How liable are condo board members for bad decisions

Board members must "work in good faith, stay reasonably informed and only take actions in furtherance of the legitimate interests of the condominium association they represent. . . . Under the business judgment rule, officers would still be liable for instances of fraud or negligence and actions can be overturned where they fail to adhere to the association’s instruments and procedures."

Formal complaint regarding distribution of information by members

A formal complaint was filed today regarding the failure of Cardinal Management to provide access to the Association's Facebook page pursuant to § 55-79.75:1.

In a previous complaint, the Southampton board asserted, and the CIC Ombudsman accepted (CIC Ombudsman File Number 2015-00038), "that there is a Facebook page available and that owners can communicate using that site" as required:

§ 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.”

An October 10, 2014, request to the Management Agent to “provide instructions for signing on to the Association's Facebook page” went unanswered.

On October 12, 2014, Board Chairman Michael Pickford stated, “Information regarding the Facebook page will be included in the next Southampton Herald.” No reason was provided as to why it is necessary to wait, and no date was given for the next issue of the Southampton Herald.

The Southampton Herald is issued by the Newsletter Committee which has been operating unlawfully for many years — it does not provide notice of meetings as required:

§ 55-79.75: Notice of the time, date and place of each meeting of the executive organ or of any subcommittee or other committee thereof, and of each meeting of a subcommittee or other committee of the unit owners' association, shall be published where it is reasonably calculated to be available to a majority of the unit owners.

Another request, October 24, 2014, to the Management Agent to provide information necessary to view and post to the Association's Facebook page also went unanswered.

The Board, arguably the most significant violator, seeks authority to fine homeowners

The Bylaws amendment procedure adopted by the Board to enable them to fine homeowners breaches Association Bylaws, and is being aided by Counsel that has enabled similar breaches in the past.

Arguably, the Board remains the most significant and continuing violator of the Association Bylaws and the Virginia Condominium Act (scan this blog for specifics), yet they seek authority to fine homeowners before correcting their own egregious behavior.

Substantial legal fees charged to the Association could be avoided if the Board abided by the Bylaws and the Virginia Condominium Act.

Is the Board using 'informal gatherings of the executive organ to circumvent the open meeting requirements' of Virginia law?

Should one consider emails from shchoa@gmail.com a formal communication from the Association?

If these emails are a formal communication from the Association, where may one examine the file containing emails from and to shchoa@gmail.com pursuant to Virginia Condominium Act § 55-79.74:1?

Decisions contained in these emails appear to violate the Virginia Condominium Act § 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."

Response to formal complaints overdue

A response to two Formal Complaints filed on March 27, 2014 and October 11, 2014 pursuant to Resolution No. 2012-1, Internal Complaint Policy is overdue.

Cardinal Management's continuing violation of § 55-79.75:1

Apparently, Cardinal Management was less than honest with the CIC Ombudsman regarding a homeowner complaint (CIC Ombudsman File Number 2015-00038).

Cardinal Management and the Southampton Condominium board asserted, and the CIC Ombudsman accepted, "that there is a Facebook page available and that owners can communicate using that site" as required by:

§ 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.”

The Facebook page is a private page and not available to all homeowners. When Cardinal Management was asked to "provide instructions for signing on to the Association's Facebook page" they did not respond.

Which door owner was fined $1800? Unlawfully!

Give up? Here's the answer.

An individual board member has no individual management authority

It appears that certain board members are making decisions outside of board meetings.

The board can act legally only by consensus (majority vote of a quorum in most cases) and only at a duly constituted and conducted meeting, or by unanimous written consent (in most states, boards cannot act by mail, fax or electronic ballot).

The board may delegate authority to act on its behalf to others such as committees, but, in such cases, the board is still legally responsible for any actions taken by the committees or persons to whom it delegates authority.

An individual board member has no individual management authority simply by  virtue of being a member of the board.

However, the board may delegate additional authority to a board member such as when it appoints board members to committees. In a similar fashion, an officer has only the management authority specifically delegated in the bylaws or by the board (although the delegated authority can be general and broad).

