The Same Employer But a Different Result in this Virginia Supreme Court Case Regarding the Enforceability of Noncompete Agreements

October 30, 2014 on 12:27 pm | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

Originally posted 2011-12-13 08:00:55. Republished by Blog Post Promoter

Over the course of the past 20 years, the Virginia Supreme Court has tweaked the law governing non-compete agreements. In its latest case, the Court came full circle by invalidating a noncompete agreement that used the same language the Court had upheld 20 years earlier in a case involving the same company.

As we have written before, trial courts will enforce noncompete agreements when the agreements (1) are narrowly drawn to protect the employer’s legitimate business interest, (2) are not unduly burdensome on the employee’s ability to earn a living, and (3) are not against public policy. Importantly, the employer has the burden to prove each of these elements. When evaluating whether the employer has met that burden, trials courts should consider the “function, geographic scope, and duration” elements of the noncompete restrictions.  These elements are “considered together” rather than “as three separate and distinct issues.”

Further, if the noncompete agreement is too broad or otherwise unenforceable, a Virginia court will not rewrite, or “blue pencil” the agreement to make it enforceable. Therefore, it is important that you work with your business attorney to draft an enforceable non-compete agreement.

Continue reading “The Same Employer But a Different Result in this Virginia Supreme Court Case Regarding the Enforceability of Noncompete Agreements”

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Another Thanks to Construction Law Musings – HOAs and Construction Defects

October 30, 2014 on 12:27 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Strategies, Unit Owners Association | 1 Comment

Originally posted 2013-11-20 05:47:06. Republished by Blog Post Promoter

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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Pesticides, Fungicides, and Herbicides: Why do Virginia HOAs need to know the difference?

October 30, 2014 on 12:27 pm | In HOA, HOA litigation, John Tarley, Unit Owners Association | No Comments

Originally posted 2014-06-23 11:27:44. Republished by Blog Post Promoter

There are many issues that confront your common interest community as its board of directors and management company work hard to maintain the HOA. One issue that has recently come up is the need to be knowledgeable about the chemicals an HOA applies to its common areas.

The Property Owners’ Association Act in Virginia Code § 55-510.3 and the Condominium Act in Virginia Code § 55-79.80:01 both require that an association post notice of all applications of pesticide in or upon the common areas/elements. This notice must be provided by conspicuous signs placed in or upon the area where the pesticide will be applied, at least 48 hours prior to application. This blog post analyzes one particular question that an association should consider when applying chemicals to its common areas: What is a pesticide?

HOAs and pesticides

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Who pays when a tree falls on my property?

October 30, 2014 on 12:27 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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How to avoid Real Estate Boundary Line Disputes

October 30, 2014 on 12:27 pm | In Construction litigation, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2011-03-08 09:04:35. Republished by Blog Post Promoter

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.

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Update for Limited Liability Companies: What happens to Membership Interest when a Member Dies?

October 30, 2014 on 12:27 pm | In Business Law, Business Planning, John Tarley | No Comments

Originally posted 2013-10-08 07:30:38. Republished by Blog Post Promoter

We blogged about the Virginia Supreme Court case of Ott v. Monroe. In that case, the Court ruled that when a father, in his will, assigned his majority interest in a limited liability company to his daughter, he only assigned a profit interest, not a control interest. Consequently, his daughter did not have the authority to “run” the company, absent the consent of the remaining LLC members.

In its 2013 session, the General Assembly modified the relevant LLC statutes in an attempt to overturn the Virginia Supreme Court’s decision. This blog post examines the new statute, and how it may impact your limited liability company.

Business Deal
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Can an engineering firm limit its liability by contract?

October 30, 2014 on 12:27 pm | In Business Planning, John Tarley, State & Federal Litigation | No Comments

Originally posted 2010-10-13 07:34:52. Republished by Blog Post Promoter

 

Maybe not, in certain circumstances. A Fairfax County judge has determined that an engineering firm cannot limit its liability by contract in a case involving a 2008 fee contract. The typical fee agreement for an engineering firm includes some form of “limitation of liability” in which the firm seeks to limit its liability “to the amount of fees paid” to the firm, whether the claim is for breach of contract or warranty, or for negligence. In the case of Dewberry & Davis, Inc. v. C3NS, Inc., the engineering services firm, Dewberry, filed a fee claim against C3NS. C3NS filed a counterclaim for breach of contract. Dewberry had a limitation of liability clause in its fee agreement. It sought summary judgment to prevent C3NS from claiming that the limitation of liability paragraph was void. The Court sided with C3NS.

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HOAs and Transition from Developer Control – 101

October 30, 2014 on 12:27 pm | In Business Law, Business Planning, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2013-11-12 15:58:04. Republished by Blog Post Promoter

Owners in most community associations—both homeowner associations and condominium associations—eventually reach the point where the developer transfers control of the Board of Directors to the owners. This blog post provides an introduction to the transition process and what owners can expect.

Susan Tarley

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HOAs and Management Companies – Does your contract say what you think it says?

October 30, 2014 on 12:27 pm | In General Interest, HOA, HOA litigation, John Tarley, Unit Owners Association | No Comments

Originally posted 2011-10-05 08:45:36. Republished by Blog Post Promoter

Many boards of directors for community associations engage management companies to help the board operate their community. These relationships arise from written contracts negotiated by the parties. It is essential that homeowners’ associations and management companies have their contracts reviewed by their experienced HOA attorney.

When determining the terms of a contract, Virginia courts employ what is known as the “plain meaning” doctrine. This doctrine basically means that when an agreement is clear, a court will look to the ordinary meaning of the words of the contract itself. Consequently, the parties need to ensure that all of the terms they believe are part of an agreement are in the written contract itself.

A recent Virginia Supreme Court case presents a prime example of why it is important to have your association attorney review contracts between community associations and management companies. Continue reading “HOAs and Management Companies – Does your contract say what you think it says?”

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Real Estate Listing Agreements are Contracts – Do you know your rights and obligations?

October 30, 2014 on 12:27 pm | In Business Planning, General Interest, John Tarley, Real Estate Litigation, Real Estate Strategies | No Comments

Originally posted 2011-01-04 09:22:35. Republished by Blog Post Promoter

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.

House For Sale

Listing Agreements

 

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

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