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.