Flying the flag is an important way that Americans celebrate their liberty and the sacrifices of past and present heroes who defend it. There were news stories about a dispute between an Ohio homeowners’ association and a Vietnam veteran over a flagpole that brought an important issue to the forefront.

In Ohio, a homeowner erected a large flagpole on his property to fly the flag. The homeowners’ association told him that the flagpole (not the flag) violated the declaration of covenants for the neighborhood, and asked him to take the flagpole down. It offered to place flagpoles in common areas in the neighborhood, and suggested that the covenants would allow him to fly a flag on a pole attached to his house. He refused. After a firestorm of publicity, the HOA averted litigation by permitting the homeowner to keep his flagpole. The underlying question remains: can a homeowners’ association really prohibit an owner from flying the American Flag?

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We have previously written a blog piece warning of increased email scam activity and sophistication. Expect more. Another victim of these email scams has come to light, and this victim was a lawyer. An article in Virginia Lawyer’s Weekly told the story of a lawyer victim of a successful email scam. This blog post provides another warning against these scams.

Continue reading “Email scams (continued)”

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Virginia became one of the latest states to pass legislation limiting the use of employee noncompete agreements. Beginning July 1, 2020, certain noncompete agreements are prohibited by statute. This blog post examines that new statute and what it means for employers and employees.

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We blogged about a Charlottesville Circuit Court case in which the court analyzed the duty to disclose for a seller of residential real estate.  We wrote another post regarding that case discussing an exception to the rule of caveat emptor. Specifically, if the seller attempted to “divert” the purchaser’s attention away from problem areas, a court could find fraud and rescind the contract.

However, in Virginia, if a prospective home purchaser discovers information alerting him to a potential problem, that person is charged with knowledge he would have found had he diligently pursued the inquiry. That rule was highlighted in an unpublished opinion released by the Virginia Supreme Court. This blog post reviews the facts of that case and the lessons to learn for real estate sellers and buyers.

Continue reading “Caveat Emptor and a Buyer’s Duty to Investigate Real Estate Purchase”

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Many 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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It’s a simple fact of business life that you and your company’s fellow shareholders or members will not always see eye-to-eye. Furthermore, our personal lives change and that effects the level of willingness in which some participate in a business venture.

As in any relationship, businesses also reach that awkward stage in which a shareholder or member wants to leave his current business venture and start something new. We have discussed starting your business and provided guidelines for setting forth the rules for governing your business. This article addresses some of the difficulties that arise during the “break-up period.” For the purposes of this article, we will use the terms “shareholder” and “member” interchangeably, as well as the terms “director” and “managing member.”

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When water leaks from one condominium into another, determining the responsible party is usually not too difficult.  But what about when the hazard isn’t water, but bed bugs, parasitic insects of the cimicid family that feed exclusively on blood and often take up residence nearby or inside of beds, bedding and/or other sleep areas, who is responsible then? This blog post will review some of the issues regarding condos and bedbugs.

Continue reading “Don’t Let the Bedbugs Bite. . .Your Condominium Neighbor!”

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A short while ago we wrote a blog piece on the issues relating to community associations regulating service animals. In that blog we noted that the Fair Housing Act (“FHA”)  “permits individuals with disabilities to keep an assistance animal as a reasonable accommodation when there are limitations imposed by the homeowner or condominium association on animals and pets.”  In Broward County, Florida, that county’s Civil Rights Division filed suit against a condominium association for violating the FHA by refusing to consider a person’s request for an “emotional servant animal,” a chihuahua.

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It’s a fundamental rule in Virginia that the Plaintiff (the person filing a lawsuit) can only recover the relief requested in the Complaint. In a recent unpublished decision, the Virginia Supreme Court reaffirmed the requirement that a party can only get relief if they ask for it.

Continue reading “In litigation, you can’t always get what you want (especially if you don’t ask)”

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An 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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