Quorum — June 2017

Washington Metropolitan Chapter Community Associations Institute

JUNE 2017

A Magazine for Community Association Volunteer Leaders, Professional Managers and Business Partners

ALSO IN THIS ISSUE

____________________________ You Are My Sunshine ____________________________ All I Want is Some Peace & Quiet ____________________________ The First 100 Days

How can we serve you? What makes us the Washington DC area’s residential property management leader? Value-added services, proven solutions, industry-leading expertise and best-in-class service with a local touch. The result? Enhanced property values and lifestyles for every community and resident we serve. That’s how we make a difference, every day, for great communities like yours… · High-Rise & Mid-Rise Buildings · Condominium & Homeowner Associations · Large Scale, Lifestyle & Active Adult Communities

Proudly Serving Washington DC Area Communities for 35 Years

11351 Random Hills Road Fairfax, VA 22030 703.385.1133 www.fsresidential.com Making a Difference. Every Day.

2 | Quorum­

JUNE 2017

­CONTENTS 12 Strategies for Surviving the Covenant Amendment Process

BY TIFFANY RELEFORD, ESQ. BY STEVE RILL

14 Dissecting Covenant Enforcement Cases BY KIMBERLEY M. O’HALLORAN-PEREZ, ESQ.

16 When Covenants Aren’t Enforced... BY OLGA TSELIAK, ESQ.

18 Flagging It Down: How Flags Can Be Regulated by Associations BY SAM WIEST, ESQ.

20 Trees in Our Communities: The Not So New Virginia Rule Under Fancher V. Fagella BY LUCIA ANNA “PIA” TRIGIANI, ESQ.

DEPARTMENTS AND MORE 5 Message from the Executive Director 6 Chapter Benefactor: Berman & Wright Architecture, Engineering & Planning, LLC. 6 Quorum Magazine Editorial Calendar 7 Welcome New Members 7 Chapter Benefactor: Finley Asphalt and Sealing 8 Upcoming Events 10 People & Places 19 Event Flyer: Summer In the City Happy Hour 25 Event Flyer: Rookie Manager Essentials 33 Event Flyer: 2017 Golf Classic 36 Classifieds 37 Index to Advertisers 38 Cul-de-sac: Oh, How I Love Covenants!

22 You Are My Sunshine: Clotheslines and Solar Panels in Community Associations BY RUTH O. KATZ, ESQ.

24 All I Want Is Some Peace & Quiet

BY CHRISTOPHER W. CARLSON, P.E., SECB

26 Covenants: Wisdom Through Experience

BY SCOTT GREGES, CMCA, AMS

28 Ham Radio Legislation Update: H.R. 555 Pending Senate Review

BY RICHA FORTUNA, ESQ.

30 The First 100 Days

BY ARIANA BEALL, CMCA, AMS

32 Wellness Checks...Another Tool in Your Management Tool Belt.

BY CRISHANA L. LORITSCH, CMCA, AMS, PCAM

34 When Keeping Your Community Uniform Goes Wrong

WMCCAI MISSION STATE­MENT To optimize the operations of Community Associations and foster value for our business partners.

BY NICOLE WILLIAMS, ESQ.

Reader comments and suggestions are welcome. Address your comments to: Quorum 7600 Leesburg Pike, Suite 100 West Falls Church, VA 22043

We also wel­come ar­ti­cle sub­mis­sions from our ­members. For author guide­lines, call (703) 750-3644 or e-mail publications@caidc.org. Articles may be edited for length and clarity. JUNE 2017

|3

President Bruce H. Easmunt, ESQ. President-elect Sarah Gerstein, CMCA, AMS, PCAM Vice President Rafael A. Martinez, CTP Secretary Michael Gartner, ESQ. Treasurer Airielle Hansford, CMCA, AMS, PCAM Immediate Past President Jeremy M. Tucker, ESQ. (ex officio) Executive Director Jaime Barnhart, CMP (ex officio)

D IRECTORS Gordon Boezer, Thomas Burrell, Dorothy Firsching, PMP, Kristen Melson, CMCA, AMS, PCAM, Ted Ross, Todd A. Sinkins, ESQ., Elizabeth Schultz, CMCA, AMS, PCAM, John Tsitos, CMCA, AMS, PCAM, and Stephen Wright, CMCA, AMS, LSM, PCAM

CO U N C I L C HAI R S Communications Council Crishana Loritsch, CMCA, AMS, PCAM Education Council Jennifer Bennett, CMCA, AMS, PCAM Member Services Council Ruth Katz, ESQ.

CO MM I TTE E C HAI R S Conference & Expo William Cornelius and Donna Aker, CMCA, AMS, PCAM D.C. Legislative/LAC Jane Rogers, ESQ. Education Kevin A. Kernan, ESQ. and James Santos, CMCA, AMS Golf Elizabeth Rudolph, AMS, PCAM and David Crone, CMCA, AMS Maryland Legislative Thomas Schild, ESQ., CCAL Outreach Lenard Goldbaum, AMS, PCAM and Sara Ross, ESQ. Membership Joe Inzerillo and Jarold Martin Quorum Editorial Susan L. Truskey, ESQ. and Nicole Williams, ESQ. Chapter Events June Chulkov and Bernie Guthri, CMCA, AMS, PCAM Virginia Legislative Ronda DeSplinter, LSM, PCAM and William A. Marr Jr., ESQ.

QU O RUM Managing Editor Diane Sohn, dsohn@caidc.org Contributing Editor Rickey Dana Design Six Half Dozen

QU O RUM E DI TORI AL CO M M ITTE E Co-chairs Susan L. Truskey, ESQ. and Nicole Williams, ESQ. Members Beverly Alston, James Anderson, Noel Arevalo, CMCA, Sarah Auringer, Mira Brown, CMCA, AMS, Leslie Brown, Chris Carlson, PE, Deborah Carter, CMCA, AMS, PCAM, Sara Castle, Crystal Coats, CMCA, AMS, Kenny Cohn, Cheryl Crawford, Christopher Dibble, CMCA, AMS, PCAM, Bruce Easmunt, ESQ., Sarah El-Taher, Matt Gallagher, Michael Gartner, ESQ., Amy Gaynor, Sarah Gerstein, CMCA, AMS, PCAM, Rippy Gill, CMCA, AMS, Laura Goguet, CMCA, AMS, John Goins, Stephen Grant, Scott Greges, CMCA, AMS, Timothy Hipp, Mary Horner, Chase Hudson, Peter Hughes, Iman Jackson, CMCA, AMS, Shannon Junior, Ruth Katz, ESQ., Leisa Keys, Richard Kuziomko, CMCA, AMS, PCAM, Crishana Loritsch, CMCA, AMS, PCAM, Liliana Martinez, CMCA, AMS, Laura McVey, Thomas Mugavero, ESQ., Crystal Partin, CMCA, AMS, PCAM, Joycelyn Peoples, AMS, Kara Permisohn, Nicki Phenneger, Christine Rudert, Brandi Ruff, CMCA, AMS, PCAM, Lauri Ryder, CIC, CRM, CMCA, Scott Silverman, Mark Smith, Chelsie Throckmorton, Olga Tseliak, John Tsikerdanos, Ron Unger, CIC, Kim Veirs, Lee Ann Weir, CMCA, AMS, Doug White, Samuel Wiest, Lakisha Williams, Aimee Winegar, CMCA, AMS, LMS, PCAM, Jim Wisniewski, Kelly Young, Michael Zupan, ESQ. Washington Metropolitan Chapter Community Associations Institute, a 501(c) (6) organization, serves the educational, business and networking needs of the community association industry in 80 cities/counties in Maryland, Virginia and the District of Columbia. Members include community association homeowner volunteer leaders, professional managers, association management companies, and other businesses and professionals who provide products and services to planned communities, cooperatives and condominiums. WMCCAI has more than 3,000 members including 300+ businesses, 1,100 professional managers from 85 management companies, and approximately 1,500 community association homeowners. WMCCAI is the largest of Community Associations Institute’s 62 chapters worldwide. Quorum is the award-winning premiere publication of WMCCAI, dedicated to providing WMCCAI’s membership with information on community association issues. Authors are responsible for developing the logic of their expressed opinions and for the authenticity of all presented facts in articles. WMCCAI does not necessarily endorse or approve statements of fact or opinion made in these pages and assumes no responsibility for those statements. This publication is issued with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services and nothing published in Quorum is intended to constitute legal or other professional advice and should not be relied on as such. If legal advice or other expert assistance is required, the services of a competent professional should be sought directly by the person requiring such advice or services. Articles appearing in Quorum may not be reprinted without first obtaining written approval from the editor of Quorum. In the event that such permission is granted, the following legend must be added to the reprint: Reprinted with permission from Quorum™ magazine. Copyright 2017 Washington Metropolitan Chapter Community Associations Institute. Quorum is a trademark of WMCCAI.

A NEW CHAPTER FOR THE CHAPTER Summer is here! The kids are out of school. The D.C. humidity is back — I’m not sure anyone missed it, but it keeps coming back! Vacations are marked on the calendar, and the beach is calling your name. June is such a great month of fun and sun and also transition — the theme of the Chapter’s year. As you are relaxing at the beach or by the pool, the Chapter staff is busy. The calendar here is light — the education and networking events schedule comes back in the fall — but that doesn’t mean we are not busy behind the scenes this summer! In fact, we are working on some major projects.

FROM THE EXECUTIVE DIRECTOR

O FFICE R S

For the last two months, the Chapter office was a temporary office with staff working out of boxes and surrounded by memories of the past 40 years at WMCCAI. When packing up the old Suite 100 West, staff discovered boxes of old chapter photos — 1990s charity days, 1980s education sessions, and conference photos from the early 2000s just to name a few. On my desk is the 1978 Member Directory for the Washington Chapter, found deep in a box in the storage room. Flipping through that member directory shows how much the Chapter has grown and also how dedicated our members are to the Chapter — more than a couple of companies listed in 1978 are still on our member list today. We aren’t only changing our physical space but also our online presence. The new chapter website will be unveiled this month. This site makes it easy to find the latest industry news, read past (and current) Quorum articles, and get involved in Chapter events. Visit us online and let us know what you think of the new www.caidc.org. Have you seen the updated staff list? With staff departures come new arrivals. Our new communications manager and new event manager started during the spring, and both have hit the ground running. Look for our new staff members at committee meetings and chapter events — they (and all of us) would love to meet you. My first 90 days as the executive director were filled with coordinating the office move and renovation, completing a website overhaul, and hiring two new managers, including my replacement in the event manager position. I want to thank the Board of Directors, members and staff for the amazing support and encouragement during these transitions. We, as a staff and chapter, are successful because of the incredible encouragement of our members. The spring was full of change at the Chapter. This summer is about showcasing these changes. We can’t wait for you to experience the new chapter of your Chapter!

JAIME BARNHART, CMP Jaime Barnhart, as the chapter’s executive director, is responsible for implementing the organization’s mission and goals, and managing its staff. Jaime has worked in non-profits/associations in the D.C. Metro area for over 12 years focusing on program management, events and trade shows, and marketing. She joined WMCCAI as the events manager in 2015.

Receipt of Quorum is a privilege of WMCCAI membership for which $65 in nonrefundable annual dues is allocated. The subscription price for nonmembers is $75 per year; contact publications@caidc.org or call (703) 750-3644. To advertise in Quorum, e-mail publications@caidc.org. For more information about Quorum or WMCCAI, visit www.caidc.org.

