HOAs from hell

While many HOAs still support their residents, others now harass them with narrow and odd rules. Fines for violating those rules can be heavy, leading to liens against residents and even loss of their homes.

Mercer and Trigiani have not rebutted the charges against them

"In common law jurisdictions, prima facie denotes evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact."

Attorneys Mercer and Trigiani advised board of directors to violate bylaws

David S. Mercer and Lucia Anna Trigiani advised the Southampton condominium board of directors to willfully violate the association's bylaws to pass amendments to the bylaws.

Using procedures devised by Mercer and Trigiani that may be lawful — but less restrictive than the association's bylaws, three amendments were passed: restrictions on pet size and number; responsibility for limited common areas; quorum requirements.

At an annual meeting of the association, when challenged about using a procedure different from that in the bylaws, Trigiani responded, "the bylaws don't say you can't." Written complaints to the board of directors and to Mercer and Trigiani about the use of these procedures were ignored.

Mercer and Trigiani's attempt to pass a fourth amendment using their procedure (see email from association president to a homeowner) — giving the board of directors authority to fine homeowners, has been challenged and appears stalled.

Neither Mercer and Trigiani nor the board of directors have responded to an offer to seek a declaratory ruling on the issue.

When is an Easter egg hunt not an Easter egg hunt?

On March 25, we received an email from the management agent:

Southampton will hold its 2nd Annual Easter Egg Hunt on Sunday March 29th at 10:00 a.m. Flyer with details is attached. We hope to see you there!

Upon further inquiry, the management agent responded:

The subject and body of the email were an inadvertent error on our part.  You will note that the official flyer makes no reference of Easter.

We know of only two types of egg hunts: Easter egg hunts, and egg hunts conducted for profit or by hobbyists.

Easter Sunday celebrates the Christian belief of Jesus Christ's resurrection. The Easter date is set around the time of the March Equinox.

So when is an Easter egg hunt not an Easter egg hunt? When the Southampton condominium board says so.

We're not sure if the bylaws permit expenditure of condominium funds for an egg hunt of any kind.

We're also not sure if non-Christian residents of Southampton are buying this argument, and whether or not the Southampton "egg hunt" constitutes unlawful discrimination.

Perhaps an interfaith committee should be setup to make recommendations for the funding of religious observances.

Southampton parking regulations not uniformly enforced

Southampton parking regulations are not being uniformly enforced as required by the Bylaws.

Some violators get warning tickets, some get towed, while others get away with continuing violations.

The red Blazer has a long expired sticker; the black Cadillac has no parking sticker. Both have been parked here for several days.

It seems that "parking coordinators" enforce their preferred policies.

Tysons Corner condo to require dog DNA samples

The Rotunda, a condominium building in Tyson's Corner, Virginia has implemented a policy in which all new pet owners who are moving into the building will be required to have their animal's mouths swabbed in the presence of a building authority. If pet waste is discovered outside of the building, the waste will then be tested and matched up to the guilty animal's DNA.

CIC Ombudsman asks Southampton Board of Directors to respond to homeowner complaints

Heather Gillespie, CIC Ombudsman, DPOR, Commonwealth of Virginia, has written to the Board of Directors to respond to homeowner complaints. The Ombudsman's letter of March 12 states:

We will provide a limited timeframe in which to provide evidence to this office that you have taken the necessary actions required under the law and regulations and responded to the association complaints. To that end, you must provide this office a copy of your response to the complainant, or a detailed schedule of when you will provide consideration of the complaints and a final determination to the complainant. We must receive this information no later than Friday, April 3, 2015. . . . If we do not receive your response by the requested date, the matter may be referred to the Common Interest Community Board for further action, as appropriate.

Formal complaint filed with DPOR against condominium for failing to respond in a 'reasonable timeframe' to homeowner complaints

A formal complaint has been filed with the Common Interest Community Ombudsman, Department of Professional & Occupational Regulation, Commonwealth of Virginia, against Southampton Condominium Association for failing to respond in a "reasonable timeframe" to homeowner complaints.

Specifically, the Association has not responded to three formal complaints:

Association failure to utilize Condominium Bylaws, ARTICLE XIV, Section 1 to amend Bylaws when the Bylaws control. Virginia Condominium Act, § 55-79.71 does not control when there is no conflict between the Act and Bylaws — filed October 11, 2014.

Association failure to provide access to the Association's Facebook page pursuant to § 55-79.75:1 — filed December 12, 2014.

Association failure to provide a digital copy of all email to and from shchoa@gmail.com for calendar year 2014 pursuant to Virginia Condominium Act § 55-79.74:1 — filed January 13, 2015.

David S. Mercer, MercerTrigiani, advises Southampton board to ignore condominium bylaws

February 18, 2015

VIA CERTIFIED MAIL RETURN RECEIPT
David S. Mercer
MercerTrigiani
112 South Alfred Street
Alexandria, Virginia 22314

Dear Mr. Mercer

At the Annual Meeting of the Southampton Condominium Association, which you represent, then Chair Michael Pickford announced the initiation of a Bylaw Amendment procedure extending several weeks that you recommended — a procedure different from that in the Association Bylaws. Your recommended procedure, while consistent with the Virginia Condominium Act § 55-79.71 (Act) , is a breach of the Association Bylaws. Unless the Association Bylaws are in conflict with the Act, the Bylaws shall control.

