explainers confusingly analogize LCEs to easements. The Virginia Condominium Act discusses both easements and LCEs and does not equate them. The LCE is a statutory creature that includes easements in favor of the assigned unit, conditioned on certain prerogatives regarding control, renovation and imposition of cost held by the board.
While the board exercises significant control over LCEs, it cannot take them away or reassign them willy-nilly. The designation and assignment of LCEs is difficult to change once established by a land recording. If the board could take a LCE away from one unit owner and give it to another, or create a brand new LCE out of a portion of the general common elements, much mischief could result. Assignment of a LCE generally requires an amendment to the declaration, unless it specifically provides for certain areas pre-identified as assignable LCEs to be allocated by the board in the future. For example, storage units or parking spaces may be treated as LCEs. This sounds obscure. However, sometimes boards will want to give a unit owner a privilege to use a common element in an exclusive way, in a manner not contemplated by the declaration or bylaws.
The Supreme Court of Virginia held that the UOA has exclusive standing to sue to vindicate rights in the common elements, including assigned LCEs. In a given case, one unit owner may not be able to sue another unit owner for misuse of a LCE, because, subject to the statutes and recorded instruments, a unit owner cannot usurp the boards statutory prerogatives.
The units to which a LCE is assigned will usually be required to pay the association a special assessment to cover the cost of the repair or replacement of the LCE. The Condominium Act provides “default” rule:
Except to the extent that the condominium instruments provide otherwise, any expenses associated with the maintenance, repair, restoration, replacement, or renovation of condominium limited common elements shall be specially assessed against the owner of the unit to which that LCE was assigned at the time such expenses were made or incurred.
Of course, if someone caused the damage by their intentional or negligent actions, the culpable party may be held responsible, or insurance may be available. When disputes over renovation of condominium limited common elements arise, it’s important for the affected unit owner to obtain legal advice, especially in instances where the Condo Act, original instruments, or any later amendments conflict with each other regarding the control and cost of an LCE. It may be necessary to research bylaw amendments, condominium plats, and builder’s drawings to be reviewed in light of the contracts and engineering designs for the new renovation project. The text of the condominium instruments may not contain the requisite detail for what is actually proposed to be renovated.
Condominium law distinguishes, “maintenance, repair, renovation, or replacement” from “additions & alterations.” Its easy to understand why a unit purchaser is deemed on-board for the repair or replacement of common elements that fall into disrepair, because they were there originally. Generally speaking, the board cannot alter the unit owner’s maintenance obligations by addition or alteration of a common element, unless the instruments make that a part of the “bargain.”
Sometimes, the declaration or bylaws may be amended by a simple majority or 2/3 of the unit owners. The board may ask their supporters to amend the way the LCEs are managed (in terms of usage) or costed (in terms of liability for renovation). Can a simple or super majority infringe upon the rights of a unit owner by altering their unique property rights, or socking them with costs that substantially benefit others? In other words, are there rights that a unit owner has that can’t be circumscribed by the other unit owners acting in concert? The Virginia Condominium Act requires 100%-unit owner approval to change the following:
- The boundaries of any unit,
- The undivided interest in the common elements,
- The liability for common expenses, or
- The number of votes in the unit owners’ association that appertains to any unit.
Another section (Va. Code § 55.1-1919) requires 100%-unit owner consent, or at least the consent of the affected unit owners, to re-arrange the unit boundaries or limited common elements. There is not much case law defining in what instances changes to the common expense liability will require 100% approval. Its possible that the courts would impose a “reasonableness” standard on review, as they do in certain other community association contexts. After someone buys a unit, the community may experience changes not anticipated by the buyer or contemplated in the bylaws. The scope of matters requiring 100% approval versus some lesser number has not been addressed much by Virginia courts. In other states, the courts require amendments of less than 100% to pass an additional requirement that the governing instruments must provide some sort of fair notice that the subject matter of the amendment is reasonably foreseeable.
Boards change personnel, the structures fall into disrepair (or even collapse) and the character of the property surrounding the condominium project changes. Sometimes condominiums attempt drastic measures to raise funds for repairs to avoid termination, such as selling off a swimming pool area, parking lot or docks to developers to raise funds. These risks raise the fundamental question of how a unit owner may protect herself from interference with the use or large unanticipated cost to LCEs. The statutes and recorded instruments may be clear or confusing, depending on the language. It would ne nice if the owner’s rights and responsibilities with respect to the LCE was intuitive or analogous to other kinds of shared property rights, but its not. LCEs are governed by technicalities reflected in obscure legal texts. People who buy condominium units for affordable, convenient housing want to believe that there are competent, responsible people making sure that things are managed and maintained properly, and that they can take assume that what they see and hear can be taken at face value. However, older condominiums bear all sorts of risks and professional assistance to the buyer is advised.
Va. Code § 55.1-1900 (Condo. Act – Definitions)
Va. Code § 55.1-1919 (Condo Act – Assignment of LCE)
Va. Code § 55.1-1934 (Condo Act – Amendment of condominium instruments)
Va. Code § 55.1-1956 (Condo Act – Control of common elements)
Va. Code § 55.1-1964 (Condo Act – Liability for common expenses)
April 15, 2022
Condominium Director Conflict of Interests and the Business Judgment Rule
Nothing corrodes homeowners’ trust in their community association more than the apparent self-interest of a board majority. Every director or committee member has potential conflict of interest in the community’s business because they own property and pay assessments impacted by their own governance. Yet the HOAs business must get done. This doesn’t mean that leaders can disregard the governing instruments or state law in the decisions they make. Few directors ever recuse themselves from voting on things in which they have a personal stake. Courts often review HOA decisions through the lens of the Business Judgment Rule, an import from corporate law. Anyone who has ever questioned the wisdom or ethics of HOA actions has heard about the BJR. The BJR prevents the courts from “armchair quarterbacking” routine decisions of corporations in how to perform the duties mandated by their instruments. I recently blogged about important BJR exceptions in my post, “Are Courts Critical or Deferential towards HOA Decisions?” One important exception concerns director conflicts of interest in board decision-making. Today, I will discuss a March 31, 2022 decision of the Court of Special Appeals of Maryland that considers the scope of the interested director rule as a BJR exception. The court’s decision in Cherington Condominium v. Heather Kenney preserves the BJR generally while recognizing the versatility and usefulness of the interested director rule.
Its April, so its convenient to be talking about landscaping projects. Heather Kenney owned a garden apartment style condominium unit in Cherington Community Association. Cherington consists of 99 residential units, 87 of which are townhouses, and 12 are garden style units. All of the directors were townhouse owners. The board’s 2019 assessment increase required all unit owners, including the garden style units, to contribute financially to the maintenance of outdoor spaces around the townhouses. They increased townhouse unit assessments from $200 to $247 (23.5%) and garden style units from $240 to $352 (46.7%). Ms. Kenney alleged that the $42,700 budgeted for “grounds/landscaping” included maintenance of certain outdoor spaces around the townhouse units, including the fronts and accessible rear yards. The $42,700 sum was not itemized in the budget to show how much was allocated to the townhouses versus other concerns. The association pointed to sections of the bylaws that gave the board the discretion to maintain these particular areas. They said the community would be more attractive and uniform. The board thought that the garden units had previously been under-assessed.
Ms. Kennedy filed a complaint with the Montgomery County Commission on Common Ownership Communities. After the CCOC dismissed her complaint, Ms. Kenney filed suit in the Circuit Court to judicially review the agency’s decision. The Circuit Court ruled that the board’s landscaping assessment benefitting the townhouses was self-interested. This required Cherington to demonstrate that imposition of the costs of the townhouse landscaping onto the garden units was fair and reasonable. The association appealed, arguing that the BJR ought to have been applied instead of the interested director rule, because Kenney presented no evidence of fraud or bad faith. The appellate court agreed with the circuit court that the CCOC erred. Ms. Kenney’s challenge was sufficient to shift the burden to the board to demonstrate that the decision was fair and reasonable.