JUNE 2017

|5

CHAPTER NEWS

C H A P T E R

B E N E F A C T O R

Berman & Wright Architecture, Engineering & Planning, LLC. Mark Harris Berman, A.I.A. or Ronald E. Wright, P.E. Address: 1600 South Joyce Street #1111 Arlington, VA 22202 Telephone: (703) 746-9746 Toll Free: (844) 332-3854 Fax: (910) 256-0771 E-mail: MBerman@BWaep.com - RWright@BWaep.com info@BermanWright.com Website: www.BermanWright.com Year Established or Incorporated: 2004 CAI Member Since: Feb 2012 Certificate of Insurance: Yes Bonded: No Areas you serve: District of Columbia, Virginia, Maryland Corporate Associations: • AIA –­­American Institute of Architects • ASCE – American Society of Civil Engineers • AISE – American Society of Iron and Steel Engineers • ASID – American Society of Interior Designers • ICC – International Code Council • ASTM – American Society for Testing and Materials • NIBS – National Institute of Building Sciences • CAI – Community Associations Institute • AH&LA – American Hotel & Lodging Association • AAMA – American Architectural Manufacturers Association • ACI – American Concrete Institute • ICRI – International Concrete Repair Institute • CSI – Construction Specification Institute • NFPA – National Fire Protection Association • NRCA – National Roofing Contractors Association • WCA – Waterproofing Contractors Association

Licenses Held: • Registered Architect • Professional Engineer • Professional Planner • Certified Interior Designer • Certified Professional Estimator Company Philosophy: Berman & Wright Architecture, Engineering, & Planning, LLC, is focused on helping our clients understand how their buildings and facilities are built; identifying construction issues and deficiencies that can affect their properties and cause damages; and recommending and implementing the methods for resolving their problems. Our strengths lay in our ability to document, define and provide proven support of claims for design and construction defects matters. Far too often building deficiencies arise because of “cut corners” and unforeseen, under-evaluated, or unaddressed design, coordination and construction issues. When these problems arise, clients turn to Berman & Wright for building design, diagnostic, forensic and expert witness services to assist in the resolution of the issues, in whatever form that may take. Berman & Wright’s expertise spans a broad range of disciplines as we can provide a full-service partnership for architecture, engineering, and planning. Our organization’s culture and the services we deliver are shaped by our individual professionals and their passions.

Services Provided: • Building Diagnostics, Forensic Investigations, Expert Witness Services • Transition Analysis, Professional Cost Estimating • Construction Administration and Project Management • Design Architecture, Engineering & Planning QUORUM MAGAZINE EDITORIAL CALENDAR

Month Theme July Legislative Update August Annual Meeting Review September Budget/Finances October Parking November Social Media *Themes subject to change.

6 | Quorum­

Article/Submissions Ads Due Due May 1 May 17 June 1 June 17 July 1 July 17 August 1 August 17 September 1 September 17

CHAPTER NEWS

Welcome New Members WMCCAI proudly welcomes the following members who joined the Chapter in April 2017. Community Association Volunteer Leaders from the Following Associations Harbour Square Owners, Inc. Kenwood Condominium Snowdens Mill Homeowners Association, Inc. Williamsburg Square Community Council Corporation Business Partners ASU Commercial Cleaning Services, Inc. Christian Siding, LLC Christos Building Services Future Generation Tech, Inc.

C H A P T E R

Individual Managers Jason Bollech, The Westchester Corporation John Corriher Michael Epps, Chantilly Park Condominium Association Lisa Gentry, Gates Hudson Community Management, AAMC Teresa Harrington, Vanguard Management Associates, Inc., AAMC Kim Hendon, CMCA, AMS, TWC Association Management, AAMC Jennifer Lynch, Cardinal Management Group, Inc., AAMC Alexandra H. Mizerek, Lakeside Plaza Condominium Jeneice White, Sequoia Management Company, Inc., AAMC Gloria Williams, Gates Hudson Community Management, AAMC

B E N E F A C T O R

Finley Asphalt and Sealing P.O. Box 1710 Manassas, VA 20108 Phone: (703) 830-2309 Fax: (703) 330-6023 Founded in the greater Washington, D.C., metropolitan area as The Finley Paving Company in 1965, Finley Asphalt and Sealing has a well-earned reputation for over five decades as a major commercial contractor of asphalt, concrete and incidental services. Serving the D.C. metro area and reaching as far as Baltimore, Md., and Richmond, Va., Finley’s mission is to provide customers with the finest in asphalt, excavation and concrete services and to give superior value to customers in the Finley family tradition of strong work ethic and quality assurance, backed by a 100 percent guarantee. With state-of-the-art equipment and more than 160 highly skilled employees, this family-owned business can perform small projects or large projects with trusted expertise and unsurpassed customer service. In addition, Finley never uses subcontractors to perform the asphalt work, ensuring both a quality job and the ability to control the scheduling.

• New Asphalt Construction • Asphalt Repair • Milling • Asphalt Paths/Trails • Recreational Paving • Excavation & Grading • Drainage Improvements • Sidewalks • Curb & Gutter • Concrete Repair • Seal Coating • Striping & Signs • Parking Lot Expansion With an unrivaled combination of family, passion, expertise and experience, it’s no wonder so many customers have come to rely on Finley Asphalt and Concrete. Finley is offering a brand service that will help you to identify and resolve your community’s asphalt and concrete needs more efficiently and effectively! Visit our website at finleyasphalt.com to request a free property assessment.

From stone to sidewalks, paths to parking lots, Finley’s team of experts apply the same level of attention to every service provided, including: • Asphalt Resurfacing • Stone Installation

JUNE 2017

|7

UPCOMING EVENTS

JUNE 6

Free Session Better Board Meetings 6 - 9 p.m. Penderbrook Community Association 3704 Golf Trail Lane Fairfax, VA 22033

Learn how successful boards run productive and constructive meetings. Get tips on how to structure meetings to effectively handle association business, maintain control over the agenda, handle owners’ forum, and maintain civility during discussions. Light refreshments will be served. Visit www.caidc.org to register online.

JUNE 15

Rookie Manager Essentials Understanding the Prospective and Life Cycle of a Budget 12:30 - 3 p.m. Whiteford, Taylor & Preston, LLP 3190 Fairview Park Drive Falls Church, VA 22042

Join us for an open discussion on the budgeting process and how to communicate with community association stakeholders. Lunch will be provided. Visit www.caidc.org to register online.

Early Bird After June 8 Member $35 $50 Nonmember $40 $55

JULY 25

Summer in the City Happy Hour 5 - 7:30 p.m. Penn Social 801 E Street, NW Washington, D.C. 20004

We’re bringing happy hour downtown to enjoy the D.C. summer. Drinks specials, hors d’eourves, and summer fun! Your first drink is on us! Visit www.caidc.org to register online.

Early Bird After July 11 Homeowner Member $30 $55 Nonmember $55 $80 Manager Member $30 $55 Nonmember $55 $80 Business Partner Member $55 $80 Nonmember $80 $105 SEPTEMBER 21

Save The Date The 2017 Golf Classic

Enjoy a day at the Bull Run Golf Club playing golf and networking. Not a golfer? Join us for a cornhole tournament with beverages, snacks, prizes, post-play banquet, and more. Visit www.caidc.org for more details or to register. Sponsorships are still available for both golf and cornhole events. Contact events@caidc.org.

SEPTEMBER 28

Save The Date Manager Luncheon

Join WMCAAI for lunch and networking. Learn from our experts as they discuss aging building and facilities management on September 28, from 12-3 p.m.

For more information on WMCCAI meetings or upcoming events, contact the chapter office at (703) 750-3644, email info@caidc.org or visit www.caidc.org. 8 | Quorum­

www.WindowsPls.com Licensed | Bonded | Insured VA# 2705083994 MHIC# 131916 DC PERM# 8402

Windows, Doors, Siding and Roofs for single-family

l Superior performance and excellent customer service for 27 years. l A+ Rating with Better Business Bureau.

homes, townhouses, condominiums and high rises.

Call 703.956.6172 for your personal consultation.

l We service Virginia, Maryland and DC. l We provide highly skilled and experienced installers. l Our business is 60 percent repeat and referred customers. l We offer various finance options for your home projects. l Call 703.956.6172 for your expert solution.

windows | doors | siding | roofs done right, the first time.

703.956.6172

www.WindowsPls.com

PEOPLE & PLACES

Marie Johnson Named New Principal Marie E. H. Johnson has become a principal with Chadwick, Washington, Moriarty, Elmore & Bunn, P.C., practicing in the firm’s Fairfax, VA office and focusing her practice in the area of common interest community association representation.

WMCCAI Welcomes New Communications Manager and Quorum Editor. Diane Sohn joined the WMCCAI team in April as the communications manager and Quorum editor. She has a background in association marketing, graphic design, and websites. Special thank you to Rickey Dana for her support during the transition. WMCCAI would like to wish Rickey the best of luck in her new position as the associate director of communications at the Association for Professionals in Infection Control and Epidemiology (APIC).

SOLitude Lake Management Named World’s Second Largest Distributor of AquaMaster Fountains SOLitude Lake Management ranked second largest distributor of AquaMaster Fountains and Aerators in the world. For several years, SOLitude has consistently received recognition as one of AquaMaster’s top three distributors.

10 | Quorum­

Feltenberger Appointed Senior Vice President At Barkan Management Michael Feltenberger, CMCA®, AMS®, PCAM®, a distinguished leader in the homeowner association management field and a long-time member of the Metropolitan Washington DC Chapter of the Community Association Institute, has been promoted to the position of senior vice president at Barkan Management, AAMC. Since opening Barkan’s Metropolitan Washington DC office, Feltenberger has led a drive resulting in Barkan’s tremendous growth in the region—adding approximately six thousand condominium units under management to the Barkan portfolio.

Calling All Speakers….. We want you to be a part of our education initiatives, giving your peers the knowledge and skills they need to be better managers, board members, and industry professionals! The 2018 Call for Presentations will open July 2017. Check our website, www.caidc.org, for updates later this month.

Whiteford, Taylor & Preston is pleased to announce that 13 of its attorneys listed amongst the 2017 Super Lawyers and Rising Stars in D.C. and Virginia. In Both D.C. and Virginia: • • • •

Bradford F. Englander – Bankruptcy: Business – Super Lawyers David W. Gaffey – Bankruptcy: Business – Rising Stars Christopher A. Jones – Bankruptcy: Business – Super Lawyers Andrew J. Terrell – Business Litigation – Super Lawyers

In D.C.: • • • • • •

Erek L. Barron – General Litigation – Super Lawyers C. Allen Foster – Construction Litigation – Super Lawyers Jennifer S. Jackman – Employment Litigation: Defense – Super Lawyers David R. Kuney – Creditor Debtor Rights – Super Lawyers Tiffany M. Releford – Employment & Labor – Rising Stars Brent C. Strickland – Bankruptcy: Business – Super Lawyers

In Virginia: • •

Michael E. Hastings – Bankruptcy: Business – Super Lawyers Brandy M. Rapp – Bankruptcy: Business – Rising Stars

PEOPLE & PLACES

Thirteen Whiteford Attorneys Named Super Lawyers and Rising Stars in D.C. and Virginia

Anderson Appointed to CCOC of Prince George’s County Terry Anderson, CMCA, was recently appointed to the Commission on Common Ownership Communities for Prince George’s County in Maryland. The newly formed body is the first group of its kind in Prince George’s County to act on behalf of the county providing oversight, education, and legislation in the community management industry. Terry is a valued member of the D.H. Bader Management Services team and has been in the community management industry for over 16 years. She has earned the CMCA (Certified Manager of Community Associations) designation from the Community Associations Institute (CAI).

JUNE 2017

| 11

By Tiffany Releford, ESQ. Tiffany is a partner at Whiteford, Taylor & Preston and co-chair of the community associations group. She focuses her practice on community associations in the District of Columbia, Maryland and Virginia.

By Steve Rill Steve has been working in property management for 10 years and has been working with Delbe Management since 2012. He manages several condominium associations throughout the D.C. area. Steve has been a member of CAI for several years and is working on his AMS.

