Page 378
16-B.02 What Opinion Must Address
Compliance With VA Regulations
The attorney’s opinion must address compliance of the organizational documents with VA regulations 38 CFR 36.4356 through 36.4360a(g) for condominiums.
Reference: [38 CFR 36.4356 through 38 CFR 36.4360a(g)]
Page 379
Compliance with Other VA Requirements
The attorney’s opinion must address compliance of the organizational documents with the technical areas discussed in Exhibit A.
Compliance with Local/State Requirements
The actual attorney’s opinion must
· address compliance of the organizational documents with the material requirements of applicable state and local laws,
ordinances, regulations and other legal requirements governing the creation of property owners associations as of the
date of the opinion, and
· identify the above applicable laws, ordinances, regulations and legal requirements by name and citation.
The attorney’s opinion must identify any variation from any requirement, including failure to
Variations
comply with a specific requirement. A recorded amendment correcting a document defect or deficiency with regard to a VA regulation is necessary in most cases, since VA offices do not have the flexibility to approve such defects or deficiencies.
Master or Umbrella Association
If there is a master or umbrella association, the attorney may provide a separate opinion which addresses the compliance with requirements applicable to that form of association.
Page 380
Special Conditions
The attorney’s opinion must state whether or not any of the following conditions are present, and provide a detailed explanation for any that are to ensure compliance with VA guidelines and requirements:
· a conversion of a building from a former existing use such as former rental housing
· HOA owns a community water and/or sewage disposal facility
· alienation restrictions exist in connection with a state or local program designed to assist low or moderate income
purchasers, or
· restrictions exist which are associated with housing designed for older persons.
If the development is, or will be mixed-use, such as multi-family, commercial or other non-
Mixed—Use
residential use, the opinion must include
· a detailed explanation of the arrangements
· the percentage of multi-family or non residential units/uses, and
· an explanation of the voting rights of those units.
Opinion is Conditional
When the attorney’s opinion is conditional, that is based on unrecorded documents, including plats, the recorded documents must be submitted to VA prior to the guaranty of the first VA loan, along with a certification from the attorney giving the original opinion. The certification (on the letterhead of the attorney’s firm, signed and dated, giving the attorney’s name and title) must either
· state that the recorded documents are the same as those on which the original opinion was based, or
· specifically address any change in the recorded documents and the effect of the change(s) on the previous opinion.