Homeowners Association Not Responsible for Owner’s Out of Pocket Expenses

In a recent decision by the North Carolina Court of Appeals, the Court held that a condominium association was not responsible for out of pocket expenses incurred by an owner when she was forced out of her unit while repairs were made. In Gehrke v. Gates at Quail Hollow Homeowners’ Ass’n, an owner sued her condominium association for all the costs she incurred while she was forced out of her unit for repairs. To read the full case, click here.    Marguerite Gehrke was a unit owner in The Gates at Quail Hollow Homeowners’ Association, Ltd. (the “Association”), in Charlotte, North … Continue reading

What is the Statute of Limitations and Statute of Repose for NC / SC HOAs?

Homeowners associations and condominiums frequently hire contractors to perform work within their communities. Although some work is obviously poor, it is not always apparent that a contractor’s work was defective. Where defective work is not discovered until some time later, most boards of directors want to know whether the time has passed for the association to bring suit against the contractor.  When we talk about time limitations to bring suit, there are two types of statutes involved. The first is called the statute of limitations—this is the one most people are familiar with.  Generally speaking, the statute of limitations is the time … Continue reading

New Announcement by HUD Means More Options for Flood Insurance

All community association boards want to be good stewards of the funds collected from their homeowners.  Sometimes, when finances are tight, a board has to face hard choices about how to reduce costs.  That might mean reducing services or even deferring needed maintenance for a period of time where that maintenance is not essential to safety or structural integrity.  As with all contracts, boards want to find the insurance that best suits their community and offers the best protection—at the best price.  For those townhome and condo communities located in a flood zone, the question often arises whether they must … Continue reading

Obligation to Pay HOA Dues Survives Even the Strangest Circumstances

As community association attorneys, we hear all sorts of reasons from homeowners to explain why they haven’t paid their assessments.  These usually include legitimate explanations such as illnesses like COVID, job loss, or other hardships.  Some homeowners are more creative.  One owner recently told our office that the presence of “entities” in the home was a reason for non-payment.  In a recent case out of Kentucky, William and Theresa Thompson told their homeowners association they shouldn’t have to pay assessments on two lots they owned because the lots weren’t there anymore.  Although existing as two separate lots, they were treated … Continue reading

South Carolina Supreme Court Finds Mandatory Arbitration Provision Unconscionable

In a recent South Carolina Supreme Court decision, the Court struck a mandatory arbitration clause from purchaser contracts with a home builder because the terms were considered to be unconscionable.  In Damico v. Lennar Carolinas, a group of home buyers in the Spring Grove Plantation community sued Lennar Carolinas for construction defect claims.  As one of its primary defenses, Lennar Carolinas pointed to the arbitration clause included in the contracts that each homeowner had signed.  These clauses required cases to be arbitrated and waived other protections normally available to a home buyer, such as trial by jury.  The Court determined … Continue reading

Update—Delinquent Homeowners May Have Access to Funds to Pay HOA and Condo Liens

As I wrote a few months ago, South Carolina homeowners have access to federal funds that have been allocated to assist homeowners in financial distress as a result of the COVID-19 pandemic.  It has now been confirmed that the program will include paying debts associated with HOA or condominium assessments, late fees, interest, liens, and foreclosure-related costs.  As anticipated, the State of South Carolina has been awarded $144,650,807.00 by the U.S. Department of Treasury’s Homeowner Assistance Fund (HAF), which was established under Section 3206 of the American Rescue Plan Act of 2021.   What does that mean for an HOA … Continue reading

Federal Legislation Introduced to Address Financing Condo Safety Repairs

On April 18, 2022, Representatives Charlie Crist and Debbie Wasserman Schultz (both U.S. Representatives from Florida) introduced the Securing Access to Finance Exterior Repairs (“SAFER) in Condos Act of 2022.  The bill is designed to address one of the main problems identified following the partial collapse of Champlain Towers South in Surfside, Florida, last year.  Although many condominiums may need significant structural repairs, a recurring problem has always been the ability to obtain financing to pay for the costs of those repairs.  Following the collapse, many condominium associations have begun to evaluate their own buildings in earnest and investigate their … Continue reading

South Carolina Launches New SC Homeowner Rescue Program (SC HRP)

As my colleague, Jim Slaughter, reported last month, the new federal Homeowner Assistance Fund established a program with nearly $10 billion for states to provide relief to those suffering from the effects of the COVID-19 pandemic. For South Carolina homeowners who have become delinquent in their HOA or condo assessments during the pandemic, this program may offer assistance. In general terms, the SC Homeowner Rescue Program (SC HRP) accepts applications from South Carolina homeowners who were impacted by the pandemic and need assistance with housing-related expenses. Funds may be available on a first-come, first-served basis. There are income requirements, as well as … Continue reading

What Does The Champlain Tower Collapse Mean For NC / SC Condos?