Strategies for Surviving the Covenant Amendment Process

A

n association’s governing documents (i.e. declaration, bylaws, etc.) are the legal documents that guide the board of directors on how the association is being operated and managed. As time goes by, it is not unusual to find these documents are outdated and need to be amended from time to time. Amending covenants in governing documents for an association can be a challenging and time-consuming task, however, but may be necessary for a building to thrive, as well as to address current changes in building operations, legislation, etc. Below are some helpful tips for planning and surviving the covenant amendment process.

TIP #1- Selectively Determine What Needs Amending Planning is essential when it comes to amending covenants. First, review your current governing documents to determine what changes are necessary. Many associations mistakenly think they need to discard their existing covenants and adopt a whole new set of covenants, which is not always the 12 | Quorum­

case. Most covenants are salvageable with some changes. Bylaws amendments usually start with the board of directors. Often, the board initiates the first step of reviewing the covenants to determine which items are outdated or need to be changed for the betterment of the building. However, some associations may also designate this first step to a committee. Either way, there should be clear communication as to what needs to be changed or updated to make the process efficient. Any proposed language to be added or modified should be thoroughly reviewed to ensure it does not conflict with other sections or make the covenants cumbersome. Once the board or committee has made suggested changes, the draft should be sent to legal counsel for review. After the lawyer confirms that there are no issues with the proposed amendments, a copy should be circulated to all owners for consideration and comment.

TIP #2 - Use Informational Meetings Once legal counsel has reviewed the proposed changes to the covenants, the board

faces the onerous task of obtaining enough votes to pass the amendments. It is crucial that they consult with counsel and have a clear understanding of the required number of votes needed to pass the amendments, as well as any consent or notice requirements to first mortgagees or other third parties. Education of the owners is the best way to assist the board with its efforts in collecting sufficient votes to pass amendments. The board should consider holding an informational meeting to discuss the proposed bylaw changes and why they are necessary. This

Engage owners so they feel like they are part of the decision-making process. meeting should also engage owners so they feel like they are part of the decision-making process. For example, at the informational meeting, owners should be encouraged to ask questions or raise concerns they may

Prolong Pond Dredging and Save Your Community Money. Even with proactive management, all stormwater ponds will eventually become impaired due to accumulated sediment as a result of runoff. Dredging is an option, but is often the largest single expenditure a community will face. So, when the time does come to remove sediment from your lake or pond, consider hydro-raking as an effective, environmentally-friendly and economical alternative.

Learn how hydro-raking can help prolong or prevent the need for dredging:

www.solitudelakemanagement.com/hydro-rake

Restoring Balance. Enhancing Beauty. 888.480.LAKE • solitudelakemanagement.com For a full list of our superior service offerings, visit www.solitudelakemanagement.com/services

have about the amendments that were put forth. Sometimes, it may even be possible for a board to collect proxies at the informational meeting. Depending on the results from the meeting, the board will have to determine whether additional informational meetings should be held before the meeting to vote on the amendments.

TIP #3 - Carefully Schedule the Meeting Date Once there is a final set of amendments to be presented to the owners, the next step is to plan a meeting for the vote. A call to vote on the amendments can be made during a special meeting of the association, or in some cases, during an annual meeting. The board must determine what makes the most sense for the association to get the votes needed to pass the amendment. For example, if the association’s annual meeting routinely takes place close to a holiday or over the summer when owners may be traveling, it may be wise to call a special meeting at another time for optimal voter turnout.

TIP #4 - Be Deliberate When Drafting the Ballot

A poorly prepared ballot can affect whether an amendment passes. Associations usually are successful in passing amendments when the ballots are short, clear, and concise. Even if a ballot is lengthy, it should clearly state the proposed changes. The board needs to consider whether certain amendments can be paired together on the ballot as one item so that if an owner votes for one amendment, they are essentially voting for another amendment as well. This method helps if there are several amendments being proposed to the owners, or if the amendments work in conjunction with each other such that if one passes, and the other does not, the amendment would not make sense. Likewise, if some amendments are stylistic (i.e. removing terms such as, he or she throughout the covenants) and not substantive, the ballot may have one box where an owner votes in favor or against all stylistic changes. Carefully drafting your ballot will help owners understand what they are voting on.

TIP #5 - Know the Effective Date of the Amendment Assuming the amendments pass, the next action is to work with counsel to properly record the amendment. Some governing documents contain language indicating when a change becomes effective. Absent such language, an amendment may not be effective until recorded. Thus, it is imperative that the board work with legal counsel to determine when the amendment becomes effective and ensure it is recorded accurately. Once recorded, the amendment becomes part of the governing documents, and a copy of the recorded amendment with notice of its effective date should be sent to all owners. Although this process seems to be long and rigorous, it is imperative to ensure the association is successful for years to come. By following the above tips, the process can be manageable and hopefully result in a positive outcome.

JUNE 2017

| 13

By Kimberley M. O’Halloran-Perez, ESQ. Kim is a community association attorney with Rees Broome, PC in Tysons Corner, Virginia. Her practice is devoted exclusively to the representation of community associations in Maryland, Virginia, and West Virginia. Kim is also a past president of WMCCAI.

A

s a community association lawyer, I am routinely called upon for advice on how to address an unresolved violation of the community’s rules and regulations. Often the question arises after the board, or its covenants committee, has already convened a hearing and imposed monetary charges against the lot owner who has an unresolved violation of the community’s design standards or rules. In other cases, the question prompts actions of an owner who initiates significant modifications to their lot or unit without the prior written approval of the board or its committees. The exceptional cases are those where an owner preempts the association and seeks a court order that the proposed, yet unapproved, lot modification is consistent with the association’s recorded covenants. In all covenant enforcement matters, there are three common questions that I ask of the association’s board and management team before we initiate legal action against an owner on a covenant enforcement case:

1. Did the association administer the application for approval or enforcement process without any errors? As part of the initial assessment of any unresolved covenant enforcement case, we ask management or the client for copies of all the correspondence that has been exchanged with the affected owner. During this review, 14 | Quorum­

we confirm that: a) applications for lot or unit modifications were complete and consistent with the current design standards; b) all email correspondence and letters were sent to the correct addresses; c) enforcement letters were sent via certified mail when required by statute (and ideally by regular first class mail as well); d) all enforcement letters accurately described the unresolved violation and the corrective action that would bring the lot or unit into compliance; e) all letters were sent within the required timelines established in applicable statutes or the association’s documents; and f) the penalties imposed to date, if any, are consistent with the statutes, the recorded covenants, and were applied in a reasonable manner. In an ideal world, the data that we receive from management or our clients on a covenant enforcement matter would always be very well documented and accurate. Unfortunately, we live in the real world where it is all too common when neighbors are working in a volunteer capacity, or when managers rely too strongly on formulaic documents, that mistakes happen. As an example, our firm recently litigated a covenant case where the handwritten notes on an application for approval were in dispute. To be helpful, the covenants committee chairperson added handwritten notes to a pending application for approval that was later disputed by the owner. In ruling that the owners were entitled to keep their unapproved lot modifi-

cations, the court held that the burden is on the association, not the owner, to properly document each of its actions on a pending application for lot modifications. In your community, if an application is incomplete, is your management team writing a letter to advise the homeowner of the data that is missing from the application? If not, the owner may claim that their application has deemed approved by the association if the recorded covenants provide a finite timeline for the association to review applications for a unit or lot modifications. Another common area where the enforcement process can fail involves the timing of the association’s hearing and outcome of hearing letters. If the hearing notice letter is off by a day or two, the owner may be able to challenge the ultimate hearing result.

2. Are the rules being enforced by the association easy to understand for a non-resident? One of the best ways to test a rule is to ask someone who is entirely unaffiliated with your board or covenants committee if the rule makes sense to them. If not, then consider the difficulties of explaining the rule to a judge in court.

WHO WE ARE

Our firm recently litigated a case against an owner who called in an expert to define where the rear of their lot ended. Thankfully, the client’s design standards defined the term “rear of lot” so that the judge could easily overrule the need for the expert testimony, which resulted in a shorter trial.

3. Are other options outside of court action feasible to resolve the violation? Litigation of any kind is, by its very nature, uncertain and expensive. For these reasons, I like to explore with my clients what alternatives to litigation may be feasible and consistent with the association’s recorded covenants. Is the lot or unit modification that was not approved consistent with the design standards? If so, is there a way to work with the owner to complete an application and document the modifications after the fact so that the lot or unit is compliant.

SIGMA Real Estate Services is a residential property management company that delivers superior service by applying the latest technology, excellent customer service and the benefits of its 25 years of experience.

WHAT WE DO • Condominium Management • Cooperative Management • Homeowner Associations • Multifamily Rentals

In some instances, using the association’s right-of-access onto a lot is a cost-effective enforcement remedy. However, using this self-help remedy is only to be considered after consultation with legal counsel, as there are numerous pitfalls, particularly, if the owner of the lot or unit has threatened a breach of the peace in the past. Self-help is also out of the question when the work involved is extensive such as roofing repairs, replacement of structural components, and deck or siding repairs. For very challenging covenant enforcement cases, I am also a proponent of non-binding mediation of the dispute. In most cases, mediation requires the agreement of both parties to the dispute, but it can be effective at finding a middle ground and avoiding the expense of court action. Even routine covenant enforcement cases, if contested by the owner, take at least two days to litigate. A full or half day mediation may result in a settlement agreement. If not, it will allow both parties to gain valuable insights into the mindset of the other party that may be useful in a trial setting.

CONTACT US 877-744-6201 NY: 1440 Broadway, New York, NY 10018 MD: 8911 60th Ave. College Park, MD 20740

info@sigmares.com CAI

NAA

NYARM

NARPM JUNE 2017

| 15

By Olga Tseliak, ESQ. Olga is an associate attorney with the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn P.C. Her practice is devoted to community association representation, including such matters of covenant interpretation and enforcement, contract law, and collections. She is an active member of WMCCAI’s Quorum Committee.

W

hy do we need restrictive covenants? And why enforce them? What happens when the covenants aren’t enforced? Drive through a few older neighborhoods in suburban or semi-rural Virginia or Maryland, and you will have the obvious answers to these questions. Dilapidated houses, collapsing fences, and meadow-like lawns are typical signs of a community where covenant enforcement is lacking. So the purpose of covenant enforcement is innately obvious: to preserve and to promote the harmonious and aesthetic image of a community. Appearance aside, are

there other reasons for covenant enforcement? What happens when the board delays or suspends enforcement? This article provides some answers to these questions and highlights some of the common consequences of a failure to timely enforce covenants for community associations.

What is a Covenant?

Providing Insurance Solutions for _____

Your Partner in Association Insurance Griffin Owens Insurance Group has been advising property managers and board members with Association Insurance for more than 30 years. We have developed strong partnerships with leaders in the Association Industry and have a keen understanding of their unique needs. By providing professional advice and loss control services, we help our association members control costs without sacrificing protection.

703-471-0050

16 | Quorum­

When Covenant’s Aren’t Enforced

Before discussing covenant enforcement, it is important to understand what a covenant is. Legally, a “covenant” is a contractual arrangement, but the biblical history of the term “covenant” suggests a more “sacred”

CAI Chapter Benefactor Washington Business Journal Top 20 Insurance Brokers

www.griffinowens.com

kind of promise. In modern times, a restrictive covenant is a clause in a recorded document (such as a declaration or bylaws) that limits what the owner of the land can do with the property. It’s a promise that is generally enforceable by an association or the owners individually.

Over 270 Associations _____ More than 3,000 Businesses _____ More than 17,000 Families _____ Offices in Falls Church, Herndon and Manassas

Declaration of an association charges a board of directors with an obligation to enforce the restrictive covenants either by issuing demands, assessing monetary penalties against violating owners, performing “selfhelp,” or by pursuing legal remedies through the courts. What happens when the board does not fulfill its obligation?

