A Guide for North Carolina & South Carolina Parents As the mother of two young children, I would like to think that my kids will always follow the rules, obey the law, and make good decisions. The realist in me knows, however, that they won’t always act as they should or as they’ve been taught. So what is my liability or legal exposure for the conduct of my children? Can I be held financially responsible for their wrongdoing? Generally speaking, parents are not required to act as insurers against wrongs, harms, or damages inflicted by their children. This maxim, however, … Continue reading
The HOA Has Foreclosed on a Home for Delinquent Dues, Now What?
What happens when an HOA completes a foreclosure sale of its claim of lien for unpaid dues? There are several common outcomes which are listed below in order of frequency in our experience: (1) The owner/occupants are evicted and the house is left empty. The Association should include this property on its general liability policy in case someone gets hurt on the property. Eventually, if there is a mortgage on the property (and there is almost always a mortgage) the mortgage company will eventually foreclose and take title from the Association. It is a common misconception that the Association is … Continue reading
United States Supreme Court Case Involves North Carolina Trust Beneficiaries
North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust. This month the United States Supreme Court decided a case that involved North Carolina trust beneficiaries. The question asked was whether the Due Process Clause of the Fourteenth Amendment permitted North Carolina to tax the income of a trust just because the beneficiaries live in North Carolina. The Supreme Court answered no. Under the Due Process Clause of the Fourteenth Amendment, North Carolina (or any state) has the authority to tax a trust if the trust has “minimum contacts” with the state. North Carolina DOR took the … Continue reading
It’s Not Over Until It’s Over
If you are separated or you’re considering separating from your husband or wife in North Carolina, one of the first questions you’ll get from an attorney is “what was your date of separation?” One of the reasons is that spouses are presumptively entitled to one-half of all “marital property.” Marital property includes real estate, bank accounts, vehicles and even lottery tickets that are acquired with marital funds or by marital efforts from the date of marriage to the date of separation. You may have read recently that a Michigan man who bought a Mega Million lottery ticket prior to separating … Continue reading
You’ve Been Separated from Your Spouse for One Year in North Carolina. Should You File for Divorce?
In North Carolina, you and your spouse have to be separated from one another with the intent of at least one of you to remain permanently separate and apart. Once you reach the one year’s separation, filing for divorce is fairly straightforward. But SHOULD you file just because the year has passed? Things you should consider before filing are: (1) will you lose health insurance coverage under your spouse’s plan?(2) do you have property you want distributed to you or debt you want distributed to your husband or wife?(3) do you need financial support in the form of alimony from … Continue reading
Carolinas HOA & Condo News – June 2019
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Should Movers Be Scheduled for Right After My Closing?
A REALISTIC VIEW OF THE CLOSING I always tell my first-time homebuyers the same advice; never make plans to move in to your new home right after closing. While there is a general expectation to receive keys to your home on the day of closing, there are numerous known delays which can create stress if you find yourself in a rush to the house after closing. As a general rule, the seller, or whichever party is holding the keys to the home, will provide the keys to the buyer once the deed to the property has been recorded in the … Continue reading
Don’t Let the Bed Bugs Bite!
Bed bugs have become a growing area of concern for planned communities across the country. Although no community is immune, bed bugs are most commonly found in single-family homes, condominiums, and hotels/motels. Because of their ability to travel from location to location, bed bugs can easily spread and infest multiple areas. This makes condominiums, townhomes, and single-family residences the perfect target for these tiny pests. You may be wondering how and why bed bugs are of importance to homeowners associations. I will be the first to admit that Board members and managers rarely seek advice regarding pest prevention. After all, … Continue reading
New Challenges in Cyber Security for Real Estate Transactions
The manner by which real estate transactions are conducted has changed a great deal over the past several years. Deals that were formerly completed entirely using ink and paper, are now becoming electronic, particularly when it comes to the movement of money. The cashier’s check was formerly the preeminent mode for moving funds from one account to another for a real estate transaction. This generally worked well and, excepting the occasional story about a fraudulent check, there were relatively few problems. The most noticeable downside to checks, from the perspective of a party to the transaction, was that the movement … Continue reading
South Carolina Tax Liens – 2019 Statutory Changes
The practice of searching title to South Carolina real property may be changing soon. Governor Henry McMaster recently signed a bill allowing for the creation of a statewide filing and indexing system of liens imposed by the South Carolina Department of Revenue that will take effect on July 1, 2019. Currently, state tax liens are filed with the office of a county’s Register of Deeds, Register of Mesne Conveyance, or Clerk of Court. Once the new system is implemented, liens will instead be filed in a statewide registry that will be publically accessible and searchable online. The most significant result … Continue reading
NC Community Association Legislative Update – May 10, 2019
Yesterday, May 9, 2019 was the “crossover deadline” in the North Carolina General Assembly. In short, that means that bills not related to taxes or spending must have passed one chamber to be eligible for consideration during the two-year legislative session. CAVEAT: In terms of legislation, “dead” doesn’t always mean “completely dead.” A News & Observer story once noted that legislative “rules are made to be circumvented, so there are many ways to keep legislation alive.” (For example, proposals sometimes appear later as “technical corrections” in other bills.) Still, with the crossover deadline behind us, now is a good time … Continue reading
NC Community Association Legislative Update – April 23, 2019
It must be spring in North Carolina—both flowers and legislative proposals that would impact HOAs and condos are springing up! For those of you who attended the NC-CAI Community Association Legal Workshop in Wilmington this past week, you heard my law partner Steve Black comment on several pending community-association bills. When I spoke at the NC-CAI Community Association Law Evening in Greenville the NEXT NIGHT, 3 more proposals had been filed! Now there are at least 12 legislative proposal that would impact North Carolina’s HOAs and condos. The increased filing is due to several legislative deadlines this month. Tuesday, April … Continue reading
Fair Housing & Religious Accommodation: Curto v. A Country Place Condominium Association, Inc.
