A South Carolina bill we have been watching for more than a year was signed into law by the governor yesterday, May 17, 2018.  House Bill 3886 is the first bill specifically directed at homeowners associations and condominiums in South Carolina and will impact how each of these types of communities operates.  Officially titled the “South Carolina Homeowners Association Act,” click here for the text of the law.   Here is a brief summary of some of the key parts of the new law: Disclosure Duty The law creates a new duty to disclose whether real property being sold is … Continue reading →

I am often asked by homeowners, property managers, and HOA boards to review restrictive covenants to determine whether their community may restrict leasing in some way.  The usual answer is “it depends,” and the South Carolina Court of Appeals made it clear in Community Services Associates, Inc. v. Wall that restrictive covenants must be clear in order to prevent leasing. Covenants that restrict the free use of property are disfavored by the law.  Therefore, courts in North Carolina and South Carolina require that any restrictive covenant in a homeowners association or condominium be clear and unambiguous.  So long as they … Continue reading →

For many homeowners associations roads can be a source of constant consternation. Most homeowners do not make their home-buying decision based on the condition of the roads in the community or on the responsibility of the community to maintain subdivision roads. Where the community is responsible for the roads, it can be one of the largest budget expenses, often taking years of planning and saving to tackle. Even then, it may require special assessments or other methods to raise the funds to handle. When developers or HOA boards are not diligent in getting responsibility for roads turned over to the … Continue reading →

I am often asked by HOA & condo Boards a question that looks something like these: Is it OK for the Association to use community volunteers instead of a professional? or My Uncle Sal does that, can’t we use him? / I’m sure he’ll give us a discount! Naturally, in typical lawyer fashion, I tell them that it depends.  There are scenarios where the Board will always want a professional service provider and others where it is perfectly acceptable for volunteers from the community to provide services. The bottom line for the Board is always whether it has met its … Continue reading →

I often receive questions from managers and board members about fees that homeowners associations and condos can and can’t charge to homeowners and to prospective purchasers in their communities.  One of the most common questions goes something like this: “Our covenants say that we can charge a capital contribution fee / transfer fee / some other similar fee at each closing.  Can we charge this fee?” The answer will depend on several factors, including the age of the fee covenant, which party is entitled to receive the fee, and whether the original developer is still selling property in a community. … Continue reading →

A common question that we get from developers, managers, and HOA Boards is “what exactly is a transfer fee?” Although the term “transfer fee” is often used loosely to mean several different things, state statute defines the term generally to mean “a fee or charge payable upon the transfer of an interest in real property.” In other words, it is a fee charged when property is transferred from one party to another.  North Carolina law now prohibits transfer fee covenants.  Specifically prohibited are covenants that require the payment of a transfer fee to a developer or other person upon a … Continue reading →

In a recent post on a South Carolina Supreme Court case from just a few weeks ago I provided a quick breakdown of things that management companies in South Carolina must not do. As always, lessons learned from different jurisdictions can be instructive to neighboring jurisdictions.  North Carolina and South Carolina share many things, including a border.  They also share a similar approach to making sure that the practice of law in each state is limited to only licensed attorneys. Here are some specific things that the Supreme Court in South Carolina mentioned that constitute the unauthorized practice of law … Continue reading →

We often are asked by managers and Board members what duties are appropriate to delegate to a property manager. First, a property manager is almost always going to be considered an agent of the homeowners association. As an agent, what authority does the property manager have?  In general, an association manager has whatever power is granted by the Board of Directors for the HOA.  It is common for management companies to manage the day-to-day running of the association, leaving the decision-making for the Board.  Some common duties include collection of assessments, helping to enforce restrictions, helping with the annual budget, … Continue reading →

We live in an increasingly sharing world and culture. For a small fee we share rides to get to work, can leave our pets at someone’s house while on vacation, or we can rent our neighbor’s car, high-end household items like cameras or kitchenware, and even musical instruments (although I’m not sure I would want to share some of those).  With the explosion in our sharing economy, it should come as no surprise that owners in homeowners associations and condominiums have found ways to take advantage of technology to market their homes to those in need of lodging on a … Continue reading →

A recent topic that we have been following is the congressional bill to permit HAM radio towers in community associations. We learned today that H.R. 1301 regarding HAM radio operation in planned communities failed to pass the Senate. The Community Associations Institute (CAI) opposed the original version of H.R. 1301, which would have required homeowners associations to allow installation of HAM radio antennas regardless of any prior restrictions or architectural requirements. With CAI’s support, H.R. 1301 was amended to require that antennas be approved prior to installation. The new Congress will be sworn in on January 3, 2017 and it … Continue reading →