Community Appearance and Property Values As noted above, the immediate impact of a failure to enforce architectural and maintenance guidelines is the neglected appearance of a community. On the surface, this may not seem like a massive deal. What many fail to realize is that properties located in poorly-maintained neighborhoods have much lower resale value than their counterparts located in well-maintained subdivisions. Therefore, lack of covenant enforcement not only impacts the appearance of a community but also adversely affects the property values – a very real consequence.

Legal Consequences

Practical consequences aside, failure to enforce the governing documents in a timely manner, subjects the association to defenses which could preclude enforcement both on the individual and collective cases. Such defenses include, but are not necessarily limited to the following: •

Laches. In laymen’s terms, the defense of laches (“sitting on one’s rights”) means that simply by the passage of time, the association’s rights may become unenforceable. By way of an example, imagine that a property owner builds a chain link fence in contravention to the association’s declaration, but the association does not initiate enforcement until many years later. Because of the unreasonable delay in bringing an action, the association’s claim could be seen as barred by laches.

•

Abandonment or acquiescence of violation. To establish abandonment, the defendant must show that a specific restrictive covenant has become unenforceable as a result of repeated, unopposed violations. For example, a homeowners’ association was found to have effectively abandoned the restrictive covenant prohibiting construction of any building on a lot except private dwelling houses because the association had allowed construction of numerous buildings such as pool houses, gazebos, guest houses, and sheds.

•

Waiver. This defense involves intentional relinquishment of a known right, similar to abandonment and laches, where the association has “waived” its rights by the lack of enforcement. The party relying on the waiver defense must show that the previous conduct or violations had affected the architectural scheme of the area so as to render the enforcement of the restriction of no substantial value to the property owners. While many association declarations have a provision stating that a lack of enforcement cannot be deemed as a waiver, judges do not always honor this provision if the homeowner makes a compelling case.

•

Adverse possession. In some instances, the association can lose the right of title to the portion of its common area to an encroaching property owner if the proceeding for ejectment is not initiated timely. Consider this scenario: a property owner builds a fence that encroaches on the association’s common area by several feet without permission from the association. He openly maintains physical possession of the portion of the common area to the exclusion of other AAB_Innov_Burkhammer_HorzQtrPg_120115.pdf members of the community for 15 years1 (the required period in many jurisdic-

tions). If the association does nothing to remove the trespasser, his possession can ripen into the owner taking legal title to the association’s common area. In conclusion, associations need to guard their rights closely and to implement the requisite covenant enforcement procedures to avoid the defenses noted above. Failure to do so not only affects property values and the overall appearance of communities, but may also give rise to significant defenses in indi12/1/2015 vidual5:46:30 andPM future cases.

Need a reliable maintenance partner?

We’ve got you covered!

• Interior/Exterior Painting and Carpentry • Commercial Flooring Installation • Turnkey Office and Hallway Refreshes • Aluminum and Vinyl Siding Cleaning • Wallpaper Removal & Installation

• Color Consulting • Power Washing • Caulking and Joint Replacement • Decorative Striping/Faux Finishes • Lead Paint Certified by the EPA

(703) 768-8143 - Virginia • (202) 751-2026 - Washington, DC

WILLIAMS PROFESSIONAL PAINTING williamsprofessionalpainting.com

JUNE 2017

| 17

By Sam Wiest, ESQ. Sam is an associate attorney at Linowes and Blocher LLP in the Condo/HOA practice group. He represents and advises condominium and homeowners associations, in addition to assisting developers draft governing documents for condominiums and HOAs.

FLAGGING IT DOWN: HOW FLAGS CAN BE REGULATED BY ASSOCIATIONS

H

ow and when to fly U.S. flags can be a point of contention within homeowners associations, condominiums, and cooperatives (associations). Homeowners can feel that they have a right to fly the U.S. flag—after all, it is their national flag. On the other hand, associations may want to limit the size, location, and timing of displaying the flag. Associations should be careful to comply with various laws that limit their ability to enact and enforce covenants and rules that regulate the displaying of the U.S. flag. The following is summary of the laws that limit the way associations may restrict how U.S. flags are displayed in Maryland, Virginia, and the District, as well as some federal guidelines.

Maryland In Maryland, there is a single statute—MD Code Ann., R.P. Art., § 14-128 (2017)—that regulates covenants that restrict displaying the U.S. flag in associations, and it also applies to restrictions imposed on tenants by landlords. It states that covenants and rules may not prohibit homeowners or tenants from displaying “one portable, removable flag of the United States in a respectful manner.” However, this right may be restricted by “reasonable” rules and regulations regarding (i) placement of the flag, (ii) manner of display of the flag, and (iii) the flag pole used to display the flag. Such rules and regulations may only be enacted after an open meeting is held with the homeowners or tenants in which the proposed rules and regulations are discussed. Notice of the time and place of the meeting must be given in accordance with the applicable governing documents of the association or as provided in the lease, or, failing any such relevant pro18 | Quorum­

vision, any other manner “reasonably calculated to inform the affected homeowners and tenants.”

Virginia

Virginia has separate statutes regarding restrictions on the displaying of flags in associations, found in §§ 55-79.75:2 and 55-513.1 of the Virginia Code, which mirrors one another. The statutes state that associations may not prohibit the displaying of the U.S. flag, provided the flag is displayed in compliance with federal law and “any rule or custom pertaining to the proper display of the flag.” Associations may, however, establish “reasonable restrictions” regarding the size, place, duration, and manner of placement or display of the flag, provided such restrictions are necessary to protect a substantial interest of the association. The statutes do not define what a “substantial interest” is, but they place the burden on the association to show that its restrictions are tied to a specific interest that is “substantial” enough to require a rule. Virginia does, however, specifically allow associations to restrict the displaying of the U.S. flag on common areas and common elements. Virginia also requires associations to include in their resale packages any “restrictions, limitation, or prohibition on the right to display the flag of the United States,” and if any such rule is not included in the resale package, homeowners will be able to use that lack of disclosure to defeat enforcement actions. Thus, Virginia associations must be very careful to disclose in their resale packages all rules governing the display of the U.S. flag in order to enforce them later.

D.C. and the Federal Standards D.C. has not enacted its laws on this subject, but in 2005, Congress enacted the Freedom

to Display the American Flag Act (the Freedom Act), which prohibits associations from adopting or enforcing rules or covenants that would restrict or prevent a homeowner from displaying the U.S. flag. However, the Freedom Act allows “reasonable restriction[s] pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest” of the association. Here again, the association must be protecting a substantial interest of the association, although what a valid “substantial interest” may be is not explained. In enacting rules and regulations regarding displaying the U.S. flag, associations should keep in mind the federal guidelines regarding the U.S. flag found in the Federal Flag Code, codified at 4 U.S.C. §§ 4-10. The Federal Flag Code (the Flag Code) contains guidance on when to display the flag, the proper positioning of the flag when it is displayed using different methods (e.g., the proper position of the stars when hung on a pole, on a wall, etc.), proper respect due the flag (e.g., it should never touch anything below it and should never be carried horizontally, but always “aloft and free”), etc. The Flag Code also provides some guidance on the sensitive issue of how to dispose of a flag properly after it has become worn out. The Flag Code instructs that once a flag “is no longer a fitting emblem for display [it] should be destroyed in a dignified way, preferably by burning.” The exact method or procedure for the burning is not set out, but it should be done in good taste and show no disrespect to the flag. If a party does not feel up to the task of burning the flag, he or she may contact organizations that perform the task, such as the American Legion, Veterans of Foreign Wars, Boy Scouts of America, or Girl Scouts of the United States of America. In summary, given the gravity of the U.S. flag as a symbol of our nation and the laws I’ve described here, associations should be very careful when enacting and enforcing rules regarding the displaying of the U.S. flag. When enacting such rules, associations should be very deliberate about documenting what their “substantial interest” is and how the rule enacted is specifically tailored to protect that interest.

SUMM

ER IN THE

C IT Y

HAPP Y HOU

R

What

When

Longer days means more time for networking! We’re bringing happy hour downtown to enjoy the D.C. summer. Drink specials, hors d’eourves, and summer fun will be on tap! Your first drink is on us!

July 25, 2017 5 – 7:30 p.m. Registration opens at 5 p.m.

Parking is available is garages in the area. Several Metro stops are also nearby and highly encouraged.

Where Penn Social 801 E Street NW Washington, DC 20004

REGISTRATION RATES EARLY BIRD RATE BEFORE: 7/11/17

REGULAR RATE

MEMBER

$30

$55

NONMEMBER

$55

$80

MEMBER

$30

$55

NONMEMBER

$55

$80

MEMBER

$55

$80

NONMEMBER

$80

$105

HOMEOWNER

MANAGER

BUSINESS PARTNER

Sponsor

How

Visit www.caidc.org to register

Who This event will benefit Homeowners, Managers, Business Partners

Sponsorships are available. Please contact WMCCAI at

Becht Engineering BT, Inc. www.bechtbt.com

events@caidc.org

7600 Leesburg Pike, Suite 100 West

E-mail: education@caidc.org

Falls Church, VA 22043

Web: www.caidc.org

T: 703.750.3644 F: 703.941.1740

By Lucia Anna “Pia” Trigiani, ESQ. Pia is a partner with MercerTrigiani, a member of the College of Community Association Lawyers, and past president of WMCCAI. She remains active on legislative matters, coordinating the lobbying effort on behalf of the CAI Virginia Legislative Action Committee. She has chaired the Virginia Common Interest Community Board since the Board was established in 2008.

Trees in Our Communities:

The Not So New Virginia Rule Under Fancher V. Fagella

T

rees are a sign of strength. Trees are majestic. In their strength and majesty, trees bring comfort, shade from the sun, and are a beautiful reminder of the seasons as they shed their foliage in the fall and come alive in the spring...but trees also can create controversies for community associations and for neighbors. For community associations, trees often create questions. Those questions can be about trees on common area or common elements, as well as trees on individually owned property. The changing perspective of the courts requires careful consideration of facts and circumstances in order to find answers to those questions. In 2007, now ten years ago, the Virginia Supreme Court changed the Virginia Rule addressing responsibility for damage caused by trees from neighboring properties. That rule was established in the 1939 case of Smith v. Holt.1 In a unanimous ruling on a case appealed from the Fairfax Circuit Court – Fancher v. Fagella 2 – the Court reflected on the well-established Virginia Rule, offered a survey of other state rulings on tree maintenance and responsibility, including a review of both the right of action and remedies available to landowners.

Right of Action

In Fancher v. Fagella, the Virginia Supreme Court acknowledged the changing landscape under which tree issues arise 1 2

174 Va. 213. 274 Va. 549, 650 S.E. 2d 519 (2007).

20 | Quorum­

– from a less densely populated, agrarian context to an urban context. In its analysis of the longstanding Virginia Rule, the Court reviewed the evolution of tree rules adopted in several states – Massachusetts, Hawaii, and Tennessee – as well as the rule articulated in the legal treatise, the Restatement (Second) of Torts.3 The Court’s analysis followed closely the Tennessee Supreme Court decision in Lane v. W.J. Curry & Sons 4 – but not without considering the strengths and weaknesses of the rules from these other jurisdictions. Prior to the decision in Fancher, responsibility for damage caused by a tree or other plantings was based on whether the tree or plantings were “noxious.5” The Virginia Supreme Court reasoned that continued reliance on a determination that a plant is noxious imposes an unworkable standard for determining rights of neighboring landowners. The Court observed that “the classification of a plant as ‘noxious’ depends upon the viewpoint of the beholder.” The Court overruled Smith v. Holt insofar as that case conditions a legal right of action on a determination that a plant is noxious. The Court, instead, adopted the “Hawaii Approach” articulated in Whitesell v. Houlton.6 Under the Hawaii approach, “encroaching trees and plants may be regarded as a nui§§ 839, 840 (1979). 92 S.W. 3d 355 (Tenn. 2002). 5 “In Fancher, the Virginia Supreme Court stated: “Noxious” has been defined as “Hurtful; offensive; offensive to the smell. The word ‘noxious’ includes the complex idea both of insalubrity and offensiveness. That which causes or tends to cause injury, especially at health or morals.” (Black’s Law Dictionary 1065, 6th ed. 1990.) 6 632 P.2d 1077 (Haw. Ct. App. 1981). 3 4

sance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.” The Virginia Supreme Court did not adopt the Hawaii approach without limitation; The Court concluded that “encroaching trees and plants are not nuisances merely because they cause shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground.” The Court also preserved the right to selfhelp as an alternate remedy for addressing encroaching trees. It is important to note that the holding in Fancher v. Fagella does not impact the law as the law relates to fallen limbs or trees, only encroaching trees, plants and roots.

