Flying the flag is an important way that Americans celebrate their liberty and the sacrifices of past and present heroes who defend it. There were news stories about a dispute between an Ohio homeowners’ association and a Vietnam veteran over a flagpole that brought an important issue to the forefront.

In Ohio, a homeowner erected a large flagpole on his property to fly the flag. The homeowners’ association told him that the flagpole (not the flag) violated the declaration of covenants for the neighborhood, and asked him to take the flagpole down. It offered to place flagpoles in common areas in the neighborhood, and suggested that the covenants would allow him to fly a flag on a pole attached to his house. He refused. After a firestorm of publicity, the HOA averted litigation by permitting the homeowner to keep his flagpole. The underlying question remains: can a homeowners’ association really prohibit an owner from flying the American Flag?

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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.

Continue reading “My Commercial Tenant is gone . . . should I re-enter the Property?”

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United States Supreme Court

Previously we blogged about a pending case before the Supreme Court that had the possibility to significantly increase the liability of persons for assisting in the preparation of a “prospectus.” As of June 13, 2011, the Supreme Court handed down an opinion in that case, styled as Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.).

The determination of this case is relevant to accountants and business lawyers who assist in the preparation of documents for the purpose of raising money for investment. The Janus Capital Group, Inc. case presented the question of who may be deemed to have “made” an untrue statement for the purposes of Rule 10b-5, and specifically whether someone who assisted in the preparation of a prospectus could “make” a statement through such assistance. As the result of a 5-4 decision, accountants and business attorneys may breathe a little easier. Continue reading “Can an advisor be held liable for the false statements in a prospectus made by another?”

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We continually warn about the use of work email accounts to correspond with your attorney:

• 3 tips for safe emailing with your attorney;
• Using a company computer to email your attorney may be a bad idea
• Emails from work computer can waive rights to privileged communications

The American Bar Association has now opined that lawyers should “warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.” Although the ABA’s opinion is not binding upon any state regulatory bar association, it is likely that state bar associations, like the Virginia State Bar, will review this opinion with interest.

Client Email

Most of our communications are not private, even though we think they are. Work emails are not secure. Regardless of whether lawyers are required or suggested to warn clients, it is not a good idea to use your work email account to email your attorney.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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Imagine if someone told Don Draper and Roger Sterling of Mad Men that they could no longer smoke in their apartments. They would look at you curiously, smirk and light up a cigarette. But Mad Men, the television show about a Madison Avenue advertising agency is set in 1965 and as the ad for Virginia Slims said, “[we’ve] come a long way, baby.” Almost half of all adults smoked in 1965 but that percentage has dropped to 18% by 2012.

The negative health effects have been documented and the reported adverse health effects caused by second-hand smoke has resulted in smoking bans in restaurants. One of the next areas in which smoking bans have been put in place is in condominium communities. Some of the smoking bans address common elements only but others have imposed a ban on smoking in the condominium unit.

Continue reading “Smokin’ in the Condo”

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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 emptor, the 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.

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

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As a follow-up to our post on the costs and benefits of the arbitration process, the Federal Trade Commission (“FTC”) recently issued a report indicating that the litigation and arbitration practices for resolving consumer debt need major reform.

Debt collection cases are on the rise.  We have seen a tremendous increase in the number of cases we are filing on delinquent homeowner association dues. In James City County/Williamsburg, the local courts have seen a 27% increase in civil filings from 2006 to 2008.  Other courts in Virginia and other states are experiencing similar increases in civil filings.

The FTC has made specific recommendations that the Federal government and the states consider new laws to protect consumers including a recommendation that a temporary ban be placed on the use of binding arbitration until such time that the arbitration forums have initiated changes to address deficiencies in arbitration. The FTC has suggested that state legislatures adopt measures to make it more likely that consumers will defend themselves in litigation, decreasing the prevalence of default judgments; require debt collectors to include more information about the alleged debt in their complaints; take steps to make it less likely that collectors will sue on debt on which the statute of limitations has run; and change laws to prevent the freezing of a specified amount in a bank account including funds exempt from garnishment.

We do not believe that these changes, if they occur, will effect our current practice areas and clients. However, we have also seen instances in which perceived procedural unfairness can lead to overreaching legislation. For example, it is fair to say that when the Fair Debt Collection Practices Act was passed, legislators did not intend for it to reach into the wide-ranging areas it now does, including the collection of homeowner dues. See, e.g., Barry v. Board of Managers of Elmwood Park Condominium II, NT Slip Op 27506, http://caselaw.findlaw.com/ny-civil-court/1211140.html (December 12, 2007, NY Civil Court City of New York, Richmond County) (Judge Philip S. Straniere writing that “Somehow I think that Adams, Jefferson and Madison must be turning over in their graves at the thought that the federal government is regulating such a local activity as the collection of condominium association dues between the homeowner and the association”).

Arbitration tends to release pressure on state courts by handling cases that otherwise would be brought in court. However, if the process continues to be perceived as unfair, restrictions on the use of arbitration could be forthcoming.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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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.

Continue reading “Do you need an attorney to negotiate on your behalf?”

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Frequently, a homeowner contemplating renting out his property believes that he will be able to save money by writing his own lease or using a do-it-yourself lease form found or purchased online. Almost as frequently, the homeowner realizes too late that if he had spent a little money up front to have an attorney prepare a lease, or at least review his proposed lease, he could have saved himself a lot of time, money, and aggravation. By the time problems arise with a tenant, it is too late to ensure that the lease contains all of the provisions necessary to protect the homeowner’s interests.

Continue reading “I want to rent my house to a tenant, do I need an attorney to draft a lease for me?”

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This week, at the venerable Homestead, the annual Virginia Leadership Retreat will take place. For this event, community managers and their management company executives, guest speakers, and the community association attorneys and service providers from all parts of Virginia will meet to discuss this year’s topic: Changing Times in Community Associations.

Both Susan Tarley and John Tarley will teach classes at the VLR, discussing topics about which we blog frequently. The topics for this year’s event include:

• Learning to Communicate like a Pro;
• The Role of a Manager as a First Responder;
• Leadership Training;
• Preparing for “Forcing Green” Legislation (taught by Susan Tarley);
• Conflict Management Skills;
• Virginia Legislative Update; and
• Dealing with Lawsuits (taught by John Tarley).

The VLR provides us with an opportunity to mingle with other industry professionals so we can provide better service for our clients. Oh, and the golf is pretty nice, too!

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia