A recent case reported in Virginia Lawyers Weekly highlights the significant financial risk to homeowners associations (“HOAs”) when sidewalk maintenance is neglected. In this case, a resident tripped on an uneven sidewalk—maintained by the HOA—and suffered severe injuries. The injuries required surgery and 10 months of treatment, resulting in $200,000 in medical expenses. The plaintiff also lost valuable time from their online retail business. Ultimately, the case was settled for $650,000 before a lawsuit was even filed.
This scenario serves as a reminder HOAs to evaluate their responsibilities under their governing documents. Here are several steps HOAs can take to reduce liability and protect their communities from similar claims:

1. Conduct Regular Inspections

HOAs should establish a schedule for inspecting sidewalks and other common areas. Look for hazards such as uneven pavement, cracks, and other trip-and-fall risks. Inspections should be documented, as records can serve as evidence of diligence in case of a claim.

2. Prioritize Repairs Promptly

When issues are identified, repair them as soon as possible. In the case mentioned, the sidewalk had a two-inch height discrepancy—a tripping hazard that could have been addressed through grinding, leveling, or slab replacement. Delaying repairs increases the risk of accidents and makes claims harder to defend.

3. Enhance Lighting

Poor visibility can exacerbate sidewalk hazards. Installing streetlights or sidewalk lights can help residents navigate safely at night and deter potential accidents. Lighting improvements are a relatively small investment compared to the cost of a personal injury claim.

4. Consider Risk Transfers

HOAs should review their insurance policies to ensure adequate coverage for premises liability. Additionally, HOAs may consider hiring third-party contractors for sidewalk maintenance and ensuring these contractors carry proper insurance.

5. Communicate with Residents

Encourage residents to report hazards promptly. Open communication creates a partnership between the HOA and the community to maintain safety.

6. Consult Legal Counsel

If your HOA is unsure about its responsibilities or how to implement these steps, consult an attorney experienced in HOA law. Proactive legal advice can help reduce risk and ensure compliance with applicable regulations.

Lessons from the Case

This $650,000 settlement underscores how expensive negligence can be. By implementing regular maintenance schedules, prioritizing safety improvements, and ensuring proper insurance coverage, HOAs can mitigate these risks. Taking proactive measures is not just about avoiding lawsuits; it’s about creating a safe and welcoming community for all residents.

We have written previously on the litigation of homeowner association cases. Generally, homeowner associations can file a lawsuit in the General District courts to enforce collection of assessments. However, If an HOA needs to enforce a covenant, seeking an injunction to require a homeowner to comply with the restrictive covenant, as of 2011, the HOA must file a lawsuit in the Circuit Court can now file a lawsuit in the General District Court, as well. Virginia Code sections 55-79.80:2, and 55-513 give jurisdiction for those matters to the General District Court. Those lawsuits can be expensive and time-consuming.

Continue reading “Enforcing HOA covenants important for common interest communities”

Virginia became one of the latest states to pass legislation limiting the use of employee noncompete agreements. Beginning July 1, 2020, certain noncompete agreements are prohibited by statute. This blog post examines that statute and what it means for employers and employees.

I have often been struck by how much business counseling and marriage counseling can be alike.  “He said he was really good at marketing and was going to handle all the sales.  We haven’t seen a worthwhile sale in months.  All he does is drive around, I GUESS making sales calls, but mostly just spending money.”  “She said she was going to keep the books and handle the personnel issues.  I didn’t know that meant a row of shoe-boxes full of receipts and employee turnover at seventy percent!  This place is a disaster!”  “Turnover is at seventy percent because we don’t have enough sales to keep anyone employed.  If you did your job, then maybe I could do mine.”

Starting a Business

He said, she said.  And so it goes.  It is estimated that fifty-five percent of all first marriages fail and approximately 56% of new businesses fail within four years.  Here are some of the reasons most often given for start-up business failures.

Continue reading “How is starting a business like getting married?”

Clients sometimes come to us with disputes regarding real estate litigation matters involving boundary line and easement encroachments. We provide legal advice and counsel, trying to balance your real estate rights with neighborly harmony, always looking to avoid a lawsuit when possible.

