Enforcing HOA covenants important for common interest communities

October 30, 2014 on 12:19 pm | In General Interest, HOA, John Tarley, State & Federal Litigation, Susan B. Tarley | 2 Comments

Originally posted 2010-11-22 09:04:32. Republished by Blog Post Promoter

 

We have written previously on the litigation of homeowner association cases. Generally, homeowner associations can file a lawsuit in the General District courts to enforce collection of assessments. However, If an HOA needs to enforce a covenant, seeking an injunction to require a homeowner to comply with the restrictive covenant, as of 2011, the HOA must file a lawsuit in the Circuit Court can now file a lawsuit in the General District Court, as well. Virginia Code sections 55-79.80:2, and 55-513 give jurisdiction for those matters to the General District Court. Those lawsuits can be expensive and time-consuming.

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Email scams (continued)

October 30, 2014 on 12:19 pm | In General Interest, John Tarley, State & Federal Litigation | No Comments

Originally posted 2011-01-12 09:34:32. Republished by Blog Post Promoter

We have previously written a blog piece warning of increased email scam activity and sophistication. Expect more. Another victim of these email scams has come to light, and this victim was a lawyer. An article in Virginia Lawyer’s Weekly told the story of a lawyer victim of a successful email scam. This blog post provides another warning against these scams.

Email

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ADA Compliance – (Another) Update on HOAs, Condos and Swimming Pools

October 30, 2014 on 12:19 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2012-05-21 09:00:08. Republished by Blog Post Promoter

We have blogged about new requirements under the Americans with Disabilities Act (“ADA”) that may affect Homeowners Associations and Condominium Associations that own swimming pools, wading pools, or spas. Subsequently, we updated our previous post to report upon an update to the required compliance date.

The Justice Department has now issued a “final rule” revising “the Department of Justice regulations implementing the Americans with Disabilities Act to extend until January 31, 2013” as the compliance date for the ADA Standards for Accessible Design for existing pools and spas.

Consequently, if your HOA or Condo Association allows non-members of the association to use its pool in exchange for some form of compensation, your pool may fall under the definition of a public accommodation. If it does, the association would have to comply with the new ADA Standards and provide accessible entry and exits no later than January 31, 2013. What does that mean for your HOA?

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Employee Non-Competes: Why Must Prospective Employers Be Wary?

October 30, 2014 on 12:19 pm | In Business Law, Business Planning, General Interest, State & Federal Litigation | No Comments

Originally posted 2014-06-02 15:17:58. Republished by Blog Post Promoter

We have written previously about employee “non-competes” (a/k/a covenants not to compete or non-competition agreements). You may have come across them in your own business, either by requiring them of your own employees or seeking to hire someone subject to a non-compete.   However, the area of law surrounding non-competition agreements can be tricky, and a new decision has added to the intrigue.

In DePuy Synthes Sales, Inc. v. Jones, the Eastern District of Virginia denied two motions to dismiss filed by the new employers of employees governed by non-compete agreements. DePuy employed two salespersons pursuant to employment agreements that contained non-compete provisions. They eventually left DePuy and began working for a competitor, Sky Surgical. DePuy sued the employees and Sky Surgical. This blog post examines the tortious interference of employment contract claim made by DePuy against the new employer, Sky Surgical.

employee noncompete agreement

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Common Interest Community Board revokes a management company’s license

October 30, 2014 on 12:19 pm | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, State & Federal Litigation, Susan B. Tarley | No Comments

Originally posted 2010-09-22 05:35:58. Republished by Blog Post Promoter

The Common Interest Community Board (the “CICB”) revoked a management company’s license for regulatory violations.  In a case reported in the September issue of the Community Associations Institute Law Reporter (Virginia Common Interest Community Board v. Sarraga t/a Lakeside Community Management, File No. 2010-00562, June 24, 2010), the CICB revoked the license of Sarraga t/aLakeside Community Management and issued fines totaling $2,000.

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Can an engineering firm limit its liability by contract?

October 30, 2014 on 12:19 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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My Commercial Tenant is gone . . . should I re-enter the Property?

