May 17, 2016
Can a HOA Represent Individual Landowners in Court without Their Permission?
Can a HOA Represent Individual Landowners in Court without Their Permission? What gives an HOA or Condo Association standing to sue to address threats coming from outside the community, or to appeal administrative decisions by the government that affect the neighborhood? On April 22, 2016, the Circuit Court of Loudoun County issued an opinion that explains how an HOA’s power to represent its owners in the outside world is actually quite narrow. This case is important to anyone interested in the overreach of HOA powers. In matters involving real estate, the HOA only owns the common areas and easements granted in the covenants recorded in the land records. For an HOA to represent the interests of an individual owner’s property in court, specific authorization is required.
The Grenata Homeowners Association and the Evergreen SportsPlex are neighbors. Grenata is a 61 lot community in Leesburg, Virginia. Like many sports complexes, Evergreen SportsPlex uses powerful lighting to make its ballfields usable at night. In many places, sports complex lights are intense enough that passengers taking off or landing can see games in play from airplanes from a high altitude at night. Many people in Grenata find the glare from the Evergreen SportsPlex a nuisance. Personally, I dislike having streetlight glare come into my bedroom or hotel room at night. Loudoun County has a light ordinance that does not require residents to do this where the light problem reaches a certain point. I can understand why those owners brought complaints before Loudoun County, alleging that Evergreen SportsPlex violated the local light ordinance. (Pop star Cory Hart’s 1984 hit song, “Sun Glasses at Night” is the musical inspiration for this blog post) The zoning administrator issued a notice of violation. Evergreen SportsPlex appealed and the Board of Zoning Appeals reversed the decision, finding that the Evergreen SportsPlex lighting was compliant. The HOA and some of the individual owners appealed this adverse decision to the Circuit Court. The April 22, 2016 opinion of Judge Douglas Fleming rules on the County’s efforts to get the appeal dismissed without further litigation.
Much of Judge Fleming’s opinion addresses technical questions about whether the HOA or individual owners were effectively notified of the Board of Zoning Appeal’s decision and thus waived any right to appeal. The case also presents questions about Grenata HOA’s standing to appeal the Board of Zoning Appeal’s adverse decision on behalf of itself and its individual owners. Has Grenata rightfully interjected itself in this case if it is the individual owners who are impacted by the intense glare? There may be owners in the HOA who are not damaged by the SportsPlex lighting and would not stand to benefit from this litigation. The Court addressed Grenata’s claims of standing both as a property owner and as an owner representative:
HOA as a Representative Agent of Individual Homeowners:
Grenata HOA claimed to be an authorized representative agent of individual homeowners affected by this Board of Zoning Appeals decision. There are provisions in the covenants that authorized the HOA to bring lawsuits that the board deemed necessary. The Board of Directors made a written resolution specifically authorizing the appeal to be filed. The opinion does not discuss any provisions in the covenants that would specifically authorize the HOA to litigate on behalf of individual owners’ interests.
If Grenata succeeds on appeal, the owners living closer to the SportsPlex would benefit more than the ones living further away. All owners would be paying for this out of their assessments.
There is no provision of the Property Owners Association Act that specifically authorizes HOAs to appeal adverse land use decisions on behalf of individual “constituent” owners.
The Court found that there was no record in the Board of Zoning Appeal case that individual affected homeowners ever expressly authorized the HOA to pursue this appellate litigation on their behalf. However, since Grenata alleged in their appeal that there was, the Court viewed this as a factual dispute that would have to be resolved later on in the case.
The Court is making a subtle point about the limits of HOA powers. Just because a HOA Board of Directors decides that they want to pursue an appeal of a land use decision on behalf of several of their constituent owners doesn’t mean that they have the authority to do so. Only those individual landowners have standing to pursue the litigation unless they expressly authorized their HOA to do this. The language in the covenants is critical to assessing these authorization issues. The covenants could prohibit such actions by the board, with or without owner’s authorization, or they could provide specific circumstances where the HOA could do something like this without individual owner authorization. The analysis applied by the court appears to be in a situation where the covenants are silent on the issue.
In these types of cases it is usually best for the affected owners to retain their own counsel (either separate or joint representation, as appropriate) and explore these matters without involving the HOA. If an individual owner signs an authorization for the HOA to proceed, and the HOA Board is motivated to proceed, then the owner runs the risk that the HOA Board will pursue things in a manner in the interests of certain officers, the majority of HOA directors or owners. This could result in an outcome that might not be in the best interest of the affected owner. Also, many owners may be suspicious if the Board pursues legal action that is paid for by all owners but disproportionately benefits certain owners, who may be connected with board members. The case opinion does not delve into these internal HOA governance issues, so I don’t know if they come into play here.
HOA as an Impacted Property Owner:
Grenata HOA owned a few parcels of land approximately 480 feet from the SportsPlex, including a water supply and undevelopable “out-lots.” Grenata argued it had standing because it owned these nearby properties. The Supreme Court of Virginia has a test as to whether a neighbor has standing to challenge a land use decision:
- The neighbor must own or occupy property within close proximity to the property at issue (here the SportsPlex), thus establishing a direct, immediate, pecuniary and substantial interest in the decision.
- And they must demonstrate a particularized harm to some personal or property right, or a burden different from that suffered by the general public.
The County unsuccessfully argued that these common areas did not adjoin the SportsPlex and thus were not in close proximity. The court found that 480 feet was close enough to allow the appeal process to proceed. On argument the County pointed out that these common areas were undevelopable and thus of little or no market value. The Court determined that such value was not relevant to this determination. The court determined that the HOA had standing to pursue the appeal on the grounds because it sufficiently alleged that it was a proximate owner alleging a particularized harm not suffered by the general public.
A cheeky argument that lawyers for Evergreen Sportsplex or the County could make, but isn’t discussed in the opinion is that the SportsPlex lights actually confer a benefit on the HOA in its administration of the common areas. HOA’s have an obligation to their residents and guests to keep common areas well-lit if necessary to promote safety. If there is an area where storm runoff accumulates, or parking lots or perhaps some roads, it may benefit the community to have electric bills for lighting paid by Evergreen.
The Grenata case is far from over. The Circuit Court may ultimately dismiss the appeals of the HOA, individual owners or both. In Virginia, the factual determinations of the Board of Zoning Appeals are presumed to be correct by the Court unless a party successfully rebuts the presumption. The burden rests on the HOA and owners to show that the Board of Zoning Appeals made an incorrect determination.
Case Citation: Grenata Homeowners Association, et al. v. Bd. of Superv. of Loudoun Co. & EVG Land, LLC (Loudoun Co. Cir. Ct. April 22, 2016)(behind subscription paywall)
Photo Credit: Flood lights via photopin (license)
April 22, 2016
Milwaukee is in a Tussle with Banks over Zombie Foreclosures
When an owner defaults on her mortgage, sooner or later she must determine if she is willing and able to keep the property. In my last blog post, I considered a situation where an owner might find their HOA attempting to force the bank to expedite a delayed foreclosure. In my opinion, neighbors and HOAs should not interfere with an owner’s bona fide efforts to save their home and avoid foreclosure. However, the owner does not always desire to keep the property. Some owners want their property to be sold to cut off their obligations to maintain the property, pay taxes, and HOA assessments. What rights does an owner have to force a lender to expedite the foreclosure? What interest does the city or county have to hurry up foreclosure? In Wisconsin, the City of Milwaukee is in a tussle with banks over zombie foreclosures. On February 17, 2015, the Supreme Court of Wisconsin decided that where a bank files suit to foreclose and when the court determines that the property is abandoned, the sale must occur within a reasonable period of time. The banking industry would prefer to postpone completing foreclosure if expediting things would force them to pay fees to acquire property they don’t actually want. Wisconsin Assembly Bill 720 currently sits on Governor Scott Walker’s desk, which if signed would give banks greater flexibility in delaying or abandoning foreclosures. Why are the banks seeking to amend the foreclosure statutes in response to this judicial opinion?
As Fairfax attorney James Autry says, an abandoned home is a liability, not an asset. Unoccupied residences can be victimized by vandals, squatters, arsonists, and infested by vermin. In the winter the pipes can burst, causing thousands of dollars of damage. Local governments struggle to collect taxes on the property and HOAs are not able to collect assessments and fines for the home. The abandoned homes may become an eyesore and affect neighboring property values. The hallmark of truly “zombie” properties is that no one wants them because their costs and liabilities exceed their value.
The subprime mortgage crisis transformed many properties in Milwaukee into “zombie foreclosures”. On April 11, 2016, Mayor Tom Barrett published an op/ed stating that there are currently 341 properties in Milwaukee that are simultaneously vacant and in foreclosure proceedings. He fears that if the governor signs the new legislation, the city would be forced to conduct tax sales and take ownership of the properties to remove the blight. In these situations, neither the owner, the bank, nor the city are interested in maintaining the home or expediting a sale. These homes are so distressed that the city and the banks are fighting over who doesn’t have to assume responsibility for them.
AB 720 came as a response to the very pro-municipality court decision BNY Mellon v. Carson. This case provides a good example of a “zombie” foreclosure. Shirley Carson put up her home on Concordia Avenue in Milwaukee as collateral to borrow $52,000 from Countrywide Home Loans. Wisconsin is a judicial foreclosure state where the bank has to file a lawsuit as a prerequisite to obtaining a foreclosure sale of the property. However, merely filing the foreclosure lawsuit does not transfer title to the distressed property. In Wisconsin, the court needs to order a sale. When Ms. Carson defaulted on her mortgage, the Bank of New York, as trustee for Countrywide filed a lawsuit for foreclosure.