Source: Legal Duties of Association Board Members

Formal complaint regarding bylaw amendment procedure devised by MercerTrigiani

The Management Agent’s letter of October 6, 2014 regarding a Bylaws amendment to permit fines violates Southampton Bylaws.

Since (1) there is no conflict between the Virginia Condominium Act, § 55-79.71,  and Condominium Bylaws, ARTICLE XIV, Section 1,  and (2) because § 55-79.51 states "particular provisions shall control more general provisions," the Bylaws "shall control”.

The Condominium Act is silent on how “agreement of unit owners of units to which two-thirds of the votes in the unit owners' association” is to be obtained.

The Bylaws require that (1) voting take place "at any meeting of the members duly called for such purpose", and (2) a "description of any proposed amendment shall accompany the notice of any regular or special meeting at which such proposed amendment is to be voted upon".

The letter did not “accompany the notice of any regular or special meeting”. It does not require that members vote "at any meeting of the members duly called for such purpose”.

The Southampton Condominium Association has long been advised by David S. Mercer and/or Lucia Anna Trigiani of the law firm MercerTrigiani. Despite many attempts since October 1999 to get  David S. Mercer and/or Lucia Anna Trigiani to provide the legal basis for advising the Association to ignore the Bylaws, no response has been forthcoming.

Three Bylaws have been amended using procedures devised by David S. Mercer and/or Lucia Anna Trigiani.


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1 – "Notice requirements must be observed." — Janie L. Rhoads, MercerTrigiani

2 – "We could not brook a contract law that accommodated the parties' weaving in and out of a contract as the vicissitudes of their transactional interests and positions changed over time." — Peter A. Alces, William & Mary Law School

3 – "... it’s important to follow the process outlined in your amendments clause in order to modify the existing contract." — Gavin Johnson, inVigor Law Group PLLC

4 – "Legal Duties of Association Board Members," — Jeffrey S. Tenenbaum Esq. , Venable LLP

Association newsletter, formal communication or personal soapbox?

The Management Agent has been asked to place the following on the Board's agenda for their next meeting:

1 - Regarding the September 24, 2014 Newsletter, please provide minutes of the meeting at which the newsletter was approved.

2 - If not approved by the Board or Newsletter Committee, who approved it?

3 - If the Newsletter was not prepared by the Newsletter Committee, who prepared it?

3 - Was the Newsletter printed and mailed at the expense of the Association?

4 - Who authorized the printing and mailing of this Newsletter at the expense of the Association?

5 - By what legal authority did the Association fund the printing and mailing of the Newsletter if not authorized by the Board or Newsletter Committee?

6 - Pursuant to Virginia Condominium Act, § 55-79.75, was notice given to homeowners for the meeting at which the Newsletter was approved.

The September 2014 Newsletter was unprecedented — a six page Newsletter with nine pages of documents from a formal complaint.

There's nothing wrong with a personal soapbox, but the Association may not legally fund it.

Legal duties of Association Board Members

Association officers, directors, committee members, and others involved in the association's governance structure are often unclear as to their roles and responsibilities. And for good reason — some rights and obligations are determined by law, others by the association's articles of incorporation and bylaws, . . .

Duty of Obedience: This duty requires officers and directors to act in accordance with the organization's articles of incorporation, bylaws and other governing documents, as well as all applicable laws and regulations. . . .

Willful ignorance and intentional wrongdoing: Directors cannot remain willfully ignorant of the affairs of the association. 

Notes from the Annual Meeting yesterday

Board Chairman agreed to ask counsel for a response to the question: "In your OPINION, what is the legal justification for abandoning the amendment procedure specified in the Bylaws, and using an ad hoc procedure instead?" How one asks the question makes a difference.

Board claimed that the owner of the red door was fined pursuant to § 55-79.80:2. However the first sentence of this section states: "The unit owners' association shall have the power, to the extent the condominium instruments or rules duly adopted pursuant thereto expressly so provide". Southampton "condominium instruments or rules" do not contain such a provision. The owner was unlawfully fined $1800.

