Community Associations Update - Fall 2007

Date: November 20, 2007

Lessons To Be Learned
A recent injunction case tried by our firm offers a number of important reminders for community association boards of directors, officers, and managers.
By: Raymond J. Diaz

In Michele Forrest v. Daniel Heily and Tysons Court Association, Inc., Fairfax County Circuit Court Judge Marcus Williams found that Daniel Heily, the board president, and the Tysons Court Association, Inc., acted wrongfully and illegally in their efforts to force Michele Forrest (a unit owner and member of the Association) to change the color of her front door. The judge also found that the color of the door was compliant with a vote by Association members.

Based on these conclusions, Judge Williams enjoined both defendants from attempting to impose charges or other sanctions against Forrest because of the color of her front door and enjoined them from interfering with her use of the common areas and assigned parking spaces. The Court granted Forrest a judgment for the entire amount of her attorneys' fees and costs in the litigation which exceeded $22,500.

In 2002, Forrest refurbished her townhouse and replaced her front door with a white Anderson door. The board of directors told Forrest that white front doors were unacceptable and asked her to paint it. Forrest agreed to do so.

At that time, the Board had not identified any particular colors as acceptable and told Forrest only that the door color should be "earth tone" and "harmonious." Consequently, Forrest painted her door a color that she believed was the same or similar to the colors of a number of other doors in the community. The Board disagreed and insisted that the door be repainted.

Four months later, the board of directors adopted a palette of acceptable colors and sent a memo to all owners with samples of the acceptable colors attached. Many of those samples appeared to be the same or nearly the same as Forrest's door color.

Forrest refused to repaint her door unless owners of other townhouses with noncompliant doors and windows were also required to repaint. This was unacceptable to the board of directors.

Although neither the Association governing documents nor any rule or regulation adopted under the governing documents permitted the imposition of charges for covenant violations, the board of directors imposed charges against Forrest totaling $975. The charges were imposed without providing Forrest the statutorily-mandated notice and opportunity for hearing. When Forrest brought these shortcomings to the attention of the board, the board threatened to file a lien on her townhouse unless she paid the fine and repainted her front door.

When Forrest did not meet this demand, the board filed a lien against her home with Fairfax County. The board also advised her that since she had not paid the fine, her right to use the two parking spaces assigned to her was revoked and her car would be towed if she parked on the common property. When she tried to use her parking spaces, the board attempted to tow her and Forrest had to begin parking some distance from her home.

The board of directors offered Forrest a "settlement." They proposed to release the lien and let her use her parking spaces if she repainted the door, and paid the $975 in charges and $5,000 in attorney fees incurred by the board. She was also asked to agree not to file a lawsuit about the matter. Not surprisingly, Forrest refused the settlement offer.

Later, at a special meeting of the members of the Association, the members voted 16 to 10 to allow white doors and white windows (the board claimed Forrest's door was white) as acceptable within the community. The board members present declared that those owners whose homes had white windows or doors had a "conflict of interest." Consequently, the board refused to recognize the votes that had been cast by six of the owners. The motion to allow white windows and doors did not pass.

A Turn for the Worse
This was the stalemate that existed at the time the defendant, Daniel Heily, was elected president. Based on a board resolution authorizing him to take legal action to cause Forrest to change the color of her front door, he warned her that he would file suit against her; she would be responsible for the board's legal fees; and, if she did not pay, he would foreclose against her unit. He also communicated that, under the governing documents, he had to report the matter to her mortgage company and that a judgment and foreclosure would affect her credit rating.

Next, Heily (a non-lawyer) sent Forrest a draft "notice not to trespass" and a draft lawsuit that he had prepared. The notice not to trespass prohibited Forrest from using her parking spaces or trespassing on the common areas owned by the Association, including private streets. In effectively prohibiting her from accessing her home, this prohibition violated the provisions of the Virginia Property Owners Association Act. Violation of a notice not to trespass is a criminal violation, and it exposes one to criminal fines and a possible jail sentence.

At this point, Forrest engaged our firm. We wrote to Heily warning him that his actions were unlawful and not permitted under either the Property Owners Association Act or the Association's own documents. We even urged him to consult with an attorney before taking the steps he threatened. Heily faxed a message to us indicating that he was going forward and, if Forrest trespassed on the common area, he would have her arrested. Heily filed a lawsuit in the Association's name against Forrest.

