A question came up during a recent online discussion about “best practices” for board meeting minutes. The answer to questions of what should (or should not) be included in minutes is more complicated than it seems. This article will give a broad answer, but I have to mention there are chapters in both my recent books, Robert’s Rules of Order Fast Track and Notes and Comments on Robert’s Rules, Fifth Edition, on what to include (or not) in minutes, approving minutes, changing minutes after the fact, handling closed/executive session meeting minutes, as well as model minutes templates and skeletal minutes (writing minutes before … Continue reading
Social Host Liability: Avoiding an Unwanted End to the Fun
After two years of being locked down or having to utilize caution and restraint when visiting and socializing with friends and family, North and South Carolinians are, understandably, ready to again indulge in and enjoy gatherings and, in particular, the festivities and frivolity of the holiday season! Regrettably, parties, gatherings and other seasonal festivities can also create ripe opportunities for civil and, on occasion, criminal liability. To avoid an un-jolly ending to the holiday season, property owners and hosts should keep in mind the following potential issues and obligations to minimize their personal liability: Premises Liability North Carolina property owners … Continue reading
Tenants-in-Common: A Common Complaint and an Untenable Affair
With my primary areas of practice in estate planning, estates and real estate, co-owned real estate is a frequently discussed topic with clients. North Carolina recognizes three types of co-ownership in real estate. First, tenancy-by-the-entirety is a type of co-ownership in real property reserved exclusively for spouses. Tenancy-by-the-entirety has built in rights of survivorship and protections against the creditors of one spouse. Second, joint tenancy is a type of co-ownership for non-spouses with rights of survivorship which means when one co-owner dies, their share is automatically vested in the surviving owner/s. Joint tenancy in North Carolina at one time required … Continue reading
Estate Planning and Capacity: In Theory and in Practice
North Carolina requires the requisite capacity for an individual to sign legal documents. Different legal documents require different levels of capacity. Executing a Last Will and Testament requires testamentary capacity. Executing a power of attorney requires contractual capacity. Other legal instruments such as executing a deed require their own type of capacity. Of importance, there is a presumption that every individual has capacity. Declining mental and physical health are not enough to overcome this presumption, but clear indications of incapacity derived through conversations with an individual or medical information may overcome such presumption. Additionally, capacity is not always fixed but … Continue reading
Health Care and Estate Planning: Legal Documents versus Medical Orders
The two primary health care documents attorneys prepare for clients as part of an estate plan are a health care power of attorney and an advance directive. An advance directive is also referred to as a “living will” or a “declaration for a natural death.” A health care power of attorney may contain an advance directive, in which case there may be only one multipurpose health care document in an estate plan. Health Care Powers of Attorney A health care power of attorney is a document where the principal appoints an agent to make major medical decisions on their behalf … Continue reading
Can, or Should, My Community Association Prohibit “Group Homes”?
With the passage of federal and State laws protecting disabled individuals, we see a societal push away from institutionalized living arrangements and towards community based, group home settings. This firm is frequently asked how, or if, an association can prohibit these group living arrangements within their community. Sometimes residents are worried that the group home occupants will pose a safety risk; there are also concerns about parking and transient residents; and fundamentally, associations may question whether this type of group living arrangement is consistent with single family residential use. The purpose of this blog is to provide a broad overview … Continue reading
Health Care and Estate Planning: Legal Documents versus Medical Orders
The two primary health care documents attorneys prepare for clients as part of an estate plan are a health care power of attorney and an advance directive. An advance directive is also referred to as a “living will” or a “declaration for a natural death.” A health care power of attorney may contain an advance directive, in which case there may be only one multipurpose health care document in an estate plan. Health Care Powers of Attorney A health care power of attorney is a document where the principal appoints an agent to make health care decisions on their behalf … Continue reading
Court of Appeals Confirm Vagueness and Ambiguity in Zoning Ordinance Will be Viewed in Favor of Free Use of Property
This week the North Carolina Court of Appeals issued a ruling in Frazier v. Town of Blowing Rock, 2022-NCCOA-782, that confirms the views of the Courts in this State that vague terms or ambiguity in language, in this case relating to a local zoning ordinance, will be viewed in favor of the free use of an owner’s property. In the community and association world (HOA and Condominiums) we have seen this line of decisions from the courts before as they deem vague restrictions or covenants in association governing documents as void and unenforceable for vagueness. This holds true for local … Continue reading
Physiology and Estate Planning: An Imperfect Pair
Early in my career and as I began specializing my practice in estate planning, I always found aspects of drafting and explaining health care powers of attorney and advance directives to be peculiar to my background. Using terminology such as “persistent vegetative state”, “advanced dementia” and “artificial hydration and nutrition” felt out of place in a law office. Additionally, evaluating a person’s mental capacity requisite to execute certain legal documents was daunting with no academic background in physiology. I had not taken so much as a basic biology course since my freshman year at North Carolina State University circa 2002/2003. … Continue reading
Robert’s Rules of Order in US Court of Appeals Decision
This case mentioning Robert’s Rules of Order appeared in the “Roberts Rules in the News” page of my parliamentary website at www.jimslaughter.com. The decision is a bit of a unicorn. While many news articles mention Robert’s and meetings issues, few court cases do. (Court decisions that make it to published appellate decisions tend to go on for longer and cost more money than most meetings disputes warrant.) Far fewer federal court opinions deal with Robert’s disputes, and this is from a U.S. Court of Appeals, which is shockingly rare. So even though the decision may not be that significant to … Continue reading
HOA/Condo Rental Restrictions, Corporate Owners & Institutional Investors