In Maryland, the BJR is a presumption that in making a business decision the directors of the corporation acted on an informed basis, in good faith and in the honest belief that the decision was in the best interest of the community. Any challenger must show abuse of that discretion that rebuts the presumption. There are exceptions to the BJR. The party challenging the corporate action can put on evidence of fraud or bad faith. Alternatively, they can demonstrate that the director or someone close to that person, has a personal interest in the outcome of the decision. This shifts the burden to the board to prove that it was just and proper without unfair advantage. IMHO, this formulation of the rule is more practical than the extremes of (a) expecting a challenger to prove things where the documentation is likely withheld by the interested party, or (b) deeming all decisions tinged by self-interest voidable without considering facts showing it to be adequately fair. The appeals court ruled that the BJR and the interested director rule are not mutually exclusive. The latter functions as a kind of brake on the former. Otherwise, directors no longer have fiduciary responsibilities.
The appeals court discussed a couple Maryland community association cases applying the BJR in the context of architectural approvals. In Virginia, the less deferential “reasonableness” standard (and not the BJR) generally applies in architectural control matters. But the BJR applies to Virginia HOA decisions in many other contexts.
Cherrington association sought to limit the scope of the interested director rule to contracts made by the corporation with a benefitted director or family member. The landscaping contractor was not a director or affiliate. The appeals court declined to take such a “pro-HOA” position, and found that the 2019 condominium assessment was something that could trigger the interested director rule, because it’s similar to a transaction between a corporation and its directors. Moreover, the assessment was spent on the landscaping contract of particular use to the townhouse owners. The appeals court sent the case back down to the COCC to take evidence pursuant to the shifted burden of proof. Ms. Kenney hasn’t quite won on the merits yet, but she now has a good chance to obtain a fair outcome.
Now to a few takeaways:
- Legal standards of review and evidentiary presumptions define how courts evaluate the evidence presented in contentious community association litigation. Without a rule shifting the burden on the association to show fairness, Ms. Kenney’s would fail because the association controlled the information needed to ascertain the facts.
- The interested director exception to BJR is alive and well in Maryland. Cases where a challenging unit owner can substantiate claims of fraud or bad faith are unusual, because dishonesty is ordinarily concealed. The appeals court’s holding makes clear that the disputed transaction doesn’t need to be something where the board is directly paying money over to a director or their family member. This formulation of the exception prevents the BJR from being used improperly to avoid fiduciary responsibilities.
- Challenging wrongful HOA decisions in court is doable, but not easy. Even though the appeals court rejected the idea that the BJR eclipses all other rules, Ms. Kenney still has to go back to the COCC and prevail on remand. This unresolved dispute began three years ago. HOAs frequently counter owner challenges with stonewalling tactics. Sometimes, the unit owner’s conduct is put on trial, and the board makes all sorts of unfounded accusations that the plaintiff is the real bad apple in the community. But the legal victory enjoyed by Ms. Kenney is another example that judges are willing to look at these cases from an independent viewpoint, that may not be reflected in the decisions of a state or county-level commission dominated by persons with ties to a particular industry.
When a property owner knows that something being done is factually unfair, violates a law or instrument, and prejudices their rights, they don’t have to accept the usual explanations that the good faith “business judgment” of “elected nonprofit volunteers” reflects the best interests of the community.
Cherrington Condo. v. Kenney, 2022 Md. App. Lexis 237 (Md. Ct. Spec. App. 2022)
March 16, 2022
Are Courts Critical or Deferential towards HOA Decisions?
Many homeowners can tell that the boards and committees of their community association are making wrong decisions that prejudice their rights, but struggle to articulate the legal basis for why the decision is bad. Attorneys inexperienced with HOA law sometimes write demand letters to community leaders sprinkled with legal jargon such as “breach of fiduciary duty,” “arbitrary and capricious,” “lack of due diligence,” or “bad faith.” Sometimes, a problem has a clear answer, because a statute, contract or bylaw provides an unambiguous rule. However, statutes or governing instruments often give boards and committees some discretion in fulfilling their duties and exercising their rights. The board may have to decide whether to go with one management company over another. There may be differences of opinion as to whether roads must be resurfaced next year or in five years. The board may have to decide whether to buy play equipment aimed at toddlers or 5th graders. HOAs frequently find themselves revising or applying architectural guidelines as the community ages and owners submit new applications. The establishment of a board or committee presupposes that they will deliberate and decide among various choices. Collective deliberation is supposed to produce correct decisions, or at least follow a process which, if followed, members will accept even if they disagree.