The bank attempted to serve the lawsuit on Carson at her residence. The process server could not find her. He observed that the garage was boarded up, snow was un-shoveled and the house emptied of furniture. The property was burglarized. Vandals started a fire in the garage. The City of Milwaukee imposed fines of $1,800 against Carson because trash accumulated and no one cut the grass. The bank obtained a default judgment against Carson. Even 16 months after the default judgment, the bank still had not scheduled the foreclosure sale. At this point, Carson filed a motion asking the court to deem the property abandoned and ordering a sale to occur within 5 weeks. Carson supported her motion with an affidavit admitting the abandonment and describing the property’s condition. The opinion does not explain why Ms. Carson filed the motion. However, I assume that she did not want any more fines from the city. She probably wanted the sale to cut off her liability to maintain the property. The local judge denied the motion, deciding that Ms. Carson didn’t have standing to ask the court to expedite the foreclosure sale date contrary to the desires of the bank.
On appeal, the Supreme Court took a hard look at Wis. Stat. § 846.102, the foreclosure statute that applies when a property is abandoned. The bank insisted that the statute allowed them to conduct the sale at any time within five years after the five-week redemption period. The Supreme Court rejected this view and determined that the procedures were mandatory, not permissive. The local court has the authority to order the bank to bring the property to sale soon after the five-week deadline despite any preference of the bank. The court stated that the trial court shall order such sales within a “reasonable” time after the five-week redemption period. The appellate court did not specifically define what a reasonable period of time would be. However, Mayor Barrett’s op/ed suggests that this means much less than 12 months.
The Supreme Court of Wisconsin stated that the statute was intended to “help municipalities deal with abandoned properties in a timely manner.” It is not clear whether foreclosure sales would be expedited by the courts’ case management procedures or on the motions of the owners, lenders, or municipalities. This opinion does grant Ms. Carson the relief she requested. However, it was mostly a victory for local governments in their crusade against the Zombie Foreclosure Apocalypse by shifting its burden to the banks. In cases where the borrower contests a finding of abandonment, this opinion might strengthen the hand of the locality and weaken the borrower’s ability to contest the foreclosure proceeding.
Justice David Prosser wrote a concurring opinion which agrees with the majority’s outcome. However, Justice Prosser remarked that “the majority opinion radically revises the law on mortgage foreclosure” by the following:
- The majority did not disavow the view that the local court’s authority to expedite foreclosure arises out of its power to hold parties in contempt of court. Owners should be concerned about broadening of courts’ discretion to impose sanctions on banks for not expediting foreclosure proceedings. Cases should generally be decided on their merits.
- Prosser observed that the plain meaning of the statute does not permit a municipality to bring an action to obtain the foreclosure sale because the statute limits the local government’s role to providing testimony or evidence. The new legislation AB 720 specifically gives the bank or municipality, but not the owner, standing to move for the property to be deemed abandoned. The government already has authority to foreclose for failure to pay property taxes. If the municipality also gets standing to intervene to expedite bank foreclosures, this raises questions about government intrusion into contract and property rights.
- Even with the majority’s opinion, nothing would stop lenders from thwarting the municipalities’ desire that they expedite foreclosures simply by delaying filing the foreclosure lawsuit to begin with.
- Prosser points out that other Wisconsin statutes provide standing to owners to petition the courts to exercise equitable principles to order a judicial sale of real estate. Ruling in favor of Carson in this case could have relied upon established principles of law instead of expanding substantive policy interests of municipalities at the expense of owners and banks.
Sometimes “solutions” to a short-term crisis can create greater problems later. In BNY Mellon v. Carson, the majority’s interpretation of the statute opens the door for potential abuse of foreclosure procedures. A bank or locality could try to use this improperly to quickly foreclose on a borrower who has a willingness and ability to rectify the loan default. A crack in a window, a delay in mowing grass, or a temporary un-occupancy should not be used as a pretext in order to expedite foreclosure.
The fundamental question posed by BNY Mellon v. Carson and AB 720 is who should bear the burdens of acquiring and holding these “zombie” properties. The banks’ interests in the properties are defined by the mortgage documents. They don’t want their rights to be diminished by the localities’ activities in the courts or legislature. The City of Milwaukee doesn’t want to budget to foreclose on properties it doesn’t want. Owners want to either save their home from foreclosure or give it up without facing more fines or HOA assessments. Justice Prosser’s concurrence appears to point to balancing these competing interests through the proven equitable principles that courts have applied to address crises for hundreds of years. Perhaps this can be used to protect the interests of owners. It will be interesting to see if Scott Walker signs the bill.
Laws provide local government with the power to foreclose on properties for failure to pay real estate taxes. If these localities want to expedite foreclosure, the could use those statutes or even lobby to have them streamlined. On March 1, 2016, the Virginia General Assembly enacted new legislation to address the issue of “zombie” foreclosures in the Old Dominion (thanks to Jeremy Moss & Leonard Tengco for alerting me to this). Senate Bill 414 authorizes local governments to create “land bank entities” that would use grants or loans to purchase, hold, and sell real estate without having to pay property taxes. These land banks can be set up as governmental authorities or nonprofit corporations. I’m interested to see how prevalent land banks will become and who will ultimately benefit from their participation in the real estate market.
UPDATE: Check out my April 23, 2016 “On the Commons” podcast with HOA attorney Jeremy Moss and Host Shu Bartholomew. We discuss the Zombie Foreclosure phenomenon and what it means for HOAs and owners.
Case Citation: Bank of N.Y. Mellon v. Carson, 2015 WI 15 (Wisc. Feb. 17, 2015).
Photo Credits:
MILWAUKEE via photopin (license)
Scott Walker via photopin (license)
April 4, 2016
HOAs Prepare for a Zombie Foreclosure Apocalypse
In the contemporary dystopia, property ownership provides ordinary people with space in which to live, work and play in peace, safety, and freedom. Americans also see real estate as an investment. My high school friend Tom was one of my first classmates to purchase a home. Years ago, he explained that the great thing about a home is that it is an investment and you also get to live in it. Unfortunately, there are many predators in the marketplace seeking to capitalize on consumers’ commitment to home ownership. Some loan servicers, debt collectors, and contractors see owners as opportunities. Their trade groups lobby state capitals. Owners have to stick up for themselves in Court and with their elected representatives to protect themselves from becoming someone else’s cash drawer. Sometimes unscrupulous people get what they want by conceptually framing a crisis to shape the perceptions of decision-makers. Fear is one of the easiest emotions to manipulate. Owners should be skeptical of how the housing industry describes the Zombie Foreclosure Apocalypse.
In a recession, financial struggles can render owners unable to make payment obligations to mortgage lenders and HOA’s. In many cases, these personal crises are temporary. Job loss or illness of the owner or a family member can cause a temporary but acute financial crunch. The problems may be fixable by a new job or resuming work after addressing a family member’s needs. Unfortunately, lenders and HOA’s tend to treat all defaults in payment obligations the same. In the past few years, HOA’s have waited for assessment income when banks delayed foreclosing on homeowners. In these so-called “zombie foreclosures,” banks delay completing foreclosures for years because there is little economic incentive to adding the distressed property to their own real estate inventory. If they buy the property, they become responsible for it as the new owner. Usually the owners stop paying their HOA dues around the time they can’t pay their mortgage. The HOA industry sees themselves suffering financial losses at the hands of loan servicers who fail to timely foreclose and put a new owner in the property with the willingness or ability to pay the HOA assessments.
On March 25, 2016, Dawn Bauman posted an article on the Community Associations Institute’s (“CAI”) blog titled, “Clean Up Foreclosures in Your Community.” Ms. Bauman argues that because the banks delay foreclosure, other owners must pick up the tab of the struggling neighbor to support an HOA’s budget. This blog post calls upon neighbors to file citizen complaints with the Consumer Financial Protection Bureau (“CFPB”) when banks delay foreclosing on neighboring homes. The blog post contains links and instructions for submitting complaints. I understand Ms. Bauman’s point that Boards might have to make budget changes if there is a spike in “zombie” foreclosures. These budget decisions might include increasing dues for other owners, slashing budgets or even raiding reserves to pay for major repairs. However, I’m not convinced that a campaign to expedite foreclosures would really advance the interests of other owners. As films and books such as “The Big Short” illustrate, the foreclosure crisis is a complex phenomenon. When a borrower falls into default, wouldn’t the community’s interests be better advanced by helping them get back on track with their existing lender and HOA? There is no guarantee that the CFPB would have the resources, authority and/or will to take regulatory action upon receipt of a complaint submitted through web forms on the internet. This CAI blog post seems to perpetuate the stereotype of debt collection as the common denominator of a HOA community. Yes, communities require accountability, but that should go both ways.
What is happening here? Imagine that a prospective buyer met with a realtor or property manager to discuss a home in an HOA. What if the real estate professional candidly told the prospective buyer that in this community, if you default on your mortgage, your neighbors and HOA will contact regulatory authorities to make sure the bank expedites your eviction. The prospective buyers are expected to also do the same against to their neighbors. The home shoppers innocently ask, “Why is this?” The manager candidly explains that the local government has outsourced its functions to the HOA. That HOA has a big budget. The locality and the HOA have an interest in keeping property assessments high. If the homebuyers are rational, they will walk out of that meeting and never come back to that development. Home owners want neighbors who support each other, or at least leave each other alone. No one wants to live in a community where neighbors are expected to tattle. If that’s necessary, then there is something wrong with the community association model. To sustain themselves, the community associations should seek to advance the interests of their members and not the other way around. The task of creating communities traditionally belonged to local governments, developers and the owners themselves. However, real estate is also a national policy concern because of the roles of Fannie Mae, Freddie Mac, the CFPB and a host of other federal agencies. At a March 29, 2016 town hall meeting, Republican presidential candidate Donald Trump identified “housing, providing great neighborhoods” was one of the top three responsibilities of the federal government. Such statements are easily dismissed as political pandering. However, Mr. Trump, however controversial, seems to have a knack at getting into the minds of many voters.
When an owner falls into a persisting default, usually the lender, HOA, and local government want to start over with a new owner. In fact, the HOA industry and local governments want to work together to eliminate these “zombie foreclosures.” Fairfax County holds an annual “Community and Neighborhood Leaders Conference” to provide face-time between HOA board members and county agencies with authority to enforce laws and ordinances. This alliance puts the elderly and disabled at a particular disadvantage when it comes to complying with local ordinances about how property should be maintained. Owners may find their lenders, HOA’s, and local governments taking action against their property interests.
If owners find themselves in default of their loan and assessment payment obligations, what can they do to protect their financial interests and property rights? Fortunately, there are some strategies that work.
- Avoid Falling into Default in the First Place. If the owner isn’t in default, then the lender or HOA doesn’t have a basis to institute foreclosure or debt collection proceedings. For many owners, the financial crunch of making the payments is less costly than digging themselves out of a persistent default.
- Know Your Rights. Many owners rely upon what bank representatives or HOA board members say in order to determine their rights. However, in court a judge can be expected to apply what the mortgage or HOA documents say to resolve any dispute. Owners should organize and understand the applicable legal documents and not rely on hearsay.
- Have a Plan. The bank representative or property manager is not going to take the lead on how to resolve the payment default. Debt collectors are looking to get paid as much as possible and/or to push the owner out. The owner must determine whether they want to keep or relinquish the property. The circumstances of each case are unique and which strategies to employ is outside of the scope of this post.
- Present Well. If a property appears to be abandoned, then the local government, HOA, and lender will treat it as such and move aggressively. If an owner keeps the property up, they are less likely to be bullied. Likewise, in negotiating with a lender’s or HOA’s representatives, an owner should consider how their actions and works are likely to be interpreted. If the owner has unrealistic expectations or appears to show signs of weakness, then the industry professionals are less likely to take them seriously.
- Have a Team. Board members, property managers, and collection attorneys are working together to maximize the accounts receivable of the HOA and minimize their own hassle. The lenders have account representatives and lawyers to service the loan. Owners should have a team of their own. Allies in a community can look out for each other and guard against bullies. Many state legislators want to take up the cause of property ownership. Lenders and HOA’s have experts and attorneys of their own on call to advance their interests. Out of experience they are able to think two or three steps ahead of consumers. If a lender or HOA behaves in a mysterious manner, it may be that they contemplate future legal action. Many times owners need legal assistance of their own.
An owner who struggles with financial difficulties is not a “zombie.” What is really “undead” is the complex web of loan documents, HOA rules, and public policies putting an owner’s property rights and financial condition at unnecessary risk. Financial challenges do not have to result in intractable crises. When told about the pending Zombie Foreclosure Apocalypse, owners need to understand what is really “undead.” The industry should educate and advocate for owners in these situations in order to keep the HOA model from turning into an unsustainable dead end. Until then, owners must work together and with qualified professionals to protect their rights.
UPDATE: Check out my April 23, 2016 “On the Commons” podcast with HOA attorney Jeremy Moss and Host Shu Bartholomew. We discuss the Zombie Foreclosure phenomenon and what it means for HOAs and owners.
photo credit: 1977 Lincoln Continental via photopin (license)
March 21, 2016
Finding Traction in Construction Defect Claims against Contractors
New owners frequently struggle to timely resolve construction defect disputes with builders. For example, owners in Palm Beach Gardens, Florida have home workmanship complaints. Their HOA sued Kolter Homes, LLC for defects including lighting problems, window gaps, sloping balconies and water intrusion. On March 15, 2016, the Daily Business Review reported that Kolter began a new, larger development nearby before resolving their defects. Furious, the owners took to the streets to protest in front of the new project. Owners have rights to effective repairs under warranties arising out of the contract or law. When owners make warranty claims and builders send repair crews in response, these disputes are rarely resolved satisfactorily. The owner’s life is disrupted by living with the undesirable reality of the defects, communicating with the builder, and making arrangements for repairs that may not even be effective. For many owners the “playing field” seems unbalanced because the builder wrote the contract terms, knows the construction business, and has their money. How can owners break out of this cycle of frustrating customer service and get the house they initially bargained for? With smartphone cameras, it is easy for a buyer to record visible defects and the date they took the photographs. When calling and emailing isn’t enough, owners need more effective strategies for finding traction in construction defect claims against contractors.
Understanding Contractual & Warranty Rights. The sales process gives the buyer an understanding of what they will get for their money. New construction is an expensive consumer purchase. Builders know what consumers are looking to hear. Buyers usually make substantial financial sacrifices and commitments to purchase a property that they hope will fit their lifestyle and be a solid investment. Once they make the down payment, sign the contract and go to closing, the buyer’s bargaining position shifts. What builder promises, assurances and expectations can be legally enforced after they have been paid? Deceptive practices may lead to a consumer protection, fraud or even criminal prosecutorial action. However, for most owners the remedy for unfulfilled expectations lies in the contract and warranty commitments made by the builder. The owners can confirm what they bargained for by collecting and understanding the contract and warranty documents provided by the builder. This helps the owner to sort out sales talk from contract rights. Many of the documents may be organized into a packet provided when the parties went under contract or at closing. Other documents may be found elsewhere. For example, warranties, manuals, arbitration rules and other documents may be on file with the builder or available on its website. The contract may reference drawings that are on file with the city or county’s permitting office. If the documents are unclear on a particular point the owners or their attorney may have to consult building codes to understand their rights.
Mark Warranty Deadlines on the Calendar. The written warranties, contracts and state law will impose strict time limits on defect claims. Usually the builder is entitled to a written notice of a defect claim. For many warranties this must be done within a year. The owner usually has a subsequent deadline for submitting the claim to the court or arbitration. It is not really in the builder’s financial interest for the owner to focus on these deadlines. Just because the builder has actual knowledge of a defect does not preserve the claim absent legal notice requirements.
Obtain Reports for Defects & Estimates for Repairs. Once an owner knows the builder’s legal obligations, the next issue is diagnosing the defects and determining the cost to make it conform to the warranty. Owners making defect complaints to the builder have a strong sense of what is wrong from their day-to-day experience of living or working in the property. However, the defects may not be limited to what is immediately experienced by the senses. There may be latent defects that will require expensive repairs in a few years. Owners owe it to themselves to fully understand what is wrong and how much it would cost them to fix by a third party. After six to ten months of frustrating negotiations and ineffectual repairs, the owner may have lost confidence in the builder’s willingness or practical ability to make the repairs. The owner cannot effectively negotiate with the builder for a cash settlement without written assessments by experts that are independent from the builder. The needs of each case are different, and might require engineers, home inspectors, contractors or other qualified experts. At a minimum, the owner usually needs an experienced, licensed contractor. Strong communication skills are needed to handle cross-examination by builder’s counsel before a judge, jury or arbitrator. The written estimate must be for repair of the defects covered by the warranty and not simply projects that the estimator wants to sell and the owner wants to receive. A written estimate can confirm for the owner whether they have a $10,000.00 or $100,000.00 claim. It is in the owner’s best interests to find out the cost before any decisions must be made in light of warranty deadlines.
In construction disputes, the builder has some advantages. They prepared the contract and warranty documents with their lawyers before presenting them to the owners. The builder passed the contracting license exam and knows the building code requirements to get an occupancy permit. The builder negotiated defect complaints with customers before. But it is the owner who must live with or pay to repair construction defects that aren’t acceptably resolved in the warranty claim process. However, owners can level the playing field and obtain good results by determining the gaps between what was contracted for and the structure’s actual condition. A written estimate for defects covered by an unexpired warranty provides owners with what they need to obtain satisfactory results in litigation, arbitration or settlement negotiations. The builder has their own qualified legal and technical advisors working for them to deal with consumer complaints. Owners can level the playing field, gain traction in negotiations and make financial decisions with greater peace of mind by retaining their own counsel as soon as defect disputes arise, and before they become seemingly intractable.
Photo Credit: Pacific Northwest Architecture via photopin (license)
December 10, 2015
San Bernardino Landlord Holds Controversial Open House
Was the California landlord to the terrorist couple entitled to open up the rental property to the news media? Internet videos show a frenzied swarm of camera crews exploring every cabinet and closet. So what if the San Bernardino landlord holds controversial open house? Commentators raised questions about preservation of evidence in the criminal investigation. There is also an ethics-in-journalism element. Given the heinousness of the crimes and public interest in foiling future attacks, it’s easy to overlook the landlord-tenant legal issues raised when tenants use a rental for criminal purposes and some die before termination of the lease. This story is of interest to any landlord with elderly tenants or who rents in a community with a crime problem.
According to law enforcement, Syed Farook and Tashfeen Malik used the garage of the Redlands, California townhouse they rented as a homemade explosive device factory. They used their residence as a base for their December 2nd attack on the Inland Regional Center that tragically left over 14 people dead and many more wounded. The victims and their families deserve our continued concerns and prayers, especially as public attention shifts elsewhere. As a new father, I cannot fathom Farook and Malik’s decision to drop off their six-month-old daughter with a relative and then commit such a deplorable attack. While Malik’s pledge of allegiance to the Islamic State of Iraq and Syria makes motive discernment easier, this blog post is about landlord-tenant law and not the politics-and-religion issues discussed thoroughly elsewhere. The deceased attackers were not the only residents of the property. Farook’s mother and the couple’s six month old baby also lived there. Law enforcement searched the premises and removed certain items of interest. According to news reports, they turned it back over to landlords Doyle & Judy Miller. On Friday, December 4, 2015, Doyle Miller held an informal press conference on the lawn of the townhouse. After the interview he opened up the house and permitted the news media and their cameras to search the house except for the garage.
