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

October 30, 2014 on 1:10 pm | In Common Interest Community, John Tarley, Real Estate Strategies, State & Federal Litigation | 4 Comments

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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Make sure you properly register your business

October 30, 2014 on 1:10 pm | In Merger & Acquisition, Neal J. Robinson | No Comments

From time-to-time we have counseled clients whose companies were formed in other states, but they are also conducting business in Virginia. One task that sometimes gets overlooked is the necessity to properly register their corporation in Virginia. That oversight could have disastrous consequences, including personal liability for officers, shareholders, and agents for corporate actions. Fortunately, Virginia’s State Corporation Commission gives us an informative primer on the necessary requirements, including the relatively simple steps to register your foreign corporation. Remember that if you have a Virginia company doing business in other states, it is most likely that those states require a similar registration process. Among the reasons you form a company is to shield yourself from liability. Make sure you have taken care of all your responsibilities.

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 1:09 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

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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Virginia Attorney General opinion on HOAs

October 30, 2014 on 1:09 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, Unit Owners Association | No Comments

In Virginia homeowner associations, the governing documents permit a developer to continue control of the HOA’s Board of Directors for a specific period of time, or until a specific number of lots are sold. The length of that period depends upon the governing documents of each association.

HOA

This issue has generated litigation in Williamsburg, and now, thanks to Peter Vieth from Virginia Lawyer’s Weekly, we have learned of a formal opinion from the Virginia Attorney General. In an opinion dated January 11, 2013, the AG answered two questions posed by Virginia Senator Bryce E. Reeves. This blog post takes a look at that opinion.

Is the Property Owners Association Act Unconstitutional?

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Attorneys’ Fees and Litigation – When fees get awarded to the “Prevailing Party”

October 30, 2014 on 1:09 pm | In Common Interest Community, Construction litigation, HOA, HOA litigation, John Tarley, Mediation, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

In litigation matters involving common interest communities (otherwise known as homeowners associations (“HOAs”) or condominium owners associations (“condo associations”)), the issue of awarding attorneys’ fees for prevailing parties ultimately arises. Generally, the HOA’s Governing Documents or the condo association’s Condominium Instruments contain such a provision. Otherwise, attorneys’ fees may be recoverable by statute for HOAs and condo associations.

These attorney fee-shifting provisions, either by contract or statute, are contrary to the typical “American Rule” cases in which each side pays their own attorneys’ fees. Because litigation has become so expensive to pursue, whether to award attorneys’ fees, and the amount of any award, has become separate litigation on its own at the conclusion of cases.

In the recent case of Dewberry & Davis, Inc. v. C3NS, Inc., the Virginia Supreme Court was faced with the issue of “whether the circuit court erred in applying an attorneys’ fees provision of a contract.” We had previously blogged about this case, because in the underlying contract between the parties, Dewberry & Davis, an engineering company, had limited its liability for damages. The trial court had determined the limitation of liability clause was void, pointing to a recent change to Virginia Code § 54.1-411that permitted an engineering company to include a limitation of liability clause. Because the contract predated the code change, the court determined that those changes “demonstrate that the General Assembly fully intended to alter the statute’s intent.”

The case continued to trial, and eventually, upon appeal, to the Virginia Supreme Court. This blog post explains that Supreme Court decision relating to the award of attorneys’ fees.

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What can an HOA Board do if members question whether the President acted properly?

October 30, 2014 on 1:09 pm | In General Interest | No Comments

Susan Tarley answered a question that was published in the March/April 2013 issue of the Common Ground, the Community Association Institute’s Magazine for Community Association Leaders. Here is the question and answer.

Question

Our bylaws state that no reimbursement shall be given for services rendered by any board member unless voted and agreed on amongst the board members. I am a board member, and our association president has submitted bills totaling more than $600 to our management company without board approval and has been paid. A review of the past years minutes indicate no such vote was taken. We feel the president has his own monetary agenda and does not care about our community. I understand we can file a petition with 67% of the unit owners signing to have him removed, but we just want our money. What can we do?

Williamsburg Virginia HOA Lawyers

Board of Directors

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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 1:09 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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Make sure HOA Document Amendments are properly certified

October 30, 2014 on 1:09 pm | In Common Interest Community, HOA, HOA litigation, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | Comments Off on Make sure HOA Document Amendments are properly certified

The Virginia Supreme Court’s opinion in Tvardek, et al v. Powhatan Village Homeowners Association, Inc. highlights how critical it is to not only amend your HOA documents in compliance with the law and your existing documents, but to make sure that the amended document that gets recorded properly memorializes that you did so.

The Tvardeks filed a declaratory judgment action in 2013 against Powhatan Village Homeowners Association, Inc. (“Powhatan Village”) to challenge a 2008 amendment to the association covenants that included a provision restricting the owners’ ability to rent their homes. Powhatan Village filed a special plea in bar requesting dismissal of the action as untimely citing the one-year statute of limitations in Va. Code Ann. § 55-515.1(E). Declining to hear any evidence, the Circuit Court made a decision on the pleadings and argument of counsel, ruling in favor of Powhatan Village’s argument that the claim was time-barred. The Circuit Court also awarded Powhatan Village $12,000 in attorney fees.

The Tvardeks appealed the case. The Virginia Supreme Court reversed the Circuit Court’s ruling, determining that the case was not barred by the one-year statute of limitations. The attorney fee award was also reversed.

Williamsburg Courthouse

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

October 30, 2014 on 1:09 pm | In Business Planning, General Interest, Land Use Planning, Real Estate Strategies, Zoning | No Comments
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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Fight over beer-pong game covered by insurance?

October 30, 2014 on 1:09 pm | In John Tarley, Real Estate Strategies, State & Federal Litigation | No Comments

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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