May 20, 2021
On May 14, 2021, Virginia Governor Ralph Northam lifted the indoor mask mandate in light of updated CDC guidance. Governor Northam also declared that the indoor capacity restrictions and distancing restrictions will ease, effective May 28, 2021. The District of Columbia and neighboring states are also lifting restrictions, effective around the Memorial Day weekend. The loosening of restrictions comes in the wake of large-scale vaccination efforts. Property owners faced with serious decisions may see certain pandemic challenges disappear while new obstacles arise. Here are a few thoughts.
Court Dockets Remain Clogged. While it will become easier to get court dates for litigation, backlogs remain in many courthouses. As more eviction and divorce cases are filed, the volume-based delays in trial dates are likely to continue for months. Property owners, while remaining cognizant of statutory deadlines for bringing court action, ought to continue to consider litigation alternatives, such as compliance, mediation, arbitration or a HOA meeting.
Shortage of Construction Materials and Skilled Laborers. News focuses on the rising costs of lumber and steel. However, property owners are more likely to experience delays because construction supervisors and tradespersons are unavailable. Spring is ordinarily a high demand period due to the improved weather and homes being prepared to be put on the market. Everyone wants to move at the same time on projects they have been putting off for the past 12 months. Certain jobs, such as restaurants, teaching, and service industries are viewed by many as less desirable (even without a pandemic), driving up the costs. I expect that there will be unscrupulous people who will harm consumers through fraud or deceptive practices in light of the high demand for home renovators.
Housing Market Remains Strong. While this may be an inconvenient time to renovate one’s home, for many it’s a great time to sell. Many sales in the greater D.C. area are made with the waiver of the right to any home inspection. Interest rates remain relatively low.
Changing Neighborhood Dynamics. During the pandemic, many people spent much more time at home and under substantial stress and anxiety, which led to an increase in disputes among neighbors, which played itself out in court cases, zoning complaints and HOA violations. While many people are looking to now move away, go back to work, or just spend more time away from home, that doesn’t mean that the underlying problems will disappear.
Fairfax County Has a New Zoning Ordinance. In March 2021, the Board of Supervisors adopted a major overhaul of the Fairfax County Zoning Ordinance. The new ordinance goes into effect July 1, 2021. The zoning ordinance in many ways functions as a kind of “social contract” regarding property on a county-wide scale. The new ordinance makes it easier for owners to obtain approval for accessory living units (previously known as accessory dwelling units and relaxes certain restrictions on home-based businesses, flag poles and accessory structures. However, the changes to the zoning ordinance does not change community association covenants and rules adopted in light of the county restrictions. This presents a potential trap for unwary homeowners who may misunderstand that the HOA may find fault with something that the county no longer finds objectionable, or allows via a permit.
HOA Virtual Meetings are the New Normal. During the pandemic, the General Assembly adopted temporary legislation easing longstanding limitations on the conduct of state, local and community association meetings by videoconference technology. In 2021, the General Assembly adopted new, permanent amendments to the Property Owners Association Act and Condominium Act with the idea that associations ought to be able to continue the use of Zoom board and committee meetings. I discussed this legislation in my post “Modernizing HOA Law or Exploiting and Crisis?” I am a supporter for use of videoconference technology for certain types of HOA gatherings. However, I remain an opponent of the secretive way many HOAs try to do business through unannounced exchanges of emails or other informal communications between directors or managers, and then later attempt to declare such communications to be binding on the owners. The legislative amendments, effective July 1, 2021 will likely cause additional confusion by many boards and committees who will wrongly interpret it to strengthen the practice of informal, undisclosed decision-making that effects people in unfair ways. However, the “open meeting” and books and records request statutes remain in effect, as do protections enjoyed by owners under their governing instruments. Directors and managers trying to make decisions by unanimous director email “votes” frequently make mistakes that make such board’s actions susceptible to legal challenge.
Please continue to be safe and healthy as you renovate, buy or sell property now that restrictions are rapidly evolving.