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Homeowners Association Disputes: Navigate the Maze with McGrath Law Firm

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Homeowners associations (HOAs) are designed to enhance property values and create vibrant communities. But when disagreements arise, the result can be frustration, stress, and even costly legal battles. Whether you’re a homeowner facing an HOA dispute or an HOA board member seeking guidance, McGrath Law Firm is here to help you navigate the complex landscape of HOA law.

The Rise of HOAs and the Potential for Conflict

HOAs have become increasingly common in South Carolina, encompassing a wide range of communities from gated subdivisions to condominium complexes. While HOAs provide numerous benefits, such as maintaining shared amenities and upholding community standards, the complex network of rules and regulations can lead to conflicts between homeowners and their associations.

HOA governing documents often delve into minutiae, regulating everything from paint colors and fences to parking restrictions and pet policies. These intricate rules, coupled with financial responsibilities and the potential for miscommunication, create fertile ground for disputes.

Common Flashpoints in HOA Disputes

  • Maintenance and Repairs: Disagreements over who is responsible for maintaining common areas, such as pools, tennis courts, and landscaping.
  • Fees, Assessments, and Fines: Disputes over the amount or legitimacy of fees, special assessments, or fines imposed by the HOA.
  • Enforcement of Rules: Conflicts arising from the enforcement (or lack thereof) of HOA rules and regulations regarding property upkeep, architectural changes, and other community standards.
  • Financial Transparency: Homeowners may struggle to obtain financial reports from their HOAs or face excessive fees for access to these documents.
  • Board Elections and Governance: Disputes over the election process, board member conduct, or decision-making procedures.

Why Seek Legal Counsel for HOA Disputes?

HOA disputes can quickly escalate, leading to costly litigation that burdens both homeowners and the association. Seeking legal counsel early in the process can often prevent disputes from spiraling out of control.

McGrath Law Firm’s experienced attorneys can help:

  • Interpret HOA governing documents: We’ll analyze your HOA’s bylaws, covenants, and other documents to determine your rights and obligations.
  • Negotiate with the HOA: We’ll advocate for your interests and seek fair and reasonable solutions through negotiation and mediation.
  • Litigate if necessary: If a resolution cannot be reached through negotiation, we’re prepared to represent you in court and protect your rights.
  • Offer Alternative Dispute Resolution: Our team includes skilled mediators and arbitrators who can guide both parties toward a faster, more cost-effective resolution.

Your HOA Dispute Solution Starts Here

If you’re facing an HOA dispute in South Carolina, don’t navigate the complex legal landscape alone. McGrath Law Firm is dedicated to providing knowledgeable and compassionate legal guidance to homeowners and HOAs alike.

Contact us today for a consultation. We’ll listen to your concerns, assess your options, and develop a personalized strategy to help you achieve a favorable outcome.

Remember: Don’t let an HOA dispute disrupt your peace of mind. With McGrath Law Firm by your side, you can confidently navigate the challenges and protect your rights as a homeowner.

Judge says handling other people’s Airbnb rentals doesn’t require a real estate license

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By DAVID BROOKS   Monitor staff      Published: 6/26/2021 11:00:06 AM

A judge has ruled that you don’t need a real estate license to handle short-term rentals for other people through online marketplaces like Airbnb, the latest debate over rules and regulations of the fairly new industry.

It’s unclear whether the ruling, handed down in October by Merrimack County Superior Court Judge Andrew Schulman, will affect ongoing debates about whether towns and cities can control these short-term rentals, but it does confirm that no such system exists at the state level.

“The legislature has not yet developed a comprehensive statutory scheme to govern the rapidly changing practice of ‘home sharing’,” Schulman wrote.

“This shows that the state cannot regulate short-term rentals at all under the current legislative scheme,” said Peter McGrath, whose law firm represented the defendant, Kerri McCauley, noting that the situation is different in other states. “It leaves a question as to whether each community should start to regulate short-term rentals.”

Short-term rentals are a source of controversy in some areas, particularly tourist-oriented locations. Supporters argue that they provide a flexible source of income for property owners, while opponents say that they can ruin the local quality of life due to noise and traffic, and can make apartments and homes more expensive by removing units from the local housing stock.

The town of Conway has been particularly aggressive on the issue. It put the matter on the annual meeting warrant – where voters OK’d the idea of rentals but gave selectmen permission to regulate them – and has petitioned the Superior Court for authority to control the rentals. In recent years Canterbury has sent cease-and-desist orders to some renters, alleging violation of zoning laws, while the question of Portsmouth’s ability to regulate rentals went to the state Supreme Court, which upheld it.

October’s court ruling was spurred by a New Hampshire Real Estate Commission charge that McCauley of Conway was acting as a real estate agent without a license for handling other people’s rentals through Airbnb and Homeaway, for which she collected a fee. According to the ruling, the commission has sought to have criminal charges, not just civil charges, brought against McCauley.