Given the law enforcement’s interest in further investigations, the landlord’s interest in preventing additional notoriety to the property, the grandmother’s possessory interest in the place and the child’s unique vulnerability as a resident, heir, and orphan, it is shocking that the media obtained free access with their film crews. The reporters likely put their fingerprints all over the townhouse, moved items around, and possibly removed or destroyed parts of the townhouse or the occupants’ belongings. In fact, MSNBC later publicly apologized for broadcasting some photos and identification cards of some occupants. One can imagine the intense pressure the identification of the killers’ home must have placed on the Millers. They needed to cooperate with law enforcement. After the police search, the news media must have inquired about the inside of the house. The deceased’s shocking crimes do not conjure sympathy. One would not expect the grandmother and grandchild to ever live there again. It may have appeared easier to simply let the media swarm inside the house than to face their constant inquiries.
The Millers may have been concerned that refusal to cooperate with the media might lead to further questions about landlordly knowledge of the activities at the house. In an informal press conference held at the property, Doyle Miller stated that his tenants always paid their rent on time. The renters called a few times requesting landlord repairs. During his visits he never saw any guns or bombs. When asked if he ever went into the garage where law enforcement found evidence of pipe bomb manufacturing, he stated that once he went in there but he only saw some people repairing a car.
Good landlords check to make sure that prospective renters can pay their rent and won’t cause other problems. During the rental period, many obligations to maintain the property fall on the landlord. Most lease agreements provide for landlords to inspect the property for damage by the tenant or other causes during the rental period. Homemade bomb manufacturing is not just illegal. It is an ultra-hazardous activity involving explosive devices that can be easily set off. No landlord wants that in their townhouse no matter how timely the rent payments are.
Sometimes tenants engage in narcotics trade or other illegal activities. Tenants can be incarcerated or die. These are events that can lead to the termination of a tenancy. However, such events don’t necessarily cause the other occupants or the estate of the deceased to lose all of their rights in the premises or their belongings. In Virginia, like many places, a landlord cannot evict a residential tenant’s family without going through the courts. Hosting a media circus seems like a troublingly broad extension of a landlord’s right of inspection. Our legal system has many procedures in place to protect people from infringement of their rights to be secure in their own homes. News reports do not suggest that the townhouse or its contents were abandoned by the grandmother, infant, or the estate of the deceased. While the Millers must have been under a lot of pressure, it is not clear why they didn’t use California’s landlord-tenant laws and the provisions of the lease agreement to deal with the personal property and retake possession of the premises. The attorney’s fees would be a small price to pay for the value of the legal protection. Perhaps some of my readers may have some insights.
Landlords should not discriminate against prospective or current tenants based on their religion or national origin out of fear of renting to terrorists. I am not aware of any exception to anti-discrimination laws for instances where landlords associate a national origin or religion with types of illegal conduct. I’m wondering if any state legislatures will amend landlord-tenant, community associations, or mortgage statutes to give landlords, HOA’s, or lenders expanded legal privileges or duties to prevent homes from being used for terrorism. I’m concerned that homeowners’ rights are already under assault from different directions and such legislation would have unintended consequences.
Given the desire of the Farook family for privacy, I’m not sure if any legal claims will be brought against the Millers for hosting the media “open house.” The family may decide that any damages from loss of use of the townhouse or ownership of personal items is not worth the loss of privacy from media attention surrounding such a suit. However, given the high profile of this media event, the public may draw an incorrect inference that the Miller’s actions are advisable or without substantial risk. This is significant because home ownership is on the decline and renting is the trend. Many working people are unable to save a down payment necessary to purchase a home. In the event that tenants use a rental for illegal purposes and/or die before the leasehold is terminated, a landlord should consult with a qualified attorney before taking possession of the property. If occupants of rental properties are displaced by the criminal conduct of other tenants, they should also seek counseling to protect their rights.
Further Reading:
Rick Rojas, “Landlord Lets Reporters Into San Bernardino Suspects’ Home,” Dec. 4, 2015, NYTimes.com
Paul Janensch, “Was going through shooters’ home live appropriate?” Dec. 9, 2015, TCPalm.com
Photo Credit:
December 1, 2015
Plaintiff Sanctioned for Intimidating Lawsuit
Experienced trial lawyers know that judges disfavor parties using litigation as a means of inflicting extra punishment on their opponent beyond the outcome of the case. Lawyers and their clients are supposed to use claims, defenses, motions and other procedures for their intended purposes of working justice. Real estate and construction litigation is an emotional process. In real estate and construction cases, the property at issue represents the owner’s home, business or retirement. In the courthouse, there is a fine line between seeking justice or revenge. In a November 12, 2015 opinion, the Supreme Court of Virginia found that a real estate investor crossed the line into impermissible vindictiveness. The plaintiff sanctioned for intimidating lawsuit. The Supreme Court upheld an award of sanctions rendered by the Circuit Court of Albemarle County in the investor’s dispute with his ex-girlfriend. When a party is trying everything they can to resolve a dispute quickly and decisively, knowing where one might find the boundary into sanctionable territory is crucial. Even savvy people can find themselves in intractable litigation. This case opinion contains valuable insights for self-protection.
Mitchell Kambis was a real estate broker, home designer and developer who passed away at the age of 71 in October 2015. According to an informative article by Peter Veith in Virginia Lawyer’s Weekly, Kambis restored the historic Empire Theater in Richmond. His obituary states that he attended law school but does not indicate whether he graduated. Kambis was in a romantic relationship with April Considine for over 11 years. Kambis and Considine formed Villa Deste, LLC for developing 130 acres in Albemarle County. To finance the investment, the couple borrowed over $2 million from Considine’s mother. At some point, Kambis transferred all of his ownership interests in Villa Deste to Considine, making her the sole owner. After the couple broke up, Kambis brought a 19 claim Complaint against Considine and her mother over the real estate.
The parties engaged in substantial motions practice over whether the lawsuit brought by Kambis alleged facts sufficient to support the multitude of requests for damages and other remedies. Considine filed a motion for litigation sanctions arguing that the suit was not warranted by existing law and was simply to harass. The Albemarle County Circuit Court threw out some but not all of the claims in Kambis’ lawsuit. Kambis and his attorney overcame the initial obstacles and got their case scheduled for trial.
As frequently happens in intractable cases, the parties filed a multitude of pretrial motions. Brevity prohibits me from describing them all and how the Court ruled at each stage. The court opinion described a pattern whereby Kambis brought claims or motions, would drop them, and later bring them up again. 12 days before trial, Kambis’ lawyer succeeded in getting the court to allow him to withdraw from the case. A few days later, the now lawyer-less Kambis voluntarily dropped claims for battery and intentional infliction of emotional distress. The Court refused to allow Kambis to voluntarily dismiss his claim for fraud because of Considine’s counterclaim. At some point, Kambis asked for the trial to be postponed because his case was too complicated for him to handle without a lawyer.
Eventually, the Court awarded Considine sanctions in the amount of $64,319.38 against Kambis’s original lawyer. The Court also awarded $84,541.61 against Kambis personally, finding, “a certain level of intent to intimidate Ms. Considine in this particular case.” Kambis ran up the costs of the litigation, including attorney’s fees. The Court further held Kambis responsible for the “costs of the trial and going forward.”
The difference between litigation sanctions from an ordinary award of attorney’s fees is a frequent source of confusion. Generally speaking, parties are responsible for bearing their own costs of litigation, including attorney’s fees. The most common exception is where a contract between the parties provides for an award of attorney’s fees to a prevailing party. There are other exceptions that may arise out of statutes such as the Virginia Consumer Protection Act.
Virginia law distinguishes an award of attorney’s fees as a litigation sanction under Va. Code § 8.01-271.1 from prevailing party awards. This statute can provide for attorney’s fees regardless of the type of claim or defense brought and what the parties may have agreed to in writing. Courts in Virginia have strictly construed this statute, only applying it in extraordinary circumstances where its key provisions are met:
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
In expensive, unsettled disputes eventually one party has their legal arguments and factual presentation rejected. The question may arise whether their pursuit or defense of the case was sanctionable. Usually, no. Just because a party completely prevails over their adversary on a motion or at trial does not necessarily mean that there is grounds for sanctions. This exception does not swallow whole the general rule that parties bear their own costs in litigation.
Mitchell Kambis appealed the judge’s award of sanctions. He argued that his fraud claim was well-grounded in law and fact because it survived extensive pretrial motions. The Supreme Court of Virginia found that the trial court did not need to find Kambis’ claims legally inviable to conclude that they were for an “improper purpose.” This conceptual separation between the viability of claims or defenses and the propriety of a litigant’s purposes in bringing them is what may raise the blood pressure of many trial lawyers trying to walk the line between zealous advocacy and impermissible vindictiveness. Just because a party wins a motion on the sufficiency of a pleading doesn’t mean that claim is “immune” from a sanctions motion later on.
Kambis also argued on appeal that while his court action was intimidating, it was not for an improper purpose that would support an award of sanctions. The court observed that Kambis’ conduct, “demonstrated he was less interested in vindicating his legal rights and more interested in intimidating and injuring Considine.” Kambis forced Considine to expend a significant amount of time and money in motions practice and in trial preparation before Kambis dropped many of them right before trial.
The court’s award of sanctions was supported by emails and oral courtroom admissions that the lawsuit was designed to intimidate and that if the suit failed, the motion for sanctions had a reasonable likelihood of being granted.
Confusingly, an award of sanctions is not warranted just because a party finds the litigation process intimidating. To start, the act of filing of public documents alleging wrongdoing is intimidating. What’s more, at the center of any trial, the credibility of a party’s testimony is tested by right of cross-examination. Cross-examination is so intimidating that a law of evidence developed to protect the integrity of this process. Justice Cleo Powell recognized this issue in the Kambis case:
We recognize that almost any legal action is, in some way, intimidating. Such intimidation is inherent in our adversarial legal system and is generally not sanctionable, so long as the intimidation is a collateral effect of a party’s legitimate attempt to vindicate a legal right. The spectre of sanctions arises when intimidation is no longer a collateral effect. Thus, where a party brings an action or makes a filing primarily to intimidate the opposing party, such an action or filing is improper and runs afoul of Code § 8.01-271.1.
