Proxies & Proxy Voting at Membership or Board Meetings

Proxies and Proxy Voting at Membership Meetings Our attorneys get lots of questions about proxies and proxy voting. And that’s understandable, as proxy issues at meetings can get very confusing. A proxy is simply a power of attorney as could be used to open a bank account or sell a car for another person. If proxies are permitted at a meeting, the proxy can likely be given to any person or entity. That’s because the person carrying the proxy isn’t really who is at the meeting–the proxy giver is. FYI, most parliamentary books like Robert’s Rules of Order Newly Revised (11th … Continue reading

Dispute Resolution Committee Comments

Last week I was invited to address the Legislative Research Commission’s Committee on Dispute Resolution Options for Homeowners, Associations and Governing Entities. The committee’s charge is to explore the “creation of a mediation or arbitration board” to handle community association disputes, and I was asked to share my thoughts. My comments to the Committee are below. FYI, almost all lawsuits filed in North Carolina’s District or Superior Courts are sent to either mediation or arbitration. And state law currently requires that community associations notify members each year of their right to request mediation. While I am an active proponent of … Continue reading

Can we just enforce the rules we like?

Most board members don’t relish the idea of fining their friends and neighbors for minor infractions of their community’s restrictive covenants. Boards are typically willing to issue fines and citations when an owner has piles of garbage in their front yard, windows and siding falling off the exterior, or nipping dogs running around common areas off leash. But what about the situation with the owner who occasionally has to bring a company work van home overnight and park it in the driveway- and the Declaration of Covenants says no commercial vehicles parked in driveways? Or the environmentally friendly owner who … Continue reading

Transgender Issues in Community Associations

Recently, I had the opportunity to attend the annual Community Association Institute Law Seminar. One of the topics covered at the seminar was transgender issues in community associations.  We all know that community associations are microcosms of the society at large, and transgender issues are no exception. Transgender persons face violence, discrimination in the workplace, educational challenges, and health concerns.  Relevant to community associations, they also face significant hurdles related to housing.  A report of the 2015 U.S. Transgender Survey (USTS), looking at almost 28,000 transgender persons in all fifty states, the District of Columbia, American Samoa, Guam, Puerto Rico … Continue reading

New Charlotte Address & Firm News

We’re excited to announce our new, larger Charlotte office! Note our new Charlotte address: 1927 South Tryon St., Suite 100, Charlotte, NC 28203. The Charlotte phone number at 704-970-1593 remains the same.     This has been a busy and exciting year for our firm, so here are some updates and recent recognitions: Our Greensboro office expanded to take over neighboring office space (but has kept the same address). Four attorneys joined our firm this past year to assist with HOA/condo and real estate matters: Harmony Taylor, Brad Jones, Chris Rivers and Jason Pruett. For more information on any of … Continue reading

Fining For Violations-Proper Process is Key

Our clients often ask us what can be done about homeowners who are clearly violating the Association’s governing documents.  Both the North Carolina Planned Community and Condominium Acts (“Acts”) have mirror provisions and procedures for the imposition of fines.  Imposing fines often causes a great amount of heartburn for Boards as they are tasked with enforcing the Association’s governing documents against a neighbor.  While it can be an uncomfortable position to be in, our advice is that if the Board is not willing to enforce their governing documents, the documents might as well not exist. Furthermore, if Associations ignore violations … Continue reading

2018 Law Seminar Follow-Up & Firm News

Each year several of our HOA/condo attorneys attend the annual community association Law Seminar presented by the College of Community Association Lawyers and the Community Associations Institute. The Law Seminar has excellent HOA/condo speakers and programs, and this year was no exception. There were some 20 education sessions, including discussions of Fair Housing Act developments, the explosion of assistance animal issues in community associations, protecting association names and websites, dealing with hoarders, and the fiduciary obligations of board members. A goal for attorneys who attend the Law Seminar is to come back with a better feel for trends that will … Continue reading

South Carolina Court of Appeals Reiterates Importance of Clear Rental Restrictions

I am often asked by homeowners, property managers, and HOA boards to review restrictive covenants to determine whether their community may restrict leasing in some way.  The usual answer is “it depends,” and the South Carolina Court of Appeals made it clear in Community Services Associates, Inc. v. Wall that restrictive covenants must be clear in order to prevent leasing. Covenants that restrict the free use of property are disfavored by the law.  Therefore, courts in North Carolina and South Carolina require that any restrictive covenant in a homeowners association or condominium be clear and unambiguous.  So long as they … Continue reading

We Buy Unwanted Houses…Or Do They?

The Charlotte area real estate market remains hot and with that comes opportunists looking to make a dollar in real estate.  I receive solicitations from investors who claim to want to buy my house weekly (sometimes, three or more per day in my mailbox).  Telephone posts across the city are adorned with advertisements proclaiming to “Buy Unwanted Houses” or “Pay Cash for Your House”.  No doubt, it is tempting to want to cash in on the appreciating value of homes in the area.  However, homeowners should be cautious if they are approached by persons or companies who “pay cash for … Continue reading

2018 New Power of Attorney Act in North Carolina

As of January 1, 2018, North Carolina has adopted a version of the Uniform Power of Attorney Act.  This new statute overhauls the way we look at Durable Powers of Attorney. A Power of Attorney is a legal document that authorizes someone else to act as your Agent. “Durable” just means it remains valid even after the Principal becomes incapacitated, until a stated termination date or event occurs, or the Principal dies. Financial Exploitation from Powers of Attorney is a growing problem and this new Act is intended to provide intelligibility for those serving as Agents (we used to call … Continue reading

