*Via http://www.regenesis.net/cgi-bin/content.cgi?doc_id=591
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
We have written previously on the costs—both in time and money—for homeowners and condominium associations to litigate cases. On one hand, boards of directors have a fiduciary duty to uphold the governing documents of associations, but on the other, the board must investigate alternatives to the divisive nature of litigation.
As it turns out, sometimes there is no alternative because a homeowner can sue an HOA, forcing the association to defend. But what efforts can or should a homeowners or condo association take to avoid the consequences of litigation?
A series of recent Virginia cases highlights the consequences associations can face in litigation cases. This blog posts provides a brief summary of those cases and some cautionary advice.
Board of Directors Meeting
Fallen Tree leads to litigation
In The Townes at Grand Oaks Townhouse Association, Inc., v. Byron Baxter, “a homeowner association in a condominium development [sought] to recover the expenses for the removal of a tree that fell from a common area onto the Defendant homeowner’s condominium.” The association sued the homeowner for $800, and the case ended up in Richmond Circuit Court. Judge Melvin Hughes ruled for the homeowner, and he based his holding on the provisions of the association’s governing documents.
Destruction of Retaining Wall leads to litigation
In Walker v. Great North Mountain Phase II, a homeowners association believed that a homeowner’s retaining wall encroached upon a right-of-way for an access trail. The homeowner disagreed, but without warning (or meeting), the association removed the retaining wall, and then sued the homeowner for the cost of removal. The homeowner filed a counterclaim, alleging that the HOA “acted outside its authority under the restrictive covenants.”
The Frederick County Circuit Court Judge agreed, and awarded the homeowner compensatory damages of $28,500 and attorneys’ fees of $48,844. The Judge wrote, “Nothing in the Restrictive Covenant gives [the Association] authority to tear down retaining walls or to install drainage culverts and charge owners with the cost of doing such work within the Right-of-Way.” Adding insult to injury, the homeowner stated that he planned to rebuild his retaining wall.
Front-Yard Garden – Parties Avoid Litigation
Finally, taking a different approach, a Chesterfield area homeowners association avoided litigation by taking a proactive approach to a potentially difficult issue. In the large Brandermill subdivision, a homeowner cultivated a front-yard garden. After being alerted to the garden (which violated the restrictive covenants), the Board denied the homeowner’s request to keep the front-yard garden, but permitted the garden to remain until the end of the 2012 growing season.
However, in 2013, the homeowner continued with his garden. The Board found that the homeowner’s actions violated the restrictive covenants and ordered removal of the front-yard garden.
The case seemed headed to court, because the homeowner would not comply with the HOA’s demand to remove the garden. But then, something changed. The Board looked for alternatives to litigation. It decided, by a Board vote, to propose a compromise with the homeowner: The Board would rescind all fines for failing to comply and would permit a modified front-yard garden if the homeowner would move his vegetable plants closer to his house, and limit his garden to an area halfway from the front of his house to the street, and halfway from the right side of his house to his property line. The homeowner agreed, and the parties avoided expensive and divisive litigation.
These types of cases have many moving pieces, and it takes concerted effort to find compromise. Certainly, boards must enforce the restrictive covenantsthat run with the land, while weighing the risks of litigation. Additionally,experienced community association attorneys can help a board understand its fiduciary duties, while at the same time providing advice for avoiding the time, expense, and divisiveness of litigation.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
