New NC Supreme Court Case: Applicability of Condominium Act Foreclosure Rights to Pre-1986 Condominiums

A decision last week (November 4) by the NC Supreme Court provides helpful authority to older condominiums not only in the context of foreclosures, but in the larger context of relying on the retroactive portions of the NC Condominium Act (Chapter 47C). In the Matter of the Foreclosure of a Lien by Executive Office Park of Durham Association, Inc Against Martin E. Rock A/K/A Martin A Rock considered the issue of whether a pre-October 1, 1986 condominium, formed pursuant to the NC Unit Ownership Act (Chapter 47A), has the power of sale for foreclosure as set forth in the Condominium … Continue reading

North Carolina Supreme Court Issues Important Solar Panel Case

Harmony Taylor & David Wilson In a case of wide-reaching impact, the North Carolina Supreme Court on Friday, June 17, 2022, issued its decision in Belmont Association, Inc. v. Farwig. An earlier blog discussed the factual background and decision from the Court of Appeals in detail.   By way of brief summary, the homeowners in this case installed solar panels on the front facing façade of their roof without approval and the homeowners association commenced fines. Nothing in the declaration explicitly regulated solar collectors, but the association, pursuant to its general authority over architectural matters and aesthetics, refused to allow … Continue reading

Drone Surveillance in Community Associations

Ah, spring. Flowers are blooming, birds are chirping, and the sound of power saws, stone cutters and earth moving equipment fills the air. This country is in the midst of a construction boom, and more homeowners than ever before are undertaking home improvement projects. In community associations, these improvements usually require some type of architectural approval to make certain that, once constructed, the new pool, patio or pergola will be aesthetically pleasing and harmonious with surrounding structures.  The process is supposed to start with the owner submitting an architectural request, but sometimes owners don’t know or care to do so. … Continue reading

Maintaining Confidentiality on your Board (or in your Committee)

Individuals who agree to serve on boards for their community associations will inevitably find themselves receiving confidential information about their friends and neighbors. This may be information about an alleged architectural violation, or an unpaid balance due to the association. Sometimes the association will receive complaints about police called to a home, only to learn later of alleged drug activity or a domestic violence situation. This may seem like juicy gossip, and it can be tempting to share this information with others. However, directors owe certain duties of confidentiality to their members, and understanding these duties is essential for the … Continue reading

Voting by Written Ballot and Written Agreement in North Carolina

When it comes to asking homeowners association /  condo members to approve or reject matters in North Carolina, there are generally two options: the written ballot and the written agreement. These documents and legally dictated processes may look very similar, but they are legally distinct. This article examines how and when using the written ballot versus a written agreement makes sense and how to use each effectively. Written Ballot When you think about being asked to vote on something, most people probably first think of a ballot. Ballots, by definition, allow someone to vote for or against something. For in-person meetings, ballots … Continue reading

How to Run an Effective Online Meeting

With the passage of HB 320 (see Jim Slaughter’s article:  Bill Adopted to Allow Electronic Membership Meetings and Voting in North Carolina Associations) we are seeing more communities opting to conduct electronic membership meetings to encourage greater participation and community interest in these meetings. Our attorneys collectively—and particularly our two Certified Professional Parliamentarians, Jim Slaughter and Michael Taliercio—have participated in more virtual meetings than anyone, and we find that having good meeting rules in place before the meeting takes place is key to a successful outcome. Although it usually is not necessary to tailor rules for each individual meeting an … 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: 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

Snow and Ice Removal in HOAs and Condos

North Carolina may not see the same weather challenges as most other states, but we aren’t immune from winter (and spring) storms that bring snow and ice that can make travel treacherous.  No board of directors wants to find itself scrambling after the fact to decide how or when to put down salt or scrape a road or parking lot. Here are some general issues to consider, and recommended best practices. DEFINE THE AREA OF RESPONSIBILITY HOA and condo associations are generally obligated to reasonably maintain the common areas within the association. This often includes any private roads within the … Continue reading

Flags and Political Signs in North Carolina HOAs

With the nation preparing for elections in November, community associations are finding themselves in the crosshairs of a debate over when and how free speech may be exercised by residents in their communities. Impassioned residents want to express their opinions through signs, flags, bumper stickers, t-shirts and even sidewalk chalk decorations, and they may run up against restrictions in their governing documents or local ordinances. After fielding countless questions about this, I put together this blog to provide some general guidance for residents, boards and their members on this issue with a focus on politically focused signs and flags. Let’s … Continue reading

New Law Offers Important Protection to NC Pool Operators

House Bill 902 was signed into law by Governor Cooper on July 2, 2020 and grants some limitations on liability for privately owned swimming pool operators who open their pools during the COVID-19 pandemic.  The Bill applies to community pools owned by private entities, such as apartment complexes, homeowners associations and condominium associations, and protects those pool operators from liability for injury or death allegedly related to COVID-19 if those pool operators have opened the pools in compliance with the various Executive Orders for pool safety issued by the Governor.  Probably the most important Executive Order here is Executive Order … Continue reading

Can Your Association Require A Survey as Part of the Architectural Process?

