NOTE: The case that is the subject of this blog was reversed by the NC Supreme Court in November 2022. See New NC Supreme Court Case: Applicability of Condominium Act Foreclosure Rights to Pre-1986 Condominiums. Today, Tuesday, May 18, 2021, the NC Court of Appeals issued its decision in Executive Office Park of Durham Association, Inc. v. Rock. The decision may impact collections in older condominiums, and is a “published” decision. That means the decision is controlling legal authority and can be cited in other cases. In this case, an older condominium association (meaning the association was not fully subject to … Continue reading
What Is a Majority Vote?
Like many things association related, the answer can vary by state and by association. That’s because some state statutes or governing documents define majority differently (“a majority of the entire membership” or “a majority of members present”). But if you’re just talking about “majority,” then under Robert’s Rules of Order Newly Revised (12th Edition) that is “more than half” (NOT “half plus one” or some other language that can give you the wrong number). When used without qualification, a majority vote means “more than half of the votes cast by persons entitled to vote, excluding blanks or abstentions, at a regular or … Continue reading
NC Community Association Legislative Update – May 14, 2021
Like everything else during this past year of COVID, the legislative process has also been different. Usually by now in the first year of a new session of the General Assembly, a number of bills that could affect North Carolina HOAs and condominiums would have been introduced. Some would move forward, and some not. In contrast, this have been a fairly quiet year for community association proposals. Almost certainly that’s because of the focus and attention on economic and health issues. That said, there are a few proposed bills that, if adopted, would impact community associations. Yesterday, May 13, 2021 … Continue reading
What Can Our Homeowners Association Do about Criminal Activity?
After almost twenty years of representing homeowners associations and condominium associations, it continues to surprise me when homeowners look to their association to investigate or even punish for criminal activity that occurs in the community. Our association clients get calls from homeowners insisting that the association take action to prevent car break-ins, vandalism, loitering in public areas, theft, speeding, reckless driving and even marital fights. Just recently we had the membership of an association very upset with the board of director’s lack of action when one homeowner fired four bullets at another homeowner (thankfully missing each time). In most cases … Continue reading
(Likely Final) NC Extension of Order Allowing Virtual Membership Meetings
The NC Executive Order allowing electronic membership meetings (Executive Order #198) was set to expire today, Monday, May 10. That Order has now been extended by Executive Order #212 through Tuesday, June 1, 2021. As a result, nonprofit membership meetings may continue to be held virtually so long as certain conditions are met. Such a process is likely needed by some larger associations a bit longer, as a different Executive Order (EO #209) still caps the maximum number of people for indoor gatherings at 100 and for outdoor gatherings at 200 “at the same time in a single confined indoor or outdoor … Continue reading
Is this the end of Contributory Negligence?
The North Carolina General Assembly is currently considering a bill that would significantly modify how claims involving negligence, including motor vehicle accidents and personal injury actions, are evaluated, handled and, potentially, adjudicated. Currently, North Carolina is only one of a few states that adheres to the doctrine of contributory negligence, which bars individuals from recovering for harm they’ve suffered due to the negligent act of a third-party if they were even one percent at fault themselves. (Most states, including South Carolina, utilize the doctrine of comparative negligence to allow an individual to recover his or her damages, less a proportionate … Continue reading
Department of Labor announces changes to independent contractor or employee determination
In the final days of the Trump Administration, the Department of Labor put forward clarifications to help businesses determine whether workers could properly be classified as employees or independent contractors. Under the new guidance, the Department of Labor would initially consider only two factors – specifically, the level of control the individual has over his or her own work and the opportunity for profit or loss due to his or her own personal investment. If, and only if, these factors were inconclusive would businesses then proceed to evaluate or consider the level of skill of the role involved, the permanence … Continue reading
New South Carolina Law Creates COVID Immunity for Many HOAs and Condos
On April 28, 2021 the South Carolina Governor signed into law a bill that creates some protection for many homeowners associations and condominium associations from potential coronavirus claims. The bill (S147) creates broad immunity for health care facilities, government agencies, and legal entities, whether they are regular business entities or nonprofits, regardless of how they are organized (so nonprofit corporations, LLCs, etc.). These are what the new law calls the “covered entities.” The law also specifically creates protections for any director, officer, employee, agent, contractor, third‑party worker, or other representative of one of the covered entities. These are considered to … Continue reading
Even Further Easing of NC COVID Restrictions
The title of Executive Order #209 issued today (April 28, 2021) pretty much sums up the trend in North Carolina: “Removing the Outdoor Face Covering Requirement, Relaxing Restrictions on Gatherings, and Extending the Capacity and Social Distancing Measures of Executive Order #204.” (For more details on prior Executive Order #204, see NC Easing Covid Restrictions.) The new Executive Order contains additional easing of COVID restrictions to begin this Friday, April 30 at 5 pm. It’s difficult to summarize lengthy Executive Orders, and this particular Order is 31 pages with 10 appendixes for different venues/businesses. Here are some HIGHLIGHTS that may … Continue reading
Whether to Hold In-Person HOA or Condo Meetings in South Carolina
While prior Executive Orders contained clear requirements about how to address COVID-19, the most recent South Carolina Executive Orders leave much to the imagination. For those familiar with South Carolina and its approach to legal issues, this might not be surprising. In South Carolina, the basic difference for gatherings currently is that, unlike prior Executive Orders that required face coverings and strictly limited gatherings in terms of number of participants, social distancing, and hygiene efforts, the current orders only encourage compliance with these guidelines. That leaves the board of directors of any HOA / condo with the question of whether … Continue reading
