A New Twist on Identity Theft and Fraud: How can Realtors, Lenders, Title Companies and Law Firms Protect Your Clients and Yourselves?

June 30, 2014 on 9:40 am | In General Interest, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation, Susan B. Tarley | No Comments

A case out of Virginia Beach underscores the deviousness of those who engage in identity theft. As reported in Virginia Lawyers Weekly, Guy Gugliotta owned two lots in Virginia Beach. A local realty company maintained contact with Gugliotta via mail in case he was interested in selling the lots. In 2012 someone purporting to be Gugliotta notified the tax assessors office to change the mailing address for tax bills. Then they notified the realty company that they had decided to sell the lots. The lots were listed for sale and in August, a purchaser made an offer.

The seller documents were handled via mail with the fraudulent seller executing documents in Florida and sending them to the closing agent. Deeds to transfer property require that the seller’s signature be notarized so surely this was the end of the road for the fraudster.

But no, not only did the thief take the identity of the owner; he also took the identity of a notary public in Florida. The notary public declared under oath that it was not his signature and that he had never notarized the documents.

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The Rule of Caveat Emptor in the Sale of Real Estate vs. a Seller’s Duty to Disclose

June 23, 2014 on 11:29 am | In Construction litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | 2 Comments

Originally posted 2012-03-20 20:00:17. Republished by Blog Post Promoter

Simply stated, caveat emptor means “let the buyer take care,” or even more plainly stated: “Buyer beware.” In real estate matters, buyers are warned that they are to “exercise ordinary care in inspecting the condition of property.” Therefore, buyers are generally urged to obtain a home inspection and take such other care prior to closing on their real estate purchase. Otherwise, the buyers may not have any relief if they find adverse conditions after taking possession.

A case arising out of Charlottesville highlights the obligations of the buyers and the sellers in the purchase of a home. In that case, the seller of the home was also a licensed real estate agent, which added another complication regarding the duty to disclose. This blog posts analyzes that court decision, which offers warnings to buyers and sellers of real estate, as well as to licensed real estate agents.

 

 

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Zoning and “Adaptive Reuse” – What does that actually mean?

June 23, 2014 on 11:29 am | In Business Planning, General Interest, Land Use Planning, Real Estate Strategies, Zoning | No Comments

Originally posted 2012-06-12 08:00:09. Republished by Blog Post Promoter

Our Summer Associate for 2012 is Scott Foster, a rising second-year law student at the William & Mary Law School. Weeks before his undergraduate graduation from William & Mary, Scott became the first person ever elected to the Williamsburg City Council, while still a William & Mary studentScott still serves on the City Council while attending law school and working for us. This blog post is Scott’s first for our firm.

While growing up in western Virginia, one of my favorite restaurants was in a converted train depot. On several occasions my parents walked me through the tobacco warehouses in Farmville, Virginia filled with fine furniture and rugs. There was even a bed and breakfast nearby with rooms in a grain silo. Although I did not realize it at the time, these businesses were examples of “adaptive reuse.”

DOG Street Pub, the former SunTrust Bank

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Rental Restrictions in HOAs permitted according to the Virginia Attorney General

June 23, 2014 on 11:29 am | In Common Interest Community, General Interest, HOA, HOA litigation, Real Estate Litigation, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2011-03-22 09:00:43. Republished by Blog Post Promoter

In many HOAs, an issue arises when a homeowner purchases real estate as an investment property intending to lease the home or condo unit. In those situations, the homeowner becomes a “landlord” rather than a resident owner and the situation causes concerns for many homeowner and condominium owner associations. Many association documents contain restrictions on leasing property. In response to an inquiry, the Attorney General for Virginia has issued an official advisory opinion concerning the imposition of rental restrictions in common interest communities concluding that if the restriction is adopted correctly and for a legitimate purpose, the rental restriction is valid.

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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)

June 23, 2014 on 11:29 am | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, Real Estate Strategies, Susan B. Tarley | No Comments

Originally posted 2010-10-20 06:15:55. Republished by Blog Post Promoter

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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Fight over beer-pong game covered by insurance?

