Note: The allowances and income and resource limitations referenced in this blog are subject to periodic change and this info should not be relied upon without consulting with an attorney at the relevant time. When one of two spouses goes to a long-term care facility and applies for benefits, there is important lingo to be aware of when speaking with an elder law attorney and/or applying for benefits. The spouse in the long-term care facility is called the Institutionalized Spouse” and the other spouse is referred to as the “Community Spouse.” In this blog, I discuss the asset and … Continue reading
Guilford County Mask Mandate-Effective August 13, 2021
As a result of the latest COVID-19 surge and the more contagious Delta variant, Guilford County has issued a mask mandate that becomes effective today, August 13, 2021, at 5:00 P.M. The mandate will remain in effect until the earlier of: 1) expiration or termination of the Proclamation of a Local Emergency, 2) January 8, 2022 at 5:00 P.M., or 3) modification or revocation by the Guilford County Board of Health. The mandate states: 1: Individuals must wear Face Coverings when indoors in all businesses, establishments, and public places. 2: All businesses, establishments, and public places must require that all … Continue reading
Changes to Special Assessment Language in North Carolina Realtor Standard “Offer to Purchase and Contract”
As discussed in previous blogs (see What’s Special about Special Assessments?), HOA/condo special assessments are referenced in the North Carolina standard Offer to Purchase and Contract form. By way of background, the NC Bar Association and NC Association of Realtors® have “Joint Forms” used in residential real estate closings. The standard “Offer to Purchase and Contract” (Standard Form 2-T) is used in most any closing involving a Realtor®. Effective July 1, 2021, there are various changes to the Standard Offer to Purchase and Contract, including the following language regarding special assessments: While any of these provisions can be changed contractually … Continue reading
Avoiding Legal Landmines: Advice for HOA/Condo Board Members & Managers
Earlier this week, I presented at the CAI-NC 2021 Annual Conference on how associations, board members and managers can “Avoid Legal Land Mines.” I won’t repeat the presentation here, as the entire program can be found at the CAI-NC website. However, here are tips to help keep your association out of court. Our firm does a huge HOA/condo practice in six different offices. As a result, we regularly see every kind of dispute between owners and associations. Not all will end up in court. After all, a violation over a garbage can being left out is likely not worth litigating. … Continue reading
Frequent Asked Questions about Foreclosure Sales
More than ever, people are buying property through foreclosures. Do you want to buy property at a foreclosure sale, but you have questions about the process? If so, then this article is for you. For a general explanation of the foreclosure sale process, take a look at this previous article. However, some common but more specific questions that people have about the foreclosure sale process are: Where does the sale take place? Well, by law the notice of sale must contain the location where the sale is going to be conducted. Most sales are noticed to be conducted on the … Continue reading
Safeguarding HOA/Condominium Association Money: Investment considerations and pitfalls
We are often asked by our association clients whether they should invest assessment or reserve funds into the stock market, bonds, money market accounts, CDs, etc. Let me start by stating that I am neither a financial planner nor an accountant, so my take on investment of association funds will center on the Board’s duties to the association and the underlying principal of why associations collect assessments in the first place. First, in North Carolina homeowner and condominium associations are non-profit corporations. They are set up for specific purposes as outlined in the governing documents, which may include maintenance of … Continue reading
Clarity on the difference between an Assisted Living facility and a Skilled Nursing facility: Special Assistance Eligibility
Note: The allowances and income and resource limitations referenced in this blog are subject to periodic change and this info should not be relied upon without consulting with an attorney at the relevant time. In this blog, I attempt to give some insight on a critical point of confusion in elder law which is the difference between assisted living and skilled nursing and the governmental programs available for financial assistance in each type of facility. Despite what you may have been told, traditional long-term care Medicaid does not pay for a stay in an assisted living facility. However, Special … Continue reading
Real estate document preparation
Contracts and closing documents are a necessary part of any real estate transaction and there are countless resources on the internet that purport to be able to provide any number of them free or at a very low cost. More often than not, however, the forms provided are not tailored to the party’s needs. Oftentimes they omit important terms or language or are overbroad and put at increased risk the parties involved or getting the deal closed at all. Since it is commonplace that real estate transactions do not always have brokers involved to provide preliminary guidance but the parties … Continue reading
Valuable New Resource on Drafting Community Association Governing Documents
The Community Associations Institute has many valuable resources for anyone who assists community associations. While these materials are often of most interest to professional community managers and HOA/condo owners, there are also many excellent publications for attorneys. A recent digital book, Guiding Principles for Community Association Governing Documents: A Resource for Lawyers, will be of interest to anyone who has to draft original association documents or amendments to those documents. This is no little brochure, but has excellent, detailed advice for getting the wording of documents right. The Task Force that compiled the recommendations was appointed by the College of … Continue reading
If I Ask if Your Will Has “Per Stirpes,” It’s Not a Personal Question
As I recently went through my estate planning 101 routine to a pair of prospective clients , I happened to drop in the phrase “per stirpes.” I try to avoid legalese in my initial client conferences, but some terms are unconscious and unavoidable for estate practitioners who spend a significant time parsing through complex legal scenarios facing their clients. One of the prospective clients abruptly interrupted me and said, “Whoa now, I thought we just came to talk about doing a Will.” In jest, I assured him that he could not catch anything and there was no need to get … Continue reading
Should HOA or Condo Bylaws Be Recorded?
We were recently asked whether bylaws amendments should be filed with the local Register of Deeds. The answer, like many things community association related, depends. Condo bylaws in North Carolina are almost always filed with the Register of Deeds, but not HOA bylaws. The difference is due to initial bylaws for condos being recorded with the declaration, and then amendments need to show up in the public record. If HOA bylaws are filed (but should not be), amendments also need to be unless a later amendment makes clear (as we have sometimes done for associations) that subsequent amendments will not … Continue reading
EEOC Issues New COVID-19 Guidance to Employers
From time to time throughout the COVID-19 pandemic, the Equal Opportunity Commission (“EEOC”), who is tasked with overseeing and administering federal anti-discrimination laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act (“ADA”), has issued guidance to employers seeking to smartly balance compliance with federal laws and regulations against the need to keep workers, customers and visitors to their businesses safe. With more businesses re-opening their doors and vaccines readily available, the EEOC released updated guidance to help struggling employers. In particular, the EEOC confirmed that: Employers can require all employees physically entering their workplace … Continue reading
New NC Appellate Case: Williams v Reardon (Covenants and Real Property Marketable Title Act – Part 2)
The North Carolina Court of Appeals has once again determined that restrictive covenants are largely extinguished by operation of the Real Property Marketable Title Act (N.C. Gen. Stat. 47B-1 et seq.) if not included in the chain of title in the preceding thirty years. The decision can be found at C.E. Williams, III et al v. Reardon et al. (Unpublished). Our blog on last month’s Marketable Title Act decision can be found at New NC Appellate Case: C Investments 2, LLC v Auger (Covenants and Real Property Marketable Title Act). This decision leaves one additional case pending for decision in … Continue reading
New NC Appellate Case: Belmont Association, Inc. v. Farwig (Solar Panels/ARC)
Today, Tuesday, May 18, 2021, the NC Court of Appeals issued its decision in Belmont Association, Inc. v. Farwig (the first appellate review of North Carolina’s solar law!). The decision may impact the installation of solar panels in planned communities, and is a “published” decision. That means the decision is controlling legal authority and can be cited in other cases. When N.C. Gen. Stat. § 22B-20 (“Deed Restrictions and Other Agreements Prohibiting Solar Collectors”) became law in North Carolina in 2007, it changed the way homeowners associations handle architectural requests. Prior to this statute, an HOA could simply follow the … Continue reading
New NC Appellate Case: C Investments 2, LLC v Auger (Covenants and Real Property Marketable Title Act)
Today, Tuesday, May 18, 2021, the NC Court of Appeals issued its decision in C Investments 2, LLC v Auger. The decision may impact restrictions in planned communities based on the Marketable Title Act, and is a “published” decision. That means the decision is controlling legal authority and can be cited in other cases. The Marketable Title Act To understand the decision, you need to understand what the NC Real Property Marketable Title Act (“MTA”) is and why it is important. Prior to 1973, anyone buying real estate who wanted to know what restrictions applied to that property had to go back, … Continue reading
New NC Appellate Case: Executive Office Park of Durham Association, Inc. v Rock (Older Condo Collections)
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