Posts by John Tarley:
- 3 tips for safe emailing with your attorney;
- Using a company computer to email your attorney may be a bad idea
- Emails from work computer can waive rights to privileged communications
- you were the last employer for the employee, and
- that employee worked at least 30 days or 240 hours, and
- that employee was not terminated for cause.
- The employee must have been employed and earned a certain amount of wages. The Virginia Employment Commission publishes requirements for wages earned or time worked during an established period of time referred to as a “base period.”
- The employee must be determined to be unemployed through no fault of their own. An employee terminated for cause is not eligible for unemployment.
Update on using work email – American Bar Association says lawyers must caution clients of risks
October 30th, 2014We 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.
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
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What can an HOA do to collect past dues when a bankrupt homeowner surrenders property but the lender does not foreclose?
October 30th, 2014An all-too-common scenario occurs when a homeowners association attempts to collect past dues and the homeowner files bankruptcy. The law is clear that the bankrupt homeowner is still liable for those post-petition dues. The United States Bankruptcy Code at Section 523(a)(16) makes the homeowner liable for “a fee or assessment that becomes due and payable after the order for relief to a [homeowners association] for as long as the debtor . . . has a legal, equitable, or possessory ownership interest in such unit.”
In other instances the homeowner decides to walk away from the property and surrenders the property to the lender. Instead of foreclosing, however, the lender simply does nothing. Therefore, the title of the property is still in the name of the bankrupt homeowner who walked away from the property, and they are not paying the assessments. The lender has not foreclosed so they are not paying the assessments. How can the homeowners association collect these past due post-petition assessments?
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When might a Virginia business be liable for unemployment compensation?
October 30th, 2014In the Greater Williamsburg area, many small businesses face seasonal layoffs when the summer tourism season ends. For small businesses, these layoffs lead to questions regarding unemployment compensation. In this blog post, we will discuss the issue of when an employer can be liable for the unemployment compensation for a terminated employee.
Generally speaking, an employee terminated by you may be otherwise eligible for unemployment benefits, chargeable to your company if:
The basic qualifications for unemployment compensation are:
Once you have been determined to be the “employer” liable for unemployment compensation, you are responsible for all the benefits payable to that former employee. Unless extended benefits have been approved, the maximum benefit is 26 times the weekly benefits payable to the employee.
The weekly benefits are found in a table at Virginia Code § 60.1-602. This table is regularly updated, it tells you how much a person would receive per week in unemployment, based upon the amount they made when employed. For example, if a person made $6,300 in the prior twelve weeks when employed, he would receive $125 per week in unemployment, and a total of $3,250, if he were employed for the entire 26-week period.
The possibility of being liable for unemployment compensation worries many small business owners. Discuss the issue with your business attorney so that you can plan properly for your employment needs.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
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Real Estate Listing Agreements are Contracts – Do you know your rights and obligations?
October 30th, 2014No sooner had we posted our blog article on the enforceability of listing agreements even when they are not in writing, another recent case came to our attention. This case is from the New Kent County Circuit Court. This case is another example of the increasing acrimony between sellers and brokers in a tight real estate market.
Listing Agreements
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Preserve your friendships when borrowing or lending with friends or family – Document your transactions
October 30th, 2014Many small businesses rely upon loans from friends and family for startup funds, for business expansions, or to support existing operations. Many times, these loans are made upon an oral agreement. As we have written previously, although oral agreements can be enforceable, without a writing, the terms of the agreements can be difficult to prove. In this blog post, we will describe other problems with informal lending transactions between family and friends.
In a study entitled “Lenders’ Blind Trust and Borrowers’ Blind Spots: A Descriptive Investigation of Personal Loans,” researchers outlined many of the difficulties of maintaining a lender-borrower relationship between friends and family. In many “informal” lending relationships, the borrowers and the lenders remember the transactions differently. This “self-serving bias” can lead to problems. For example, borrowers may believe that the “loan” was a “gift,” or although agreeing that the transaction was a “loan,” may believe they paid off the loan. On the other hand, the lenders may feel angry when the “loan” is not repaid, especially when the borrower never raises the issue of repayment.
The study documented these differences between borrowers and lenders:
Many borrowers thought the idea for the loan originated with the lender, not themselves, although the lenders thought otherwise;
Borrowers reported far fewer delinquent loans than lenders;
Borrowers were fairly confident they would eventually repay the loan, but lenders thought even one missed payment probably meant the loan would never be paid off;
Delinquent borrowers “are much more likely to report feeling guilty, and also strangely, relieved and happy. Lenders associated with delinquent loans, in contrast, are much more likely to report feeling angry.”