Door Replacements: There appears to be no criteria for acceptable door replacements — it's whatever the current directors approve. This does not satisfy the requirement of  Declaration, Article XI, Para B, for a "uniform plan for the development and operation of the Condominium."

Proposed Bylaw Amendment permitting the Board to assess fines was sent to homeowners and is to be returned by December 31, 2014 in violation of Condominium Bylaws. Given the history of Board decisions over the past 15 years, if you vote YES, you need to see a shrink.

Board stated that absent passage of the amendment to fine homeowners, the Board can use other means to enforce compliance with the Bylaws and rules duly adopted.

Committees: It's not clear whether or not committees exist. The Condominium Act and Bylaws provide a role for directors, management agent, and committees. The rules state that there are six committees. The Board claims it utilizes volunteers who are not subject to the Condominium Act § 55-79.75. What right then do "volunteers" have to tow cars? Is the Association obligated to protect them from lawsuits?

Construction of pool house addition is being examined. All options are on the table.

Ballots: A statement on the ballot was clarified. One could vote for a single candidate. It was not required to vote for three.

Fairness of election: Comments from the Board during the candidate presentations and the newsletter mailed days before the election by the "Newsletter Committee" were clearly an attempt to influence the election. The newsletter devoted an unprecedented nine pages to one candidate's complaint. Contrast this with the less than six sentences in minutes of Board meetings during the roughly eight months during which the complaint was being processed. This may be why some condominiums have an independent committee manage elections. Some sponsor a "meet the candidate" event before the annual meeting.

SurveyMonkey will be used by the Board to solicit homeowner input on a variety of issues. This is a step forward, but not a true survey because it is neither a random sample nor a survey of all
homeowners.

Proposed pool house construction questioned

We're hearing that the Board intends to construct a meeting room or lounge on top of the pool house. Some questions about the proposal:

1 - Why do anything? Why do it this way? Why do it now?

2 - What will be the rules for use of the meeting room or lounge? What will be the hours that it is open? How will it be managed? Will this create a nuisance for the neighbors?

Bylaws Article X, Section 4 (a), states: "Residents of the Condominium shall exercise extreme care not to disturb other residents with excessive noise, or the use of radios, musical instruments, telephones or amplifiers."

3 - What will it cost?

One can't just add bricks on top of the existing structure. Some part of the walls and possibly the roof of the existing structure will have to be demolished to build a meeting room or lounge.

4 - How will the construction be funded? By a special assessment, increase in dues, or withdrawing funds from reserves?

Bylaws, Article IX, Section 3, states: "The reserve for replacements may be expended only for the purpose of effecting the replacement of the Common Elements and equipment of the Condominium and for operating contingencies of a nonrecurring nature."

5 - What is the legal basis for the construction?

The condominium architectural plans, including the pool house, are a part of the Condominium Declaration — Article IX.

Bylaws Article X, Section 4 (d), states: "No structural alteration, construction, addition, or removal of any Unit or Common Elements shall be commenced or conducted except in strict accordance with the provisions of the Declaration."

Bylaws Article XI, Section 1, states: "Nothing contained in this Section shall be deemed to empower the Board of Directors of the Association to authorize any change in conflict with any provisions of the Declaration."

Virginia Condominium Act, § 55-79.73:2. Reformation of declaration does not appear to be applicable. § 55-79.53. requires that the "declarant, every unit owner, and all those entitled to occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the condominium instruments."

County Board 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.

Cardinal Management and Board fixing election?

Just received the Notice of Annual Meeting and proxy form. The proxy form has names of candidates  but not the Candidate Statements that were to be filed by September 15.

Enver Masud's Candidate Statement was emailed on September 8, and acknowledged by Cardinal Management's Nicole Tavano the same day.

By not including Candidate Statements with the proxies, Cardinal Management is attempting to fix the election by denying many homeowners the opportunity to vote for the candidate of their choice — not all attend the Annual Meeting.

For several years, the Management Agent and Board have been fixing the election.

It is high time that Southampton homeowners form an independent committee to run elections — like it's done at some condominiums.