Requests for amendments to declarations tend to go in waves. Twenty years ago many associations were concerned about certain categories of sex offenders living in their communities. For several years now, the declaration amendment our firm most often gets asked about has to do with rental restrictions. Such questions arise out of concern that too many rentals or certain types of rentals will impact the “character” of neighborhoods. As a result, associations regularly approach our firm for advice on rental bans, rental caps, or restrictions on short-term/transient rentals like Airbnb or VRBO. (See Top Declaration Amendments for an HOA or … Continue reading
Conflicts of Interests: What Community Association Directors Should Know
Are you a director on your community association executive board? If so, you may be wondering about conflicts of interest. When do you as a board member have a conflict of interest? First, what is a conflict of interest? The North Carolina Non-profit Act defines a conflict of interest transaction as “a transaction with the corporation in which a director of the corporation has a direct or indirect interest.” A direct or indirect interest means that you have some personal interest in the transaction beyond your interest as a member of the Association. Basically, the question is will you (or … Continue reading
New Announcement by HUD Means More Options for Flood Insurance
All community association boards want to be good stewards of the funds collected from their homeowners. Sometimes, when finances are tight, a board has to face hard choices about how to reduce costs. That might mean reducing services or even deferring needed maintenance for a period of time where that maintenance is not essential to safety or structural integrity. As with all contracts, boards want to find the insurance that best suits their community and offers the best protection—at the best price. For those townhome and condo communities located in a flood zone, the question often arises whether they must … Continue reading
Non-Foreign Affidavits / FIRPTA When the Seller Is a Foreign National
You may be asked to sign a non-foreign affidavit, also called a FIRPTA, if you are selling property. It is one of the many documents that will be a part of your set of seller documents. People can get a little confused or upset when they see language on the affidavit concerning a 10% or 15% IRS withholding. The FIRPTA does not apply to everyone and is a common form to help the closing attorney confirm whether there will be an IRS withholding at closing. It’s simple enough to follow the guidelines but I find it’s a bit better to … Continue reading
Yes, Owners of a Restricted Lot Can Be Fined for THEIR TENANT’S Violations of Covenants!
With the appreciating residential real estate market, rental homes are becoming an increasingly common feature in residential neighborhoods subject to restrictive covenants. Restrictive covenants will typically have a few main types of provisions that lot owners opt into when purchasing their restricted lots—architectural standards, obligations to pay assessments to a homeowners’ association, provisions outlining the common area/amenities- but also some regulations that relate to conduct of individuals who reside on a lot. Sometimes the practice of leasing will even be prohibited or limited in the restrictive covenants of a community, or even provide that the HOA can screen prospective tenants. … Continue reading
Hurricane Ian Victim’s Tax Relief Deadline Extended for NC and SC Residents
The Internal Revenue Service has recently announced additional relief for Hurricane Ian victims across North Carolina and South Carolina. The tax relief postpones several tax filing and payment deadlines in North and South Carolina, as outlined below: The IRS is also assisting taxpayers who live outside the disaster areas, but whose records necessary to meet a deadline are located within disaster areas, and can be reached at 866-562-5227. The IRS disaster relief webpage has additional information and details on qualifications and deadlines. Additionally, a financial planner or CPA may provide additional guidance on deadlines and tax issues relating to the extended relief.
What Are An Association’s Responsibilities For Ensuring An Owner’s Safety?
There is often a breakdown between what homeowners within a community and the board of an association believe are the responsibilities of the association. Our association clients experience this with a myriad of issues, and one area of particular importance is that of homeowner safety. For associations hoping to understand what their responsibilities are in ensuring a homeowner’s safety and wellbeing, a great place to start is the governing documents. The governing documents will explain an association’s responsibilities in regard to the safety of homeowners, and their additional responsibilities in general. An association should take reasonable action to protect those … Continue reading
Obligation to Pay HOA Dues Survives Even the Strangest Circumstances
As community association attorneys, we hear all sorts of reasons from homeowners to explain why they haven’t paid their assessments. These usually include legitimate explanations such as illnesses like COVID, job loss, or other hardships. Some homeowners are more creative. One owner recently told our office that the presence of “entities” in the home was a reason for non-payment. In a recent case out of Kentucky, William and Theresa Thompson told their homeowners association they shouldn’t have to pay assessments on two lots they owned because the lots weren’t there anymore. Although existing as two separate lots, they were treated … Continue reading
Community Associations May Have a Duty to Address Neighbor-to-Neighbor Discrimination
Community associations have historically been able to stay largely uninvolved in neighbor-to-neighbor disputes unless the conduct complained of violated the governing documents of the association. If no governing documents were being violated, the neighbors would be expected to work out the issues among themselves. Now, there is an important step for association boards and managers to consider when learning of neighbor-to-neighbor disputes. The Fair Housing laws may create a duty for community associations to investigate complaints of discrimination between neighbors and to possibly take some action. Note – This duty might exist even if the board of directors and association manager … Continue reading
Into the Wild, at Home: Wildlife and Wild Animals in Community Associations
by Joe Cantlupe Human lifestyles occasionally clash with wildlife instincts in community associations. Safety guidelines, educational programs, and outside experts resolve most creature conflicts. Some of the most scenic community associations in the U.S., often those that touch the ocean or gorgeous countryside, can count wildlife as one of their unique draws, but there can be trouble in paradise too. Alligators sometimes bask in the sun’s rays on a driveway or wander into an open garage. Vultures pluck at windshield wipers and deposit heavy droppings. Deer crash into cars. Wild peacocks damage roofs and make loud screeching sounds. Community associations … Continue reading