If I Ask if Your Will Has “Per Stirpes,” It’s Not a Personal Question

As I recently went through my estate planning 101 routine to a pair of prospective clients , I happened to drop in the phrase “per stirpes.”  I try to avoid legalese in my initial client conferences, but some terms are unconscious and unavoidable for estate practitioners who spend a significant time parsing through complex legal scenarios facing their clients.  One of the prospective clients abruptly interrupted me and said, “Whoa now, I thought we just came to talk about doing a Will.”  In jest, I assured him that he could not catch anything and there was no need to get … Continue reading

Should HOA or Condo Bylaws Be Recorded?

We were recently asked whether bylaws amendments should be filed with the local Register of Deeds. The answer, like many things community association related, depends. Condo bylaws in North Carolina are almost always filed with the Register of Deeds, but not HOA bylaws. The difference is due to initial bylaws for condos being recorded with the declaration, and then amendments need to show up in the public record. If HOA bylaws are filed (but should not be), amendments also need to be unless a later amendment makes clear (as we have sometimes done for associations) that subsequent amendments will not … Continue reading

EEOC Issues New COVID-19 Guidance to Employers

From time to time throughout the COVID-19 pandemic, the Equal Opportunity Commission (“EEOC”), who is tasked with overseeing and administering federal anti-discrimination laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act (“ADA”), has issued guidance to employers seeking to smartly balance compliance with federal laws and regulations against the need to keep workers, customers and visitors to their businesses safe. With more businesses re-opening their doors and vaccines readily available, the EEOC released updated guidance to help struggling employers. In particular, the EEOC confirmed that: Employers can require all employees physically entering their workplace … Continue reading

New NC Appellate Case: Williams v Reardon (Covenants and Real Property Marketable Title Act – Part 2)

The North Carolina Court of Appeals has once again determined that restrictive covenants are largely extinguished by operation of the Real Property Marketable Title Act (N.C. Gen. Stat. 47B-1 et seq.) if not included in the chain of title in the preceding thirty years. The decision can be found at C.E. Williams, III et al v. Reardon et al. (Unpublished). Our blog on last month’s Marketable Title Act decision can be found at New NC Appellate Case: C Investments 2, LLC v Auger (Covenants and Real Property Marketable Title Act). This decision leaves one additional case pending for decision in … Continue reading

New NC Appellate Case: Belmont Association, Inc. v. Farwig (Solar Panels/ARC)

Today, Tuesday, May 18, 2021, the NC Court of Appeals issued its decision in Belmont Association, Inc. v. Farwig (the first appellate review of North Carolina’s solar law!). The decision may impact the installation of solar panels in planned communities, and is a “published” decision. That means the decision is controlling legal authority and can be cited in other cases. When N.C. Gen. Stat. § 22B-20 (“Deed Restrictions and Other Agreements Prohibiting Solar Collectors”) became law in North Carolina in 2007, it changed the way homeowners associations handle architectural requests. Prior to this statute, an HOA could simply follow the … Continue reading

New NC Appellate Case: C Investments 2, LLC v Auger (Covenants and Real Property Marketable Title Act)

Today, Tuesday, May 18, 2021, the NC Court of Appeals issued its decision in C Investments 2, LLC v Auger. The decision may impact restrictions in planned communities based on the Marketable Title Act, and is a “published” decision. That means the decision is controlling legal authority and can be cited in other cases. The Marketable Title Act To understand the decision, you need to understand what the NC Real Property Marketable Title Act (“MTA”) is and why it is important. Prior to 1973, anyone buying real estate who wanted to know what restrictions applied to that property had to go back, … Continue reading

New NC Appellate Case: Executive Office Park of Durham Association, Inc. v Rock (Older Condo Collections)

Today, Tuesday, May 18, 2021, the NC Court of Appeals issued its decision in Executive Office Park of Durham Association, Inc. v. Rock.  The decision may impact collections in older condominiums, and is a “published” decision. That means the decision is controlling legal authority and can be cited in other cases. In this case, an older condominium association (meaning the association was not fully subject to the NC Condominium Act) was attempting to collect disputed and unpaid assessments, fines, interest, and fees from an owner of several units within the condominium.  The association followed the collections provisions of the NC Condominium … Continue reading

What Is a Majority Vote?

Like many things association related, the answer can vary by state and by association. That’s because some state statutes or governing documents define majority differently (“a majority of the entire membership” or “a majority of members present”). But if you’re just talking about “majority,” then under Robert’s Rules of Order Newly Revised (12th Edition) that is “more than half” (NOT “half plus one” or some other language that can give you the wrong number). When used without qualification, a majority vote means “more than half of the votes cast by persons entitled to vote, excluding blanks or abstentions, at a regular or … Continue reading

NC Community Association Legislative Update – May 14, 2021

Like everything else during this past year of COVID, the legislative process has also been different. Usually by now in the first year of a new session of the General Assembly, a number of bills that could affect North Carolina HOAs and condominiums would have been introduced. Some would move forward, and some not. In contrast, this have been a fairly quiet year for community association proposals. Almost certainly that’s because of the focus and attention on economic and health issues. That said, there are a few proposed bills that, if adopted, would impact community associations. Yesterday, May 13, 2021 … Continue reading

What Can Our Homeowners Association Do about Criminal Activity?