If the legal text provides a clear, unequivocal answer, its easy for the attorney to advise the client whether the breaching party could be successfully sued. Where the rules allow the board to make a debatable decision, and members have varying views as to the wisdom of that decision, one must consider what standard the court is likely to apply. Should the court defer to the board’s judgment, as the elected representatives tasked with making such decisions? May the judge substitute her own judgment for that of the board? Judges know that its important to apply appropriate standards in similar situations, so as to promote fairness and consistency. If they could pick their own dockets, many judges would not prefer to deal with many community association lawsuits. HOA cases tend to be quite acrimonious, involve obscure legal doctrines, and require extensive reading of lengthy written instruments. At times, it may be unclear whether the judge is applying a conventional interpretation of an established rule or is merely trying to rationalize a decision he sees as appropriate given how it will resolve the dispute. Legal methods vary in the many judicial opinions deciding legal challenges to HOA or condominium decisions or resolving covenant enforcements disputes. There are reasons why different standards appear in different cases, from “strict scrutiny” to more deferential approaches. Different legal doctrines may apply to the same legal dispute, from specific provisions of the community’s governing instruments or contracts, amendments to the state statutes, or ancient yet flexible common law doctrines. It is essential for a homeowner to have a basic understand of judicial standards of scrutiny & deference in HOA matters. Otherwise, someone may mistakenly pick the wrong battle.
The first question is to determine whether the covenants and bylaws are clear or ambiguous. Where the terms of restrictive covenants (or really any kind of legal text) are clear and unambiguous, the duty of the court is to interpret them in accordance with their “plain meaning.” If the statute or covenant is ambiguous or vague, this will raise thorny questions. However, courts usually find the legal text to be unambiguous, and this makes it easier to identify the proper standard by which to evaluate the board’s action. In Virginia courts, there are three general standards of review applied by judges in community associations cases.
Doctrines of Plain Meaning, Strict Construction and Ultra Vires – When one looks to the governing instruments for an answer, and the instruments either provide a clear answer then principles of strict interpretation proscribe the HOA’s duty to act or refrain from acting in a certain way. The Association may not act in contravention of its governing documents. If it does so, such an act is void or voidable. Also, it the declaration enumerates a list of powers and certain things are conspicuously absent, then this may mean that the omission of such things from the text shows an intent to exclude such authority. Sometimes HOA boards to try to use architectural standards, administrative resolutions, committee charters, or handbooks to establish rules that are contrary to a statute or recorded instrument, or is not authorized by such instruments. The board can only exercise “business judgment” with respect to things that have been made its business by the operative language of the recorded instrument or statute.
Business Judgment Rule – According to the BJR, it’s not the place of the courts to second guess decisions that a corporate board is required to make in the performance of its duties. Exercise of the BJR will not be disturbed by the courts unless justified by those discrete facts that are properly pleaded and would justify judicial review, such as cases of fraud, bad faith, breach of trust, or gross mismanagement. Boards (and their advisers) are very attracted to the BJR because it is highly deferential to the HOA. HOA instruments often delegate broad authority to the boards with respect to the business of the development. Fraud, bad faith, breach of fiduciary duty, or gross mismanagement are easy to allege but difficult to prove. Application of the BJR requires the directors’ decision to be that of a business judgment and not a decision which construes and applies a statute, covenant or bylaw. The BJR is not a mega-doctrine swallowing up all the provisions imposed upon the board by the statutes or instruments. Its best not to pursue litigation against HOA boards on matters which clearly fall within the BJR. However, the instruments may be unclear, or they may clearly limit the board’s discretion. The BJR applies most naturally to decisions like which manager, landscaper or attorney to hire, when to replace the roof on the pool house, or what color to paint a shed. Its important to remember that the BJR is a doctrine imported into community associations from corporate law, where many decisions fall within either the “ultra vires” (void) or BJR categories. In corporate law, once a board power is treated as within its authority, it tends to become a part of the private affair of the management of the business. It is difficult to legally challenge decisions to which the BJR applies, absent an applicable covenant or bylaw, or the rare cases where fraud, dishonesty, criminality, etc. could be proven.
