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

October 30, 2014 on 12:25 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2012-05-30 08:57:51. Republished by Blog Post Promoter

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 In an unpublished Order, the Virginia Supreme Court upheld a Fauquier County jury verdict for the property owners that had been set aside by the trial court.

Although unpublished orders do not have “precedential value or .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.

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HOAs and Mediation: Not always a viable alternative to Litigation

October 30, 2014 on 12:25 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | 3 Comments

Originally posted 2012-02-10 20:10:42. Republished by Blog Post Promoter

We have written extensively on the virtues of alternative dispute resolution, specifically mediation, to resolve disputes. Litigation is a time-consuming and expensive undertaking, and in the end, both sides are generally unhappy with the result because of the costs and time incurred.

But although we encourage mediation generally, mediation in HOA litigation is a much more complex and difficult undertaking. In this blog post, we will discuss difficulties with mediating HOA disputes.

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Residential construction and mechanic’s liens; how you can protect your mechanic’s lien rights

October 30, 2014 on 12:25 pm | In Construction litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

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

Williamsburg Virginia Business Lawyers

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”

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

October 30, 2014 on 12:25 pm | In Construction litigation, General Interest, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

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 emptorthe 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.

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What happens if a tree falls from my property onto a public highway causing damage?

October 30, 2014 on 12:25 pm | In Common Interest Community, General Interest, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

Originally posted 2012-08-01 19:58:28. Republished by Blog Post Promoter

“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.

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Virginia Attorney General opinion on HOAs

October 30, 2014 on 12:25 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, Unit Owners Association | No Comments

Originally posted 2013-01-28 07:00:39. Republished by Blog Post Promoter

In Virginia homeowner associations, the governing documents permit a developer to continue control of the HOA’s Board of Directors for a specific period of time, or until a specific number of lots are sold. The length of that period depends upon the governing documents of each association.

HOA

This issue has generated litigation in Williamsburg, and now, thanks to Peter Vieth from Virginia Lawyer’s Weekly, we have learned of a formal opinion from the Virginia Attorney General. In an opinion dated January 11, 2013, the AG answered two questions posed by Virginia Senator Bryce E. Reeves. This blog post takes a look at that opinion.

Is the Property Owners Association Act Unconstitutional?

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Mediation and Arbitration – There is a big difference

October 30, 2014 on 12:25 pm | In Business Planning, General Interest, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2011-02-28 11:57:21. Republished by Blog Post Promoter

In conversations with clients, it seems that people misuse the terms “mediation” and “arbitration” more than most other legal terms. Although I do not have any empirical data, my educated guess is that many businesses and construction contractors (who did not depend upon advice given by an experienced business attorney) insert “arbitration” clauses into their contracts thinking that they mean “mediation.” Some transactions involving the sale of real estate include an arbitration clause. Countless times, clients involved in a potential lawsuit point to the “arbitration” clause, and are disheartened when I explain to them the arbitration process. Many thought they were avoiding the potential high costs of litigation. These terms are NOT interchangeable and in this blog post I will explain the basic differences between them.

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

October 30, 2014 on 12:25 pm | In Construction litigation, Contributors, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Originally posted 2011-06-08 09:00:26. Republished by Blog Post Promoter

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.

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Who pays when a tree falls on my property?

October 30, 2014 on 12:25 pm | In General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

Originally posted 2011-08-30 08:30:18. Republished by Blog Post Promoter

Hurricane Irene left a lot of damage in Virginia. Although the damage was not as great and widespread as caused by Hurricane Isabel, many of us had in excess of ten inches of rain and suffered from many fallen trees. This tree fell in my back yard.

We  previously blogged about issues arising when a neighbor’s vegetation, including trees, encroaches upon our property. In that situation, we can cut the offending vegetation, including roots, back to the common property line. However, if the vegetation is also damaging our property,  the Court can order the complete removal of the offending vegetation and award us compensation for our expenses, including compensation for damages.

After Hurricane Irene, we should visit another question: who pays for damage when my neighbor’s tree falls on my property? Generally speaking, this property law question involves an issue of negligence and insurance. Each situation would require a review of the facts, and a review of your homeowner’s insurance policy, but here is some general guidance:

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When is a “Contract” not a Contract?

October 30, 2014 on 12:25 pm | In Business Planning, Construction litigation, General Interest, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

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.

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