Association Bylaws, ARTICLE XIV, Section 1 states:
These Bylaws may be amended by affirmative vote of members representing two-thirds (2/3) of the total outstanding votes of the Condominiums at any meeting of the members duly called for such purpose, and shall become effective only upon the recordation among the land records for Arlington County, Virginia, of an amendment to such Bylaws and only after thirty (30) days prior written notice to the institutional holders of all first mortgages on the Units in the Condominium. Amendments may be proposed by the Board of Directors or by petition signed by members representing at least twenty-five per-cent (25%) of the total votes of the Condominium. 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. 

Association Bylaws, ARTICLE XV, Section 2 states:
These Bylaws are subordinate and subject to all provisions of the Declaration and to the provisions of the Condominium Act. In the event of any conflict between these Bylaws and the Declaration, the provisions of the Declaration shall control; and in the event of any conflict between the Declaration and the Condominium Act, the provisions of the Act shall control.

There is no conflict between the Virginia Condominium Act, § 55-79.71 and Association Bylaws, ARTICLE XIV, Section 1, therefore, the Association Bylaws shall control.

Using your logic, every agreement would reduce to the bare minimum required by law — a result that is clearly absurd.

If you disagree, please join me in obtaining a Declaratory Ruling

Sincerely yours,

Enver Masud

Email:
Board of Directors,
 Southampton Condominium Association
Tom Markell, 
Management Agent
, Southampton Condominium Association 


'Why do [we] have ... a vendetta with the Board?'

We don't respond to anonymous comments — see rules at top of homepage. However, we thought one comment worth responding to. Anonymous wrote: "Why do you have such a vendetta with the Board? They're just volunteers and they are really nice people."

Board members are NOT "just volunteers." They sought the job. They were elected. They effect the value of roughly $110 million worth of real estate. Their actions, or lack thereof, effect the welfare of homeowners. They have duties defined by law. They may be held liable for bad decisions. Being "really nice people" is good, but not sufficient.

Plus, Board members have paid, professional help — the Management Agent and Association Counsel. It is the responsibility of Board members to utilize them effectively. If Board members did so, it would reduce the burden on them.

We have no "vendetta" with the Board or anyone else. Perhaps commenter should study the history of the Association — much of that is available in this blog. The Board, Management Agents and Association Counsel have had more than a decade to correct the problems we've brought to their attention.

In any case, requiring the Board of Directors and the Management Agent to abide by the Virginia Condominium Act and Association Bylaws cannot possibly constitute a "vendata."

Is email from shchoa@gmail.com an official notice from the Association?

When homeowners receive email from shchoa@gmail.com, who should they assume it's coming from — the Management Agent, Board, President?

When homeowners send email to shchoa@gmail.com, does it go directly to the Management Agent, Board, President?

Homeowners must be able to distinguish official communications from those that are not official. An individual board member has no individual management authority simply by  virtue of being a member of the board.

We have yet to receive a response to this issue from the Management Agent.

In an attempt to get a determination, today, pursuant to Virginia Condominium Act § 55-79.74:1, we requested a digital copy of all email to and from shchoa@gmail.com for calendar year 2014.

Minutes of annual meeting should be approved at next meeting of executive board or committee

 Jim Slaughter, attorney at law, writes:

If your organization follows Robert’s Rules of Order Newly Revised (11th Edition) because of state statute or language in the governing documents, the general rule is this: bodies that meet less often than quarterly don’t approve minutes ...

The recommended practice for annual meetings of members is that the executive board or a committee (sometimes called a “Minutes Approval Committee”) should be authorized to approve the record shortly after the meeting.  While the entire organization can always revisit the minutes the following year, this process allows the organization to have official minutes without waiting 12 months.

Minutes are a record of what was done at a meeting, not what was said. Robert's Rules of Order provide instructions for preparing minutes.

§ 2.2-3707 Section I states: "Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter."

A no-fines delinquency collection policy

Richard White, an attorney we presume, would require that any owner who does not pay on time receive a collection letter when the unit is 10 days delinquent. Another letter would be sent when the account is 30 days delinquent and a certified final letter sent when the account is 40 days delinquent.

If the owner does not pay, the matter needs to be turned over to an attorney to file a lien. If the lien is not paid within 30 to 60 days the attorney should be instructed to start foreclosure. If it is properly filed, then the courts should have a final foreclosure notice in 60 to 90 days. If your board or your attorney is sitting on the paperwork any longer, I consider them negligent in their duties.

A caveat: If you haven’t had collection activities for one year against a delinquent owner, then the board cannot collect that delinquent account.

What insurance coverage do homeowners need?

Southampton Bylaws Article XII, Section 3 recommends that unit owners obtain a “Tenants’s Homeowners Policy” with a “Unit Owner’s Endorsement” or equivalent.

Virginia Condominium Act § 55-79.81. states:

C. When any policy of insurance has been obtained by or on behalf of the unit owners' association, written notice of the obtainment thereof and of any subsequent changes therein or termination thereof shall be promptly furnished to each unit owner by the officer required to send notices of meetings of the unit owners' association. Such notices shall be sent in accordance with the provisions of subsection A of § 55-79.75.

We don't recall receiving notice of changes to the Association's master policy in many years.

Is a “Tenants’s Homeowners Policy” with a “Unit Owner’s Endorsement” or equivalent still sufficient?

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.


---
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.

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?