Remedy

Granting injunctive relief (an order requiring the tree, roots, or branches be removed) rests solely on the discretion of the judge and requires a balancing of the benefit on the person seeking relief if the injunction was granted, and the injury an injunction would impose on the person who is being asked to modify conduct, as well as any burden imposed on the public. In a case involving encroaching vegetation, consideration is given to the conditions of the adjoining land and whether it is reasonable to issue an injunction. This balancing of the benefits and burdens requires an evaluation of whether the land in question is, or has been, traditionally forested or agricultural, or if it was from a situation involving adjoining residential property.

Evolution of Tree Rules Massachusetts Rule – A landowner’s right to protect his property from encroaching boughs and roots from a neighbor’s tree as limited to self help. Virginia Rule – The intrusion of roots and branches from a neighbor’s tree which are not noxious and cause no sensible injury are not actionable; landowner is limited to self help. Restatement Rule – A landowner is obligated to control vegetation that encroaches on adjoining land if the vegetation was planted or maintained by the landowner, but not if the encroaching vegetation is natural.

GREAT

PEOPLE

Committed to

YOUR Association’s

SUCCESS

Hawaii Rule – Living trees and plants are ordinarily not nuisances but can become nuisances if they cause actual harm or pose an imminent danger of actual harm to the adjoining property. Tennessee Rule – Adopted the Hawaii approach partially overruling earlier decisions that generally adhered to the Massachusetts Rule. New Virginia Rule – The Hawaii approach – The owner of a tree or plant is responsible if the encroaching tree or plant causes actual harm or poses an imminent danger of actual harm to an adjoining property. The owner may be held responsible for the harm and may be required to cut back encroaching branches or roots. The right of self-help – an adjoining landowner may at his own expense, cut away encroaching vegetation to the property line whether or not the encroaching plant is a nuisance or may cause harm or possible harm.

Conclusion

Under the Virginia Rule now in effect, Virginia community associations need to consider carefully the appropriate response to tree damage claims. An association, or any landowner for that matter, may be responsible for actual harm caused by plantings on common area or common elements. This new Virginia Rule requires community associations to be prepared and to have a plan in place to address trees in the community.

“Sentry provides expert systems, training and advanced technology that allow me to stay on top of community issues. I work hard to communicate and be responsive. Sentry brings real ‘horsepower’ to your association’s management.” – Susan, Sentry Manager

4401 Ford Avenue, Suite 1150 Alexandria, VA 22302 (703) 642-3246 northernvirginia.sentrymgt.com 602 S. King Street, Suite 400 Leesburg, VA 20175 (540) 751-1888 loudoun.sentrymgt.com

JUNE 2017

| 21

By Ruth O. Katz, ESQ. Ruth is a community associations attorney at Lerch, Early & Brewer in Bethesda, MD. She co-chairs the Chapter’s Maryland Legislative Committee and serves on the Quorum Editorial Committee. For her efforts, she has been named a “Rising Star” by both Washington Metropolitan Chapter Community Associations Institute and Maryland Super Lawyers.

Sunshine

Clotheslines and Solar Panels in Community Associations

S

pring has sprung and summer is here. Longer days allow us to spend more time outdoors, and the sun can help homeowners power their homes, dry their clothes, and grow their gardens. Community associations may be looking to their covenants to dictate if, and in what fashion, homeowners can install solar panels and use clotheslines. Associations should know that the answer may lie beyond their covenants, and an association’s power to restrict may be more limited than initially thought.

devices only if the association’s recorded declaration establishes such a prohibition. If not, the association may not prohibit solar panels, but may establish reasonable restrictions concerning the size, placement, and manner of installation.

Both Maryland and Virginia have laws relating to the installation of solar panels.

In Maryland, associations may not impose unreasonable restrictions on the installation of a solar collection system, provided that the property owner owns or has the right to exclusive use of the roof or exterior walls.

In Virginia, an association may prohibit an owner from installing solar energy collection

Again, in both states, associations should consider what is deemed an unreasonable

Solar Panels

22 | Quorum­

restriction. An unreasonable restriction may be one that significantly increases the costs of the owner’s solar collection system or significantly decreases its efficiency.

Clotheslines In Maryland, association governing documents may not prohibit a resident from installing or using clotheslines on a single-family property. Meaning that regardless of any restriction in the association’s covenants, if an owner chooses to dry their

Are Your Funds and Data Secure? OUR TECHNOLOGY PROTECTS YOUR FUTURE. Your community deserves PROTECTION. As a board member, it is your responsibility to protect your association’s future by ensuring your community funds and data are secure. You need a management company dedicated to innovative security measures and the highest standards. Our built-in redundancies and infrastructure assure your funds and confidential data are accessible and safe 24/7. That’s the Legum & Norman difference. Our Team Delivers Exceptional Service Everyday.

Delivering unsurpassed management and lifestyle services to communities worldwide.

3130 Fairview Park Drive, Suite 200 | Falls Church, VA 22042 | 703.970.8864 | www.legumnorman.com

clothes outside on a clothesline, regardless of any limitations in the governing documents, the association must allow them to do so. The law allows associations to adopt “reasonable restrictions” on the dimensions, placement, and appearance of clotheslines

Any restrictions adopted must be in an open meeting with prior notice to association residents. for purposes of aesthetic value and restrictions for protection of person or property in the event of a fire. For example, a reasonable restriction may only allow clotheslines in the backyard instead of the front yard for aesthetic purposes. Associations should proceed cautiously because if the restrictions effectively prohibit clotheslines, they likely won’t be considered reasonable. Additionally, any restrictions adopted must be in an open meeting with prior notice to association residents.

While the Virginia legislature considered similar legislation, the bill ultimately failed.

What Should Our Community Do to Ensure Compliance with Applicable Law? 1. Consult with Counsel Associations should consult with counsel on these issues. In addition to solar panels and clotheslines, there are also laws regulating restriction of satellite dishes, flags, etc. These issues are legislated in various jurisdictions making it necessary to review federal, state, and county law. It is also important for the association and counsel to review the association’s governing documents to ensure that the association isn’t enforcing provisions that run contrary to the applicable laws creating unnecessary litigation. 2. Adopt Regulations Appropriate for Your Community Regulations and restrictions placed should be considered in conjunction with the type and needs of each community. For example, in Virginia, while associations may ban

clotheslines, if demand is high and aesthetics aren’t hindered, associations may wish to allow clotheslines. In Maryland, associations should consider what is reasonable for each community, as limiting clotheslines to the backyard may be feasible to one community, but may not be practical in others. 3. Stay Updated and Informed Laws continuously change, and each legislative session brings with it bills that could further restrict an association’s ability to enforce its covenants. For example, during this 2017 legislative session in Maryland, a bill was introduced which would have limited an association’s ability to restrict backyard gardens. While the bill received an unfavorable report, these bills are on the horizon, making it important to stay informed. In addition to consultation with counsel and community managers, CAI is an excellent resource. CAI offers educational classes, and the CAI website has an advocacy section where you can find legislation, by state, on various issues, including clotheslines and solar panels.

JUNE 2017

| 23

By Christopher W. Carlson, P.E., SECB Chris has been practicing structural engineering for over 24 years and is focused on the evaluation and repair of defects on existing buildings. He is the chief structural engineer with ETC, Inc. and oversees the structural staff activities.

All I Want Is Some

E

ver have neighbors that were so noisy that you could hear every word of their conversations or loud music? What about the giants that must be living upstairs for which you can hear every thud of their footsteps? A common concern in multi-family buildings is sound transmission either between units or from common areas into units.

the thuds of foot traffic from the resident, or their pet, above are perceived to be excessive. Many condominiums have by-laws related to the percentage of the floor area that must be covered by carpet. Most carpeted floors with a good pad exceed an IIC 50 sound rating, but bare tile and hardwood floors usually do not, and can allow more sound to transmit.

Often determining what is too loud is subjective and measured by the sensitivity of our ears. The Building Code requires that demising walls and ceilings meet a Sound Transmission Class (STC) rating of 50 and an Impact Insulation Class (IIC) of 50. STC is related to airborne noise like television, speech, or music. IIC correlates to footfalls or a dog’s toenails when they impact a ceramic tile floor. Generally, at an STC rating of 50, loud talking cannot be heard, but loud music can be noticed. The Building Code required STC ratings be no less than 45, before the adoption of the 2000 International Building Code, which increased that level to 50.

There are some quantitative options available to help evaluate sound transmission between units. A review of available building plans is

Residents in concrete framed buildings usually do not have an issue with noise from upstairs, but they can have concerns with their noisy next-door neighbors. We are often asked to investigate sound transmission concerns in wood framed buildings when 24 | Quorum­

Most people are surprised to learn that no insulation was placed inside their interior wall or ceiling. usually a good place to start, as they can reveal the intended design of the floors/wall/ ceilings and their associated sound ratings. If the ratings are not provided on the plans, the construction of the walls/floors/ceilings can be compared to similar assemblies that have been tested to see how they might be expected to perform. A follow-up inspection can be conducted by cutting holes in hidden places to confirm that the actual construction

is what the drawings show. Sound testing of residences can be performed by placing a transmitter in one unit and a receiver in another to check for compliance with the building code. Manufacturers of products used to construct wall and ceiling assemblies have their materials tested in a laboratory, and then publish the STC rating results for various combinations of framing, drywall, and insulation. Most people are surprised to learn that no insulation was placed inside their interior wall or ceiling and that some assemblies can achieve the required STC rating without insulation. This is possible because much of the sound transmits through the building materials by vibration and not only the air space within the assembly. Many products are available that can be installed on floors, walls, and ceilings to reduce the offending sound transmission. There are “rubber” mats that help isolate the layers of the walls/ceilings. Some drywall panels include a special polymer coating to dampen sound transmission. Installing additional isolated layers of drywall can also be useful, but will thicken the wall or lower the ceiling. Sometimes some well-placed caulk around electrical outlets or along the base of a wall can make a significant improvement.

Reducing sound transmission can be a very invasive project as it often requires that all surfaces of the shared walls/ceilings within the entire unit be modified, meaning that the residents will have to vacate the unit for a while. As an alternative, installing sound “deadening” materials can be limited to the sleeping areas to save cost and the amount of disruption to a living space and the occupants.

Keep Current on Legal News and Trends for Maryland Community Associations!

schildlaw.com 401 North Washington Street Suite 500 Rockville, Maryland 20850

Satisfactory remediation of a sound problem can be difficult, as stopping sound can be more challenging that addressing water intrusion conditions. Our ears will perceive a reduction in noise by one-half when the STC rating is increased by about 10-points. Conversely, anything less than a 5-point change is hard for people to distinguish. Finally, any expectation that a noisy unit located within a multi-family building will become “sound proof” or resemble a recording studio after remedial work is unrealistic. Therefore, it is imperative that expectations are managed correctly. Absolute peace and quiet may not be achieved, but even the

301-251-1414 law@schildlaw.com Thomas C. Schild  Scott J. Silverman  John E. Tsikderanos

smallest reduction in noise can mean the difference between frustrated neighbors who can hardly stand one another and those who can live peaceably together. If it is evident from the onset that the association and management are working on a compromise solu-

tion that is expected to benefit all involved, it is amazing the support that you can receive from the residents. After all, they just want to be heard.

