Attorneys’ Fees and Litigation – When fees get awarded to the “Prevailing Party”

June 23, 2014 on 11:31 am | In Common Interest Community, Construction litigation, HOA, HOA litigation, John Tarley, Mediation, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

Originally posted 2012-10-17 07:45:47. Republished by Blog Post Promoter

In litigation matters involving common interest communities (otherwise known as homeowners associations (“HOAs”) or condominium owners associations (“condo associations”)), the issue of awarding attorneys’ fees for prevailing parties ultimately arises. Generally, the HOA’s Governing Documents or the condo association’s Condominium Instruments contain such a provision. Otherwise, attorneys’ fees may be recoverable by statute for HOAs and condo associations.

These attorney fee-shifting provisions, either by contract or statute, are contrary to the typical “American Rule” cases in which each side pays their own attorneys’ fees. Because litigation has become so expensive to pursue, whether to award attorneys’ fees, and the amount of any award, has become separate litigation on its own at the conclusion of cases.

In the recent case of Dewberry & Davis, Inc. v. C3NS, Inc., the Virginia Supreme Court was faced with the issue of “whether the circuit court erred in applying an attorneys’ fees provision of a contract.” We had previously blogged about this case, because in the underlying contract between the parties, Dewberry & Davis, an engineering company, had limited its liability for damages. The trial court had determined the limitation of liability clause was void, pointing to a recent change to Virginia Code § 54.1-411that permitted an engineering company to include a limitation of liability clause. Because the contract predated the code change, the court determined that those changes “demonstrate that the General Assembly fully intended to alter the statute’s intent.”

The case continued to trial, and eventually, upon appeal, to the Virginia Supreme Court. This blog post explains that Supreme Court decision relating to the award of attorneys’ fees.

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4 Tips to help your HOA protect its Attorney-Client Privilege

June 23, 2014 on 11:31 am | In Common Interest Community, General Interest, HOA, HOA litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2011-09-20 11:59:39. Republished by Blog Post Promoter

The Attorney-Client Privilege protects confidential communications between an attorney and his or her client.  This privilege includes communications made to the attorney and communications from the attorney. The Attorney-Client Privilege is designed to encourage clients to communicate with their attorney freely, without fearing disclosure of those communications made in the course of representation. The Attorney-Client Privilege is important because it permits clients to give their attorney complete and uncensored information, enabling their attorney to provide informed and thorough legal advice.

For community associations, the Attorney-Client Privilege belongs to the association and can only be expressly waived by the a decision of the association board or executive organ. However, the privilege can be impliedly waived based on the client’s conduct.  A determination on whether the privilege has been waived will depend on the specific facts of each case. The association will have to establish that the attorney-client relationship existed, that the communication is privileged, and that the privilege was not waived.

Here are four basic tips for the board of your Common Interest Community to follow so that it protects the association’s Attorney-Client Privilege:

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One important tip for your construction project – Change Orders

June 23, 2014 on 11:31 am | In Construction litigation, General Interest, John Tarley, State & Federal Litigation | No Comments

Originally posted 2010-11-03 07:12:45. Republished by Blog Post Promoter

The DPOR regulations require Class A Contractors to obtain written change orders “which are signed by both the consumer and the licensee.” This requirement sounds pretty reasonable and easy to maintain, yet the reality is that many contractors fail to fully comply with this provision, leading to possible problems down the road.

 

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HOAs and a Reserve Study…it’s the law! (Part 1 of a 3 part series on Reserves)

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, Susan B. Tarley | No Comments

Originally posted 2010-09-06 09:37:24. Republished by Blog Post Promoter

Yes, Virginia, property owners’ associations and condominium associations are required to have a reserve study.  At least once every five years an association must obtain a study to determine the necessity and amount of reserves (i.e. financial savings) required to repair, replace and restore capital components.  Capital components are those items, regardless of whether they are part of the common area or common elements, for which a) the association has an obligation to repair, replace or restore, and for which b) the board or executive organ determines that funding is necessary.

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Benefits of Community Associations Part 1: Are HOAs really as bad as some portray?

