“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

HOA & Condo National Law Seminar and Other Programs

Several HOA/condo association learning opportunities are coming up that you may wish to attend, both in North Carolina as well as nationally. Details for each program can be found below. 2018 National Community Association Law Seminar The national Community Association Law Seminar is the premiere HOA and condo legal program held each year. The year’s Law Seminar, sponsored by the Community Associations Institute (CAI) and the College of Community Association Lawyers (CCAL), is the 39th annual and will be held January 31-February 3 in Palm Springs, CA. The Law Seminar is mostly attended by attorneys, but it’s not just for … Continue reading

Enforcement: Might a Local Ordinance Help Your Community Association?

What can an HOA or condominium association do when activity is occurring within the community that appears to be objectionable, but which is not specifically addressed in the Declaration of Covenants, Conditions, and Restrictions or other association governing documents? The clear answer, if the association wants enforcement power, is to amend the governing documents by following the proper procedure. Vague restrictions are difficult to enforce, and we always recommend amending governing documents to make restrictions as clear as possible. Unfortunately, as most association members are aware, the amendment process can take some time. What if the objectionable activity needs to … Continue reading

Estate Tax Exemption to Exceed $11 Million per Couple

It’s official. For 2018, the estate and gift tax exemption is $5.6 million per individual, an increase from $5.49 million in 2017. That means an individual can leave $5.6 million to heirs and pay no federal estate or gift tax. A married couple will be able to shield $11.2 million from federal estate and gift taxes. And the annual gift exclusion amount is $15,000 for 2018, the first increase in five years. If you make lifetime gifts over that amount, they count against the estate tax exemption amount, which is actually a combined estate/lifetime gift exclusion amount. It has adjusted … Continue reading

Taliercio Elected National Officer for Parliamentary Lawyers

Black, Slaughter & Black attorney Michael Taliercio has been elected 2018 national Treasurer of the American College of Parliamentary Lawyers (ACPL). Taliercio is a Professional Registered Parliamentarian with the National Association of Parliamentarians and a Fellow in the ACPL, which recognizes attorneys who have distinguished themselves in the practice of parliamentary law, including lawyers who advise conventions, condominium and homeowner associations, governmental bodies, and nonprofits.

In the Robert’s Rule of Order, can a chair overrule a motion to call the previous question?

This question was asked elsewhere online, and my answer may be of interest to others– Unfortunately, without more facts the answer is likely “it depends.” If your adopted parliamentary authority is Robert’s Rules of Order Newly Revised (11th Edition) (“RONR”), there are several competing considerations: (1) RONR § 47 (p. 449) provides that the presiding officer has an obligation “to state and to put all questions that legitimately come before the assembly as motions . . . .” (2) However, RONR § 47 (p. 450) provides that the presiding officer should “protect the assembly from obviously dilatory motions by refusing … Continue reading

Required E-mail Notice of Collection Proceedings?

Lawyers get asked about reported cases all the time, but usually what happens in a specific lawsuit isn’t that relevant to parties not involved in the case. That’s because circumstances are different, facts vary, associations are created at different times, it’s a condo instead of an HOA, etc.  That said, the decision in an appellate case can be instructive, and that’s certainly the case with a decision regarding collections this week from the NC Court of Appeals. In the case In re: Ackah a homeowners association foreclosed on a lot for nonpayment of assessments. The property was eventually sold to … Continue reading

How to Help after Hurricane Harvey

These blogs often focus on community association issues, whether hot topics, new appellate cases, or proposed federal or state laws. Today there’s a more pressing issue to address—the devastation caused by Hurricane Harvey. Without question, what’s happened in Texas is also a community association and community association resident disaster. Texas is third among states (only behind Florida and California) in its number of community associations, with more than 19,900 HOA/condo associations and more than 4 million residents. Many of them now face dangerous conditions and uncertain futures. Everyone also likely knows someone who has been personally affected. Houston attorney Mark … Continue reading

Best Lawyers Recognition

Two attorneys at Black, Slaughter & Black have been named to the 2018 edition of U.S. News – Best Lawyers. Best Lawyers recognition is based on peer reviews and client recommendations. Barbara Morgenstern been recognized by Best Lawyers in the practice of Family Law as well as Family Law Mediation. Barbara has also been named a “Legal Elite” by Business North Carolina magazine and a North Carolina Super Lawyer for Family Law. She is a Certified Specialist in family law by the NC State Bar, a Fellow of the American Academy of Matrimonial Lawyers, Past President of the NC Chapter of the American Academy of Matrimonial … Continue reading

REAL ESTATE HELD BY CORPORATIONS AND LLCs: WHY IT’S GOOD TO KEEP YOUR ENTITY VALID

At Black, Slaughter & Black, we handle closings for developers, builders, and investors throughout North and South Carolina.  Too often problems arise when the title to the property has been left in an old, dissolved entity.  Here is how we handle the issue in North Carolina: North Carolina allows business entities to convey property even after dissolution pursuant to statues governing the wrapping up of the business, so long as it is concluded in a reasonable amount of time (It is helpful that the law does not specify the duration, provide a limitation, or define a reasonable amount of time.  … Continue reading

Primer for Real Estate Brokers: Getting Your Deal Closed Like a Pro

As a real estate broker, getting a signed sales contract in hand is one of the most exciting parts of the buy/sell process.  A lot of time and effort goes into bringing a buyer and seller together to agree on the sale terms for a piece of property.  But, getting the contract signed only signals the beginning of the next phase of the process.  Brokers should be well informed of the steps in the closing process to be able to advise of and explain the process to their clients.  Being able to set expectations in advance of closing will help … Continue reading

Mediation and Arbitration Study for HOAs and Condos

Senate Bill 16 was vetoed by Governor Cooper on August 15, 2017, for reasons other than the proposal described below. The proposed study of a mediation and arbitration board by the Legislative Research Commission below is on hold until the legislature votes on whether or not to override the veto. The General Assembly met yesterday (August 3) to consider several issues remaining from the legislative session. Bills that would impact North Carolina’s homeowner and condominium associations weren’t really on the agenda, but one proposal was adopted that has a provision concerning community associations. Senate Bill 16: Business & Agency Reg. … Continue reading

Can My South Carolina HOA or Condominium Charge a Transfer Fee?

I often receive questions from managers and board members about fees that homeowners associations and condos can and can’t charge to homeowners and to prospective purchasers in their communities.  One of the most common questions goes something like this: “Our covenants say that we can charge a capital contribution fee / transfer fee / some other similar fee at each closing.  Can we charge this fee?” The answer will depend on several factors, including the age of the fee covenant, which party is entitled to receive the fee, and whether the original developer is still selling property in a community. … Continue reading