Kambis v. Considine clarifies that just because a lawsuit survives initial attempts to dislodge it on motions, it may not necessarily later survive a motions for sanctions. A casual reading of the Kambis opinion might lead some trial lawyers to argue that where a vindictive or intimidating motive can be ascribed to an opponent’s actions, then an award of attorney’s fees are proper. If this was a correct interpretation of this opinion and the statute, then it would increase unnecessary litigation rather than cut it out. Parties’ decisions to bring or defend legal proceedings never occur in a vacuum. Parties and their lawyers would seek sanctions every time their opponent filed anything because an ulterior motive could be intimated from the context of the case. Such an argument would ignore the extraordinary facts in the Kambis case, together with the admissions made regarding Kambis and his lawyer in email and in open court.
It is difficult to end cases like Kambis v. Considine before trial because the credibility of witnesses in a fraud case is not proper for determination on a motion for summary judgment in the Virginia court system. The Supreme Court seems to be saying that while a litigant may have a right to prove their version of the facts at trial, the sanctions statute prohibits them from abusing their right to a trial.
Resentment can fool otherwise sensible people into thinking that they are seeking justice when really they want payback. This is why it is important for a party to retain a lawyer who will exercise independent professional judgment. This protects both the lawyer and the client from making shortsighted litigation decisions that are antithetical to their long term best interests. This is especially important in real estate and construction cases where so much is at stake.
photo credit: Albemarle Courthouse via photopin (license)
November 12, 2015
Confidentiality Terms in Litigation Settlement
When parties to lawsuits finally agree in principle to resolve dispute, sometimes one side will request insertion of confidentiality terms in litigation settlement. These “gag orders” typically forbid the parties from disclosing the terms of the settlements. These requests can come as a surprise because requests for confidentiality may have not come up yet in the case. Litigation is mostly a public activity. Usually anyone can read the court file or observe motions or trials.
Some defendants fear that the dollar amount of settlement in one case may create a “benchmark” or market value for settlements in a similar, future cases brought against them. The facts and dollar amount may be embarrassing. Even if the settlement agreement denies admission of any wrongdoing, the act of payment may be interpreted by some as a sign of the merit of the claim. A plaintiff may have a short period of time to consider a proposal of a confidentiality clause. What do these confidentiality clauses mean to parties bound by them? Most confidential settlements are “successful”. The cases never end up back in court, the news or social media because the parties “move on” with their lives and business. However, in a 2008 North Carolina case, a HOA and its former property manager failed to achieve a clean resolution. Selwyn Village Homeowners Association vs. Cline & Company illustrates potential pitfalls surrounding confidential settlements. This case has many lessons on “closing the deal” in litigation settlement.
Selwyn Village is a condominium association near Myers Park in Charlotte. Surrounding Myers Park is an affluent, “southern charm” neighborhood with 100-year-old oak trees. Cline & Company 
was Selwyn Village’s property manager. In 2003, Selwyn Village suffered flood damage. When the board of directors made a claim on their insurance policy, they discovered that Cline had cut costs by drastically underinsuring the property. Selwyn Village sued Cline and the insurance broker. The owners must have been outraged by the devastation unrepaired by inadequate insurance. The board and its law firm may have struggled to hold Cline responsible. The manager may have had access to more information about their conduct than their client. Perhaps the manager pointed fingers back at the board as the responsible party? In between the lines of the court opinions one can imagine messy litigation.
During the middle of the 2006 trial, Cline agreed to pay the association $26,000 in settlement. The parties also agreed to “work out” confidentiality and non-disparagement provisions in a consent order to be entered later. The court opinion does not discuss any estimates for the full amount of repairs. Even if insurance covered part of the costs, $26,000 seems like a low number to repair condominium flood damage in Myers Park.
While going back and forth with Cline about the terms of the confidentiality order, the HOA board requested that its own lawyers explain the settlement at an owners meeting. Little did they know that Kelly Ann Cline, daughter-in-law of the owner of Cline & Co., owned a unit in Selwyn Village. Ms. Cline attended the attorney’s presentation at the owner’s meeting. Kelly secretly tape recorded the disclosure of the terms of the settlement and provided it to Cline & Co.’s lawyers. Cline then used this “disclosure” as an excuse not to pay. The lawyers for the condo association moved the court to enforce the $26,000.00 settlement. The judge agreed with Selwyn Village. Cline appealed. The Court of Appeals and Supreme Court of North Carolina affirmed the trial court’s enforcement of the settlement against the property manager. This case illustrates several pitfalls to watch out for in a settlement.
- Settling on the Courthouse Steps. While it is often best to settle cases as soon as possible, many settle right before or during trial because one side wants to see if their opponent is really serious. Other parties want to check out how the judge and jury receive some of the evidence before agreeing to settle. Parties must be prepared to continue to engage in settlement negotiations before, during and even after trial.
- Piecemeal Settlements. Selwyn Village and Cline agreed to a settlement “in principle” to end the pending trial, with a plan to hash out the confidentiality terms later. The parties had to live in the short-term with undefined confidentiality provisions. This may have contributed to the blow-up over the owners meeting. In legal proceedings it’s just as important to understand what hasn’t been resolved as what has.
- Scope of Confidentiality Obligations. In any representation, a lawyer needs to know who his client is so that he can counsel them regarding any settlement proposal so that they can make informed decisions. The Selwyn Village case had the issue of whether it was proper to talk about the terms of the settlement in the owners’ meeting. The courts did not appear to have a problem with what the lawyers did. The court’s decision does not outline what details the lawyers shared at the owners’ meeting. In other states or organizations the attorney client privilege may be waived by sharing something with the shareholders or members. In other cases, lawyers may not be able to discuss all the details of a settlement negotiation at a members meeting. Consult with qualified legal counsel to determine whether communicating something to someone.
- “Loose Lips Sink Ships.” The “espionage” adds a juicy element. An owner does not lose their rights to participate in owners meetings because the HOA sued her in-laws. The opinion does not say whether the board was aware that the daughter-in-law attended the meeting. It is common for industry people to have ownership connections in HOA’s they work for. This is what sign-in sheets can be used for. Each state has different laws about whether someone can tape record people without their knowledge.
- Sharp Litigation Practices. The N.C. courts did not seem pleased with Mrs. Cline’s secret tape recording of the owner’s meeting and then using it as a pretext for paying nothing. Parties in litigation should be prepared to deal with an opponent who may succumb to the stress and burden of litigation and try just about anything to get what they want.
Streisand Effect. According to Wikipedia.org, the “Streisand Effect” is,
[T]he phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the
Internet.
It is named after American entertainer Barbra Streisand [who] unsuccessfully sued photographer Kenneth Adelman and Pictopia.com for violation of privacy. The US$50 million lawsuit endeavored to remove an aerial photograph of Streisand’s mansion from the publicly available collection of 12,000 California coastline photographs. Adelman photographed the beachfront property to document coastal erosion as part of the California Coastal Records Project, which was intended to influence government policymakers. Before Streisand filed her lawsuit, “Image 3850” had been downloaded from Adelman’s website only six times; two of those downloads were by Streisand’s attorneys. As a result of the case, public knowledge of the picture increased substantially; more than 420,000 people visited the site over the following month.
Cline & Co. wanted the confidentiality provisions to avoid negative publicity about the settlement. What happened after the trial in this case is an example of the “Streisand Effect.” Ironically, many details ended up in publically available appeals court opinions.
The Selwyn Village HOA exchanged the risk of an unpredictable trial verdict for a settlement sum that may have been lower than what some may have wanted. After getting the threat of a jury verdict to go away, Cline Co. attempted to derail the settlement by refusing to pay and continuing the case through multiple appeals. The case illustrates the value and challenges of “closing the deal” in settling a case. Lawyers have varying professional acumen for settling cases depending upon their personality, experience and knowledge. When litigation seems inevitable, most parties are best served by lawyers who can fight for their clients or make peace in settlement depending on the facts and circumstances of the case and client’s needs. The “Streisand Effect” can be avoided by being selective about which things to fight over. In some situations, “Who cares?” may be the best response.
Case Citation:
Selwyn Vill. Homeowners Ass’n v. Cline & Co., No COA07-116-2 (Ct. App. N.C. Nov. 4, 2008)
Photo Credits:
Charlotte, NC at night via photopin (license)
October 26, 2015
Are Dinosaurs a Nuisance or Merely Provocative?
My 4-year-old nephew loves dinosaurs. His favorite is the Triceratops. Before my sister gave birth to her second son, their family discussed names for the new baby. My nephew wanted to name his little brother “Brachiosaurus.” Needless to say, his parents outvoted him on that! He would love to live in the New Territory Residential Community Association in Fort Bend, Texas.In New Territory, Nancy Hentschel pastured two large dinosaur sculptures in her front yard. The Tyrannosaurus Rex and Velociraptor caught the attention of her neighbors and news organizations. The response was overwhelmingly positive. Hentschel reported that, “I’ve never had so many people knock on my door, say hello, tell me they love the dinosaurs, and as if they can take pictures.” The “dino duo” received hundreds of likes on social media. Her HOA sent a disapproving notice stating that she violated the rules by erecting an unauthorized “addition” to her home. Are dinosaurs a nuisance? Hentschel admitted that she knew that the HOA would object to the statues when she bought them. “This is a form of art but it is also a form of protest.” In a September 12, 2015 interview with Shu Bartholomew on the radio show, “On the Commons,” Hentschel described an earlier dispute she had with her Board of Directors. The HOA’s leadership cited her for having a 
crack on the surface of her own driveway. The board members went so far as to come to her property and get down on their hands and knees to measure the crack for purposes of issuing the violation. Hentschel protests the use of HOA authority to create fear in her community. In her interview, she remarked about how it’s not conformity and uniformity that create property values or a sense of community.