Rule of Reasonableness – The rule of reasonableness applies in HOA architectural control matters. Virginia courts strictly construe restrictive covenants because they are in derogation of the free use of one’s property. So one normally looks to whether the “plain meaning” of the restriction is ascertainable and violated in a particular instance. However, most HOA and condominium declarations contain additional provisions that require most architectural changes to the lot to first obtain approval from a board or committee. How do you reconcile notions of “plain meaning” and strict scrutiny” when the restrictions contemplate the HOA withholding or granting approval on a case-by-case basis? The Supreme Court of Virginia has held that a restrictive covenant for a residential subdivision which requires consent to construction or approval of plans of construction, even though the provisions of the restrictions do not establish standards of approval, will be declared valid when such covenants apply to all the lots as a part of a uniform plan of development. But such covenants will be enforced only when there has been a reasonable employment of such restrictions. Architectural standards have been found to pass the rule of reasonableness where applied uniformly, consistently and in good faith for a considerable period of time. It makes sense for the board to be held to a higher standard in the formulation of architectural restrictions because, in general, restrictive covenants are disfavored and strictly construed. Most architectural restrictions require the owner to obtain approval from a board or committee prior to making changes to the appearance of the lot. The rule of reasonableness prevents HOAs from unreasonably withholding approval for unjustified reasons. Note that the standards that may apply under a reasonableness inquiry don’t have to be expressly set forth in the recorded instruments. Bear in mind that the “reasonableness” standard is informed by the meaning of statutes, covenants, standards, etc. An approach can be unreasonable even if the board, its advisers and friends in the community feel it is reasonable. The reasonableness standard prevents architectural controls from becoming some sort of free for all, whereby the committee and board members and their friends get what they want out of the process, and those who want to improve their properties in other ways have their applications unjustifiably denied.
Having different standards makes sense. The exercise of architectural controls in a community is a quasi-governmental function, and not analogous to managing a business. To apply the BJR in the making, applying and enforcing of architectural standards would create an exception that would swallow the general principle of strict scrutiny of restrictions on the free use of property.
In some states, the courts no longer apply the rule of reasonableness, and instead apply the BJR to all instances in which the board gets to make a decision. Also, even if judicial doctrine imposes a reasonableness requirement on architectural rulemaking and decisions, the governing instruments may be worded in ways that maximize the board’s latitude. Furthermore, whether the BJR or the rule of reasonableness applies, in either case the judge is permitted to consider various legal texts and evidence of the facts of the case to formulate an equitable remedy or apply a defense. In a dispute between a HOA and its members regarding a decision, eventually the question will be asked whether strict construction, business judgment or reasonableness standard applies. Usually, the board will attempt to invoke the BJR or argue that the decision they made was required by the documents. For many property owners seeking to protect their rights, identifying the proper legal standard is essential. To take a case to trial, the owner will likely have to make a substantial investment of their time and resources. An owner will want to show that the board’s action fell outside of what it was allowed to do by the express language of the statutes or governing instruments, or that to the extent that exercise of discretion was called for, there are compelling grounds that there was unreasonableness, arbitrariness, bad faith, or self-dealing. Even where a fair interpretation of the governing instruments does not allow any board discretion, there may be other defenses that the HOA asserts, such as waiver, estoppel, laches, condonation, unclean hands, etc. that attempt to redirect the scrutiny back on the plaintiff. However, those kinds of defenses require a factually specific presentation at trial. Absent a clear letter or email that establishes such a defense, those kinds of defenses can be difficult to prove.
Bowman v. Wintergreen Property Owners Ass’n, 250 Va. 177 (1993)
Scott v. Walker, 274 Va. 209 (2007)
Lake Monticello Owners’ Assn v. Lake, 250 Va. 565 (1995)
Gottlieb v. Economy Stores, Inc., 199 Va. 848 (1958)