Updated September 22: Received Candidate Statements but no Income Statement and Balance Sheet.

Will you be safer giving the Association authority to fine you?

The Board of Directors have abused their power. They assessed fines when they had no legal authority to do so.

At Southampton, one homeowner was unlawfully fined several hundred dollars for his door, and had to spend about $3000 for the initial installation and reinstallation of the old door before he could sell his unit. Another was unlawfully assessed a late fee during management change — eventually received a refund for the unlawful fine.

Google homeowner fine lost home — here's what can happen: $288 in unpaid fees, homeowner association took her home; in another case, stuck with the association's $70,000 legal bill, homeowner lost his home to the bank; a veteran could lose his home for displaying a small US flag.

In the past, the Association was able to enforce the Bylaws without abusing their power. They did not require additional powers. However, fines for some limited purposes, such as late payment or non-payment of monthly dues, may be acceptable.

The Condominium Act, § 55-79.53. Compliance with condominium instruments, provides recovery of attorney fees for enforcing compliance — particularly, in "actions against a unit owner for nonpayment of assessments".

Will you be safer giving the Association authority to fine you?

DPOR CIC Ombudsman ignores violations of the Condominium Act

The CIC Ombudsman's determination letter of July 21 addresses six issues. Only three issues were stated in the June 27 Notice of Final Adverse Decision.

For the three issues, references to specific sections of the Condominium Act were provided in the Notice of Final Adverse Decision.

The Ombudsman's determination letter ignores ALL references to the Condominium Act clearly stated in Attachment 1 to the Notice of Final Adverse Decision.

Mail filters set to direct anonymous mail to trash

Comments must include NAME, EMAIL, UNIT NUMBER.

Notice of Final Adverse Decision filed with DPOR, CIC Ombudsman

DESIRED ACTION from Common Interest Community Ombudsman, DPOR, Virginia

A. Direct the Association to annul (void) the 2013 election for the Board of Directors

The Condominium Act § 55-79.77.D, "votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons."

At the 2013 Annual Meeting, homeowners were denied the opportunity to cast a vote for the candidate of their choice because the proxies mailed to homeowners did not specify any candidates for election. The proxies were mailed concurrently with the call for candidates!

There are three situations that in and of themselves render an election null and void. They are:

1- Failure to follow the procedures for giving the first notice of the date of the election shall require the association to conduct a new election;

2- The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters;

3- The failure of the written ballot to indicate the name of each eligible person.

The 2013 election to the Board of Directors violates the Condominium Act.

B. Forbid the Association from exempting homeowners paying monthly assessments

At the 2013 Annual Meeting, two names were drawn and the lucky homeowners were exempted of one month's assessment. We can't find any authorization for the drawing in the Minutes of Board Meetings. Moreover, exempting any homeowner of paying the monthly assessment violates the Virginia Condominium Act.  Specifically:

The Condominium Act, § 55-79.83.D Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”

§ 55-79.83.F Liability for common expenses: “It remains the policy of this section that neither a unit owned by the declarant nor any other unit may be exempted from assessments made pursuant to this section by reason of the identity of the unit owner thereof.”

§ 55-79.71.E Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”

And where does it stop? Exempt one homeowner, two homeowners, … ?

We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.

Exempting any homeowner from paying the monthly assessment violates the Condominium Act and sets a bad precedent — regardless of how the Board describes it.

C. Direct the Association to implement the requirements of § 55-79.75:1

The Board proposes using an "unofficial Facebook Group" administered by four Southampton homeowners to satisfy the requirements of § 55-79.75:1 of the Condominium Act.

§ 55-79.75:1. Distribution of information by members requires:

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.

The Association has no rules governing the operation of this "unofficial Facebook Group”. It is up to the group’s administrator to decide who may join the group, what content is permitted, and how long they choose to continue their sponsorship of this group.

The "unofficial Facebook Group” does not give notice of meetings and does not keep minutes of meetings as required by § 55-79.75.