My wife and I have cracks in our own driveway. They were there when we purchased the property. They didn’t factor much in our decision to buy the house. I’m sure that other prospective purchasers didn’t care much about the driveway cracks either. Sometimes I think that I’m the only person who ever notices them. Although we live on a busy street, I’ve never had a neighbor or visitor complain about them. When I applied crack filler a year ago, the compound cracked when it dried. Once a concrete or asphalt surface has cracks, winter ice can freeze in it, causing the surface to progressively deteriorate. As someone who drives into the District of Columbia regularly, I am stridently anti-pothole in my political outlook. Somehow, I suspect that the motivation of Ms. Hentchel’s board was not a paternalistic effort to save her family from future potholes in her driveway.
Hentschel is not the first homeowner to violate a HOA rule in intentional protest or knowing indifference to HOA rules. Sometimes homeowners deliberately paint their house in an unsanctioned color. Others erect American flags or religious symbols in attempts to exercise freedom of speech. Hentschel’s dinosaur display is different. Her “civil disobedience” is not manifested in mundane details like trash can storage or serious concerns about expression of core personal commitments. Instead, she her display is humorous and fun.
When I first heard about the Texas Dinosaur controversy, it reminded me of Dinosaur Land here in Virginia. The Shenandoah Valley is a tourism hot-spot. Dinosaur Land is a roadside attraction near Winchester, Virginia. For around $5 a person, tourists can tour a private park with dozens of large dinosaur statues. It’s been in business for decades (statues are easier to care for than live creatures). You can imagine the kid appeal. After a day of following one’s parents around civil war battlefields and nature sites, the novelty of dinosaurs is irresistible. People are willing to pay to take their children to see this, at least once. In Texas, Ms. Hentschel has created a small-scale Dinosaur Land in her front yard. She isn’t charging anyone any fees. In fact, as of September 12th she had a waiting list of neighbors who want to borrow the dinosaurs to graze on their own lawns. She only asks them to make a $50.00 donation to a charity of their choice. In my opinion, by keeping the dinosaur statues as livestock, Nancy Hentschel made her community more desirable, at least for now. This makes her dispute with her HOA interesting from a property rights perspective. What she’s doing looks like a lot of fun, although she must be prepared to pay the price if her HOA decides that they don’t care about public perceptions and decides to go full force in litigation. That’s something one has to be ready for when breaking the rules to prove a point. Don’t try this at home, kids.
Hentschel’s dinosaurs are a fun twist on the “spite fence” phenomenon. Periodically neighbors end up in litigation because one or both of them set up a fence or other structure for the purpose of harassing, intimidating or displeasing their neighbor. In 2007, one of these went up to the Supreme Court of Virginia. Thomas and Teresa Cline lived in Augusta, a rural county in Virginia. The Clines had a history of disagreements with their neighbor Roy Berg. Berg decided to construct an 11 foot tall tripod with motion sensors and floodlights pointing at the Clines’ windows. To make things even creepier, Berg installed surveillance cameras to watch the Clines on his television. After Berg refused to take down the floodlights and cameras, the Clines constructed a 32 foot high fence made of 20 utility poles. They attached plastic sheeting to the poles to block the intrusive lights and cameras. Berg sued the Clines, alleging that the fence was a nuisance to the community. The Clines asserted an “unclean hands” defense. They argued that the surveillance and floodlight apparatus disqualified Berg from asserting the nuisance claim. The county court found in favor of Berg and ordered the Clines to remove the fence because it was an eyesore. The Supreme Court of Virginia reversed, finding that the judge should have applied the doctrine of “unclean hands” to dismiss Berg’s suit. Cline v. Berg illustrates the difficulties inherent in these intractable neighbor disputes. In efforts to get it right, Courts can struggle with the question of who to punish and how. If Berg’s case is dismissed, then both of the spite structures would remain. No problems are solved. If the Court orders the Clines to remove the fence, then they are punished for their “eye for an eye, tooth for tooth” reaction. However, the lights and cameras would remain a problem.
Contrast the structures in Cline v. Berg with Ms. Hentschel’s dinosaur display. Kids love walking past dinosaurs and taking selfies in front of them. They distinguish Hentschel’s property. In the Cline case, the tripod and fence served no beneficial purpose outside of the neighbor conflict. In one case, there is fun and an increased sense of community, and in the other a scorched earth war. They are two ways to blowing off steam, with different effects on the community.
Property owners finding themselves in a dispute with a neighbor or community association, where rational discourse isn’t working may struggle with what to do next. Do I continue to suffer the indignity without complaint? Lash out by erecting a fence or other structure that serves no positive value? Bring a lawsuit? In a continuing education course I once attended, an experienced attorney explained that when these kinds of disputes arise, he asks the client if they have considered erecting a reasonable fence along the boundary of the property, as shown by the surveyor. Fences and walls define relationship boundaries in a physical way. When someone erects a fence, if their neighbor doesn’t like it, the burden is on them to bring suit requesting that the fence come down. Ms. Hentschel’s dinosaurs illustrate yet another alternative. I don’t know whether the dinosaurs violate her HOA covenants or not. If she broke the rules, at least she did it with something of popular value. In Virginia and other states, courts construe HOA covenants according to contract law. Where little damages are provable, potential court remedies may be limited. The outcome of particular cases will vary according to the facts and circumstances. If your neighbor or community association are interfering with your rights to use your own property, don’t give them the pleasure of responding to the provocation with an attack, escalating the conflict in a risky way. Contact qualified legal counsel to explore alternatives to protecting your rights. In many cases, review of a land records search and updated boundary survey may reveal overlooked possibilities for a favorable solution.
For More Information:
Cline v. Berg, 273 Va. 142 (2007)
September 12, 2015 Podcast, On the Commons
Barot, “HOA, Homeowner at Odds over Dinosaur Display,” Fort Bend Star, Sept. 17, 2015
Photo Credit (Dinosaur Land Photo):
October 19, 2015
How Can Purchasers Protect Themselves at Foreclosure Sales?
What reasonable steps can investors take to build a better foreclosure property portfolio? People who have access to more information tend to make better decisions in the long haul. In the 1990’s Sci-fi TV show, The X Files, David Duchovny portrayed a rogue FBI agent determined to uncover a government conspiracy to cover-up the existence of UFO’s. In the opening sequences announcing the name of the show and the cast there was a message, “The Truth is Out there.” While few people claim to be able to relate to experiences with UFO’s (not me), shows like The X Files are popular because everyone experiences feelings of curiosity, distrust and fear from time to time. In the world of real estate foreclosure, investors owe it to themselves to get to as much of the “truth” as may be “out there” before making a commitment to purchase a property shrouded in mystery. There are ways purchasers protect themselves at foreclosure sales.
On March 4, 2015, I published a blog post comparing buying real estate through brokers vs. foreclosure sales. That article explained how foreclosures come at lower prices because of greater risks. These concerns rightfully discourage many shoppers from looking for a personal residence at a foreclosure sale. For those investors for whom bidding at foreclosure sales makes sense, how can they manage the risks and increase the likelihood that the purchase will be a rewarding? Even before making a bid, the purchaser makes a time investment by reading the classified advertisements, researching sales data, driving by the property, lining up the purchase money and going to go to the auction. Why should a purchaser spend any more time on one opportunity than it deserves? The following are strategies that foreclosure investors can easily take to increase their success:
- Research the Property. In some commercial foreclosures, the trustee evicts the occupants first and holds an open house for potential buyers. When this is not available, a potential purchaser can at least drive by the property. What are the neighboring land uses? The bidders can obtain comparable sales data online first to see what is happening in the neighborhood. City or county tax assessment data is publically available online.
- Research Pending Lawsuits. The purchaser is already at the courthouse to bid on the property. Why not check to see if there are any active lawsuits involving the property? Hopefully, the trustee would know this and react appropriately, but a bidder can only know for sure by checking.
- Obtain a Title Examination. Ordinarily, a purchaser would not worry about title problems until someone alerted them. This is normally the concern of the settlement company in origination of the title policy. Many investors assume that the trustee conducting the foreclosure will not sign the deed unless they are prepared to stand behind it. Experienced investors purchase title insurance as a precaution. While these steps are reasonable, there is nothing that prevents an investor from spending a couple hundred dollars on a title report or taking time to research land records themselves. Any deviation in the foreclosure process from the terms of the deed of trust may be grounds for a suit filed by the borrower. I discussed this in a May 14, 2014 blog post about a lender’s failure to conduct a pre-foreclosure face-to-face meeting with the borrower. In Squire v. VDHA, the deed of trust incorporated HUD regulations requiring an effort to conduct such a meeting. The Supreme Court of Virginia observed that,
A trustee’s power to foreclose is conferred by the deed of trust. That power does not accrue until its conditions precedent have been fulfilled. The fact that a borrower is in arrears does not allow the trustee to circumvent the conditions precedent.
Foreclosure trustees may be under various pressures to ignore provisions in the loan documents. Without a copy of the deed of trust, the bidder won’t know whether things are off course until after making a substantial deposit.
- Investigate the Community Association. Many properties are subject to covenants, rules and regulations of the neighborhood property owner’s association. A new purchaser will be bound by the governance of the board of directors and their property manager. Covenants and bylaws are found in the land records. Some associations post their rules and regulations on the internet. Whatever the new purchaser wants to do with the property may be limited by how the HOA rules are enforced. Associations can range from boards that reasonably collect and spend dues to cover essential maintenance of common areas to aggressive debt collectors using fines for rule violations to generate revenue. Under Virginia law, a purchaser becomes a party to the HOA covenants (contract) at the consummation of the sale. While not strictly a foreclosure related issue, dealing with the HOA is a part of the true cost of ownership. Many investors incorrectly believe their HOA responsibilities are limited to paying the monthly dues.