After almost twenty years of representing homeowners associations and condominium associations, it continues to surprise me when homeowners look to their association to investigate or even punish for criminal activity that occurs in the community. Our association clients get calls from homeowners insisting that the association take action to prevent car break-ins, vandalism, loitering in public areas, theft, speeding, reckless driving and even marital fights. Just recently we had the membership of an association very upset with the board of director’s lack of action when one homeowner fired four bullets at another homeowner (thankfully missing each time). In most cases … Continue reading

(Likely Final) NC Extension of Order Allowing Virtual Membership Meetings

The NC Executive Order allowing electronic membership meetings (Executive Order #198) was set to expire today, Monday, May 10. That Order has now been extended by Executive Order #212 through Tuesday, June 1, 2021. As a result, nonprofit membership meetings may continue to be held virtually so long as certain conditions are met. Such a process is likely needed by some larger associations a bit longer, as a different Executive Order (EO #209) still caps the maximum number of people for indoor gatherings at 100 and for outdoor gatherings at 200 “at the same time in a single confined indoor or outdoor … Continue reading

Is this the end of Contributory Negligence?

The North Carolina General Assembly is currently considering a bill that would significantly modify how claims involving negligence, including motor vehicle accidents and personal injury actions, are evaluated, handled and, potentially, adjudicated. Currently, North Carolina is only one of a few states that adheres to the doctrine of contributory negligence, which bars individuals from recovering for harm they’ve suffered due to the negligent act of a third-party if they were even one percent at fault themselves. (Most states, including South Carolina, utilize the doctrine of comparative negligence to allow an individual to recover his or her damages, less a proportionate … Continue reading

Department of Labor announces changes to independent contractor or employee determination

In the final days of the Trump Administration, the Department of Labor put forward clarifications to help businesses determine whether workers could properly be classified as employees or independent contractors. Under the new guidance, the Department of Labor would initially consider only two factors – specifically, the level of control the individual has over his or her own work and the opportunity for profit or loss due to his or her own personal investment. If, and only if, these factors were inconclusive would businesses then proceed to evaluate or consider the level of skill of the role involved, the permanence … 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

Even Further Easing of NC COVID Restrictions

The title of Executive Order #209 issued today (April 28, 2021) pretty much sums up the trend in North Carolina: “Removing the Outdoor Face Covering Requirement, Relaxing Restrictions on Gatherings, and Extending the Capacity and Social Distancing Measures of Executive Order #204.” (For more details on prior Executive Order #204, see NC Easing Covid Restrictions.) The new Executive Order contains additional easing of COVID restrictions to begin this Friday, April 30 at 5 pm. It’s difficult to summarize lengthy Executive Orders, and this particular Order is 31 pages with 10 appendixes for different venues/businesses. Here are some HIGHLIGHTS that may … 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

Q&A on Holding In-Person Association Member Meetings

Now that North Carolina allows larger in-person gatherings (see NC Easing Covid Restrictions), many of our homeowner and condominium associations are wondering if it is time to restart in-person membership meetings. Here are questions and answers to some of the most frequently asked questions about meetings that we’ve received. Can HOA/condo associations begin holding in-person membership meetings again? Perhaps. There are two aspects to the question: (1) CAN the association membership meeting be held in person?, and (2) SHOULD the association membership meeting be held in person? As with other state Executive Orders, the question of whether members can gather … Continue reading

Significant Flood Insurance Changes On the Way

If you or your association are required (or wish) to have flood insurance, big changes are coming. For years, the National Flood Insurance Program (NFIP) has looked at ways to better charge specific properties for their specific risks. At present, flood insurance rates are mostly based on a property’s location and elevation. That may not be the case much longer. On April 1, the Federal Emergency Management Agency (FEMA) announced its first major flood insurance pricing updates in half a century. During 2021-2022 the Agency will begin basing premiums on a property’s value, risk of flooding, and other factors. The … 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

NC Easing Covid Restrictions

North Carolina Governor Roy Cooper announced today that Executive Order #204 (“Further Easing of Restrictions on Business and Gatherings”) will take effect this Friday, March 26 at 5 pm. It’s always difficult to summarize lengthy Executive Orders, and this one is 27 pages long with 9 appendixes for different types of venues/businesses. With the caveat that this post has some HIGHLIGHTS and is not a replacement for the Executive Order, here are some provisions that may be of interest to North Carolina homeowner and condominium associations. (FYI, anything capitalized is capitalized and defined in greater detail in the Order .) … Continue reading