The Virginia Legislative Action Committee (“LAC”) had a busy 2013 legislative session. This is my third year on the LAC and each year brings new challenges. Our mission is to monitor and influence legislation affecting community associations. This year I served as the Chair of the LAC and we monitored over 30 bills and were active on over 10 of the bills. We were successful in getting some bills tabled, some modified, and some passed. All of the bills cited below are effective July 1, 2013 unless otherwise noted. If you have any questions on the impact of these changes for your community, please let us know.

Legislation

Continue reading “2013 Legislative Update for Virginia HOAs”

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.

Continue reading “Benefits of Community Associations Part 1: Are Community Associations really as bad as some portray?”

Originally posted 2012-02-21 09:00:58. Republished by Blog Post Promoter

We know that in Virginia, the parties to a contract are bound to the terms of that contract. We also know that Virginia courts look to the terms of that contract to determine each party’s rights and obligations. But what is a “contract?” This blog post looks at a recent Virginia Supreme Court case that gives a little guidance to answer that question.

Continue reading “When is a “Contract” not a Contract?”

Originally posted 2011-09-06 13:00:30. Republished by Blog Post Promoter

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. Continue reading “Residential construction and mechanic’s liens; how you can protect your mechanic’s lien rights”

Originally posted 2012-06-26 08:00:43. Republished by Blog Post Promoter

Many times, parties enter into informal loan agreements on a simple oral promise to “pay it back.”  Similarly, others will enter into oral agreements to perform residential construction projects, or other types of projects. When things do not go as expected and the promises are of a value worth litigating over (or one of the parties to the promise thinks they are) things can go swiftly downhill.

Contracts

Continue reading “Oral Contracts are enforceable, but . . . .”

Originally posted 2012-06-21 08:00:20. Republished by Blog Post Promoter

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”

Originally posted 2010-12-28 10:52:57. Republished by Blog Post Promoter

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.”

Originally posted 2011-08-09 11:59:33. Republished by Blog Post Promoter

The enforcement of covenants, conditions, and restrictions (“CC&R’s”) is among the most criticized of the duties performed by the Board of Directors of community associations, but is also the most important responsibility. CC&R’s govern many activities in a community including house designs, parking regulations, maintenance and repair of the common areas, and collection of assessments. Sensational “Gotcha” type news stories highlight enforcement practices of some associations, which contribute to a false perception that associations in general lack common sense. However, studies repeatedly show that the overwhelming majority of people  living in neighborhoods governed by HOAs believe that the rules in their communities benefit them.

Continue reading “Benefits of Community Associations Part 2: How is Covenant Enforcement Good for Owners?”

Originally posted 2012-04-16 08:22:32. Republished by Blog Post Promoter

We wrote earlier about a Charlottesville case in which the court analyzed the duty to disclose for a seller of residential real estate. Although Virginia follows the general rule of caveat emptor, the court ruled that the seller, who was also a licensed real estate agent, may have violated a duty to disclose material adverse facts.

The purchasers alleged two other counts, alleging that the seller failed “to disclose the adjacent drain problems and history of flooding, constituting both fraudulent misrepresentation and constructive fraud.” The court dismissed those claims while providing a nice, succinct history of the law of fraud in the sale of a home. This blog post reviews the general rules of fraudulent misrepresentations in residential real estate sales.

Continue reading “Part 2 of The Rule of Caveat Emptor in the Sale of Real Estate vs. a Seller’s Duty to Disclose”

Originally posted 2011-05-25 09:00:36. Republished by Blog Post Promoter

This blog post comes from Jason Howell, our 2011 Summer Associate when he was a rising third-year law student at the William & Mary Law School. Jason is working with us this summer and debuts his first blog post.

Negotiation can be challenging. Whether you are negotiating the terms of a business agreement, trying to buy or sell property, or settling a dispute, getting to an agreement can be difficult. Even if you are successful in getting the other side to negotiate with you, you may feel at a disadvantage or worry that there is something in the final negotiated agreement you are missing.

Hiring an experienced attorney to represent you can give you advantages that can help you get to an acceptable agreement. By using an attorney in your negotiation, you can benefit from the attorney’s knowledge and skill, which can help you to reach your negotiation goals.

Continue reading “Do you need an attorney to negotiate on your behalf?”