June 23, 2014 on 11:29 am | In John Tarley, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2010-05-02 21:34:41. Republished by Blog Post Promoter

It’s an unfortunate fact of life that you may get involved in a lawsuit. If you are at fault in an automobile accident, your auto insurance provides protection. For other types of cases, your homeowners insurance policy can protect you.

Recently our litigation lawyers counseled clients who had been sued. We routinely ask to review their insurance policies. As it turned out, this occurrence was covered by their homeowners policy, saving them tens of thousands of dollars in attorneys’ fees.

This insurance coverage issue was highlighted in a recent Virginia Supreme Court case, Copp v. Nationwide Mutual Insurance Co. In that case, a Virginia Tech student was sued for his actions in a beer-pong game gone bad. His parents thought the costs for his attorneys should be covered by their homeowners policy or their umbrella policy, but Nationwide Mutual declined. On appeal, the Virginia Supreme Court held that because the student alleged he was “trying to protect person or property” when he caused bodily injury, “Nationwide has the duty under its umbrella policy to defend.”

You pay for your insurance policy, make sure that you use the coverage you paid for.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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Have You Updated Your HOA Management Contract Lately?

June 23, 2014 on 11:29 am | In Business Law, Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

Originally posted 2013-01-15 07:15:57. Republished by Blog Post Promoter

Many of us are so busy in performing the work that we are hired to do that we often neglect the housekeeping we should do for our businesses. Management agreements with community associations may fall into this category. As with many agreements in which sections are revised but the whole contract is not reviewed, management agreements can take on a life of their own as they are tweaked here and there. In this blog, we discuss the need to take time to have your forms and contracts reviewed to ensure that your management company is protected by the agreement, that it reflects current law, and that it comports to any required regulations.

 Contract

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Homeowner cannot be forced to join a voluntary HOA

June 23, 2014 on 11:29 am | In Common Interest Community, HOA, John Tarley, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2010-09-23 05:35:17. Republished by Blog Post Promoter

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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Real Estate Listing Agreements for the sale of property: Are they enforceable even if not in writing?

June 23, 2014 on 11:29 am | In General Interest, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2010-12-28 10:52:57. Republished by Blog Post Promoter

Generally speaking a party can enforce an oral agreement. However, courts will not enforce certain contracts unless they are in writing. For example, under Virginia Code § 11-2, commonly known as the Statute of Frauds, an agreement or contract for services to be performed in the sale of real estate by a real estate broker or real estate sales person is not enforceable “[u]nless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent . . . .”

Most real estate agents and brokers understand the importance of having written listing agreements with their sellers. However, a recent decision of the Supreme Court of Virginia points out that even in the absence of a written listing agreement, an oral listing contract may be enforceable if there is sufficient documentation to remove it from the bar to enforcement of the Statute of Frauds. The Virginia Supreme Court, in the case of C. Porter Vaughan, Inc., Realtors v. Most Reverend Francis X. DiLorenzo, Bishop of The Catholic Diocese of Richmond, 279 Va. 449, 689 S.E.2d 656 (2010), better defined what is meant by “sufficient documentation.”

House For Sale

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Mediation and Arbitration – There is a big difference

June 23, 2014 on 11:29 am | In Business Planning, General Interest, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2011-02-28 11:57:21. Republished by Blog Post Promoter

In conversations with clients, it seems that people misuse the terms “mediation” and “arbitration” more than most other legal terms. Although I do not have any empirical data, my educated guess is that many businesses and construction contractors (who did not depend upon advice given by an experienced business attorney) insert “arbitration” clauses into their contracts thinking that they mean “mediation.” Some transactions involving the sale of real estate include an arbitration clause. Countless times, clients involved in a potential lawsuit point to the “arbitration” clause, and are disheartened when I explain to them the arbitration process. Many thought they were avoiding the potential high costs of litigation. These terms are NOT interchangeable and in this blog post I will explain the basic differences between them.

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