With the collapse of the Champlain Tower South (a part of a condominium located in Surfside, Florida) in June of last year, there has been a search for answers.  Condominium owners want to know whether their building is safe, and boards of directors want to make sure they are taking appropriate steps to prevent another disaster similar to the one in Florida. Although the ultimate reasons for the collapse may not be known for years, it is likely that some problems that may have contributed to the collapse are not unique. The Community Associations Institute (CAI) has published recommendations relevant to … Continue reading

Throwing Shade—North Carolina / South Carolina Homeowner Right to Sunlight

Once upon a time there was a homeowner with a mountain cottage with a great view.  The homeowner lived for years on this quiet property with a fantastic view of the surrounding mountains.  Suddenly, a neighbor showed up and began building next door.  As part of construction, it became obvious that part of the new neighbor’s home would block the view of the first homeowner.  Although the first homeowner may not be happy about it, without some sort of guarantee that his view will remain unchanged, the first homeowner probably has no way to prevent the construction.  To avoid this … Continue reading

New South Carolina Law Creates COVID Immunity for Many HOAs and Condos

On April 28, 2021 the South Carolina Governor signed into law a bill that creates some protection for many homeowners associations and condominium associations from potential coronavirus claims.  The bill (S147) creates broad immunity for health care facilities, government agencies, and legal entities, whether they are regular business entities or nonprofits, regardless of how they are organized (so nonprofit corporations, LLCs, etc.).  These are what the new law calls the “covered entities.”  The law also specifically creates protections for any director, officer, employee, agent, contractor, third‑party worker, or other representative of one of the covered entities.  These are considered to … Continue reading

Whether to Hold In-Person HOA or Condo Meetings in South Carolina

While prior Executive Orders contained clear requirements about how to address COVID-19, the most recent South Carolina Executive Orders leave much to the imagination.  For those familiar with South Carolina and its approach to legal issues, this might not be surprising. In South Carolina, the basic difference for gatherings currently is that, unlike prior Executive Orders that required face coverings and strictly limited gatherings in terms of number of participants, social distancing, and hygiene efforts, the current orders only encourage compliance with these guidelines.  That leaves the board of directors of any HOA / condo with the question of whether … Continue reading

To Open (or Not Open) HOA and Condo Pools in North and South Carolina

One of the most frequent questions we receive is whether it is “OK,” “allowed,” or “legal” for homeowners associations or condominiums to open their pool this spring. Every community is different and boards of directors will have to make the decision to open based on several factors, including the type of community, whether that community has the resources to comply with CDC and local guidelines, and whether it can comply with any state requirements that may apply. Each board of directors must make its decision based on its best business judgment after appropriate due diligence. Just because the state or the … Continue reading

Proposed Solar Bill in South Carolina May Affect Homeowners Associations

As the weather begins to warm and the sun shows its face a little longer each day, many homeowners start to consider the option of installing solar panels on their property to take advantage of those rays. With legislative changes in the past few years, South Carolina has become a more welcoming state for solar companies. As a result, many homeowners associations (both single family communities and townhomes) have started seeing more and more applications from homeowners to install some type of solar panel technology on their property. Up to now there has not been any sort of state law … Continue reading

Special Meetings in NC & SC Homeowners Associations and Condominiums

Community associations (homeowners associations and condominiums) hold several different types of membership meetings.  Most will hold an annual meeting at which typical agenda items are common:  reviewing or ratifying a budget, electing new members to the board of directors, and other regular business.  Sometimes the governing documents for the association will specify the exact date of the meeting and sometimes they will leave it to the discretion of the board of directors.  Another type of membership meeting that often occurs is a special meeting.  To call these meetings “special” is really just a way to distinguish them from regularly scheduled … Continue reading

Some South Carolina Courts Reopen—Sort Of

Like everyone else in South Carolina, I’ve kept an eye on the latest developments from the court system to see when things can return to normal.  On April 30th the Chief Justice for the South Carolina Supreme Court updated the previous March 18th Order relating to foreclosure cases.  Among other things, the new April 30th Order provides that “Master-in-Equity courts statewide shall resume foreclosure hearings, foreclosure sales, issuing writs of assistance and writs of ejectments, and proceed in any other manner regarding foreclosures beginning May 15, 2020.”  What that means for your homeowners association is that certain collections cases that … Continue reading

How South Carolina’s Reopenings May Affect Your Homeowners Association

Whether your community chooses to keep its common areas open or closed is a matter of discretion and all HOA / Condo boards in South Carolina must use their best business judgment to make that determination. Over the past two days South Carolina has reopened some retail establishments, beaches, and state parks.  Although the State has not seen a significant downward trend in coronavirus cases for 14 days (as the White House recommended) Governor McMaster was comfortable reopening, relying instead on professional opinions in South Carolina and the fact that people seem to be complying with social distancing.  A copy … Continue reading

HOAs, Condos, and the South Carolina Stay at Home Order

Effective April 7, 2020, at 5:00 pm, South Carolina will join most other states with statewide “stay at home” orders.  Governor Henry McMaster referred to the order as a “home or work” order that would require people to stay home if they are not at work or tending to essential needs.  A copy of the South Carolina Governor’s full order is here.  The order does not close more businesses than had previously been closed, but did create additional limits on how many customers can be inside a store at any given time.  According to his order, all stores must limit … Continue reading

The Case for Fining in South Carolina HOAs and Condominiums

My community association practice is split between North Carolina and South Carolina.  One of the primary differences between the law in these two states is the fact that North Carolina has a comprehensive HOA statute while South Carolina does not.  I’ve written more than once about the need for a comprehensive HOA statue in South Carolina.  While there are many nuances that make the laws in each state unique, one that I deal with frequently is the enforcement method for covenant violations.  Most covenants authorize “an action at law or in equity” as a method for the association to enforce … Continue reading

Should My Community Close Its Common Areas Due to COVID-19?

With everyone on high alert because of the coronavirus (COVID-19) we get a number of questions every day about how community associations (HOAs and condos) should react and what should be done.  One of the questions we’ve received a lot lately is whether the association should close its common areas.  The answer, as with most legal things, is “it depends.”  First, most community associations are nonprofit corporations and are obligated to do whatever any state or local government or health department has said should be done.  For a great discussion on general steps your community should take to deal with … Continue reading