Sometimes, a community association tries to accommodate religious preferences and ends up discriminating on another basis. That is what happened in Curto v A Country Place Condominium Association, Inc., according to the U.S. Court of Appeals for the Third Circuit in a New Jersey condominium case handed down yesterday. In this case, the condominium had a large Orthodox Jewish population whose religious practices prohibited men and women from swimming together in the condominium pool. The association, wishing to find a way for both men and women to use the pool, came up with a schedule that provided certain hours for … Continue reading
Assigning Service Contracts in North Carolina
Most people assume that when they hire someone to perform a service for them, that person will deliver the service. This is not always true. In many circumstances, one party can assign its service obligations to another party. By statute, North Carolina allows one party to delegate- or assign- its obligations to perform some service under a contract to another party unless the contract prohibits assignment, or unless the non-assigning party has some substantial interest in having the originally obligated party perform the work themselves. The idea is that assignment allows individuals and companies necessary flexibility to sell valuable contractual … Continue reading
Common Misconceptions for HOA or Condo Board Members
Do you serve on the Board of Directors of a Community Association? If so, here are some common misconceptions that can cause problems for many boards— Meeting Minutes. Does your board keep minutes of its meetings? If not, then your board should. Second, your board meeting minutes should be a record of what was done at the meeting, not what was said. There is no need to record everything that is said. Instead, simply record actions that were taken by the board (i.e. approved budget, approved new landscaping contract, etc.) Quorum. Quorum is the minimum required number of directors that … Continue reading
Are Homeowners Associations and Condominium Associations Subject to the Americans With Disabilities Act?
We frequently get asked what special steps must be taken by associations to be compliant with the Americans with Disabilities Act (ADA.) In many cases our association clients are not subject to the ADA but it depends heavily on who they allow to use the common area and amenities. The most common trigger that makes the ADA apply to associations is when the association’s common area and amenities are used with some degree of frequency by the general public that are not members of the association. For example, if the association allows nonmembers to use the association’s pool for a … Continue reading
What Happens to Your Retirement Benefits When You Divorce?
Although every retirement plan has its own rules, generally all of your assets and debts are added up and divided. North Carolina is a “no fault” property state so in most cases, all marital assets and debts will be divided equally. If you or your husband or wife has retirement benefits but one has more or is receiving more assets from other sources such as real property or bank accounts, a rollover from one spouse to the other can be used to equalize the spouses’ assets. The rollover is a non-taxable transfer and practically the non-participant spouse gets an account … Continue reading
Everything You Need to Know to Win Your Custody Case
Most of the rules you learned in kindergarten apply in child custody cases: for example: 1) be kind to others; 2) if you can’t say something nice, don’t say anything at all; 3) be respectful and 4) share your toys. Child custody cases are emotionally charged and it is normal to want to show the court you are a great parent and your spouse is a terrible parent if you are trying to win primary physical custody of your children. But, judges are looking for the parent who puts his or her children first and who is not fighting for … Continue reading
Do You Have to Share Your Pension When You Divorce?
If you are fortunate enough to have a pension through a present or previous employer, some or all of it may be marital property subject to division upon separation and divorce from your spouse if you worked for the company offering the pension during your marriage. A pension plan is a type of annuity that will pay the employee a monthly benefit upon retirement. If the employee separates from his or her spouse prior to retiring, the non-employee spouse may want to be compensated for half the value of the pension because it is subject to a division pursuant to … Continue reading
Real Property and Medicaid Estate Recovery
When a person age 55 or older is the recipient of Medicaid, Medicaid tracks all of the money spent on the person’s behalf. While a Medicaid recipient can hold on to his or her home while alive, at the recipient’s death, Medicaid will place a lien on the recipient’s estate. This is known as Estate Recovery. The lien is typically placed on the Medicaid recipient’s home which then must be sold to pay back Medicaid. Clearly this disrupts many people’s plan of passing their real property down to their loved ones. There are some exceptions—times when Medicaid does not place … Continue reading