Understanding the Prospective and Life Cycle of a Budget Rookie Manager Essentials

WHEN

HOW

Thursday, June 15, 2017

Visit www.caidc.org to register

12:30 – 3 p.m. Registration opens at 12 p.m.

WHERE

This program will benefit Managers

CREDITS

3190 Fairview Park Drive

This program is worth three (3) credit hours

SPONSOR Chancellor | TRC Engineering

Lunch will be provided.

WHO

Whiteford, Taylor & Preston, LLP Falls Church, VA 22042

Join us for an open discussion on the budgeting process and how to communicate with community association stakeholders.

REGISTRATION RATES EARLY BIRD RATE BEFORE: 6/8/17

REGULAR RATE

MEMBER

$35

$50

NONMEMBER

$40

$55

JUNE 2017

| 25

By Scott Greges, CMCA, AMS Scott works at the Gates of McLean in Tysons Corner delivering unsurpassed management and lifestyle services. He has been a portfolio manager, where he specialized in small communities in the Northern Virginia and D.C. region, as well as a covenants administrator where he enforced covenants for 2,157 homes.

COVENANTS:

WISDOM THROUGH EXPERIENCE

I

’ve held several positions dealing with covenants over the last few years, and have come to understand that it’s important to respect design guidelines while remaining reasonable, flexible, and responsive to ensure a high level of professionalism and quality service. I’ve been told covenants enforcement isn’t a glamorous topic, and indeed, in my experience as a covenants administrator, I have found that to be a real understatement. However, I do know that covenants enforcement, while challenging and even frustrating at times, can be exciting and provide for many learning opportunities. I began my first position in covenants administration and property management directly after holding a job as a life coach, in which I helped people with intellectual disabilities become more integrated into their larger communities. My directive in that role was to work with these individuals – some of whom were people with disabilities so severe that they had no verbal ability – to develop skills so that they could, at a minimum, safely venture out of their group homes for daily activities. It was difficult to work, and I frequently felt powerless and overwhelmed, which led to burning out. So I became a covenants administrator. To my surprise, I discovered that my work as a life coach provided me with many relevant skills to work in covenants, such as the ability to remain calm under pressure and amid chaos, and to always expect the unexpected. The first community I was assigned to had approximately two thousand homes, and in my first year, I noted four thousand

26 | Quorum­

violations, which was an extraordinary number of violation letters to send. During that time, there was also upheaval on the covenants committee whereby most of the members resigned, and the community’s design guidelines were being completely overhauled. In one particularly memorable moment, my general manager (GM) had to call the police to report a man who was threatening me because he took offense to the tone of a violation letter he believed I composed, but it was written by the association’s attorney. I think I performed well and was even promoted, but I also made mistakes my first year. My top priorities at the time were to do the job as written so as not get fired, and I thought the best way to accomplish that was to treat the guidelines like a religious text so that no one could argue that I wasn’t doing the job right. It took me a while to learn that most homeowners are more concerned about safety, property value, and privacy and autonomy on their properties, and less concerned about strict interpretations of design guidelines. My next job was managing 10 properties in Washington, D.C., and Northern Virginia. These were small properties that could not afford to employ full-time, on-site management staff, but were required by their governing documents to have a managing agent. I had never managed even a single community before, so being responsible for 10 communities was an adjustment. While most of these communities had covenants requirements, they seemed to have lower expectations for enforcement than I was used to when working in a community managed full-time on-site.

For instance, one active adult community informed me that I was only expected to follow up on complaints instead of issuing violations, since “everyone was already watching everyone else.” My condominium properties tended to have concerns about noise, pets, parking, and safety. The HOAs in the southern part of my jurisdiction were concerned about broken down cars on lawns and people speeding through the neighborhood. Those in the north worried more about conformity to architectural guidelines and grass height. The lesson I learned as a portfolio manager was to take the time to understand a community’s unique expectations when it comes to covenants. In my current position as a covenants manager at a condominium community, my predecessor had previously trained as a police officer and was just as strict as I was at my first covenants position. During her time here, she found that most of the condo units were in violation of covenants guidelines in one way or another. Since the area of the community was relatively small compared to the larger space she was used to working, she was able to monitor the status of violations with a great deal of agility. Due to the volume of violations and her persistence in pursuing them, she was often in conflict with residents and sometimes she feared for her safety while inspecting properties. Although she did not have to complete an overhaul of the community design guidelines as I did in my first covenants position, she did have another project that had a tremendous impact, which was a complete door hardware upgrade for all doors in the community. She had left before it was time to ensure compliance and enforcement, so it became my job when I took over! So that’s how I got here. My approach to covenants has drastically changed in that I see the value in taking a slower and more nuanced approach to enforcement, which allows for unique community needs and expectations. Remember, know your communities’ expectations first, know your limitations, and be prepared to adapt and change as the community changes.

1

8 6

7

15

4

2

1

3

Paint 13

9

●Doors ●Shutters ●Railings ●Trim

Repair

●Fence ●Shutters ●Railings ●Gates

Landscaping

10

14

12 11

●Bushes/Shrubs ●Trees ●Mulch ●Landscape Beds ●Grass ●Free of Weeds ●Free of Debris

Dormer Windows

Gable Vent

Stair Tread

Shutters

Trim

Walk-up

Bay Windows

Rake Board

Window Header

Columns

Portico

Railing

Siding

Stair Riser

Soffit

5

Trim

●Windows ●Doors ●Garage ●Porch ●Dormer Windows ●Bay Windows ●Stairs ●Bump-outs

Cleanliness ●Siding ●Fences ●Decks ●Trim ●Walk-ups ●Stairs

Miscellaneous

●Mailbox ●Deck/Fence Stain

JUNE 2017

| 27

By Richa Fortuna, ESQ. Richa is an attorney at Whiteford, Taylor & Preston, LLP. She provides guidance to community association clients regarding association governance and litigation matters.

HAM Radio Legislation Update:

H.R. 555 Pending

Senate Review

“

Ham Radio” refers to amateur radio operations and antennas, which has a surprisingly large following among local hobbyists and enthusiasts. While the Federal Telecommunications Act of 1996 is the ultimate authority on regulating satellite dishes and television antennas, it does not apply to amateur radio (“Ham Radio”) antennas. The Telecommunications Act prohibits community associations from restricting a property owner’s right to install a satellite dish or

If passed, the bill will require an amateur radio licensee to obtain a community association’s prior approval before installing an outdoor antenna. television antenna on property exclusively within the property owner’s control. Protection under the Telecommunications Act does not, however, currently extend to Ham Radio operations. The Federal Communication Commission’s (FCC) PRB-1 document, an 11-page Ama28 | Quorum­

teur Radio Memorandum Opinion and Order, provides that local governments must reasonably accommodate amateur operations, but these regulations do not extend to private land-use restrictions such as deed covenants, conditions, and restrictions (restrictive covenants). In that same ruling, the FCC noted that the decision does not reach restrictive covenants in private contractual agreements. The FCC stated that because restrictive covenants are entered into at the time of the sale or lease of the property, and purchasers are free to choose whether they wish to reside where such restrictions on Ham Radio antennas are in effect or settle elsewhere, it was not within the scope of the FCC regulation to govern private agreements. To date, the governance of Ham Radio antennas by community associations has not been subject to federal regulation. The long-standing belief held by condominium or homeowner’s associations is that Ham Radio installations constitute safety hazards, cause interference to other electronic equipment, or are eyesores that detract from the aesthetic and tasteful appearance of the community. To avoid negative consequences, community associations often enforce restrictive covenants or pass rules and regulations to govern the location and height of

antennas or, in some cases, prohibit them altogether. In the future, however, community associations may be barred from adopting or enforcing such rules and regulations due to a bill currently before the Senate Committee on Commerce, Science, and Transportation.

Potential Legislative Changes Regarding Ham Radios The Amateur Radio Parity Act of 2016 (H.R. 1301), a bill seeking to prohibit community associations from banning Ham Radio antennas, was introduced by the Ham Radio lobby during the 2015-2016 federal legislative session. The provisions of H.R. 1301, as proposed, were detrimental to a community association’s control over aesthetics, placement, and approval requirements for Ham Radio antennas. H.R. 1301 was approved by the House of Representatives but never made it through the Senate. Earlier this year, however, H.R. 1301 was reintroduced as the Amateur Radio Parity Act of 2017 (H.R. 555). The bill passed the House without amendment on January 23, 2017, and is now pending before the Senate Committee on Commerce, Science, and Transportation. H.R. 555 calls on the FCC to require that private parties acting under

contract reasonably accommodate amateur radio operations in the same manner that it requires local governments to provide such reasonable accommodations. Specifically, H.R. 555 directs the FCC to amend station antenna structure regulations to prohibit a private land use restriction from applying to Ham Radio operation if (i) the restriction precludes communications in an amateur radio service, (ii) fails to permit a licensee of amateur radio service to install and maintain an effective outdoor antenna on property under its exclusive use or control, or (iii) is not the minimum practicable restriction to accomplish the lawful purposes of a community association seeking to enforce the restriction. The bill does, however, require an amateur radio licensee to obtain a community association’s prior approval before installing an outdoor antenna. Additionally, community associations may still prohibit installations on shared property not under the exclusive control of the licensee and may establish installation/placement rules for outdoor Ham Radio antennas and support structures.

What does this mean for community associations? If H.R. 555 becomes law, radio enthusiasts living in antenna-restricted communities may have the opportunity to install antennas that reasonably accommodate Ham Radio communication. Blanket restrictions against Ham Radio stations/ antennas would no longer be enforceable. Community associations would maintain the right to prohibit installations on shared or limited common property, but would no longer be able to restrict a property owner from installing/maintaining an outdoor antenna on property that is under his or her exclusive use or control. Furthermore, any rules and regulations governing Ham Radio operation or installation would have to be limited to the minimum necessary to “accomplish the lawful purposes of a community association seeking to enforce the restriction.” This means community associations would bear the burden of demonstrating that a restriction is necessary to accomplish a lawful purpose before the restriction can be enforced. It is likely that this bill would be interpreted and enforced much like the Telecommunications Act.

Therefore, community associations would have to carefully craft and execute their rules regarding Ham Radios. The bottom line is that if H.R. 555 becomes law, community associations will have much less ability to regulate the installation and operation of radio antennas in their communities. In conclusion, community associations can continue to regulate Ham Radio installation and appearance in agreement with their governing documents. H.R. 555 was passed by the House of Representatives in January and is currently in the Senate for review. It proposes significant changes to the current regulation of Ham Radio antennas and, if enacted into law, will likely have a considerable impact on many existing covenants and restrictions. We are monitoring the bill, and we recommend that community associations everywhere do the same to ensure that your association’s restrictions are modified as necessary, up to date and enforceable.

JUNE 2017

| 29

By Ariana Beall, CMCA, AMS Ariana is the general manager for the Downtown Crown developing community in Gaithersburg, managed by Comsource Management. She began her career with Comsource in 2013 as an onsite manager at a high-rise condominium in Kensington. Ariana is currently working towards her PCAM designation.

THE FIR S 100 DA T YS

I

t goes without saying that being a part of the creation of an association is exciting, but it is also very overwhelming. It is a balancing act between management, commercial retail components, construction staff, developers, and most importantly, your homeowners and residents. The “First 100 Days” outlines what management will need to have in place before moving into the homeowner’s association (HOA) clubhouse, what can be expected after moving in, and most exciting of all, how you will help to define a new community!