What to Do About Subdivision Roads—The Orphan Road Conundrum

For many homeowners associations roads can be a source of constant consternation. Most homeowners do not make their home-buying decision based on the condition of the roads in the community or on the responsibility of the community to maintain subdivision roads. Where the community is responsible for the roads, it can be one of the largest budget expenses, often taking years of planning and saving to tackle. Even then, it may require special assessments or other methods to raise the funds to handle. When developers or HOA boards are not diligent in getting responsibility for roads turned over to the … Continue reading

New Mediation Program to Help Resolve North Carolina HOA/Condo Disputes

The North Carolina Chapter of the Community Associations Institute (NC-CAI) has a new Community Association Mediation Program for resolving association disputes! Let me tell you about it. A common complaint heard in the community association world is that there should be some place that homeowners or HOAs and condos can go to resolve disputes. However, the governmental costs to create and administer such a program for North Carolina’s almost 15,000 associations would be enormous. (And for that matter, should state government be in the business of regulating disputes over private real estate contracts?) While huge fights may end up with … Continue reading

Be Wary of Talking to Any Insurance Company After an Automobile Collision

Being involved in an automobile collision can be scary and overwhelming. Immediately after the collision, people want you to tell them what happened. You likely will be contacted by the at-fault driver’s insurance company, or even your own insurance company, wanting you to sign paperwork or give a recorded statement. The next thing you know, they are denying your claim and you’re trying to figure out what went wrong. If you are involved in a car accident, the insurance companies are looking for any detail they can find to deny your claim or reduce the amount of money they have … Continue reading

“Protecting Associations from Liability for Sexual Harassment”

You can’t turn on the news these days, pick up a paper or listen to the radio without hearing about someone else in the entertainment industry being accused of improper sexual behavior towards employees, coworkers or others. Community Associations are microcosms of our culture, and so it should come as no surprise to find that allegations of harassment can and do come up. Recently I received a phone call from a manager dealing with the following scenario: Board President has served for many years, with wide support from the membership. He keeps the budget in check, makes sure the pool … Continue reading

THE COURT OF APPEALS GOT IT WRONG – AGAIN!

The North Carolina Court of Appeals has struggled with its interpretation of the divisible property statute since its enactment in 1995.  This statute, codified at G.S. Section 50-20(b)(4), provides for the division of certain assets and debts that were acquired after the date of separation.  The first issue they have incorrectly decided on a number of occasions was the implementation of Section 50-20(b)(4)(d) which currently provides that “divisible property” includes “all passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.”  The error the Court of Appeals repeatedly made was to distribute assets … Continue reading

Budget Ratification Meetings Basics – What You Need to Know

The Planned Community Act and the Condominium Act require most homeowners associations and condominium associations to hold budget ratifications meetings.  What are these meetings? A budget ratification meeting is a meeting of the owners of the association to review the proposed budget that has been adopted by the executive board.  The budget ratification meeting has a number of different requirements and provisions that are unlike other meetings of a community association.  Notably, a budget ratification meeting does not have a quorum requirement, which is dramatically different from typical annual or special meetings. In addition, the budget ratification meeting has special … Continue reading

Drone Photography and Real Estate Agents

“Drones”, or unmanned aerial systems (“UAS”), have made their into the marketing tool kits for many real estate agents, and for good reason.  A UAS can help produce splendid aerial views of properties for sale and give listing agents the ability to market properties in ways that were previously impractical or cost prohibitive.  Your marketing literature will stand out from the crowd with the photography UASs can provide.  However, obtaining these shots with a UAS can subject you to liability if you do not follow the applicable laws and rules concerns the operation of these systems. First of all, operation … Continue reading

“My Uncle Does That” . . . When is it OK for Condominiums and Homeowners Associations Not to Use a Pro?

I am often asked by HOA & condo Boards a question that looks something like these: Is it OK for the Association to use community volunteers instead of a professional? or My Uncle Sal does that, can’t we use him? / I’m sure he’ll give us a discount! Naturally, in typical lawyer fashion, I tell them that it depends.  There are scenarios where the Board will always want a professional service provider and others where it is perfectly acceptable for volunteers from the community to provide services. The bottom line for the Board is always whether it has met its … Continue reading

Buyer Beware: Foreclosures of Properties with Existing Tenants

The housing market is hot in much of North Carolina, and many local and out of State investors are on the lookout for foreclosure deals that they can turn into quick rental income. In this situation some investors may be inclined to forego traditional due diligence, but they do so at their peril. No investor wants to purchase a property, only to learn after the fact that there is an in-place tenant (often less than desirable) who has no intention of leaving the property or paying reasonable rent. In this situation, the tenant may have more rights than the property … Continue reading

Grandparent Custody… When your child is unable to care for their child.

In North Carolina, biological parents maintain superior rights to custody of their children which is a fundamental right protected by the Fourteenth Amendment to the US Constitution.  However, there may be circumstances that exists in which a parent loses those superior rights and a grandparent is able to intervene and request custody of their grandchild.  Before a grandparent can be considered as a custodian for their grandchild, the grandparent must be granted standing by the Court to pursue custody.  In order to be granted standing to pursue custody, the grandparent must show by clear, cogent and convincing evidence that the … Continue reading