Judge Schulman ruled that short-term rentals were not covered by state law regarding real estate transactions, which concern the legal term “leasehold.”

“No three-day Airbnb guest would believe that he or she obtained an interest in real estate. It is not even within the periphery of imagination that a family with a contract for a week-long Airbnb stay would … (record) the agreement at the registry of deeds,” he wrote, adding that the state rooms and meals tax “applies to short-term tourist ‘rentals’ just as if they were motel rooms” and the law “exempts such ‘rentals’ from landlord/tenant protections.”

Schulman did allow some aspects of the Commission’s complaint against McCauley to go forward, “to determine whether McCauley crossed the line into real estate practice” as part of her services.

The complaint was filed in October 2018 and covered activities stretching back several years. Its passage through the court was delayed in part by the retirement of Judge Richard McNamara, who heard a May 7, 2020, hearing on the merits of the case.

(David Brooks can be reached at 369-3313 or dbrooks@cmonitor.com or on Twitter @GraniteGeek.)

https://www.concordmonitor.com/rental-short-term-license-real-estate-court-41080125

WHY YOUR SINGLE-MEMBER LLC NEEDS AN OPERATING AGREEMENT

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Limited Liability Protection is not always granted to protect your assets from third-party creditors even if there is a validly formed LLC.

Here are some additional steps that you can take to ensure your asset liability protection.

Proper Organization of the LLC

In order to properly form a LLC, you must first file an Articles of Organization with the Secretary of State and receive a Certificate of Existence. While some think the Articles of Organization can be easily attained by filling out a questionnaire online, this is not a safe and efficient way to protect your assets.

CAUTION: Consult an Experienced Corporate Formation Lawyer to achieve proper formation and asset protection.

To preserve your limited liability protection while forming the Articles of Organization you will need a Federal Tax Identification Number, a separate bank account specifically for the LLC, and to ensure you keep your personal and business affairs separate.

If  you do not have all of these things the court will not protect your assets, such as your home  or bank accounts, against creditors from a lawsuit. The first two are simple, however the last requirement will require additional steps.

Separating Business Affairs from Personal Affairs with an Operating Agreement

To ensure you are perceived as an agent of the corporation, and to preserve asset protection, you must show you are keeping your business affairs and personal affairs separate. One of the best pieces of evidence to present to the court is an Operating Agreement.

Think about it, if someone asks you how you run your business or the structure of the business, you should be able to present to them a written document that outlines those features. This would be the operating   agreement.  An Operating Agreement is essentially a contract that shows the structure of the  organization.

If you do not have an operating agreement, your state’s default rules will outline the structure of your business. While  this may not be the  worst scenario, the default rules are generic and can often generate unsatisfying  results.

Additionally, some banks require an operating agreement to set up a bank   account.

When it comes to protecting your business, you do not want to cut corners and hurt yourself in the long run. Anything worth doing is worth doing right . Protect your home, bank accounts, and other important assets by consulting an experienced corporate attorney before filing a single member LLC.

McGrath Law Firm has extensive experience protecting its clients when structuring your business.

4 Tips for Developing a Divorce Action Plan

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When you decide to file for divorce, the following weeks can turn into a heated whirlwind of legal battles and high emotions. That’s why it’s important to develop an action plan and stick to it before proceedings begin. Here are four tips on what to do and what to avoid .

1.      Consult With a Divorce Attorney

Divorce cases are rarely black and white. There are dozens of factors that go into making important decisions such as, child custody and spousal support. Therefore, it is essential to consult with a divorce attorney even if you and your spouse are on amicable terms. Certain disputes are simply best resolved with the help of legal aid.

2.  Document Everything

Once you’ve decided to file for divorce, it ‘s important to start keeping physical records of of everything that could be relevant in court.

Some examples include:

  • Communications: Keep track of dates, times, and content of all communication with your spouse including phone calls, emails, and text messages.
  • Expenses: Record all expenses you encounter while your divorce is pending so the court knows what support you may be entitled to.
  • Visitations: Record the date and times of all visitations you or your spouse has with your children. This can be essential for determining child custody in the future.

3.  Protect Your Privacy

After filing for divorce, and once your spouse has been served, your privacy may be the first thing to go. There are a few important steps you should take to protect yourself, such as:

  • Change all of your passwords on mobile phones and computers, especially social media and financial websites
  • Place a verbal password on all credit cards and financial resources with a multi-factor authentication.
  • Change your house alarm code if you live alone.

These are just some of the most important steps to take when filing for divorce, however every case is different. Talking to an experienced family law attorney should always be the first step when filing for divorce. Contact us today to find out how we can help.

Can an unlicensed real estate agent/broker lease short term rentals like Airbnb?

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Is a real estate salesperson/broker license needed for short term rentals?