If you build it, they will come but expect delays. Construction is never on time, and that will likely apply to the opening of the neighborhood clubhouse. Your developers (the acting board) will believe the timeframes they are given for completion, but it is management’s job to use discretion in relaying these dates to the residents. In my case, the club30 | Quorum­

house was built a year before it could open due to permitting issues, construction delays, and more. During that time, I needed to juggle the developer’s expectations with resident emotions. As we have all experienced, homeowners are not happy when they do not get what they are paying for, so it was a tough horse to corral that year the residents were paying for clubhouse amenities that they could not use (and yes, this included the pool). A note to the wise: It is never a good idea to mail out pool pass applications when you do not yet have the clubhouse occupancy permit. Learning from this experience, I advise you to always under promise and over deliver instead of the other way around. Use this limbo period granted to you by “unexpected” construction delays to get systems in place that you will need from opening day forward. To name a few, you will need clubhouse usage rules and operating procedures,

room rental applications (if your owners can rent space in the clubhouse for event), clubhouse key fob access information, and quick fact sheets that highlight community need-to-knows (such as trash days, common area definitions, and owner responsibility charts). Having these tools ready to go before moving into an on-site management office will save you a tremendous amount of time, because the second those doors open, it’s show time! From the time we heard that we had received the occupancy permit, our sights immediately turned toward planning the grand opening/ribbon cutting ceremony and then it was back to business as usual within the blink of an eye. It all happened so fast that I didn’t even have a full set of building keys or a real “lay of the land.” Be prepared for every step to take longer upon moving on-site because you will be familiarizing yourself with every mechanical and administrative

component on the fly. Construction defects may also begin to show themselves, and you will need to figure out the appropriate people to contact while also considering warranty timeframes and which entity is responsible for the bill (HOA or developer). During this stage, compile data for operational manuals of the facility, create master contractor contact lists, appropriately file warranty information, and document everything.

Rome wasn’t built in a day… As the manager of a developing community, get used to saying the following sentence to everyone (including yourself). Establishing a thriving HOA does not happen overnight and, when done correctly, it takes a few years. Most people want everything done yesterday, and this is no different for your homeowners, who were promised certain amenities and visions by the home builders and developers. As the manager, you will be balancing owner expectations versus what was conveyed to the HOA for some time. Remind your owners that the developer isn’t always the bad guy. Help them also to look forward to the time when the homeowner board takes full effect, for that is when the magic truly happens and when the community vision will finally be realized. Thinking onward, what kind of tone do you as the general manager feel is the best representation of this individual community? Maybe start getting to know the key players in the neighborhood and begin suggesting that they volunteer for the future board. Start writing up committee charters and planning community activities. Compile data for the future HOA rules and regulations, design guidelines, and anything else that you know will be an integral ingredient in the community’s future. Remember to be the historical reference they will need one day and don’t forget to enjoy the ride!

With community association lending expertise like ours, you’ll get the job done right.

take that to the bank. Noni Roan CMCA Regional Account Executive 301-639-5503 Toll Free 866-800-4656, ext. 7479 noni.roan@mutualofomahabank.com

EQUAL HOUSING

LENDER

mutualofomahabank.com AFN45863_0813

Member FDIC Equal Housing Lender JUNE 2017

| 31

By Crishana L. Loritsch, CMCA, AMS, PCAM Crishana is the general manager of Town Square Towers Condominium located in the SW Waterfront, Washington DC. She has been an active member of the chapter since 2002, where she has volunteered on the Quorum Editorial, Membership and Outreach committees and has served as Outreach Committee chair and Secretary on the Board of Directors and has received numerous awards including Rising Star, Committee Chair of the Year and the Chapter Appreciation Award to name a few. She currently serves as Communication Council Chair.

Wellness Checks… Another Tool in Your

Management Tool Belt.

when creating a wellness check protocol for your property: 1. Check your governing documents regarding gaining access to a unit to ensure that you are acting in agreement with what is written. For insurance, run your plan by your property’s legal counsel. Another pair of eyes on your documentation never hurts. 2. Create a plan that is easy to understand. Don’t overly complicate things. 3. Share your plan with your team and provide them with instructions on how to work the plan. For example, if you have a front desk staff on your property, they should know how to respond in these situations 4. Use the buddy system when performing a wellness check. The adage “Two heads are better than one” is true in most cases and you may need that extra body to deal with what you’ve encountered.

Y

our day in the office started like any other. You were in the middle of reviewing your hundredth email message that came in after hours when your front desk staff puts a call through to your office. On the line was a frantic voice saying, “Hello, this is Mrs. Condo Owner’s niece, it’s been a few days, and we haven’t heard from our loved one. Have you seen her? Have you heard from her?” It’s at that very moment your heart sinks because Mrs. Condo Owner is one of your senior residents and come to think of it, you haven’t seen or heard from her in a while. Has it been one or two days or nearly a week as you take the elevator up a few floors and knock on her door? There’s no answer, but you hear the TV blaring in the background. You’re a little hopeful as you dial her number from outside the door and wait, but still, there is no response. Using the courtesy key on file, you enter the unit, cautiously, and your fear is realized. The next number you dial is 911. What exactly is a welfare or wellness check? In simple terms, it’s a check to determine the well-being of a person which occurs when an individual is not heard from or seen for

32 | Quorum­

a period. For this article, I will speak toward those checks performed by community association management staff and those conducted by your local law enforcement. Welfare or wellness checks are another necessary part of a manager’s repertoire, and while you must be prepared for the worst, there are many times where you’re able to intervene before something more serious occurs. As a manager, it’s important that you have a written protocol in place that outlines the actions you will take in the event you get a report from a family member, friend, or a co-worker that something may be amiss with their loved one. If you manage a homeowner’s association of single family homes, the protocol is easy. If you receive a report at your office, you can tell the caller to hang up with you and dial 911 to request a welfare check. However, if you are the manager of a condominium, you will need to consider several factors in creating a protocol. For example, depending on the age and overall health of the individual in question, you may want to call the police to perform the check. Below are a few other considerations and tips to bear in mind

5. When having to implement your plan, remain calm and level headed. You set the tone for your team, and they will respond in kind. 6. There are circumstances where it would be more appropriate for law enforcement to perform the wellness check. Those cases usually involve the possibility of a medical or other crisis and suspicion of foul play. In those instances, contact your local law enforcement as welfare checks serve as a significant function of law enforcement. This allows for professional intervention if an individual is in distress or need of assistance because of a health condition, injury, or other situation. Ask any manager and one of the things you will hear them say is that we are jacks of all trades and masters of some. Having a wellness check protocol in place is another tool in our belt that allows us to serve our communities better. While it’s hopefully not something that we may be called upon to perform daily, it’s reassuring to know that we are prepared to spring into action whenever the need arises. That’s the difference between a proactive response and a reactionary one.

WMCCAI 20

17 GO

LF CLASSIC

WHEN

WHAT

September 21, 2017 9 a.m. - 6 p.m. Registration opens at 9 a.m.

A day on the course networking, winning prizes and networking! Grab your clubs and join your WMCCAI colleagues for a day of golf at Bull Run Golf Club for WMCCAI’s 2017 Annual Golf Classic.

WHERE Bull Run Golf Club 3520 James Madison Highway Haymarket, VA 20169

HOW Visit www.caidc.org to register

WHO This program will benefit Homeowners, Managers, Business Partners

Driving range opens at 9 a.m. Shotgun start at 10:30 a.m. Registration fees cover: greens and cart fees, boxed lunch, post-play banquet dinner, drinks and snacks on the course, door prizes, and more! NEW for 2017! Not a golfer? Cornhole comes to WMCCAI! Join us for a cornhole tournament with a private beverage cart and snacks while colleagues play golf. Registration for the cornhole tournament includes drinks, snacks, and post-play banquet dinner. Free parking available onsite.

Sponsorships are available. Please contact WMCCAI at

REGISTRATION RATES EARLY BIRD RATE BEFORE: 08/18/17

REGULAR RATE

SINGLE PLAYER

$285

$335

FOURSOME

$1,100

$1,300

CORNHOLE TOURNAMENT $75

events@caidc.org

$125

Cancellation and Refund Policy: Registration cancellations will be accepted until September 2, 2017. Refunds must be requested in writing to events@caidc.org. A 8% processing fee will be charged for all customer initiated refunds. After the cancellation deadline, no fees will be waived nor refunds extended. You may transfer your registration at no additional cost at any time by emailing events@caidc.org.

7600 Leesburg Pike, Suite 100 West

E-mail: education@caidc.org

Falls Church, VA 22043

Web: www.caidc.org

T: 703.750.3644 F: 703.941.1740

By Nicole Williams, ESQ. Nicole is an attorney with the law office of Rees Broome, PC, where she represents condominium and homeowner associations located in Maryland, Virginia, and the District of Columbia. She was named a Rising Star in 2013 and received the Chapter Appreciation Award in 2015. Nicole currently serves as the Co-chair of the Quorum Editorial Committee.

ommon ownership communities have covenants and architectural guidelines to inform the members/ homeowners what is allowed and what is not allowed in the community. As someone who has lived down the street from the house with the pink flamingos, I do have an appreciation for a lot of restrictions that one will find in their association’s governing documents. The idea is that if there is a communitywide standard regarding the exterior of all of the units and lots within the community, then these standards will help everyone’s property value.

er coated, rustproof, cast aluminum model mailbox that cost $500 per home. While the community is a very upscale community where cost is possibly not an issue, one homeowner felt that the board overreached its authority. Keep in mind—we do not know the details of the conversations that occurred between the board and homeowner. It is surprising that a $500 mailbox resulted in a lawsuit against the association. So, after $33,000 in legal fees spent by the homeowner and who knows how much in legal fees spent by the association, the association lost.

Many association boards understand the importance of enforcing the covenants and guidelines. However, sometimes the enforcement can take a horrible turn for the worse if not dealt with in an appropriate manner.

Was it worth it? It is great for everyone to have the same mailbox that will never rust but as a board, you must determine if it is worth the trouble, the cost to litigate and the bad publicity that can occur about your community to fight over a $500 mailbox. Remember, the purpose of these rules is to help maintain everyone’s property value in the community.

Case in point – the story that was recently in the news about an association requiring every home to install a very specific pow34 | Quorum­

Partner with Associa. We work closely with each of our clients to understand their vision and each community's distinct features. Associa Community Management Corporation and Select Community Services believes this is the key to delivering a smooth operation for our boards and a better experience for our homeowners.

CONTACT US TO LET EXPERTS HELP GUIDE YOUR COMMUNITY.