- Review the Memorandum of Sale. If the purchaser makes the highest bid, the trustee will give her a Memorandum of Sale. This written agreement functions similar to the Regional Sales Contracts that real estate agents complete for their clients. Foreclosure sales typically occur in front of the courthouse. Buyers may not feel motivated to carefully read these Memoranda. Everyone is standing up, the weather may be unpleasant and people are waiting to leave. These distractions do not diminish the commitment represented by signing the document and making the deposit. The terms of the Memorandum of Sale will define the rights of the parties in anticipation of the real estate closing. This includes if and when the Trustee or the purchaser can get out of the contract. A purchaser can compare the Notice of Sale, Trustee Appointment and the Deed of Trust to the Memorandum of Sale before signing anything. The Deed of Trust reflects the trustee’s authority to conduct the sale. A Trustee may even be willing to share a copy of their form before the sale occurs.
- Ask the Trustee Questions. Purchasers can have a hard time talking with people associated with a property. The current occupants probably aren’t talking much. When asked questions, the trustee may respond that they have duties to the lender and the borrower. The trustee may not volunteer as much information as a realtor would in a conventional transaction. However, to the extent the trustee and the purchaser are both signing the Memorandum of Sale, the purchaser has a reasonable expectation that the trustee answer questions about those terms.
Time constraints may not allow an investor to investigate all of these issues before every trustee’s sale. The property may go into litigation or have problems with its physical condition even if these steps do not reveal a problem. The same could be said about any investment. One of the other messages related in the opening sequences of The X Files was “Trust No One.” This reflect one extreme on the trust/distrust spectrum. People who live on this extreme are less likely to put themselves at litigation risk but often find themselves living in isolation or vulnerable to manipulation. In the world of real estate, many investors want to make quick, substantial returns while investing as little time as possible. Under these pressures, it is easy to operate to far on the opposite, overly trustful side of the spectrum. Potential buyers with the financial means to make this kind of investment have the discretion and the right to decide how much of these issues they want to deal with up front and which they can live with as a risk of doing business. Careful purchasers protect themselves at foreclosure sales. Expect the trustee to be an experienced foreclosure lawyer. Anyone investing in foreclosures should have qualified legal counsel of their own retained even before they make their first bid.
Case Authority:
Squire v. Virginia Housing Development Authority, 287 Va. 507 (2014)
Photo Credits:
Gillian Anderson & David Duchovny via photopin (license)
A_23 College Hill – H. P. Lovecraft’s Final Home – The Samuel B. Mumford House (1825) – 65 Prospect Street – Looking South-South-West (from the Meeting Street side) via photopin (license)
October 14, 2015
Common Misconceptions about Home Builder Warranties
Home buyers want assurances that someone will correct defects in construction to make it conform to what they bargained for. In the sale of new homes, these assurances usually come in the form of the builder’s warranties. Homeowners must make serious decisions about whether to go under contract, go through with closing and allow a year or so to go by without making a warranty claim. The purpose of this blog post is to identify some of the top misconceptions buyers have about home builder warranties that interfere with good decision-making.
- “My Warranty Coverage is Only Shown in the Packet of Contract Documents.” In fact, warranties can also arise out of legislation or court decision precedents. Warranty law is a solution to the problem that a buyer can inspect something, pay for it and later discover that the construction was materially defective. In Virginia, the courts traditionally ruled that in every contract with a builder there is an implied warranty of good workmanship unless the terms of the contract provided specific disclaimers or modifications. This rule helped consumers by requiring that the contractor would have to stand behind their work unless there was some fine print otherwise. Builders responded by having their attorneys write-up those warranty documents that can range from a paragraph to over 50 pages. The Virginia General Assembly observed that contractors were finding ways to get buyers through real estate closings on properties that did not conform to contracts in spite of the efforts of local building code enforcement officials and the buyer’s inspections. They passed legislation that creates implied warranties of quality workmanship that arise in the sale of each new home construction. Unfortunately, both contractors and homeowners are often unaware of these statutory warranties and their relationship with the written contract documents including the written limited warranties. Homeowners find it much easier to negotiate with their builder if they know the full extent of their warranty rights from review of the agreements and statutes.
- “My Neighbor Couldn’t Make Use out of Her Warranty, So I’m Also Out of Luck.” Tragically, many homeowners allow their warranty rights to expire without preserving their right to exercise them. Builders, neighbors, building code officials and inspectors can give useless or misleading legal advice. Because the contract documents vary builder-to-builder and the implied warranty laws vary by state, it is impossible to give a general summary that can be applied in every case. Understanding warranty coverage requires compiling the contract and warranty paperwork and state statutes. Usually, the basic warranty lasts for only one year.
- “My Builder is the Best Person to Ask about what they are Required to Fix.” Builders know that the courts will not expect them to continue making warranty repairs to one house for as long as they continue to be in business. To the extent a builder is still working on a house they have already sold, they aren’t making any new money. Contractors sometimes use written warranty paperwork to confuse or limit the buyer’s warranty rights at the time of sale. The builder’s warranty too often is used as a sales tactic to assuage nervous buyers concerned about construction defects. If the homeowner complains to the builder about construction defects after move-in, some contractors try to keep them occupied with inspections and ineffectual repairs. If the builder’s employees are frequently at the house, the owner probably won’t invite independent inspectors, experts or other contractors who might diagnose serious warranty claims and help the owner protect their rights. Once the owner starts to lose confidence in the builder or the warranty period is approaching, the owner needs the help of independent experts.
- “The Only Construction Defects Worth Focusing on are the Ones I Look at Everyday.” Homeowners frequently focus on the types of construction defects that they notice everyday. Defects in drywall, painting, grout, trim and other finish work can add up to thousands of dollars in repair costs, but they may not be the most substantial defects made by the builder. Water may be leaking into the house. Major systems such as roofing, plumbing, electrical, HVAC, etc. may require extensive repairs or replacement if not properly addressed during a warranty period. In order to properly diagnose these problems, the owner must coordinate investigation with inspectors, experts or other contractors who are independent from their builder. Every homeowner owes it to themselves to know the truth about the condition of their house.
- My Realtor, Mortgage Broker, Settlement Agent or Builder Recommended This Home Inspector, so they must be fine.” In hiring a third party inspector to help with a home purchase, the independence of the home inspector is just as important as their competence. Most professionals in a real estate transaction are only paid when the deal goes to closing. If a home inspector or other participant does find a defect that would cause a deal to not go through or be substantially delayed, the other professionals won’t want them to be involved in the next sale. Most home inspectors know enough about houses to provide a report that is a great help to the buyer. What’s important to the buyer is having an inspector who isn’t allied with the people being paid out of settlement. That way, the buyer knows he is working for her.
A homeowner should not rely solely on the contractor to clarify what their warranty rights are. It’s better to find out from qualified inspectors, engineers or other contractors what, if anything is wrong with your house. A qualified attorney can help determine whether those defects are legally covered before time runs out. If the closing on the new home was less than 12 months ago, there is a strong chance the owner may be entitled to repairs or financial compensation from the builder for failure to make the house conform to the warranty.
Legal Authority:
Va. Code § 55-70.1. Implied Warranties on New Homes.
Mann v. Clowser, 190 Va. 887, 59 S.E.2d 78 (1950)
Photo Credit:
Northwest Modernism via photopin (license)(provided to illustrate home construction – not known whether depicted property has any construction defects)
August 19, 2015
Donald Trump is in the Condominium Business but he does not trust Owner Associations
Donald Trump’s colorful background in the business of condominium development speaks volumes about two topics: (1) his track record as a real estate developer, and (2) the weaknesses of the community association model of real estate ownership. There are many commentators writing about the political nuances of Trump’s 2016 presidential campaign. Words of Conveyance is not a political blog. Instead, this post focuses upon a recent federal lawsuit involving the Trump Organization that illustrates a few risks in condominium ownership. Donald Trump is in the condominium business but he does not trust owner associations. As it turns out, Mr. Trump litigates in a similar way to his political campaigning.
Jacqueline Goldberg is a Certified Public Accountant who has invested over $10 million in real estate rental properties. A Trump-controlled developer made condominiums available in the Trump Tower in Chicago, Illinois. The Chicago Trump Tower’s 92 stories enclosed 486 residential units and 339 hotel condominium units. In 2006, Ms. Goldberg signed contracts to purchase two hotel condominium units as investments. Their prices were over $1.2 million and over $971,000, respectively.
The marketing materials used Mr. Trump’s personal brand to illustrate his personal involvement as an established, famous and successful developer. The Chicago Trump Tower advertised luxury amenities including a 60,000 square foot health club, concierge, laundry, garage, meeting rooms, ballrooms with 30 foot ceilings, storage areas, and an executive lounge as common areas of the condominium association. Since this was a hotel condominium, these common areas would be income generating assets and not merely perks available to owners or their tenants. The declaration is the essential document that defines these respective property rights of different owners in the association. This document defines which real estate elements are exclusively or commonly owned.
While the hotel condominium units in the Trump Tower were more expensive than most detached single family dwellings, Ms. Goldberg’s purchase contracts had some language that would make many real estate people nauseous. The agreements provided that the, “[s]eller reserves the right, its sole and absolute discretion, to modify the Condominium Documents.” The Condominium Documents include the declaration, bylaws and floor plans. The purchase contract only required Ms. Goldberg’s approval to change the Condominium Documents when specifically required by law. Her risk was that the contract language gave Trump the unilateral authority to change the material terms of the deal.
After signing the purchase agreements, Ms. Goldberg learned that the Trump Organization made subsequent changes to the Declaration, removing the health club, concierge, laundry, meeting rooms, ballrooms, storage areas and executive lounge from the association’s common areas. Perceiving a “bait- and-switch,” Ms. Goldberg refused to go to closing on the sale of the two units.