With election time upon us, we always get questions regarding political signs in homeowners associations and condominiums. My colleague, Jim Slaughter, authored a blog on “Q&A on Political Signs in HOAs and Condominium Associations” a few weeks ago that addresses some of the most common questions we get.  As a quick follow-up to his blog, here are a few items from South Carolina to keep in mind: First, it is always important to remember that unlike North Carolina, South Carolina does not have any HOA-specific statute that affects the display of political signs. So, if your association has specific rules in … Continue reading →

Modern society is moving toward better, faster, and easier methods of communication and transacting business. There was a time when sending a letter was the standard form of communication.  Indeed, “regular mail” and hard-copy printed versions of documents are still the standard in most legal systems in the United States.  However, the trend over the past several years has been to move to faster, more efficient methods of communicating and operating. Unfortunately, legal systems are often the last to join the party. The laws involving homeowners associations and condominiums are no different.  In fact, many associations find themselves stuck with … Continue reading →

At this time of year we often get questions from homeowners, managers, condominium and homeowners association boards about what flags may be displayed and under what circumstances. In South Carolina, both federal law and state law come into play. South Carolina law provides that homeowners associations and condominiums in South Carolina must permit the display of one portable, removable United States flag in a respectful manner, consistent with federal law, on the premises of the property of which he is entitled to use. Federal Law provides that homeowners associations and condominiums “may not adopt or enforce any policy, or enter … Continue reading →

As highlighted in his recent blog post, Jim Slaughter of Law Firm Carolinas., noted the explosion of drone purchasing and use. This post is designed to supplement Jim’s summary of specific drone-related laws passed in North Carolina by providing an update on specific South Carolina drone-related laws. The recent Christmas season shows that drone purchases are on the rise in South Carolina and nationwide. South Carolina law does not define what type of aircraft would constitute a drone. While most proposed rules and regulations use the terms Unmanned Aerial Vehicle (“UAV”) or Unmanned Aircraft System (“UAS”), South Carolina’s proposed legislation … Continue reading →

The Fair Housing Act (“FHA”) prohibits discrimination based on race, color, religion, sex, national origin, disability, or familial status. For years, homeowners association boards of directors have been mindful of the FHA’s requirements and taken care that board decisions do not discriminate against any of these protected classes. The Supreme Court of the United States recently heard and decided a case from the Fifth Circuit Court of Appeals, Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. At issue in this particular case was whether a legal theory that has been applied in other discrimination contexts, … Continue reading →

Most homeowners associations have some sort of architectural review process. Of these, many spell out how that review is supposed to proceed. Generally, the homeowner submits an application for some sort of change to the property, and the board of directors or an appointed architectural review committee (often abbreviated as the “ARC,” “ACC,” or “ARB”) will determine whether the submitted application will be approved. Many associations require some sort of drawing or rendering of what the change will look like, along with pictures or samples. This helps the ARC to understand how the proposed changes will look when completed. There … Continue reading →

Contrary to popular belief, most property owners fulfill their financial obligations to their association. As a result, the number of actual association foreclosures is very, very small. Of that percentage, almost nobody wakes up in the morning and decides to stop paying a mortgage or condominium or homeowner association dues. The facts of life, however, intervene. Taking care of loved ones who are sick, loss of a job, or other life-changing experiences happen more than one would expect. When a person is dealing with these difficulties and trying to make mortgage payments and pay homeowners association dues, it is an … Continue reading →

Our modern society is always looking for opportunities to limit our footprint on the environment and to increase sustainability in a modern world.  Wind, solar, and other renewable resources are common topics of conversation.  As part of this push, many states have enacted laws that encourage businesses and individuals to incorporate and use these technologies as a part of our everyday lives.  For those of us who live in a homeowner’s association, we may or may not have rules that either allow or prohibit installation of solar panels. The first relevant date for a homeowner’s association in North Carolina is … Continue reading →

“Restrictive Covenants.”  Hearing that phrase has made homeowners and their respective Boards of Directors cringe since the beginning of time.  Everyone who has ever lived in a Homeowner’s Association is familiar with the idea that there are certain things you may and may not do with your property.  If not, you might want to check into that. The original idea behind restrictive covenants was not some crazy person’s attempt to figure out a way to make homeowners’ lives more burdensome.  Instead—as many association’s “Declaration of Covenants, Conditions, and Restrictions” lay out—the idea is to work together to increase the value … Continue reading →