Easements provide a broad range of legal rights and obligations. In a fairly recent Virginia Supreme Court case, Snead v. C&S Properties Holding Company, a landowner blocked access to a validly recorded easement. The easement holder filed a lawsuit, asking the court to order the obstruction removed. The Virginia Supreme Court ordered the fence removed, concluding that “a significant portion of the easement would be rendered unusable for ingress and egress if injunctive relief were denied.”

I read a recent article in the ABA Journal that differentiated between the teaching of “issue spotting” versus “problem solving” in law schools. This article strikes at the core of the services we provide as attorneys. We believe firmly that although it is our responsibility to help identify potential issues that you may face, our legal advice is fully realized when we help you solve your problems.

Continue reading “What Should You Expect From Your Attorney?”

In conversations with clients, it seems that people misuse the terms “mediation” and “arbitration” more than most other legal terms. Although I do not have any empirical data, my educated guess is that many businesses and construction contractors (who did not depend upon advice given by an experienced business attorney) insert “arbitration” clauses into their contracts thinking that they mean “mediation.” Some transactions involving the sale of real estate include an arbitration clause. Countless times, clients involved in a potential lawsuit point to the “arbitration” clause, and are disheartened when I explain to them the arbitration process. Many thought they were avoiding the potential high costs of litigation. These terms are NOT interchangeable and in this blog post I will explain the basic differences between them.

Continue reading “Mediation and Arbitration – There is a big difference”

The enforcement of covenants, conditions, and restrictions (“CC&R’s”) is among the most criticized of the duties performed by the Board of Directors of community associations, but is also the most important responsibility. CC&R’s govern many activities in a community including house designs, parking regulations, maintenance and repair of the common areas, and collection of assessments. Sensational “Gotcha” type news stories highlight enforcement practices of some associations, which contribute to a false perception that associations in general lack common sense. However, studies repeatedly show that the overwhelming majority of people  living in neighborhoods governed by HOAs believe that the rules in their communities benefit them.

Continue reading “Benefits of HOAs Part 2: How is Covenant Enforcement Good for Owners?”

We frequently are asked whether volunteer board members can be civilly liable for actions taken while a board member. This issue is of serious concern because lawsuits tend to be over inclusive, naming every possible defendant in the initial complaint. Why sign up as a volunteer board member if it could bankrupt you?

Continue reading “What Does It Mean to be on the Board of Directors of your HOA? Potential Liability (Part 2 of a Series)”

Though the majority of businesses in the United States are sole proprietorships, those of you who read an earlier post know that I recommend, for a myriad of good reasons, that an entity of some kind be placed between a person doing business and the rest of the world. Find an experienced business attorney to help establish your business entity.

In this post, I address briefly the general partnership form of business entity, the only form I consider more dangerous to the financial health of an individual than the sole proprietorship.  Why, you ask?  Because with the sole proprietorship, the sole proprietor is personally liable for the acts of the sole proprietor, the business and the business employees.  In the general partnership, the partners are personally liable for the acts of the business, the employees and each other.  What partners do can be fairly unpredictable, like contracting to purchase or lease things that cannot possibly be paid for out of the profits of the business, or like contracting to do that which cannot possibly be done profitably.

Continue reading “General Partnerships, The Way To Go . . . Financially Under”

We blogged previously about finding guidance in Virginia’s rules on the unauthorized practice of law as they pertain to community associations. In this post, we will review Virginia opinions that address whether certain work performed by managers is the unauthorized practice of law (“UPL”).

Continue reading “Part 2 on Virginia’s Unauthorized Practice of Law Rules and HOAs – What is considered the unauthorized practice of law?”

Everybody who applies for a PPP loan must certify under oath that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Undoubtedly, all of our local businesses who have applied and who made that certification thought there was NO DOUBT that the economic uncertainty was obvious and evident.

But then it came to light that many publicly traded companies and larger private companies applied for and received PPP loans. Although those companies technically qualified for the PPP loan, there is no doubt that the CARES Act was not intended for entities like Shake Shack and the Los Angeles Lakers.

So to address these issues, the SBA offered more pointed guidance to dissuade these types of companies from applying for the loans. But the ambiguous guidance proposed in the interim rule applies to everybody who applies for a PPP loan, including a sole proprietor. In this post, I hope to provide you some guidance to help you “paper your file” supporting certification of need, which you may need when you apply for loan forgiveness, 8 weeks after receiving your loan proceeds.