When the Trump Organization refused to return her $516,000 earnest money deposits, Ms. Goldberg filed a lawsuit. The principal theory of her case was that the developer defrauded her by including the later-removed elements in the original package while never intending to keep them as common elements of the hotel condominium association. In his defense, Mr. Trump insisted that the association could not be trusted with management of these elements of a mixed-use development:
Mr. Trump, a self-described “expert” on condominium developments, testified that based on his experience, he went into the Trump Tower project aware that “it can be very difficult” for a condominium board to manage function rooms, ballrooms, and food/beverage operations. Mr. Trump explained that, as a general matter, condominium associations “can change their mind,” “fire managers,” “do lots of different things to create tremendous turmoil,” and “really ruin the operation very easily.” He further explained that if a condominium association fired a manager, “[i]t could become a disaster.” This “has happened before, many times, where condo boards are involved and they can’t make a decision, they can’t hire a manager, and the whole thing goes to hell.” This may affect not only the stability and profitability of the building, but also the Trump Organization.
Mr. Trump argued that these elements were originally included as common elements only as an oversight. When he later figured this out, he transferred them over to one of his companies in order to prevent some association board of directors from ruining the Trump Tower for everyone. To anyone unfamiliar with Mr. Trump’s personal bravado, these comments would sound outrageous. How can a developer strong-arm luxury, income generating amenities away from a group of unit owners in the name of “protecting property values” against the incompetence of their neighbors? Yet, in Goldberg’s case, this argument worked. Trump won the 2013 jury trial in the U.S. District Court for the Northern District of Illinois. Goldberg then appealed to the Seventh Circuit Court of Appeals. Judge Richard Posner, a well-known federal appeals court judge, wrote a June 10, 2014 opinion affirming the trial court decision. He had some interesting observations about this case:
- “She signed with her eyes open.” Goldberg was an experienced real estate investor who should have understood the risks of signing the contracts with the “change clause.” The Court declined to paternalistically rewrite these contracts or condominium instruments made between these sophisticated investors. We know from the first Republican 2016 presidential debate that Mr. Trump’s businesses declared bankruptcy four times in order to discharge real estate loans. Given Mr. Trump’s business practices and what was spelled out in the contracts, the Trump Tower units were speculative investments.
- “He is not infallible.” What is to be made of Mr. Trump’s decision to change the condominium instruments after Ms. Goldberg signed the agreements? Judge Posner observed that, “Donald Trump is of course a highly experienced real estate developer, but he is not infallible – he has had many successes in the real estate business but also failures.” Given Judge Posner’s reputation for use of a wry sense of humor in carefully written judicial opinions, one cannot help but believe that the Court had Mr. Trump’s bombastic style in mind here. Trump’s current presidential ambitions enhance the irony.
- No Real Expectation of Profit. For Ms. Goldberg’s securities laws claims to prevail, there must have been an expectation of profits from the disputed common elements. Judge Posner observed that Ms. Goldberg’s share of the projected profits would have been so small that her share of the annual maintenance fees would have been adjusted by at most 3%. He was not persuaded that the amounts in controversy were more than speculation.
For most people, opportunities to invest in condominium units do not involve the complex issues found in a Trump Tower. However, even commonplace initial purchases of units from a residential condominium developer involve substantial risks. One cannot conduct home inspections for properties that have not yet been built. The developer (or some other investor) may enjoy an oppressive supermajority vote in the governance of the owners’ association. There may be ambiguity in the Condominium Documents. Since seasoned investors like Jackie Goldberg experienced heartburn, there’s all the more reason for others to have advisors help them navigate such an investment. In a post-trial interview with the Chicago Tribune, Goldberg said she felt good about “exposing” Trump and offered this advice for anyone going into business with him: “Read the contract.”
As a presidential candidate, Mr. Trump lacks political electoral experience. However, the Goldberg case shows that Mr. Trump does have a governance background within his real estate dominion. Industry people espouse that community associations are “mini-governments” that alleviate the burdens on cities and counties while permitting neighborhoods to enjoy autonomy on how things are run on democratic principles. If condominium associations are indeed analogous to political democracy, what does Ms. Goldberg’s case say about how a Trump White House would treat other organs of government?
Case Citations:
Goldberg v. 401 North Wabash Venture LLC, 755 F.3d 456 (7th Cir. 2014)
Goldberg v. 401 North Wabash Venture LLC, 904 F. Supp. 2d 820 (N.D. Ill. 2012)
Photo Credits:
July 3, 2015
Do Your Association’s Parking Rules Pass the Smell Test?
There are few property rights as unappreciated as the privilege to park. For nine years, I lived in a condominium where the association’s parking lot did not have enough physical spaces for all of the permitted vehicles. If you came home late, you might have to park on the street several blocks away, even if you had a parking decal. The property manager arranged to tow all vehicles without a permit or guest pass after a certain hour in the evening. You didn’t want to run the risk of having to hitch a ride down to the towing company and “bail” your car out. I relied upon that small sticker in the rear window of my car every night.
An association’s parking rules effect the owners’ essential right to access one’s property. This means that whoever enforces community parking restrictions makes quality of life decisions for everyone. In many communities, the number of parking spaces permitted to a condominium unit defines the number of adults who can conveniently use it. If street parking is not readily available, guest passes define whether or not an owner can entertain anyone at their home. An association’s parking rules enforce someone’s vision for the character of the development. Residential associations typically refuse to issue parking permits for commercial vehicles. Commercial condominium associations may use parking restrictions to restrict undesired industrial uses.
The right to park at one’s property is easy to take for granted until threatened. If a HOA suspends privileges for a rule violation, the owner may be able to live without access to the pool, gym or party room. If the condominium documents allow revocation of parking permits for a violation, then this presents a greater threat to the resident. At a community association conference I attended this year, managers discussed whether it is feasible to enforce parking rules by using jersey walls to barricade owner’s garages!
Given the fundamental nature of the right of access, it is no surprise that landmark court decisions concerning community associations arise out of parking disputes. In 1982, the Supreme Court of Virginia decided Unit Owners Association of BuildAmerica-1 v. Gillman. BuildAmerica-1 was a commercial condominium consisting of a large industrial structure containing warehouse or garage condominium units. Undesignated parking spaces surrounded the building.
Harry & Saundra Gillman purchased space in BuildAmerica-1 for their trash collection business. After a few years, some of their neighbors complained about the odor of the Gillman’s trash trucks. The Association fined the Gillmans. They sought to force them to relocate by forbidding them from parking their trucks. A commercial condominium development can have the character of any number of office or industrial uses. Who wins when different owners have competing visions for a commercial condominium association? To the Supreme Court of Virginia, the answer lay with one of the fundamental, yet controversial, doctrines of community association law: The governing documents (covenants, declarations, bylaws) comprise a contract to which the owners are parties. A “covenant” is a legal agreement. Some homeowners’ rights advocates argue that boards, attorneys and managers abuse this doctrine by insisting that individual owners “agreed” to whatever policies and practices the association adopts. It is my opinion that the “contract” theory can actually help owners. How is this? A contract has the effect of limiting the scope of the rights and responsibilities of the parties. This can cut both ways, limiting the authority of the Association while also defining its affirmative duties to the owners. The “contract” is not each and every rule, regulation, decision, resolution or policy adopted or enforced by the Association and its agents. An owner can only be charged with such contractual obligations as are reflected in the declarations, covenants, bylaws, amendments that the owner is put on notice of in county land records and disclosed at the sale. Those documents are typically prepared by the developer’s lawyers. The governing documents are usually drafted to protect the developer and to be palatable to the initial investors at the sale. This means that often these documents don’t speak to the owner vs. association disputes that arise after the developer is out of the picture. Usually these disputes are about legislative amendments or Board-adopted regulations.
In Gillman, the Board adopted regulations forbidding owners from bringing more than three trucks onto the parking area weighing more than 10,000 pounds each. This rule was not a provision in the governing documents. So how are Virginia courts supposed to view the Board’s rules & regulations that are not in the covenants recorded in land records? In Gillman, the Supreme Court of Virginia set forth several very important standards:
- Rules Must be Reasonable. This is not a subjective test but one based on context.
- Rules Cannot Be Arbitrary or Capricious.
- Rules Must Not Violate a Fundamental Right. Does the rule violate the constitution or statutes?
- Rules Must Serve a Legitimate Purpose. The covenants should set out the fundamental character of the development (residential, industrial, office, mixed use, etc.) to provide some guidance as to the ostensible purpose of the Association’s existence. The issue of “legitimate purpose” has become more complicated now that many local governments mandate an association as part of the permitting process. If the Association has no other purpose than to fulfill a City or County ordinance, does this affect a Board rulemaking authority?
- Rules Must be Reasonably Applied. This includes uniform application to all owners fairly.
- The Board of Directors Must Not Abuse its Discretion.
The Supreme Court of Virginia affirmed the Circuit Court of Fairfax County’s decision to set aside the Association’s fine against the Gillmans. It reversed the Circuit Court’s decision to order the Gillmans to wash the trash trucks. Since the Gillmans prevailed, the Supreme Court set aside the award of attorney’s fees against them.
The Unit Owners Association of BuildAmerica-1 argued that they were a “self-governing community” and a “fully self-governing democracy” whose inherent powers are not limited. The Court rejected this and observed that while the powers of an association are broad, they are limited by statute. Gillman shows that association rules and regulations are not to be treated with the high level of deference owed to statutes or covenants. The only way to invalidate a regulation outside of the procedures in the Bylaws is by court review. If the rule or regulation your Association seeks to enforce violates your property rights contact a qualified attorney. Although the facts and circumstances of each case may result in different outcomes, judicial review may be a breath of fresh air to the prevailing “smell test” being applied within your Association.
Case Citation: Unit Owners Association of BuildAmerica-1 v. Gillman, 223 Va. 752 (1982).
photo credit: Eugene Oregon tow truck via photopin (license)