When the sheriff served the no trespass notice on her, our firm filed suit on her behalf against the Association and against Heily for a temporary and a permanent injunction and for an award of her attorneys' fees. At the hearing on the temporary injunction, Heily represented himself and sought, but was not allowed, to represent the Association. The Court entered a temporary injunction enjoining the Association and Heily from interfering with Forrest's use of the common areas and her parking spaces. A trial date on the motion for a permanent injunction and attorneys' fees was set for September 17, 2007.

By the date of trial, the Association's directors and officers insurance company had assigned counsel to represent the defendants. The insurance company defended the case under a reservation of rights. (That is, the insurance company indicated that it might not have an obligation to pay any amounts that the defendants were found to owe to Forrest for her counsel fees.) After the finding that the defendants had acted illegally and wrongfully, the insurance carrier concluded that it was not obliged under its contract to pay the awarded attorneys' fees. Consequently, the Association will have to find a means of paying the fees. Since there are only 47 townhomes in the community, paying these fees will represent a significant burden on all members of the Association.

1. Be sure that your governing documents expressly permit the adoption and enforcement of architectural standards before trying to impose any standards on the homes in your community.
2. Adopt clear standards with respect to what features and colors are acceptable, and publish them widely and often to all owners.
3. Consult with an experienced community association lawyer before attempting to impose fines or sanctions.
4. Be certain that, in any covenant enforcement matter, you comply strictly with the due process requirements of the association's documents and applicable state law.
5. Do not allow a covenant matter to become a battle of wills between the board and a member in which correction of the violation itself is no longer the sole objective.
6. Do not allow any board member to act as the board's legal counsel, even if licensed, as it is difficult for a board member who is personally engaged in a dispute to remain objective.
7. Do not invoke criminal laws to obtain a civil objective, even an objective permitted under the governing documents.
8. Do not ignore warnings that your actions are not permissible, and do consult with a community association lawyer before taking any enforcement steps that have legal consequences.

Virginia Supreme Court Sets New Law on Encroaching Trees and Plants
By: Edward J. O'Connell & Thomas Mugavero

The Virginia Supreme Court has ruled that a landowner can sue his or her neighbor to force the neighbor to remove a tree that is damaging the landowner's property, overruling the Court's 1939 decision in Smith v. Holt. This is a significant decision because it impacts how community associations will have to look at covenant violations as well as common area property maintenance and landscaping issues involving trees and plants.

Since 1939, the law in Virginia has been that a landowner is limited to a self-help remedy (i.e., trimming tree branches or roots that crossed a property line) when the branches and roots of a tree or plant on adjoining property intruded on the property of the landowner. This is true even when a nuisance exists unless the landowner could show that the trees and plantings were "noxious" and caused "sensible injury" on the landowner's property. The Virginia Supreme Court on September 14, 2007, in the case of Fancher v. Fagella, overruled its prior decision in Smith v. Holt to the extent it requires that a landowner show that trees and plantings on the adjoining landowner's property are "noxious" and caused "sensible injury" on the landowner's property.

Briefly, Mr. Fancher and Mr. Fagella are neighbors who live in a townhouse subdivision in Fairfax County, Virginia. There is a large sweet gum tree growing on Fagella's property. Fancher sued Fagella alleging that the tree, whose roots had spread onto Fancher's property, is damaging a retaining wall, patio, plumbing, and the foundation. Fancher contended at trial that he had tried to use self-help by repairing the damages to the retaining wall and the foundation of the house, as well as trying to cut back the overhanging branches, but these steps were ineffectual because of the continuing expansion of the root system and branches. Fancher asked the Fairfax County Circuit Court to require Fagella to remove the tree and its invading root system entirely, as well as pay for the damage to his property.

The Circuit Court denied Fancher's request on the based of the 1939 decision of the Virginia Supreme Court's decision in Smith v. Holt, leaving Fancher with the only option of continuing to try to cut back those branches and roots that grew onto his property. Under the new rule of law adopted in Fancher, the Supreme Court did away with the "noxious" standard, which the Court described as an unworkable standard for determining rights of neighboring landowners, and imposed a nuisance standard for evaluating tree and plant encroachment (i.e. trespass) issues. Under the new standard, where "encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property...the owner of the tree or the plant may be held responsible for harm caused to the adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance."

The Supreme Court remanded the case back to the Circuit Court for further proceedings consistent with its decision in Fancher. We will continue to monitor the case.