Further, Facebook collects information from comments posted by group members and uses it to target them for advertising. Homeowners should not be subjected to targeted advertising from Facebook in order to take advantage of § 55-79.75:1.

The "unofficial Facebook Group” does not satisfy the requirements of § 55-79.75:1


VIA PRIORITY MAIL #9114901230801364264718
Department of Professional and Occupational Regulation
Office of the Common Interest Community Ombudsman
9960 Mayland Drive, Suite 400
Richmond, VA 23233-1485

Vet could lose home for displaying small US flag

A veteran could lose his home because of a small American flag he has placed in a flower pot in front of his home.

This is the sort of thing that happens when condominium boards are given authority to fine homeowners. There are ways of enforcing the bylaws without it.

For many years, Southampton enforced bylaws by taking away homeowners' parking privileges.

More recently, even without the authority to fine, the Board has unlawfully fined homeowners. Give them more authority, and your home could be at risk.

Board proposes using Facebook to satisfy a requirement of the Condominium Act

At the June 19 Resolution Conference, the Board proposed using Facebook to satisfy the requirements of the Condominium Act, § 55-79.75:1 — Distribution of information by members.

Specifically, they proposed using an "unofficial Facebook Group" administered by four Southampton homeowners. This seems reasonable provided a committee is assigned this task at a meeting of the Board of Directors. However, the "unofficial Facebook Group" is no longer available.

The Newsletter Committee could be renamed the Communications Committee, and like all committees it would have to comply with § 55-79.75 — Meetings of unit owners' associations and executive organ.

The Newsletter Committee is superfluous. Minutes of meetings, and communications from the management agent, tell homeowners all they need to know.

No response yet to formal complaint

FORMAL COMPLAINT, March 27, 2014

Failure of Cardinal Management to provide Minutes of Committee Meetings, and to keep proper Minutes of Executive Sessions of the Board of Directors.

1 — Cardinal Management has failed to provide Minutes of Committee Meetings pursuant to a formal request.

On March 7, 2014, pursuant to Association's Resolution No. 13–1, I requested a copy of the minutes of the most recent meeting (i.e. the last meeting held) of the following committees:

1. Architectural Control Committee
2. Building and Grounds Committee
3. Community Standards and Covenants Committee
4. Swimming Pool Committee
5. Financial Committee
6. Newsletter Committee

Having not received a response from Cardinal Management, on March 18, 2014, I requested Cardinal Management to make available for inspection these same records.

The Condominium Act § 55-79.75.B imposes the same requirements for notice to members, meetings, and record keeping on Committees of the Association as it does on meetings of the Board. It requires the Association to make these documents available for inspection "upon five days written notice". Resolution No. 13–1 lists charges for copies.

2 — Cardinal Management has failed to keep proper Minutes of Executive Sessions of the Board of Directors

The minutes of the February 20, 2014 Board meeting state neither the "purpose for the executive session" nor the "vote on such contract, motion or other action”.

The Condominium Act § 55-79.75.C states: “The executive organ or any subcommittee or other committee thereof may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, probable or pending litigation and matters involving violations of the condominium instruments or rules and regulations promulgated pursuant thereto for which a unit owner, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of unit owners to the unit owners' association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. 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. The requirements of this section shall not require the disclosure of information in violation of law.”

The purpose for the Executive Session shall be only that which is permitted under § 55-79.75.C. It does not permit an Executive Session to discuss a complaint against the Management Agent or the Board, unless it is to “consult with legal counsel”.

This is a continuing issue and was presented at length during the 2008 Annual Meeting of the Association and by letter on April 22, 2008 to David S. Mercer (Agent, Southampton Condominium) in which I stated “there is no record in the minutes of an “affirmative vote in an open meeting to assemble in executive session” and/or motion stating “specifically the purpose for the executive session” pursuant to § 55-79.75.C.”

DESIRED ACTION

1 — Make available for inspection the records formally requested on March 7, 2014, i.e. the minutes of the most recent Committee meeting held prior to March 7, 2014 (for all six committees).

