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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

4 Tips to help your HOA protect its Attorney-Client Privilege

April 23, 2020 on 2:13 pm | In Common Interest Community, General Interest, HOA, HOA litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | No Comments

The Attorney-Client Privilege protects confidential communications between an attorney and his or her client.  This privilege includes communications made to the attorney and communications from the attorney. The Attorney-Client Privilege is designed to encourage clients to communicate with their attorney freely, without fearing disclosure of those communications made in the course of representation. The Attorney-Client Privilege is important because it permits clients to give their attorney complete and uncensored information, enabling their attorney to provide informed and thorough legal advice.

For community associations, the Attorney-Client Privilege belongs to the association and can only be expressly waived by the a decision of the association board or executive organ. However, the privilege can be impliedly waived based on the client’s conduct.  A determination on whether the privilege has been waived will depend on the specific facts of each case. The association will have to establish that the attorney-client relationship existed, that the communication is privileged, and that the privilege was not waived.

Here are four basic tips for the board of your Common Interest Community to follow so that it protects the association’s Attorney-Client Privilege:

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HOAs and Mediation: Not always a viable alternative to Litigation

April 23, 2020 on 2:13 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | 2 Comments

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

April 23, 2020 on 2:13 pm | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

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.

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

April 23, 2020 on 2:12 pm | In Construction litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments
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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Homeowner cannot be forced to join a voluntary HOA

April 23, 2020 on 2:12 pm | In Common Interest Community, HOA, John Tarley, Real Estate Strategies, State & Federal Litigation | 1 Comment

In a case from the Chesterfield Circuit Court, the circuit court judge determined that a homeowner could not be forced to pay association dues to a voluntary association. This result is not surprising.


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Builders and Owners: Have your residential construction contract reviewed before you sign it

April 23, 2020 on 2:12 pm | In Common Interest Community, Construction litigation, HOA litigation, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

 

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.

Williamsburg Virginia Business Lawyers

Construction Contracts

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What happens when your business partner wants to leave? Do’s and Don’ts

April 23, 2020 on 2:12 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition, State & Federal Litigation | 2 Comments

It’s a simple fact of business life that you and your company’s fellow shareholders or members will not always see eye-to-eye. Furthermore, our personal lives change and that effects the level of willingness in which some participate in a business venture.

As in any relationship, businesses also reach that awkward stage in which a shareholder or member wants to leave his current business venture and start something new. We have discussed starting your business and provided guidelines for setting forth the rules for governing your business. This article addresses some of the difficulties that arise during the “break-up period.” For the purposes of this article, we will use the terms “shareholder” and “member” interchangeably, as well as the terms “director” and “managing member.”

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ADA, FHA, and HOAs And Service Animals: Florida Association Sued for housing discrimination

April 23, 2020 on 2:12 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, State & Federal Litigation, Unit Owners Association | No Comments

A short while ago we wrote a blog piece on the issues relating to community associations regulating service animals. In that blog we noted that the Fair Housing Act (“FHA”)  “permits individuals with disabilities to keep an assistance animal as a reasonable accommodation when there are limitations imposed by the homeowner or condominium association on animals and pets.”  In Broward County, Florida, that county’s Civil Rights Division filed suit against a condominium association for violating the FHA by refusing to consider a person’s request for an “emotional servant animal,” a chihuahua.

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

April 23, 2020 on 2:12 pm | In Business Law, Business Planning, General Interest, State & Federal Litigation | No Comments

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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Watch out for email scams!

April 23, 2020 on 2:12 pm | In General Interest, John Tarley, State & Federal Litigation | No Comments

Email and telephone frauds are proliferating through the attorney community, and have been redirected at other professionals. On the message board for the Virginia Trial Lawyers Association, one of my attorney colleagues provided a story from one of his clients: “a consulting engineer who frequently testifies in litigation, was retained by a bonding company in Colorado regarding a dispute with a construction company in Pittsburgh. Luckily he smelled a rat when they announced that a disbursement would be run through his company account.”

 

Email

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