Nicholas J. Mazzarella MBA, CMCA®, PCAM®, LSM® President 703.230.8586 www.cmc-management.com

Contact Us:

800.315.3264 info@cleanadv.com www.cleanadv.com

Serving MD, VA, & DC! Annual Janitorial Agreements Temporary Staffing Solid Waste and Recycling Services Garage Clean Up • Pressure Washing • Bulk Trash Removal Storage Room Cleaning • Stripping and Waxing Floors Trash Chute Cleaning • Graffiti Removal Carpet Cleaning • Roll off Services Hoarder Unit Clean out Construction Clean up Fire Watch Services

Directory and Classifieds ASPHALT PAVING

INSURANCE

MANAGEMENT SERVICES (CON’T)

Espina Paving, Inc. Asphalt/Concrete 15441 Farm Creek Drive T: (703) 491-9100 Woodbridge, VA 2191 F: (703) 491-9101 Serving: MD, DC, VA info@espinapaving.com

Griffin Owens Insurance Group Offices Throughout Northern Virginia 847 Station Street T: (571) 386-1000 Herndon, VA 20170 www.GriffinOwens.com

Comsource Management, Inc. AAMC www.comsource.com 3414 Morningwood Drive T: (301) 924-7355 Olney, Maryland 20832 F: (301) 924-7340 Tony Martella, cmca, ams, pcam tmartella@comsource.com

ATTORNEY

JANITORIAL

Segan, Mason & Mason, P.C. Donna Mason dmason@seganmason.com

www.seganmason.com T: (703) 354-9170

Thomas Schild Law Group, LLC www.schildlaw.com 401 North Washington Street, Suite #500 T: (301)251-1414 Rockville, MD 20850 Thomas, C. Schild, CCAL tschild@schildlaw.com Scott J. Silverman ssilverman@schildlaw.com BANKING AND FINANCIAL SERVICES

Alliance Association Bank T: (703) 856-7463 Direct Tracy Burkhammer tburkhammer@AllianceAssociationBank.com Mutual of Omaha Bank Community Association Banking/CondoCerts Noni Roan T: (301) 639-5503 Noni.Roan@mutualofomahabank.com ENGINEERS

ETC Engineering and Technical Consultants Inc. Water intrusion, roofing, exteriors, windows, balconies, property studies, structural & architectural services www.etc-web.com T: (703) 450-6220 Mindy Maronic mindy@etc-web.com Falcon Engineering, Architecture + Energy Consultants 7361 Calhoun Place, Suite 325 Rockville, MD 20855 www.falconengineering.com T: (240) 328-1095 Stew Willis info@falconengineering.com

36 | Quorum­

Clean Advantage Corporation 4000 Pen Belt Place District Heights, MD 20747 www.cleanadv.com

T: (800) 315-3264 F: (301) 595-3331

info@cleanadv.com

LAKE AND POND MANAGEMENT

SOLitude Lake Management 12522 White Drive info@solitudelake.com Fairfax, VA 22030 T: (540) 371-4382 Kevin Tucker www.solitudelakemanagement.com MANAGEMENT SERVICES

Associa-Community Management Corporation, AAMC 4840 Westfields Blvd., Suite 300 T: (703) 631-7200 Chantilly, VA 20151 F: (703) 631-9786 11300 Rockville Pike, Suite 907 T: (301) 692-1700 Rockville, MD 20852 F: (240) 221-0443 Nick Mazzarella, mba, cmca, pcam, lsm NMazzarella@cmc-management.com Barkan Management Company, Inc 8229 Boon Blvd., Suite 760 Tyson Corner, VA 22182 Michael Feltenberger, cmca, ams, pcam

T: (703) 388-1005 F: (703) 388-1006

Capitol Management Corporation 12011 Lee-Jackson Highway, Suite 350 T: (703) 934-5200 Fairfax, VA 22033 F: (703) 934-8808 L. Peyton Harris Jr., cmca, cpm lph@capitolmanagementcorp.net CFM Management Services, AAMC 5250 Cherokee Ave, Suite 100 T: (703) 941-0818 Alexandria, VA 22314 F: (703) 941-0816 Christiaan Melson, ams, pcam c­­­­­­­­melson@cfmanagement.com

FirstService Residential DC Metro LLC, AAMC 11351 Random Hills Road, Suite 500 T: (703) 385-1133 Fairfax, VA 22020 Robert Teeling robert.teeling@fsresidential.com Legum & Norman, Inc., AAMC 3130 Fairview Park Drive, Suite 200 T: (703) 600-6000 Falls Church, VA 22042 Direct: (703) 970-8811 John Rhodes jrhodes@legumnorman.com Sentry Management www.sentrymgt.com 4401 Ford Avenue, Suite 1150 T: (703) 642-3246, ext. 56501 Alexandria, VA 22302 602 South King Street, Suite 400 T: (540) 751-1888 Leesburg, VA 20175 Dave Ciccarelli, ams, pcam dciccarelli@sentrymgt.com Sequoia Management Company Inc., AAMC 13998 Parkeast Circle www.sequoiamanagement.com Chantilly, VA 20151-2283 T: (703) 803-9641 Craig Courtney, pcam ccourtney@sequoiamgmt.com

SIGMA Real Estate Services 8911 60th Avenue T: (677) 744-6201 College Park, MD 20740 www.sigmares.com Constantin Anagnostopoulos, President info@sigmares.com Zalco Realty Inc., AAMC, AMO 8701 Georgia Ave., Ste. 300 Silver Spring, MD 20910 Arthur Dubin,cmca, pcam, cpm Z.J. Chelec, cpm

www.zalco.com

T: (301) 495-6600

adubin@zalco.com zchelec@zalco.com

­­I NDEX TO ADVERTISERS A Alliance Association Bank...............................................................................................................17 Associa-Community Management Corporation, AAMC....................................................................34 B Barkan Management, LLC, AAMC..................................................................................................39 C Capital Painting Co.........................................................................................................................31 Chadwick, Washington, Moriarty, Elmore & Bunn, PC.....................................................................40 Clean Advantage Corporation..........................................................................................................35 Cowie & Mott. P.A...........................................................................................................................11 PAINTING SERVICES AND RETAILERS

Capital Painting Co. www.capitalpainting.net 5520 Oakwood Road T: (703) 313-0013 Alexandria, VA 22310 F: (703) 922-1826 George Tsentas george@capitalpainting.net Ploutis Painting & Contracting Co., Inc. T: (703) 360-0205 8365 Richmond Hwy F: (703) 360-5439 Alexandria, VA 22309 info@ploutispainting.com Stella Ploutis www.ploutispainting.com Reston Painting & Contracting 619 Carlisle Drive Herndon, VA 20170 David Hamilton

F Falcon Engineering, Architecture & Energy Consulting....................................................................29 Fantasy World, Inc. dba Fantasy World Entertainment......................................................................4 FirstService Residential, AAMC.........................................................................................................2 G Griffin Owens Insurance Group.......................................................................................................16

T: (703) 904-1702 F: (703) 904-0248

dave@restonpaint.com

Williams Professional Painting 110 S. Floyd Street VA: (703) 768-8143 Alexandria, Virginia 22304 DC: (202) 751-2026 williamsprofessionalpainting.com Rick Williams Rick@williamsprofessionalpainting.com RESERVE STUDIES

PM+ (Specializing in Reserve Studies Since 1990) A Veteran Owned Company T: (703) 803-8436 www.pmplusreserves.com engineer@pmplusreserves.com or Ben Ginnetti, pra, rs, p.e. pmplusreserves@cox.net WINDOWS & DOORS

Windows Plus, LLC 14230 Sullyfield Circle, Suite F T: (703) 956-6172 Chantilly, VA 20151-1660 F: (703) 956-6744 Kimberly Wayland kknight@windowspls.com

L Legum & Norman, Inc., AAMC.......................................................................................................23 M Mutual of Omaha Bank...................................................................................................................31 P Ploutis Painting & Contracting Co., Inc............................................................................................39 R Reston Painting Company................................................................................................................2 S Sentry Management, Inc.................................................................................................................21 SIGMA Real Estate Services............................................................................................................15 SOLitude Lake Management...........................................................................................................13 T Thomas Schild Law Group, LLC......................................................................................................25 TWC Services, LLC..........................................................................................................................11 W Williams Professional Painting.........................................................................................................17 Windows Plus, LLC...........................................................................................................................9

JUNE 2017

| 37

CUL-DE-SAC

By Brandi Ruff, CMCA, AMS, PCAM Brandi is the general manager for Americana Centre Condominium. She was recently recognized with a Chapter Rising Star award and is a frequent contributor to Quorum.

Oh, How I Love Covenants!

C

ovenants are necessary, but not necessarily well-liked or appreciated. Some people might say that covenants are unnecessary and that boards, committees, and management teams should be able to exercise common sense. I can tell you with certainty that common sense isn’t common; it has become less common in recent years with the rise of technology and the reduction of human interaction. I would like to believe that covenants enforcement would be rooted in a level-handed common sense approach. Unfortunately, we find too many boards, committees, and management teams enforcing covenants with an iron fist and a big stick which often creates hostility within the community. That is not to say that enforcement should be loose and lackadaisical. The goal is to find the balance.

Be selective in your battles; sometimes peace is better than being right. Covenants are necessary because every person has a different set of standards for themselves and others. Everyone is different, and everyone will behave differently. Covenants help to establish a set of standards to guide resident’s behaviors and actions. The established standards help to set boundaries for acceptable and unacceptable behavior. It is human nature to challenge the system and to test the limits of what is expected versus 38 | Quorum­

what is allowed. As a manager, I can guarantee that at some point there will be dog poop left on the grass (whether intentional or accidental), noise will occur during quiet hours, residents will move-in or move-out outside of designated hours, renovations will be made without the knowledge or approval of a covenants committee or management, people will park in spaces they shouldn’t, and people will undoubtedly act like they had no idea about any of the rules despite living in a place for a decade or more. When caught, people like to act “brand new.” The standard wannabe get out of jail free responses are somewhat similar: “No one ever told me!”; “That’s not what the front desk said!”; “I have never seen that resolution. Was it just created?” and “I didn’t know that!” It is unbelievable the stories and excuses people will make up to avoid consequences, but I get it. Who wants to be punished for not thinking or forgetting? As a manager, I have heard many stories and excuses (mostly bad, but there have been a few good ones) why the rules weren’t followed. As a homeowner, I’ve thought about circumventing the system. As an independent person, I recognize a person’s desire not to want to get permission before acting. That’s what being a grown-up is all about; you do not answer to anyone. I also understand that some board members and covenant committee members may want management to enforce rules like a TSA agent performing a security pat down at the airport. However, not every violation

warrants the same level of scrutiny or consequence. Sometimes fighting little problems like they are big problems turns the little problems into bigger problems costing the association time and money (not to mention stress and anxiety of all involved parties). Just like treating stains on clothes, you cannot treat every violation the same. Scrubbing an ink stain on a shirt only makes it spread, eventually ruining the shirt. The same applies to over aggressive and unreasonable covenants enforcement. Being in a community is about being communal (sharing). The ability to recognize how one’s actions impact another person is critical to creating a more harmonious environment. No matter who you are or what role you play in a community, it is important to remember that you are part of the solution. Whether you are the resident or the person enforcing the rules, communication is paramount. Enforcement should be measured and progressive. Start with a verbal reminder followed by a verbal warning. With a written notice, provide time for the resident to respond and correct the infraction, have a hearing, then impose fines and restrictions. As a resident, you should always verify the rules and processes before acting. Yes, it is your home, but you are not alone. What you do doesn’t just affect you; it can inadvertently affect your neighbors. Residents should also recognize and acknowledge when they violate the rules; be honest and accountable for one’s actions. Whoever enforces the rules must be clear in explaining the rules and the consequences for breaking the rules. I understand that some people want to be rigid because it creates consistency; it can also create animosity. It is important to look at the history and circumstances surrounding the violator and the violation. You don’t want to end up in the news portrayed as the “association gone wild.” Covenants and covenant enforcement may not make you the popular kid on the block (especially when you are deemed the violator). However, when the tables are turned, and you are the one experiencing the effects of another, you will be forced to say, “Oh how I love covenants!”

How goes the voyage for your homeowner association? No matter what the weather, a steady hand hand at the helm is your best assurance of safe passage. Enjoy smooth sailing with Barkan – Metropolitan Washington’s premier manager of homeowner associations.

Find out more!

703.388.1005 mfeltenberger@barkanco.com S E R V I N G W A S H I N G T O N D C, M A R Y L A N D, V I R G I N I A A N D N E W E N G L A N D Barkan Management AAMC®

People you can count on. Experience you can rely on.

JUNE 2017

| 39

CHAPTER BENEFACTORS

C

PRESORT STANDARD US POSTAGE PAID WASHINGTON, DC # 3070

WMCCAI 7600 Leesburg Pike Suite 100 West Falls Church, VA 22043 www.caidc.org (703) 750-3644

OUR MISSION To optimize the operations of Community Associations and foster value for our business partners.

C Fairfax 3201 Jermantown Road Suite 600 Fairfax, VA 22030 703.352.1900

Attorneys at Law Proudly Representing Community Associations Throughout Virginia and in the District of Columbia. • Effective, comprehensive legal counsel. • Full litigation services.

Richmond 201 Concourse Boulevard Suite 101 Glen Allen, VA 23059 804.346.5400 Salem 25 Library Square Salem, VA 24153 540.857.0600 Fredericksburg 540.834.0003

www.chadwickwashington.com