Whether modest or extravagant, one’s home is one’s castle, right?
Not necessarily, especially if a home is in a community with a homeowner’s association — an increasingly popular mode of living.
When people buy into associations, by law they give up some of their rights, said David S. Mercer, a partner in MercerTrigiani, a law firm that specializes in common interest community law.
Residents also get the benefit of living in a community that most likely won’t put up with a neighbor who thinks pink flamingos are cute lawn ornaments.
“If a homeowner association board asked me what is their job, I would say their job is to preserve and hopefully enhance the members’ assets,” said Mercer, who helped write the Virginia law on common interest communities.
Homeowner associations sometimes get a bad rap, particularly if an infringement involves the U.S. flag, a treehouse or other symbol of America.
“It’s the person who believes he or she has been wronged that makes the news,” Mercer said. “The majority is rarely heard.”
Virginia, with 8,600 homeowner associations, has the eighth-largest number of associations in the U.S., according to the Community Associations Institute, a trade organization. The state is the birthplace of many laws concerning homeowner associations.
“Virginia is considered one of the states to watch,” Mercer said.
He and his business partner, Lucia Anna “Pia” Trigiani, with offices in Alexandria and Richmond, are considered the top Virginia lawyers in their field, their peers say.
Mercer, 65, graduated from the University of Richmond School of Law in 1973 just as homeowner associations began their explosive growth and a new practice in common interest communities emerged.
Condos didn’t legally exist before 1962, and it’s only been since 1974 that the Virginia law governing this new concept in real estate ownership was written.
Mercer was hired by Bill Thomas, who wrote the Virginia Condominium Act of 1974, which serves as a model for association-governed communities in much of the U.S.
“I feel extraordinarily fortunate to have graduated when I did,” Mercer said. “It’s been a phenomenal opportunity to help shape and develop the law in an area of real estate still in the infancy stage.”
In 2007, he partnered with Trigiani, a longtime colleague, leader with the Virginia Bar Association and a 1983 graduate of University of Richmond Law School, to form MercerTrigiani.
“They are known all over the state by real estate lawyers as leaders specializing in association law,” said C. Grice McMullan Jr., a real estate attorney with ThompsonMcMullan in Richmond.
“They are a major force in what goes on with association law, and they are equally good at what they do,” McMullan said. “They work all the time, and they are very professional.”
McMullen said their expertise is widely sought and he attends their meetings, even those in Northern Virginia, because the experience helps him with his practice.MercerTrigiani, which has a total of seven lawyers, has provided counsel to more than 500 homeowner associations ranging from a two-unit condo in Virginia Beach to the 28-unit Townes at Cary Place in Richmond and the 7,600-home Lake Ridge community in Prince William County.
The partners have been involved in the development of legislation affecting common interest communities for all of their careers.
While Mercer began his career with the principal draftsman of the Condominium Act, Trigiani, as a regulatory official, was often called upon to answer technical questions about community associations by members of the General Assembly.
“We continue that work, serving as the principal lobbyists for the community association industry in Virginia,” Trigiani said.
Mercer and Trigiani help homeowner associations wade through a quagmire of laws. They review contracts, develop and implement election procedures, provide counsel on open meeting requirements and help boards determine how to asses, spend and borrow funds.
They also guide boards on dealing with prickly neighbors.
One case involved a resident who received permission to construct a treehouse in an 1,800-home community in Prince William but built one that was large and elaborate with a ceiling fan, small porch and a view overlooking a neighbor’s bedroom.
After unsuccessful efforts to encourage the owner to comply voluntarily, the association brought legal action against the resident. He eventually tore down the treehouse and chose not to rebuild it to the size originally approved by the homeowners’ association.
The case, which Trigiani refers to as the “treehouse huggers,” is close to her heart.
The treehouse builder and his daughter appeared on “Good Morning America.” “Save the treehouse” T-shirts were sold at Safeway grocery stores in Northern Virginia. Board members received hate mail from treehouse advocacy groups.
That year for Christmas, Trigiani’s parents sent her a book, “Treehouses: The Art and Craft of Living Out on a Limb,” with this inscription: “To our child, the lawyer. May the worst thing you do in life is to tear down a treehouse. Mother and Dad, 1998.”
She also received letters from association members thanking her for standing firm.
“What I learned from it was it isn’t about the person who put up the treehouse,” she said. “It’s about the other owners.”
Twenty-four percent of all U.S. homes are in community associations, indicating that Americans largely accept the collective management structure, according to the Foundation for Community Association Research, a research organization for the Community Associations Institute.
