How to Run An Effective HOA Board Meeting

October 30, 2014 on 1:02 pm | In Business Planning, Common Interest Community, HOA, HOA litigation, Unit Owners Association | No Comments

Have you ever asked yourself after an Association board meeting “what went wrong?” The flow of the meeting was off, the meeting went on way too long and the atmosphere was unwelcoming for the owners who came to observe. With some careful preparation and attention to some simple tips, you can leave your next board meeting with the feeling that everything was right on track.  Although we go into much greater detail when we hold our annual Board training seminars for our clients, this blog post provides some helpful tips to run your next board meeting.

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Preserve your friendships when borrowing or lending with friends or family – Document your transactions

October 30, 2014 on 1:02 pm | In Business Law, Business Planning, General Interest | No Comments

Many small businesses rely upon loans from friends and family for startup funds, for business expansions, or to support existing operations. Many times, these loans are made upon an oral agreement. As we have written previously, although oral agreements can be enforceable, without a writing, the terms of the agreements can be difficult to prove. In this blog post, we will describe other problems with informal lending transactions between family and friends.

contract, borrow money

In a study entitled “Lenders’ Blind Trust and Borrowers’ Blind Spots: A Descriptive Investigation of Personal Loans,” researchers outlined many of the difficulties of maintaining a lender-borrower relationship  between friends and family. In many “informal” lending relationships, the borrowers and the lenders remember the transactions differently. This “self-serving bias” can lead to problems. For example, borrowers may believe that the “loan” was a “gift,” or although agreeing that the transaction was a “loan,” may believe they paid off the loan. On the other hand, the lenders may feel angry when the “loan” is not repaid, especially when the borrower never raises the issue of repayment.

The study documented these differences between borrowers and lenders:

 Many borrowers thought the idea for the loan originated with the lender, not themselves, although the lenders thought otherwise;

 Borrowers reported far fewer delinquent loans than lenders;

 Borrowers were fairly confident they would eventually repay the loan, but lenders thought even one missed payment probably meant the loan would never be paid off;

 Delinquent borrowers “are much more likely to report feeling guilty, and also strangely, relieved and happy. Lenders associated with delinquent loans, in contrast, are much more likely to report feeling angry.”

Even though banks are flush with cash to lend, you may not qualify for a loan, or the bank’s terms may be too onerous. Consequently, family and friends are natural sources of funds for startup funds or for operating capital. However, as the proverb says,”Before borrowing money from a friend, decide which you need most.” Therefore, if you must borrow from friends or family, it is a small price to pay to perserve your personal relationships to have your business attorney draft the appropriate loan documents, including a promissory note, so that everybody knows the expectations of the transaction. Taking this step at a relatively small price can save your friendships.

Tarley Robinson, PLC,  Williamsburg, VA

Attorneys and Counsellors at Law

 

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

October 30, 2014 on 1:02 pm | In Business Planning, General Interest, John Tarley, Real Estate Litigation, Real Estate Strategies | No Comments

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

 

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Getting rid of an LLC member in your business can be difficult without an effective operating agreement

October 30, 2014 on 1:02 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

It may seem hard to believe, but there’s a chance you and your fellow members in your limited liability company may not always get along. In fact, the relationship may get to the point where the majority of the members in the LLC wants to expel a member. As Lee Corso says frequently on ESPN Gameday, “Not so fast, my friend.”

 

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Using your business’ computer to email your attorney may be a bad idea

October 30, 2014 on 1:02 pm | In Business Planning, Common Interest Community, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Email

Well, we have written about protecting the attorney-client privilege and about safe emailing tips when emailing your attorney. Although we thought we had it pretty well covered, a recent decision from a California appellate has given us something more to think about.
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3 tips for safe emailing with your attorney

October 30, 2014 on 1:02 pm | In Business Planning, Common Interest Community, John Tarley, State & Federal Litigation | No Comments

Obviously the use of email has changed many aspects of our world, including the practice of law. As with all new technology, we sometimes learn hard lessons. The attorney-client privilege is the foundation of effective communication between counsel and clients. Only a client can waive that privilege. Although email has far more positives than negatives, to protect attorney-client communications, use these three tips.

Williamsburg Virginia Business Lawyers

Attorney-Client Privilege

 

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Can an advisor be held liable for the false statements in a prospectus made by another?

October 30, 2014 on 1:01 pm | In Business Planning, Contributors, General Interest, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments
Williamsburg Virginia Business Lawyers

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

October 30, 2014 on 1:01 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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What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)

October 30, 2014 on 1:01 pm | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, Real Estate Strategies, Susan B. Tarley | No Comments

Board members are told that they have fiduciary duties to the community association, but what does that really mean?  Fiduciary duties arise because the members of the association entrust a board member to act in the best interest of the association when handling the association’s business.

There are three components that are important to understand fiduciary duty.  First, the Virginia Code, at § 13.1-870, imposes on directors a requirement that a director exercise her duties in good faith and in the best interest of the association.  This requirement is the so-called “business judgment” rule. Second, Virginia case law imposes duty of care that requires a board member to act as a reasonable person would under similar circumstances.  Third, Virginia case law imposes a duty of loyalty that requires a board member to put the association before any personal interest.  These last two duties are referred to as “common law” duties. Continue reading “What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)”

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Emails from work computer can waive rights to privileged communications

October 30, 2014 on 1:01 pm | In Business Planning, Construction litigation, General Interest, HOA litigation, John Tarley, Real Estate Litigation | No Comments

We have written on the issues that arise when employees use their work computer for personal business. In that blog article, we referred to a California case in which an appellate court ruled that an employee’s emails to her attorney were not protected by the attorney-client privilege because the company had a written policy that informed employees that computers were not to be used for personal matters, that emails could be monitored to ensure that employees complied with the policy, and that employees should not expect any privacy in the use of their computers.

In local news, former Delegate Phil Hamilton raised a “marital privilege” objection to the use at trial of emails he sent to his wife. Certain communications to and from a spouse can be protected from disclosure. There were complicating factors to this case’s analysis.

 

Email

 

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