Is the Board circumventing the open meeting requirements of Virginia law?

A homeowner complaint which was scheduled to be discussed on November 14, 2013 was neither on the Agenda nor in the Management Report.

Does the Board intend to rule on this complaint in secret? Has it learned nothing from past complaints?

That is a willful violation of § 55-79.75.B:

The executive organ shall not use work sessions or other informal gatherings of the executive organ to circumvent the open meeting requirements of this section.

It is also a violation of § 55-79.75.C:

No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting.

Southampton condominium holds sham election

Southampton condominium held another sham election at the annual meeting on October 10.

Three candidates were elected to the Board of Directors by "acclamation" — a procedure not found in the condominium covenants.

One of the three elected did not submit the required Candidate Statement. The statement of a fourth candidate, submitted on time and in the proper format, was not presented to members to vote upon.

A catered dinner — paid for by one of the candidates elected, and publicized at the expense of the Association, was enjoyed by members.

The customary, end-of-year financial statements were not made available to members.

An "Internal Complaint" has been filed by the fourth candidate. The full text of the complaint follows:

1 — ANNUAL MEETING PACKAGE GROSSLY DEFICIENT

The October 10, 2013, annual meeting package mailed to unit owners on September 11, 2013 contained no financial information, no candidate statements, no issues to be voted upon. There was no way for an absentee owner to vote for the candidate of their choice.

Yes, the absentee owner could give a proxy to someone else, but they couldn't direct how the proxy should be voted since candidates for election to the Board of Directors were not listed on the proxy. I did not receive a reply to my email of October 1 expressing this concern.

Neither the annual meeting package nor the Association website contained financial information and minutes of meetings to allow one to cast an intelligent vote. The most recent financial information at the Association website was for 2011. The most recent minutes of meetings available were for August 2012.

2 — CANDIDATE STATEMENT WAS NOT MADE AVAILABLE TO UNIT OWNERS

The notice of annual meeting stated “a property owner desiring to be listed as a candidate on the election ballot” must submit a “one-sided  8 1/2 by 11” statement to Cardinal Management by October 7, 2013.

My candidate statement was delivered to Cardinal Management on October 2, 2013 — USPS Tracking Number 70131090000125656499.

My statement was not distributed at the annual meeting. My name was not on the election ballot, and it was not made available to unit owners who chose not to attend the meeting.

Who made the decision to exclude my candidate statement? There was no notice of a meeting to consider this issue. This is third time that I have been excluded from the full election process, and received no explanation for this unprecedented action. Why? Is it racism or bigotry?

3 — CONTINUING VIOLATION OF § 55-79.75.

§ 55-79.75. Meetings of unit owners’ associations and executive organ requires “at least one copy of all agenda packets and materials furnished to members of the executive organ or subcommittee or other committee thereof for a meeting shall be made available for inspection by the membership of the unit owners’ association at the same time such documents are furnished to the members of the executive organ”.

This information was not made available to unit owners “at the same time such documents are furnished to the members of the executive organ” for the annual meeting. It has not been made available to unit owners for meetings of the Board of Directors for at least the past two years despite notices to the Board.

4 — CONTINUING VIOLATION OF § 55-79.75:1.

§ 55-79.75:1. Distribution of information by members requires (1) “a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves” and (2) “the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners’ association.”

No procedure exists to implement this requirement of Virginia law.

5 — DRAWING FOR FREE MONTH OF ASSESSMENTS VIOLATES COVENANTS

The Southampton newsletter received today states "there will be two drawings for a free month of assessments" at the October 10 meeting of the Association.

Condominium Declaration, ARTICLE VII, states "the Unit Owners Association shall not . . . change the pro rata interest or obligation of any residential Condominium Unit as shown in EXHIBIT "E".

Condominium Bylaws, ARTICLE IX, state "Each member shall pay . . . a monthly sum . . . equal to one-twelfth (1/12) of the member's proportionate share".

Releasing any unit owner from paying their pro rata share effects the amount paid by all unit owners, i.e. changes other unit owners’ pro rata share.

And why only " two drawings"? Why not 5, or 10, or 50? Where does one draw the line?

6 — CATERED DINNER SERVED AT ELECTION

A catered dinner was served at the election venue. It was paid for by a member of the Board of Directors (whose term was expiring) who was running for election. Invitations to the dinner were included in the election package mailed to unit owners at the Association’s expense.

DESIRED ACTION

1 — The annual meeting held on October 10 be declared annulled, and a new meeting held within three months.

2 — All candidates statements should be made available to all unit owners at the same time that proxy statements are made available to them.

3 — Within three months, rules be implemented to comply with § 55-79.75. All “agenda packets and materials furnished to members of the executive organ or subcommittee or other committee thereof for a meeting shall be made available for inspection by the membership of the unit owners' association” on the Internet and on the condominium premises “at the same time such documents are furnished to the members of the executive organ.”

4 — Within three months, rules be implemented to comply with § 55-79.75:1. The rules should provide (1) “a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves” and (2) “the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners’ association.”