October 30, 2014 on 12:19 pm | In Business Law, Business Planning, John Tarley, Land Use Planning, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2013-02-11 10:29:57. Republished by Blog Post Promoter

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.

MC900185910

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Attorney-Client Privilege: What is it and how do you protect it?

October 30, 2014 on 12:19 pm | In Business Planning, Common Interest Community, State & Federal Litigation, Susan B. Tarley | No Comments

Originally posted 2010-06-29 00:57:15. Republished by Blog Post Promoter

The attorney-client privilege permits confidential communication between an attorney and her client.  The objective is to encourage open communication, which permits an attorney to provide thorough, competent and complete advice.  Generally speaking, only a client can waive the privilege, but as found by the Virginia Supreme Court in Walton v. Mid-Atlantic Spine Specialist, PC, et al., a client’s inadvertent disclosure of a privileged communication may operate as a waiver of the attorney-client privilege.

In this Williamsburg medical malpractice case, a defendant doctor wrote a letter to his attorney calling into question his medical diagnosis he gave to his patient. The doctor kept this letter in a separate notebook. During discovery the defendant medical practice used a third party service to copy document requests. The letter was provided inadvertently to the plaintiff.

Although the defendant claimed that he did not produce the letter or permit anyone else to produce the letter, the Court found that the defendant did not take adequate protection to protect the letter. The Court noted that the notebook in which the letter was found was not marked as confidential or privileged. Furthermore, the Court held that the client did not take prompt action following disclosure.

The Virginia Supreme Court considered five main factors in determining whether the inadvertent disclosure waived the client’s privilege.  The Court looked at:  (1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation making it unfair to allow the party to invoke confidentiality under the circumstances.

As a start, clients should maintain attorney-client privileged communications in a separate file or notebook and clearly mark the file or notebook and each communication as “CONFIDENTIAL-ATTORNEY-CLIENT PRIVILEGED COMMUNICATION.”  Then, if an inadvertent disclosure is made, the client should contact her attorney as soon as possible to determine a plan of action to restore the attorney-client privilege.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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When Raising Money For Investment Purposes From Any Source, BEWARE

October 30, 2014 on 12:19 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

Originally posted 2010-12-27 10:49:33. Republished by Blog Post Promoter

Raising money or obtaining other property for investment purposes from whatever source in Virginia, including from family and friends, implicates state and federal law.

Some may have read about the recent action for fraud filed by Andrew Cuomo, the Attorney General of the State of New York, against Ernst & Young, LLP, one of the largest accounting firms in the United States.  Some, noting that this action was not brought under the Securities Exchange Act of 1934, may have wondered from whence the Attorney General’s authority arose.  Authority arose under the Martin Act, a New York law initially passed in 1921, and amended and codified in 1982 in Article 23-A of the New York General Business Law.

What is important for those in the Commonwealth of Virginia attempting to raise money or obtain other property for investment purposes is that Virginia has similar securities laws.  Virginia’s Securities Act is codified in Title 13.1, Chapter 5, of the Code of Virginia.  As with that of the State of New York, the reach of Virginia’s Securities Act differs from, and is more extensive than, that of the federal securities acts.

Ernst & Young

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Can I cut down my neighbor’s tree when its branches overhang my property?

October 30, 2014 on 12:19 pm | In Common Interest Community, John Tarley, Real Estate Strategies, State & Federal Litigation | 4 Comments

Originally posted 2010-08-03 09:08:01. Republished by Blog Post Promoter

In our ever crowding residential areas, more of us experience the situation in which the limbs of a neighbor’s tree overhang our property line. Most of the time, these limbs do not pose us any concern, but questions do arise as to whether we have the right to prune our neighbor’s trees. In the past,the Virginia rule has been that you could trim the branches of your neighbor’s tree up to your property line. However, the Virginia Supreme Court expanded that long-standing rule when it decided that an owner whose property was damaged by the root system of a neighbor’s tree may be entitled to more relief than simply cutting back the roots and overhanging branches to the property line.

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