2 — Confine Executive Sessions to purposes specifically stated in the Condominium Act § 55-79.75.C; in the minutes, state specifically the purpose for the executive session; following the executive session, reconvene in open meeting and take a vote on such contract, motion or other action; reasonably identify its substance in the open meeting.

Drawing for assessment free month violates the Virginia Condominium Act

At the 2013 Annual Meeting, two names were drawn and the lucky homeowners were relieved of one month's assessment. We can't find any authorization for the drawing in the Minutes of Board Meetings. Moreover, relieving any homeowner of paying the monthly assessment violates the Virginia Condominium Act.  Specifically:

§ 55-79.83. Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”

§ 55-79.71. Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”

We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.

On July 1, 2014 we learned that the lucky winners of the 2013 Annual Meeting lottery were Feketekuty in Unit 706A who received $349, and Crouch in Unit 708B who received $392.

Board votes not to void unlawful election

Last evening, the Board of Directors voted not to void the unlawful election held on October 10, 2013. At the 2013 election, absentee owners and those not attending were denied the opportunity to vote for the candidates of their choosing.

The situation arose because the notice for the 2013 annual meeting at which directors were to be elected was given concurrently (indeed in the same letter) with the call for candidates and the Proxy Form. Obviously, candidates cannot be listed on the Proxy Form if the call for candidates is not issued well before the Proxy Forms are printed.

The Board has recognized this failing in response to a homeowner complaint. The March 7, 2014 response states, "We will be mailing a call for candidates well in advance of this year's annual meeting." Indeed, this is how elections were conducted under better management.

In essence, the Board recognizes that the 2013 election was not properly conducted, but chooses to accept its results anyway.

The proper course of action is to declare the election void. Those "elected" on October 10, 2013 should be considered appointed to their current position on the Board until the next annual meeting.

Five directors absent at complaint resolution conference

Five members of the Board of Directors — Bernie Alter, Lynn Ferenc, Diane Talaber, Laura Larson, Desiree Lomer-Clarke — were absent from the complaint resolution conference scheduled for May 22, 6:30 PM at the Aurora Hills Library. Absent a quorum, the conference could not be held.

PS: The resolution conference is now scheduled for June 19.

Crystal City plan

Complaint resolution conference scheduled

In accordance with the Association's Internal Complaint policy a resolution conference is scheduled to be held on Thursday, May 22, 2014 at 6:30 pm at the Aurora Hills Recreation Center. It will address the homeowner complaint filed October 15, 2013. The conference is open to all members of the Association.

Complainant's response to Management Agent follows:

Regarding the Reviewing Entity, I would like to draw attention to Southampton Resolution 13-2, ARTICLE 1, Section 1.1(d).

Since my complaint is against actions taken by the Management Agent and the Board of Directors, according to the above referenced Resolution 13-2, the Board should appoint "other Association members to serve as members of the Reviewing Entity or serve as the Reviewing Entity Chair."

Furthermore, according to Southampton Resolution 13-2, ARTICLE 1, Section 1.2(a), meetings and Resolution Conferences must be called by the Reviewing Entity — not by the Management Agent.

Therefore, your scheduling the Resolution Conference is premature. Resolution Conference must be scheduled by the Reviewing Entity which has yet to be appointed.

Perhaps, the Board and I should each suggest three "other Association members to serve as members of the Reviewing Entity or serve as the Reviewing Entity Chair." From the six suggestions, three or five may be picked to serve as the Reviewing Entity.

Regardless of the composition of the Reviewing Entity, pursuant to Southampton Resolution 13-2, ARTICLE 1, Section 1.2(a), the Management Agent agent does not have the authority to schedule the Resolution Conference.

Cardinal Management has failed to keep proper minutes of executive sessions

The minutes of the February 20, 2014 Board meeting state neither the "purpose for the executive session" nor the "vote on such contract, motion or other action”.

The Condominium Act § 55-79.75.C states:

The executive organ or any subcommittee or other committee thereof may convene in executive session . . . Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. 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.

The purpose for the executive session must be only that which is permitted under § 55-79.75.C. It does not permit an executive session merely to discuss a complaint unless it is to “consult with legal counsel”.