An independent national survey conducted in 2012 by Zogby International, a polling firm, shows an overwhelming majority of members of common interest communities are satisfied with their association experience.
Ninety-two percent rated their community association experiences as positive, 88 percent said their elected governing boards strive to serve the best interest of the community and 76 percent said association rules protect and enhance property values.
Trigiani, 54, grew up in a big Italian family and watched “Perry Mason” and “Matlock.”
“I always wanted to be a lawyer,” said Trigiani, the second oldest of seven children. Her mother still lives in the family home, a Victorian brick house, in Big Stone Gap.
“It’s amazing that I am a lawyer, because I cried the whole time growing up,” she said, adding that she was a sensitive child.
The family moved to rural Virginia in 1966 from Bangor, Pa., so her father could open a garment factory.
All five girls — four at the same time — went to St. Mary’s College, a private women’s Catholic college and sister school of the University of Notre Dame. “It’s the only school any of us applied to.”
Her father graduated from Notre Dame, and her mother was a librarian there.
Trigiani didn’t think she would go into real estate law. She had her sights set on being a litigator or general practitioner.
However, she went to work part time for the Real Estate Commission in Richmond while in law school, reviewing applications for the registration of condominium regulations.
When she graduated in 1983, she worked as the property registration administrator in Richmond before taking a job in 1987 with Hazel & Thomas (now Reed Smith) in Northern Virginia. She met Mercer while working there.
Her practice has gone full circle, from serving as the Virginia official responsible for regulating sales in common interest communities to helping developers create homeowner associations and guiding associations as they take over responsibilities from the developers.
She has returned to her role as regulatory official, serving as chairwoman of the state Common Interest Community Board since 2008, when the board was established by the General Assembly.
She closely monitors developments in the General Assembly involving community associations.
“I have liked all of it,” she said. “Would I have chartered this course? No. Did I think I would be in Northern Virginia? No.”
“Pia is the point person for the General Assembly on any issue dealing with community associations,” said Del. Peter Farrell, R-Henrico, who serves on the housing subcommittee.
“She is very honest and upfront,” he said. “Even when we disagree, we still have a very good working relationship.”
Farrell also serves with Trigiani on the board of the Little Sisters of the Poor, an order of Catholic nuns who care for the elderly. “She works hard to contribute to that organization,” he said, adding that she is fun and has great energy.
Homeowner associations work like public-private partnerships, Mercer and Trigiani say. They have characteristics of government and business.
“Associations wield sword and shield — a real dichotomy,” Trigiani said, explaining how they enforce the rules to protect the majority.
Association officers can impose internal sanctions, such as taking away pool passes for people who violate the rules, place liens on houses or take their neighbors to court. It’s a thankless job, but associations provide important and essential services, Mercer and Trigiani say.
“These community associations exist because local governments want them to,” Mercer said.
Developers agree to build streets, deal with stormwater management and put in curbs, gutters and street lighting, taking the cost off local governments.
“These are huge ticket items for many localities,” Mercer said.
Developers then establish the rules for homeowner associations and hand them off to the homeowners.
Associations take on services such as snow removal and trash pickup, again shifting the burden off municipalities.
The Condominium Act as drafted in 1974 was intended to give the people creating condominiums wide latitude in how the government of associations should be established, Mercer said.
“Right now, I am very concerned that legislators think it’s necessary to legislate changes in the law that will not be appropriate,” he said, adding that the attempt to try to legislate everything has taken place over the past 10 years.
“The General Assembly wants to impose mandatory regulations because legislators believe associations are abusing individual rights of the owners.”
Not all people are cut out for living in an association-governed community, Mercer said.
“If you’re not willing to move into a society where the majority agrees houses get to be painted pink or black or whatever, then you are not a good fit.”
Mercer never thought he would be suitable.
But that changed when he and his wife, Nell, bought a second home in a picturesque community in Duck, N.C., four years ago.
“Not only did I say I didn’t want to own a house in an association community, but now I am on the board of directors.”
Mercer said it was clear to him from the moment he and his wife saw the house that it was part of an association.
“In comparison to other neighborhoods, where it was every man for himself, we liked the uniform appearance and well-maintained common areas.”
The Mercers can’t put in a swimming pool. Motorcycles and all-terrain vehicles are forbidden. Houses must be painted gray or brown. And no yard ornaments are allowed.
“You’re comfortable knowing that your next-door neighbor won’t put a life-size replica of the Cape Hatteras lighthouse beaming into your yard,” Mercer said.