June 23, 2014 on 11:31 am | In Common Interest Community, HOA, HOA litigation, Jason Howell, Real Estate Litigation, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2011-07-26 08:30:49. Republished by Blog Post Promoter

 

Community Associations have been the subject of a lot of bad press lately. An Associated Press article is typical of news reports that lambast associations. The article tells about a 55-and-older condo complex in Florida. According to the article, units in the Inlet House condo complex used to be worth $79,000, but sold for as little as $3,000 after rats started chewing through toilet seats and sewage started leaking from the ceiling. The article goes on to vilify the condo association for levying a $6,000 special assessment on residents and then foreclosing on owners who don’t pay their dues.

In its eagerness to blame the condo association for the woes of these senior citizens, the article and many blogs pointing out the “abuses of HOAs” miss an important point: the association may be the only group really looking out for the interests of the owners. Let’s look at what the article does not allege: it does not allege that the Association was responsible for the rat infestation or the sewage leak and it does not allege that the Association could have prevented the housing meltdown that contributed to the decline in property values.

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Does your Business use Employee Noncompete Agreements?

June 23, 2014 on 11:31 am | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

Originally posted 2010-08-17 22:37:52. Republished by Blog Post Promoter

Williamsburg Virginia Business Lawyers

Contract

The legal issues related to employee “non-competes” (also known as covenants not to compete or non-competition agreements) are often not well understood by employees subject to them, the companies insisting upon them, or the companies intending to hire persons subject to them.  That may well be especially true in the Commonwealth of Virginia where one frequently hears, “That agreement is so broad it will never be enforced and Virginia doesn’t ‘blue pencil’ these agreements, so no problema.”

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Update on using work email – American Bar Association says lawyers must caution clients of risks

June 23, 2014 on 11:31 am | In Construction litigation, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

Originally posted 2011-09-08 08:45:06. Republished by Blog Post Promoter

We continually warn about the use of work email accounts to correspond with your attorney:

The American Bar Association has now opined that lawyers should “warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.” Although the ABA’s opinion is not binding upon any state regulatory bar association, it is likely that state bar associations, like the Virginia State Bar, will review this opinion with interest.

Williamsburg Virginia Business Lawyers

Client Email

Most of our communications are not private, even though we think they are. Work emails are not secure. Regardless of whether lawyers are required or suggested to warn clients, it is not a good idea to use your work email account to email your attorney.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

jt photo 150x150 Using a company computer to email your attorney may be a bad idea

 

 

 

 

 

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3 tips for safe emailing with your attorney

June 23, 2014 on 11:31 am | In Business Planning, Common Interest Community, John Tarley, State & Federal Litigation | No Comments

Originally posted 2010-08-30 13:39:19. Republished by Blog Post Promoter

Obviously the use of email has changed many aspects of our world, including the practice of law. As with all new technology, we sometimes learn hard lessons. The attorney-client privilege is the foundation of effective communication between counsel and clients. Only a client can waive that privilege. Although email has far more positives than negatives, to protect attorney-client communications, use these three tips.

Williamsburg Virginia Business Lawyers

Attorney-Client Privilege

 

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HOAs and Transition from Developer Control – 101

June 23, 2014 on 11:31 am | In Business Law, Business Planning, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2013-11-12 15:58:04. Republished by Blog Post Promoter

Owners in most community associations—both homeowner associations and condominium associations—eventually reach the point where the developer transfers control of the Board of Directors to the owners. This blog post provides an introduction to the transition process and what owners can expect.

Susan Tarley

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HOA Boards of Directors: Two Essential Tips to Effective Management

June 23, 2014 on 11:31 am | In Common Interest Community, General Interest, HOA, Real Estate Strategies, Susan B. Tarley | 2 Comments

Originally posted 2011-02-18 07:00:53. Republished by Blog Post Promoter

Many of us can attest to the stress and lost time that results when working on, for, or with a dysfunctional Board of Directors. Boards that do not operate as a team fail to accomplish the tasks that need to be accomplished, and greatly increase the potential liabilities of a community association.

The healthy leadership of a board is essential to the strength of a community. Community associations can build a strong team if board members and owners better understand the roles and responsibilities of their association, the board and each owner. To start building a team, the board needs to lead. The goal of team building is to establish a strong association and build a sense of “community.”

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