This is a continuing issue. It was presented during the 2008 Annual Meeting of the Association and by letter on April 22, 2008 to the Association's attorney David S. Mercer.

Cardinal Management has failed to respond to a formal data request

On March 7, 2014, we requested a copy of the minutes of the most recent meeting (i.e. the last meeting held) of the following committees:

1. Architectural Control Committee 
2. Building and Grounds Committee
3. Community Standards and Covenants Committee
4. Swimming Pool Committee
5. Financial Committee
6. Newsletter Committee

The request was filed pursuant to Association's Resolution No. 13–1.

The Condominium Act § 55-79.74:1.B requires the Association to make these documents available for inspection "upon five days' written notice". Resolution No. 13–1 lists charges for copies.

The Condominium Act § 55-79.75.B imposes the same requirements for notice to members, meetings, and record keeping on Committees of the Association as it does on meetings of the Board.

Cardinal Management suggests class action suit against this blogger

According to the draft minutes of the February 20 Board meeting, Tom Markell, Cardinal Management, suggested that homeowners file a class action suit against this blogger. Mr. Markell would do better to tend to his own job.

Cardinal Management have failed to implement Virginia Condominium Act § 55-79.75:1. Distribution of information by members, and haven't kept proper minutes of meetings.

The February 20 Board meeting mentions a 30-minute Executive Session. The Virginia Condominium Act § 55-79.75.C requires (as we have pointed out repeatedly in this blog):

The executive organ or any subcommittee or other committee thereof may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, probable or pending litigation and matters involving violations of the condominium instruments or rules and regulations promulgated pursuant thereto for which a unit owner, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of unit owners to the unit owners' association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. 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. The requirements of this section shall not require the disclosure of information in violation of law.

The minutes of the February 20 Board meeting state neither the "purpose for the executive session" nor the "vote ... [in] open meeting". The purpose must be one stated in § 55-79.75.C. The substance of the vote must be reasonably identified.

Mr. Markell, if you see anything false on our website, do tell us. We will gladly remove it. A true statement is not libel. Libel is a published false statement that is damaging to a person's reputation. Absent libel there is no basis for a class action suit.

Virginia’s legislature is poised to pass a bill that would allow homeowners associations to charge fines

"Virginia’s legislature is poised to pass a bill that would allow homeowners associations to charge fines not laid out in their declarations. . . .

"On Monday, a Senate committee approved a bill that would allow such fines for violations of an association’s rules as long as the declaration does not explicitly ban them. Under another, such fines are limited to $10 each day of a violation for 90 days or a one-time $50 charge. The bill would require that “a reasonable opportunity” to correct the violation be given as well as a hearing before the association board."

Also see "The Virginia HOA Power Grab"

Tips for election of condominium directors

The election held last October was at the least severely flawed if not unlawful.

Pursuant to the Condominium Act § 55-79.77.D, "votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons."

At the 2013 Annual Meeting, homeowners were denied the opportunity to cast a vote for the candidate of their choice because the proxies issued did not specify any candidates for election. Indeed the proxies were issued concurrently with the call for candidates!

Here are a few tips for having a successful election from the law firm of Inman & Stickler. Here is the election process recommended by the Pavese Law Firm of Florida.

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

In Florida, under the administrative rules [Chapter 61B-23, Fla. Admin. Code] there are three situations that in and of themselves would render an election null and void. They are:

1- Rule 61B-23.0021(4) …Failure to follow the procedures for giving the first notice of the date of the election shall require the association to conduct a new election, if the election has been conducted… 

2- Rule 61B-23.0021(7) …The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include the information within the time required by this rule… 

3- Rule 61B-23.0021(9) … The failure of the written ballot to indicate the name of each eligible person shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule…

If Virginia law is similar to Florida law, the Southampton election held last October must be voided.

Board continues to circumvent requirements of Virginia law

The Board continues to circumvent § 55-79.75.B which requires that "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." The Association website is woefully out-of-date. Minutes of meetings since August 2013 have not been posted to the website.