For some property owners, the Coronavirus pandemic has been an opportunity to spend some meaningful time at home working on long neglected projects. This could mean finishing up a landscaping plan, cleaning out a natural area, or finally getting around to building a fence. As owners go about these tasks, it is inevitable that some will ignore or not be aware of the architectural approval process. This may be a good time for boards to- in a friendly way- check in with their neighbors and  provide a refresher course on the necessary steps to get an architectural change submitted and … Continue reading

Are HOAs and Condos in North Carolina and South Carolina Eligible for Coronavirus Federal Disaster Funds?

Individuals, businesses, and organizations across the United States are struggling to come to grips with the new financial realities created by the COVID-19 pandemic. Nonprofit community associations are no exception.  They will likely face reductions in revenues in the coming months, at least, as a result of members who simply are not able to pay their ongoing obligations for assessments.  Loans newly made available by the federal government may be an option for community associations to consider. In this blog we will look at federal disaster loans offered through the U.S. Small Business Administration (SBA). (For a more general explanation … Continue reading

How to Hold Your North Carolina HOA/Condo Hearing in a Pandemic

Yet another issue that is coming up frequently in the face of COVID-19:  what should an association do about violation hearings that need to proceed, and are already scheduled or need to be scheduled?  Obviously, we are recommending against any face-to-face meetings for the foreseeable future.  Mecklenburg County’s stay at home order requires residents today to stay home and avoid all unnecessary trips may soon spread to the rest of North Carolina. This means we have to get creative about how to hold hearings.  The goal, as always, will be to allow owners to clearly understand the alleged violation and … Continue reading

Making America Ethical (and Civil) Again

I often note that community associations are effectively microcosms of our larger culture, facing the same challenges and trends. One example of this is the increase in (real or perceived) lack of civility and ethics in communications with and between boards and their members. This past week, the Community Association Institute (CAI), an international membership organization that provides information, education and resources related to community associations, published a newly adopted Civility Pledge as a resource for communities to foster civil discourse. The Civility Pledge, linked here, is an excellent resource for boards wishing to support a more respectful dialogue. The … Continue reading

The Attorney-Client Privilege and Community Associations

Authored by Hamony Taylor and David Wilson As our community association clients settle into a new year and new issues, many boards with new members find themselves with questions or confusion about the attorney-client privilege. Because this privilege is complicated but incredibly important, we thought it would be helpful to go over the basics and how boards can and should preserve the privilege. Very generally, in both North and South Carolina, the attorney-client privilege protects communications between an attorney and a client in the following circumstances: The parties were in an attorney/client relationship. It is not necessary that the client … Continue reading

Community Associations and Registered Agents

All North Carolina nonprofit corporations are required to maintain a registered office and registered agent pursuant to § N.C.G.S. 55A-5-01. However, many board members, and some association managers, may not fully understand the purpose and duties of the registered agent. The registered agent’s sole duty is to keep the nonprofit corporation apprised of any notices, processes or demands served on the agent on behalf of the entity. For example, property taxes may be owed on property owned by the association and the local tax department may need to submit bills to the association. Local government does not keep up with … Continue reading

Top Declaration Amendments for an HOA or Condo in North Carolina & South Carolina – Part Three

Authored by Harmony Taylor & David Wilson We are often asked by board members for HOA and condominium associations to review their community’s documents and “update” them or “make them more modern.”  While there is no one-size fits all solution for any community association, we have noticed that some declaration amendments are a good idea for most communities.  Over the next few articles, David Wilson and Harmony Taylor will be exploring some of the amendments that we frequently recommend to the associations that we represent.  Whether you are a single family, townhome, or condominium community, you may want to think … Continue reading

Fair Housing & Religious Accommodation: Curto v. A Country Place Condominium Association, Inc.

Sometimes, a community association tries to accommodate religious preferences and ends up discriminating on another basis. That is what happened in Curto v A Country Place Condominium Association, Inc., according to the U.S. Court of Appeals for the Third Circuit in a New Jersey condominium case handed down yesterday. In this case, the condominium had a large Orthodox Jewish population whose religious practices prohibited men and women from swimming together in the condominium pool. The association, wishing to find a way for both men and women to use the pool, came up with a schedule that provided certain hours for … Continue reading

Assigning Service Contracts in North Carolina

Most people assume that when they hire someone to perform a service for them, that person will deliver the service. This is not always true. In many circumstances, one party can assign its service obligations to another party. By statute, North Carolina allows one party to delegate- or assign- its obligations to perform some service under a contract to another party unless the contract prohibits assignment, or unless the non-assigning party has some substantial interest in having the originally obligated party perform the work themselves.  The idea is that assignment allows individuals and companies necessary flexibility to sell valuable contractual … Continue reading