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

October 30, 2014 on 1:09 pm | In Common Interest Community, Construction litigation, HOA, HOA litigation, John Tarley, Mediation, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

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.

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Make sure HOA Document Amendments are properly certified

October 30, 2014 on 1:09 pm | In Common Interest Community, HOA, HOA litigation, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | Comments Off on Make sure HOA Document Amendments are properly certified

The Virginia Supreme Court’s opinion in Tvardek, et al v. Powhatan Village Homeowners Association, Inc. highlights how critical it is to not only amend your HOA documents in compliance with the law and your existing documents, but to make sure that the amended document that gets recorded properly memorializes that you did so.

The Tvardeks filed a declaratory judgment action in 2013 against Powhatan Village Homeowners Association, Inc. (“Powhatan Village”) to challenge a 2008 amendment to the association covenants that included a provision restricting the owners’ ability to rent their homes. Powhatan Village filed a special plea in bar requesting dismissal of the action as untimely citing the one-year statute of limitations in Va. Code Ann. § 55-515.1(E). Declining to hear any evidence, the Circuit Court made a decision on the pleadings and argument of counsel, ruling in favor of Powhatan Village’s argument that the claim was time-barred. The Circuit Court also awarded Powhatan Village $12,000 in attorney fees.

The Tvardeks appealed the case. The Virginia Supreme Court reversed the Circuit Court’s ruling, determining that the case was not barred by the one-year statute of limitations. The attorney fee award was also reversed.

Williamsburg Courthouse

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

October 30, 2014 on 1:09 pm | In Construction litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | 2 Comments

Simply stated, caveat emptor means “let the buyer take care,” or even more plainly stated: “Buyer beware.” In real estate matters, buyers are warned that they are to “exercise ordinary care in inspecting the condition of property.” Therefore, buyers are generally urged to obtain a home inspection and take such other care prior to closing on their real estate purchase. Otherwise, the buyers may not have any relief if they find adverse conditions after taking possession.

A case arising out of Charlottesville highlights the obligations of the buyers and the sellers in the purchase of a home. In that case, the seller of the home was also a licensed real estate agent, which added another complication regarding the duty to disclose. This blog posts analyzes that court decision, which offers warnings to buyers and sellers of real estate, as well as to licensed real estate agents.

 

 

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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 1:08 pm | In Construction litigation, General Interest, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

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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Does Virginia law require an HOA to transition automatically to homeowner control of the Board of Directors?

October 30, 2014 on 1:07 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Over the course of the past few years, homeowners in the Williamsburg development of Kingsmill on the James have become more vocal over the continued control by the community’s developer, Busch Properties, Inc. In May 2010, Kingsmill resident and a William & Mary Law School professor filed a lawsuit against Busch Properties. On August 20, 2010, the Williamsburg/James City Circuit Court heard the demurrer filed by Busch Properties. The court granted the demurrer. The Plaintiff appealed to the Virginia Supreme Court. The Court declined to hear the appeal. The Plaintiff filed a petition for rehearing that the Court refused to hear by an order dated June 16, 2011.

Williamsburg Virginia HOA Lawyers

HOA Transition

 

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Do you need an attorney to negotiate on your behalf?

March 31, 2014 on 10:31 am | In Business Planning, General Interest, Merger & Acquisition, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation, Weekly Tweets | No Comments

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.

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2013 Legislative Update for Virginia HOAs

May 7, 2013 on 7:46 am | In Common Interest Community, HOA, HOA litigation, Land Use Planning, Real Estate Litigation, Real Estate Strategies, Susan B. Tarley, Unit Owners Association, Weekly Tweets | No Comments

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.

Williamsburg HOA and Business Law Firm

Legislation

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Eminent Domain is on the Virginia State Ballot for 2012

October 30, 2012 on 7:00 am | In Construction litigation, Land Use Planning, Real Estate Litigation, Real Estate Strategies, Weekly Tweets, Zoning | No Comments

The 2012 Election is right around the corner. In Virginia we have been inundated with political ads for the two presidential candidates, a side-effect to living in a swing state. However, we have not seen any political ads on the proposed Constitutional Amendment on the Virginia Ballot on November 6. This article will discuss the proposed Virginia Constitutional Amendment and hopefully provide you with facts and access to information you need to make your decision next week.

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There still are no winners in Virginia’s Chinese Drywall Cases

June 26, 2012 on 8:00 am | In Construction litigation, John Tarley, Real Estate Litigation, Weekly Tweets | No Comments

Recent news articles reported that a Norfolk Circuit Court awarded default judgment to several homeowners against Taishan Gypsum Company, a Chinese drywall manufacturer. However, as with the other outcomes in Virginia, it is unlikely that homeowners or building supply companies will receive any benefits from this decision.

 

Chinese Drywall complete remedition

 

 

When the corrosive drywall issues first became public, concerns were raised about two possible issues: a) health effects; and b) property damage. To date, both the Centers for Disease Control and the Consumer Product Safety Commission (“CPSC”) have found that “not enough information exists to determine the nature and magnitude of a potential health risk.” Furthermore, no deaths can be attributed to exposure to imported corrosive drywall. That is good news. Continue reading “There still are no winners in Virginia’s Chinese Drywall Cases”

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HOAs and Swimming Pools–Do you need to be ADA Compliant?

April 20, 2012 on 7:55 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Real Estate Litigation, Unit Owners Association, Weekly Tweets | No Comments

Spring time is around the corner and the community pools will ready for the summer season. Homeowners Associations and Condominium Associations that own swimming pools, wading pools, or spas need to be aware of new requirements under the Americans with Disabilities Act (“ADA”). In July, 2010, the Justice Department issued new ADA Standards for Accessible Design, which include mandates for removing barriers to access to pools and spas. These new Standards apply to any private entity that operates a “place of public accommodation,” which may include an association. If an association limits use of its pool to its members and their guests, its pool does not fall under the requirements of the ADA. However, if an association allows non-members of the association to use its pool in exchange for some form of compensation, its pool may fall under the definition of a public accommodation. If it does, the association will have to comply with the new ADA Standards no later than March 15, 2012.

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