In a historic decision, the Superior Court ruled in favor of the McGrath Law Firm’s client. Client was accused of violating civil and criminal regulations and laws regarding short term rentals of Airbnb and Homeaway properties for failing to maintain a real estate salesperson or broker license. McGrath Law Firm through Attorney Daniel Corley argued before the New Hampshire Real Estate Commission and Superior Court that our client did not need to obtain a real estate salesperson or broker license to provide rentals through Airbnb or Homeaway properties.

The New Hampshire Real Estate Commission disagreed and attempted to enforce a subpoena requesting information on the rentals and refer the matter out for felony prosecution. Attorney Corley argued that Real Estate Commission lacked jurisdiction to conduct a hearing and issue a subpoena for short term vacation rentals booked through Airbnb and Homeaway. The Superior Court upon review found that “no statutory grounding to regulate such hotel-like transactions because they do not involve an interest in real estate. RSA 331-A:2 and 3.”

The Court held: “The Court agrees with [client] that the Commission lacks jurisdiction to license and discipline persons who want to, advertise and manage typical Airbnb and Homeaway bookings for third party owners.” As the Court noted, “the statute is ambiguous with respect to the definition of an offense”. If each Airbnb or Homeaway transaction for an overnight stay is an ‘offense’, the maximum available civil penalty could be enormous.” The Court also held that the client is also not liable for any criminal offense. The Court held that “the Commission only has licensing disciplinary jurisdiction over the person who act, directly or indirectly, as [real estate brokers] or [real estate sales] people. RSA 331-A:3. The term lease and real estate includes “leaseholds and all other interest or stakes in land or business opportunity which involve any interest in real estate.” RSA 331-A:2. The Court held that the typical Airbnb, Homeaway or BRBO transaction does not create a leasehold or interest or stake or estate in land. This is true regardless as to whether the transaction is captioned as a short term rental.

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Licenses for short term rentals are a legislative matter

As previously argued by Attorney Corley before the Real Estate Commission, this is a legislative matter and the Court agreed. “To be sure, the legislature has not yet developed a comprehensive statutory scheme to govern the rapidly changing practice of ‘home sharing’ but the Commission cannot fill lacunae in our statutes by pretending that the revocable license to occupy a dwelling, or a room in a dwelling-i.e., the legal equivalent of a license that a movie theater grants to its patrons is a leasehold interest in land.” Furthermore, requiring a real estate broker’s license in order to “market, broker, manage or sale Airbnb-type rentals would raise constitutional concerns.” See State of New Hampshire v. Kerri McCauley, Merrimack Superior Court, 217-2020-CV-00177, Judge Andrew R. Schulman, Date of Decision October 7, 2020.

The seasoned lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through your legal matter to address your concerns and achieve your goals as efficiently as possible. Daniel Corley and the experienced attorneys at McGrath Law Firm can assist with your estate planning. Call us to schedule your consultation at (603) 224-7111.

Estate Planning

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Estate planning -now is the time!

Estate Planning signing

Taking care of your family should be of the utmost importance at this difficult time. Proper estate planning will reduce your stress and avoid expenses, hassles and conflict later. 

Your estate plan can direct exactly where your assets are to go in the event of your death or disability. An estate plan will provide you with the comfort of knowing that your assets will go to the right beneficiaries.

An estate plan will avoid questions or disputes that would most likely have to be resolved by the courts otherwise.

Reduce Taxes and Costs.  

An estate plan will avoid your assets being tied up and can help avoid probate taxes and fees.  You can minimize the expenses and taxes when you create an estate plan.

You should be able to keep the cost of transferring your property to a minimum and also ease the burden on your family.

It is stressful and difficult to plan for the funeral of a loved one when grieving, with an estate plan you can outline your wishes for burial or other funeral arrangements and take some of the burden off of your family at a difficult time.

Prepare for incapacity.

A proper estate plan includes durable power of attorney for health care and a power of attorney for financial matters.   If you should ever become mentally and/or physically incapacitated, an estate plan can outline your wishes regarding your life and who will make medical decisions on your behalf.

Decide Now Who Will handle your Affairs.

By crafting a proper estate plan, you can establish a trustee or representative to handle your financial matters and make that decision now so you can sleep well at night.  You can provide for those who need it most, such as a child who has a disability or other person you want to specifically provide for. 

Blended Families  

We see this issues more and more often recently. Many people have multiple children from different spouses. Without an estate plan children can be in conflict and may not be provided for as you wish.  With a plan, you decide what goes to whom and when, and what children from a prior marriage may receive when you pass away.

Contact us!

The seasoned lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the estate planning process to address your concerns and achieve your goals as efficiently as possible. Juli Hincks and the experienced attorneys at McGrath Law Firm can assist with your estate planning. Call us to schedule your consultation at (603) 224-7111.