Even though banks are flush with cash to lend, you may not qualify for a loan, or the bank’s terms may be too onerous. Consequently, family and friends are natural sources of funds for startup funds or for operating capital. However, as the proverb says,”Before borrowing money from a friend, decide which you need most.” Therefore, if you must borrow from friends or family, it is a small price to pay to perserve your personal relationships to have your business attorney draft the appropriate loan documents, including a promissory note, so that everybody knows the expectations of the transaction. Taking this step at a relatively small price can save your friendships.
Tarley Robinson, PLC, Williamsburg, VA
Attorneys and Counsellors at Law
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Can an engineering firm limit its liability by contract?
October 30th, 2014
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Residential construction and mechanic’s liens; how you can protect your mechanic’s lien rights
October 30th, 2014
Courtroom
With the downturn of the housing industry, we have seen a dramatic increase in the number of construction disputes, especially in residential construction. Owners are battling with the contractors, and subcontractors are trying to get paid by somebody. These cases lead inevitably to litigation.
The property owners and the building contractor should have a written contract. However, the subcontractors sometimes find themselves in a difficult situation, unpaid by an insolvent building contractor. It is usually then that we will receive a call from a subcontractor asking about their mechanic’s lien rights. Unfortunately, it may be too late for that subcontractor to preserve their mechanic’s lien rights because they failed to provide proper notice at the outset of the work performance. This blog post provides a brief overview of the notice requirements for subcontractors to preserve mechanic’s lien rights. Read the rest of this entry “
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Do the Virginia Rules of Evidence change settlement negotiations and mediations?
October 30th, 2014Virginia’s new codified Rules of Evidence became effective on July 1, 2012. In an article in Virginia Lawyers Weekly, five of the rules were highlighted. One of those highlighted rules was Rule 2:408, “Compromise and Offers to Compromise.” The terms of this rule differ from the terms of the Federal Rule of Evidence 408, but those differences will not be explored in this post. Instead, this blog post will review Virginia Rule of Evidence 2:408, and its possible implications for settlement discussions and mediation.
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The Rule of Caveat Emptor in the Sale of Real Estate vs. a Seller’s Duty to Disclose
October 30th, 2014Simply stated, caveat emptor means “let the buyer take care,” or even more plainly stated: “Buyer beware.” In real estate matters, buyers are warned that they are to “exercise ordinary care in inspecting the condition of property.” Therefore, buyers are generally urged to obtain a home inspection and take such other care prior to closing on their real estate purchase. Otherwise, the buyers may not have any relief if they find adverse conditions after taking possession.
A case arising out of Charlottesville highlights the obligations of the buyers and the sellers in the purchase of a home. In that case, the seller of the home was also a licensed real estate agent, which added another complication regarding the duty to disclose. This blog posts analyzes that court decision, which offers warnings to buyers and sellers of real estate, as well as to licensed real estate agents.
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Fictitious Name filings: Make sure you file properly for your business
October 30th, 2014Many businesses operate under a fictitious name, otherwise referred to as “doing business as” or “d/b/a.” There are many reasons for this use, but primarily, a company can use a catchy business name, like when a franchise opens a “T.G.I.F.” or “McDonalds,” but the company’s actual corporate name is not as exciting.
According to the Virginia Supreme Court, Virginia requires a company operating under a different name to file that name with the court and the State Corporation Commission “to prevent fraud and to compel an individual or a corporation to disclose the name of the real owner of the business, in order that the person or corporation may sue in or be sued by the proper name.”
Virginia statutes set forth the process for registering your fictitious name. For restaurants or other single location businesses, the process is pretty simple. First, you file a fictitious name certificate with the court clerk in the jurisdiction where your business is located. After the certificate is recorded, you file the certified copy with the State Corporation Commission.
Problems can arise for construction companies and other types of businesses who transact business in several localities. For those companies, you must file a fictitious name certificate in each county or city where you conduct business. We have had several matters in which these types of businesses failed to properly register their fictitious names in all the jurisdictions where they conduct business. For one thing, those entities cannot bring a lawsuit to collect monies due until they rectify that problem.
“Doing business as” is just another issue to consider when you set up your company. Make sure you fully advise your lawyer so all of your filings can be completed early, and correctly.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Williamsburg, Virginia
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