Can an advisor be held liable for the false statements in a prospectus made by another?

October 30, 2014 on 1:21 pm | In Business Planning, Contributors, General Interest, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments
Williamsburg Virginia Business Lawyers

United States Supreme Court

Previously we blogged about a pending case before the Supreme Court that had the possibility to significantly increase the liability of persons for assisting in the preparation of a “prospectus.” As of June 13, 2011, the Supreme Court handed down an opinion in that case, styled as Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.).

The determination of this case is relevant to accountants and business lawyers who assist in the preparation of documents for the purpose of raising money for investment. The Janus Capital Group, Inc. case presented the question of who may be deemed to have “made” an untrue statement for the purposes of Rule 10b-5, and specifically whether someone who assisted in the preparation of a prospectus could “make” a statement through such assistance. As the result of a 5-4 decision, accountants and business attorneys may breathe a little easier. Continue reading “Can an advisor be held liable for the false statements in a prospectus made by another?”

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Another Thanks to Construction Law Musings – HOAs and Construction Defects

October 30, 2014 on 1:21 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Strategies, Unit Owners Association | 1 Comment

Richmond Construction Law attorney Chris Hill, my friend and colleague, permitted me another opportunity to blog at his award-winning blog Construction Law Musings. Chris is an outstanding Virginia attorney, and his blog is a great source of information on construction law, including the intricacies of mechanic’s liens. You can also follow him on Twitter, @ConstructionLaw.

Chris has a regular feature called “Guest Post Friday” in which he invites other bloggers to contribute to his Musings. For this blog, we wrote a post exploring the statutory warranties, provided in Va. Code § 55-79.79 of the Condominium Act, that require the Declarant to warrant “all of the common elements for two years.”

Here’s a brief excerpt of the post:

When either a commercial or residential condominium development nears the time of automatic transition, the developer and the owners face many challenges. The developer, or “Declarant,” must transfer responsibility for management, enforcement of the Condominium Instruments, and finances, amongst other responsibilities, to the new owner-controlled Board of Directors. With the pending departure of the Declarant, owners can become concerned about possible construction defects with the common elements. This blog post discusses the process and responsibilities under the statutory warranties provided by the Virginia Condominium Act.

Read the complete blog at Construction Law Musings, as well as many other informative posts on Chris’ outstanding blog. Thanks again, Chris!

Thank you

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Neighbor Law: Tips for Avoiding Boundary Line Disputes

October 30, 2014 on 1:21 pm | In Construction litigation, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Few real estate topics cause more disputes between owners than those involving activities at a common boundary. We have reviewed boundary line disputes involving trees that straddle property lines and fences that encroach upon boundary lines.

A recent Portsmouth case highlights another issue relating to boundary lines.

Continue reading “Neighbor Law: Tips for Avoiding Boundary Line Disputes”

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Fictitious Name filings: Make sure you file properly for your business

October 30, 2014 on 1:21 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition | No Comments

Many 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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Virginia Statute – HOAs must adopt “Cost Schedule” to recover copy costs

October 30, 2014 on 1:20 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

The Virginia Code has provisions that provide members of condominium associations and homeowner associations with the ability to request copies of books and records. The statutes have also permitted  associations to recover the costs of copying the requested books and records.

This blog post highlights a new statutory provision affecting common interest communities. On July 1, 2012, HOAs and condo associations will only be able to recover these copying costs if the association has adopted a cost schedule.

Continue reading “Virginia Statute – HOAs must adopt “Cost Schedule” to recover copy costs”

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HOA Boards of Directors: Two Essential Tips to Effective Management

October 30, 2014 on 1:20 pm | In Common Interest Community, General Interest, HOA, Real Estate Strategies, Susan B. Tarley | 2 Comments

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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ADA, FHA, and HOAs And Service Animals: Florida Association Sued for housing discrimination

October 30, 2014 on 1:20 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, State & Federal Litigation, Unit Owners Association | No Comments

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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Real Estate Listing Agreements for the sale of property: Are they enforceable even if not in writing?

October 30, 2014 on 1:20 pm | In General Interest, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Generally speaking a party can enforce an oral agreement. However, courts will not enforce certain contracts unless they are in writing. For example, under Virginia Code § 11-2, commonly known as the Statute of Frauds, an agreement or contract for services to be performed in the sale of real estate by a real estate broker or real estate sales person is not enforceable “[u]nless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent . . . .”

Most real estate agents and brokers understand the importance of having written listing agreements with their sellers. However, a recent decision of the Supreme Court of Virginia points out that even in the absence of a written listing agreement, an oral listing contract may be enforceable if there is sufficient documentation to remove it from the bar to enforcement of the Statute of Frauds. The Virginia Supreme Court, in the case of C. Porter Vaughan, Inc., Realtors v. Most Reverend Francis X. DiLorenzo, Bishop of The Catholic Diocese of Richmond, 279 Va. 449, 689 S.E.2d 656 (2010), better defined what is meant by “sufficient documentation.”

House For Sale

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Enforcing HOA covenants important for common interest communities

October 30, 2014 on 1:20 pm | In General Interest, HOA, John Tarley, State & Federal Litigation, Susan B. Tarley | 2 Comments

 

We have written previously on the litigation of homeowner association cases. Generally, homeowner associations can file a lawsuit in the General District courts to enforce collection of assessments. However, If an HOA needs to enforce a covenant, seeking an injunction to require a homeowner to comply with the restrictive covenant, as of 2011, the HOA must file a lawsuit in the Circuit Court can now file a lawsuit in the General District Court, as well. Virginia Code sections 55-79.80:2, and 55-513 give jurisdiction for those matters to the General District Court. Those lawsuits can be expensive and time-consuming.

Continue reading “Enforcing HOA covenants important for common interest communities”

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Can HOAs Prohibit Owners From Flying the American Flag?

October 30, 2014 on 1:20 pm | In General Interest, HOA, HOA litigation, Jason Howell, John Tarley, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

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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