5 — The Association should cease and desist from exempting any homeowner for paying the their pro rata interest or obligation of any residential Condominium Unit as shown in EXHIBIT "E" of the Condominium Declaration.

6 — To assure a fair election all candidates should play by the same rules. Activity at the election venue that is not sponsored by the Association should be forbidden.

7 — Within thirty days, provide all records, documents, minutes, emails relating to the decision to exclude my candidate statement from the ballot, and for not making it available to all unit owners.

8 — Within thirty days, provide a copy of all candidate statements submitted for the October 10, 2013 annual meeting.

Under what circumstances must a condominium election be voided and redone?

Catered dinner at annual meeting raises questions

Including a privately paid dinner at the election venue raises many questions. Such an event would not be tolerated at any county, state, or national election. What makes it appropriate for our election?

We understand that the catered dinner to be served at the election is to be provided by a private party. While the generosity of the donor is to be commended, it would have been more appropriate to fund a separate "Meet the Candidates" event like some condominiums do.

Who authorized the inclusion of this invitation in the official newsletter? What are the criteria for including such information at the Association's expense?

Annual meeting package incomplete

The October 10, 2013, annual meeting package mailed on September 11, 2013 contains no financial information, no candidate statements, no issues to be voted upon. How is an absentee owner supposed to vote?

Yes, the absentee owner can give a proxy to someone else, but they can't direct how the proxy should be voted. They must have the option to do that if they so choose.

And how does the management assure that the proxy holder has been authorized by the homeowner to vote their proxy?  To avoid fraud, proxies are issued bearing a unique number and name(s) of the person to whom the proxy was issued.

The Association website is also missing financial information and minutes of meetings to allow one to cast an intelligent vote.

Free month of assessments violates covenants

The Southampton newsletter received today states "there will be two drawings for a free month of assessments" at the October 10 meeting of the Association.

Condominium Declaration, ARTICLE VII, states "the Unit Owners Association shall not . . . change the pro rata interest or obligation of any residential Condominium Unit as shown in EXHIBIT "E".

Condominium Bylaws, ARTICLE IX, state "Each member shall pay . . . a monthly sum . . . equal to one-twelfth (1/12) of the member's proportionate share".

Releasing any unit owner from paying the pro rata share effects the amount paid by all unit owners, i.e. changes their pro rata share.

And why only " two drawings"? Why not 5, or 10, or 50? Where does one draw the line? Whatever the Board wishes to do must be consistent with the condominium covenants. The "two drawings for a free month of assessments" are not.

Furthermore, according to § 55-79.71.E, "Except to the extent expressly permitted or expressly required by other provisions of this chapter, or agreed to by 100 percent of the unit owners, no amendment to the condominium instruments shall change . . . (iii) the liability for common expenses".

Southampton Board reviews policy on fines, finds it unlawful and issues refund

"The Board concluded that the late fee would be removed from your account and the collections practices would be reviewed and revised in order to ensure compliance with state statutes and recent court rulings." — Tom Markell, Senior Property Manager, July 30, 2013

The "late fee" violated ARTICLE IX, Section 5 of the Bylaws. Apparently the Board was unaware of this.

In late August, the Board issued a refund check, but they continue to show the unlawful late fee on the condo fee payment coupons.

If the Board believes the late fee is needed, they should change the Bylaws — lawfully, this time. They should return the fines unlawfully assessed against a homeowner for his red door.

County approves 22-story building, Whole Foods for Pentagon City

At its meeting on Saturday, the Arlington County Board gave the go-ahead for the construction of a 22-story apartment building in Pentagon City that will also house a Whole Foods.

A year on, trash container remains in public view

One year on, the trash can is still here. It's been moved from the back of the unit to the front.

Bylaws, Article X, Use Restrictions, Section 4 (h) is clear, "Trash and garbage containers shall not be permitted to remain in public view."

There was a time, under earlier Board of Directors, when the trash container would have been removed long ago — and it did not require fines.

Board stops enforcing the Bylaws?

We hear from those that attend Board meetings that the Board has stopped enforcing the Bylaws because they now realize they have no authority to fine homeowners. This is inexcusable — it amounts to a unilateral surrender of their fiduciary duty.

Past Boards found lawful ways to enforce the Bylaws without resorting to fines.

For example, if the outside mailbox is in violation of the Bylaws, the Board can give notice of violation to the homeowner and state the consequences.

In this instance, the consequence could be having a contractor remove the mailbox, leave it at the owners entrance, repair the wall if needed, and the Association would bill the homeowner. Bills not paid would eventually become a lien on the property or turned over to collectors.

The Board has been pretty creative when it comes to roof colors (we understand that homeowners weren't clamoring for a change, and the paint job cost double what it cost in the past*). Surely, it can come up with creative ways to enforce the Bylaws — past Boards did it.

*If this is incorrect, send us documentation with the correct figures.

Outside mailbox approved by Board?

Bylaws ARTICLE XI, Section 1 prohibits changes to the exterior of units unless "approved in writing as to harmony of external design, color and location".

