“Tree law” fascinates us. I guess part of the reason is because many of us have at least one tree on our property, and during severe storms, we fear what would happen if one of those trees fell on our house, our neighbor’s house, or the street. Once the fear subsides, the next question we ask ourselves is “Who would pay if the tree fell on our neighbor’s property or vice versa and caused damage?” Or our neighbor’s tree may overhang our property or its roots may cause damage to our property, “What can we do then?” These issues are important considerations for property owners and community associations when reviewing their insurance policies.

The Virginia Supreme Court added to the small body of Virginia “tree law” cases. In this case, Cline v. Dunlora South, LLC, a man driving on a public road was struck and injured by a tree  that fell from private property. The man sued the property owner, claiming that the property owner’s “conduct constituted a nuisance because [its] lack of care, inspection, servicing, and/or maintenance of the subject property and tree was a condition that imperiled the safety of the public highway immediately adjacent to the property and tree, creating a danger and hazard to motorists and/or pedestrians.” The trial court dismissed the lawsuit, and on appeal the Virginia Supreme Court agreed that the property owner did not have “a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.” This blog post reviews that decision and what it means for us.

Continue reading “What happens if a tree falls from my property onto a public highway causing damage?”

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A case out of Virginia Beach underscores the deviousness of those who engage in identity theft. As reported in Virginia Lawyers Weekly, Guy Gugliotta owned two lots in Virginia Beach. A local realty company maintained contact with Gugliotta via mail in case he was interested in selling the lots. In 2012 someone purporting to be Gugliotta notified the tax assessors office to change the mailing address for tax bills. Then they notified the realty company that they had decided to sell the lots. The lots were listed for sale and in August, a purchaser made an offer.

The seller documents were handled via mail with the fraudulent seller executing documents in Florida and sending them to the closing agent. Deeds to transfer property require that the seller’s signature be notarized so surely this was the end of the road for the fraudster.

But no, not only did the thief take the identity of the owner; he also took the identity of a notary public in Florida. The notary public declared under oath that it was not his signature and that he had never notarized the documents.

Continue reading “A New Twist on Identity Theft and Fraud: How can Realtors, Lenders, Title Companies and Law Firms Protect Your Clients and Yourselves?”

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Well, we have written about protecting the attorney-client privilege and about safe emailing tips when emailing your attorney. Although we thought we had it pretty well covered, a recent decision from a California appellate has given us something more to think about.
Continue reading “Using your business’ computer to email your attorney may be a bad idea”

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Construction litigation has become a time-consuming and expensive area of legal practice. Even in residential construction, attorney and expert fees, and other costs of the lawsuits can rise high into five figures. Unfortunately, in many instances, better planning and attorney review at the beginning may have prevented the bitter litigation that ensued.

Construction Contracts

Continue reading “Builders and Owners: Have your residential construction contract reviewed before you sign it”

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No 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

Continue reading “Real Estate Listing Agreements are Contracts – Do you know your rights and obligations?”

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Sometimes commercial tenants, unable to stay current with their lease obligations, decide to close up shop and abandon their leased premises. In those circumstances, commercial landlords need to know their options. This blog post discusses a commercial landlord’s options when a commercial tenant abandons its lease.

Continue reading “My Commercial Tenant is gone . . . should I re-enter the Property?”

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An article in the Washington Post discussed a pending case in the Virginia Supreme Court regarding a dispute between property owners and a community association regarding the owners’ operation of a vineyard and retail store on their property. In an unpublished Order, the Virginia Supreme Court upheld a Fauquier County jury verdict for the property owners that had been set aside by the trial court.

Although unpublished orders do not have “precedential value or . . . significance for the law or legal system,” this case does provide us with a look at how difficult it can be for community associations to interpret their governing documents and also how a board’s previous actions may have an effect upon future enforcement of the community’s declarations and covenants. This blog post will review the facts of that case and its applicability to your HOA.

Continue reading “HOA Case Study: A Board’s statements or conduct may establish the enforceability of its governing documents”

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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.

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

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We’ve mentioned already the abundance of news articles criticizing community associations. If these news stories are to be believed, then associations are unpopular indeed. But is it true that residents living in community associations are unhappy with their association? Research by the Community Associations Institute suggests that it is not. In fact, the research suggests that more people than ever are choosing to live in communities with associations, and the overwhelming majority of those people are happy with their association.

Statistics compiled by the Community Associations Institute show that the number of associations continues to grow. In 1970, just ten thousand communities, with a combined 2.1 million residents, were governed by associations. Today there are over 309,000 communities governed by associations. More than 62 million Americans live in associations. 1.75 million volunteers serve on community association boards, and a full 26 percent of the eligible U.S. population volunteers for an association at some point during a year, according to one estimate. That kind of service simply would not happen if associations were as widely disliked as has been portrayed.

Common Interest Communities

Continue reading “Benefits of HOAs Part 4: What do homeowners really think about their associations?”

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It’s that time of year when we start to see holiday decorations.  Yes, the stores have begun displaying Halloween items along with Thanksgiving, Christmas, Hanukkah, Kwanzaa, and other holiday decorations at the same time. As we start to see the orange mini-lights for Halloween, condominium associations and property owner associations begin to deal with the issue of whether holiday decorations are permissible and if so, how long can they be displayed. Although when we read these stories, we may think that homeowners are over-reacting to a small issue, but what looks like a celebration of Halloween to one owner may seem way over-the-top to another. Rules for holiday decorations need to take into account ALL owners to be fair, effective, and enforceable. This blog post provides some common-sense guidance for your community association regarding holiday decorations.

Continue reading “Community Associations and Holiday Decorations: Trying to Preserve Holiday Cheer”

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