Q&A on Holding In-Person Association Member Meetings
Now that North Carolina allows larger in-person gatherings (see NC Easing Covid Restrictions), many of our homeowner and condominium associations are wondering if it is time to restart in-person membership meetings. Here are questions and answers to some of the most frequently asked questions about meetings that we’ve received. Can HOA/condo associations begin holding in-person membership meetings again? Perhaps. There are two aspects to the question: (1) CAN the association membership meeting be held in person?, and (2) SHOULD the association membership meeting be held in person? As with other state Executive Orders, the question of whether members can gather … Continue reading
Significant Flood Insurance Changes On the Way
If you or your association are required (or wish) to have flood insurance, big changes are coming. For years, the National Flood Insurance Program (NFIP) has looked at ways to better charge specific properties for their specific risks. At present, flood insurance rates are mostly based on a property’s location and elevation. That may not be the case much longer. On April 1, the Federal Emergency Management Agency (FEMA) announced its first major flood insurance pricing updates in half a century. During 2021-2022 the Agency will begin basing premiums on a property’s value, risk of flooding, and other factors. The … Continue reading
To Open (or Not Open) HOA and Condo Pools in North and South Carolina
One of the most frequent questions we receive is whether it is “OK,” “allowed,” or “legal” for homeowners associations or condominiums to open their pool this spring. Every community is different and boards of directors will have to make the decision to open based on several factors, including the type of community, whether that community has the resources to comply with CDC and local guidelines, and whether it can comply with any state requirements that may apply. Each board of directors must make its decision based on its best business judgment after appropriate due diligence. Just because the state or the … Continue reading
NC Easing Covid Restrictions
North Carolina Governor Roy Cooper announced today that Executive Order #204 (“Further Easing of Restrictions on Business and Gatherings”) will take effect this Friday, March 26 at 5 pm. It’s always difficult to summarize lengthy Executive Orders, and this one is 27 pages long with 9 appendixes for different types of venues/businesses. With the caveat that this post has some HIGHLIGHTS and is not a replacement for the Executive Order, here are some provisions that may be of interest to North Carolina homeowner and condominium associations. (FYI, anything capitalized is capitalized and defined in greater detail in the Order .) … Continue reading
Update on Emergency Authorization of Remote Notarizations
The saga continues in this third entry of the three-part series (so far) on North Carolina’s authorization of emergency video notarizations during the pandemic. As of March 12, 2021, Governor Roy Cooper signed House Bill 196 into law, which allows video notarization to continue through December 31, 2021. The Bill acts to amend the previous authorization which expired on March 1, 2021, and appears to have retroactive effect to save any brave soul who continued remote notarizations after the Bill’s expiration date. At this time, there is still no indication that permanent authorization of remote notarizations is in the works … Continue reading
Proposed Solar Bill in South Carolina May Affect Homeowners Associations
As the weather begins to warm and the sun shows its face a little longer each day, many homeowners start to consider the option of installing solar panels on their property to take advantage of those rays. With legislative changes in the past few years, South Carolina has become a more welcoming state for solar companies. As a result, many homeowners associations (both single family communities and townhomes) have started seeing more and more applications from homeowners to install some type of solar panel technology on their property. Up to now there has not been any sort of state law … Continue reading
Governor Extends Order Allowing Virtual Membership Meetings
Community association leaders and managers have been asking if the Governor would extend the ability to hold electronic membership meetings beyond March 1. The answer as of today is “yes.” On December 31, 2020, Governor Cooper issued Executive Order #185 entitled Extending Prior Executive Orders on Remote Shareholder and Nonprofit Meetings During the COVID-10 State of Emergency. EO #185 extended earlier orders allowing for nonprofit membership meetings to meet virtually so long as certain conditions are met. However, Executive Order #185 had a expiration date of this coming Monday, March 1. A separate Executive Order #195 was issued this past … Continue reading
Remote Notarizations to Sunset on March 1
As the sunset date approaches for remote notarizations under the temporary emergency authorization, it is now apparent that the legislature will not agree on a bill authorizing a further extension before the expiration. Therefore, we will revert to the notarial requirement of “close physical proximity” on March 1, 2021 at 12:01 a.m. Folks in the know believe that there is legislative support for either an extension of the emergency statute or its permanent authorization and codification. However, other non-related budget aspects of the bill are causing a delay (insert your cynical political comment here). Additionally, it is speculated that when … Continue reading
NC Executive Order Increases Attendance at Association Meetings
The Governor’s latest Executive Order, EO No. 195 issued this week, really isn’t about nonprofit corporations or homeowner and condominium associations. The Executive Order is instead aimed at easing COVID-19 restrictions on businesses, including restaurants and bars. However, there is one section that may be of interest to North Carolina HOAs and condos. For many months now, North Carolina’s pandemic gathering restrictions have limited indoor meeting attendance to 10 and outdoor meeting attendance to 25 “at the same time in a single confined indoor or outdoor space.” Executive Order #195 increases these in-person attendance caps to 25 for indoor meetings … Continue reading
Snow and Ice Removal in HOAs and Condos
North Carolina may not see the same weather challenges as most other states, but we aren’t immune from winter (and spring) storms that bring snow and ice that can make travel treacherous. No board of directors wants to find itself scrambling after the fact to decide how or when to put down salt or scrape a road or parking lot. Here are some general issues to consider, and recommended best practices. DEFINE THE AREA OF RESPONSIBILITY HOA and condo associations are generally obligated to reasonably maintain the common areas within the association. This often includes any private roads within the … Continue reading