Was it "approved in writing" by the Board?

Were homeowners advised this issue was on the agenda? Were homeowners provided the minutes of meetings? No.

Unlawful fines still being imposed on homeowners

The Board of Directors has yet to rescind its policy of imposing unlawful fees or fines on homeowners.

In a previous post, we reported on a "late fee" of $50 being imposed on a homeowner. The homeowner wasn't informed that a monthly payment had not been received, and the first notice to the homeowner was a collection letter from Cardinal Management.

Fees or fines, unless defined in the condominium covenants, may not be imposed.

Under ARTICLE IX, Section 5 of the Bylaws, any monthly installment "which is not paid within ten (10) days after it is due, shall bear interest at a rate not to exceed nine percent (9%) per annum".

Why do we need this blog?

Why do we need this independent, homeowner-moderated blog? See what we wrote on February 5, 2010 — repeated below.

ONE, for several years, despite being asked to do so, the Board has failed to comply with Code of Virginia, § 55-79.75:1 Distribution of information by members. Specifically:

A. The executive organ shall establish a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves and with the executive organ regarding any matter concerning the unit owners' association.

B. Except as otherwise provided in the condominium instruments, the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners' association.

TWO, cover up of a check drawn from Southampton funds given to Handley (Treasurer) while she and Thompson (President) were awaiting trial on a charge of grand larceny. [The defendants were found "not guilty" — the prosecuting attorney, who was changed about an hour before trial, was not fully prepared.]

THREE, on two occasions (2001, 2008) this moderator's statement was not included among the candidate statements in the election package sent to homeowners. To my knowledge, no other candidate's statement has ever been excluded from the election package. No legal justification was provided.

FOUR, repeated and continuing failure of the Board to comply with the Code of Virginia § 55-79.75 Meetings of unit owners' associations and executive organ — Sections B and C.

These violations continue and yet another has been added to the list: unlawful fines.

We've been asked to attend Board meetings if we have a complaint. We choose not to until the Board corrects these ongoing violations.

Secretive Board of Directors

The Southampton Board of Directors has set a precedent. They don't want their contact information displayed here.

We've displayed this information for years. There's never been a problem with this in the past. Some Board members say it's a security issue.

If this is a security issue — which we don't accept, millions of Americans are at risk.

US housing: is the recovery real?

There are currently 9.8 million vacant housing units in the US, but only 1.74 million of those homes are listed for sale on the MLS. The banks are holding most of their distressed properties off the market to keep prices high, and the banks are controlling the number of underwater homeowners who are allowed to sell via short sales.

Board may not impose fees or fines not specifically included in covenants

Fairfax County’s Olde Belhaven case set a Virginia precedent that HOAs cannot claim powers, such as imposing fees or fines, that are not specifically included in their covenants.

"It's a game-changer" for perhaps 10,000 condo and homeowner associations across Virginia, according to Pia Trigiani, attorney for Southampton Condominium.

Southampton covenants do not specifically permit the Board to impose fees or fines in addition to the monthly assessment.

Furthermore, even if a fee or fine were specifically included in the covenants, it must be imposed after the homeowner has had an opportunity to present his case.

In at least one instance, the Board issued a collection notice for an unpaid assessment (almost 4 months after it became due), plus a $50 "late fee", without any prior notice to the homeowner that an assessment had not been received.

Another homeowner was fined several hundred dollars for having a non-standard door, and was threatened with continuing fines. He finally installed a standard door before selling his condominium.

§ 55-79.84 of the Virginia Condominium Act does permit a "lien on every condominium unit for unpaid assessments levied against that condominium unit".

May the Board fine homeowners for covenant violations?

The feud that consumed Fairfax County’s Olde Belhaven would span four years and cost the community as much as $400,000. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants.

The Shadowood Condominium Association in Reston imposed fees for things like having the wrong color blinds.  A Fairfax County judge ruled that Shadowood can’t make up rules and impose fees if they are not in the development’s original master deed.

“It’s a game-changer” for perhaps 10,000 condo and homeowner associations across Virginia, according to Pia Trigiani, an Alexandria lawyer with extensive expertise in community association law, and recent president of the Virginia Bar Association.

The Board appears to have wrongly fined the owner of this red door.

Southampton employs new management company

Cardinal Management Group is our new management company located at 4330 Prince William Pkwy, Suite 201, Woodbridge VA 22192.

Tom Markell, Community Manager, is available at (703) 565-5009. Nicole Tavano, his assistant, is available at (703) 565-5007. David York, Accounting, is available at (703) 565-5301.

The condominium website is http://southamptoncondominium.com/

Decal required in "RESERVED" space only

The January 9, 2013 letter from the Community Manager regarding new parking stickers states, "If you fail to meet this deadline your vehicle may be towed." The deadline is January 31, 2013.

We sought clarification from Nicole Tavano, administrative assistant, and received confirmation that stickers are required only for "RESERVED" spaces — as they have been since the parking plan was first established.