When is a “Contract” not a Contract?

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

We know that in Virginia, the parties to a contract are bound to the terms of that contract. We also know that Virginia courts look to the terms of that contract to determine each party’s rights and obligations. But what is a “contract?” This blog post looks at a recent Virginia Supreme Court case that gives a little guidance to answer that question.

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Estate Administration: Will Contests and Testamentary Capacity

October 30, 2014 on 1:01 pm | In Estate Administration | No Comments

Readers of our website may notice that we list “Estate Administration” as an area of our practice. We assist executors of wills, or personal representatives of estates to properly dispose of a decedent’s assets.

Occasionally, we get involved in cases in which a party contests a decedent’s Will that has been probated with the court. Typically, that person will claim that another Will should be considered the proper Will because the most recent Will was either

  • made when the decedent lacked the mental capacity at the time the Will was made, or
  • the most recent Will was made under the undue influence by a person who held a position of trust and confidence with the decedent.

 Last Will & Testament

In the case of Weedon v. Weedon, an older woman with a diagnosis of multiple myeloma revised her Will in 2007. Prior to surgery in 2008, she decided to revise her Will again. As part of the revisions, the testatrix decided to bequest all of her real property to just one of her five children (who had also taken the role of caregiver for her mother). Four days after signing the new Will (and three days after surgery), the decedent died. After the will was probated, the remaining four children sued their sister seeking an order that either their mother lacked the mental capacity to make the revised Will; or that the revised Will was made as a result of their sister’s undue influence.

The King George Circuit Court determined that the decedent lacked the testamentary capacity when she executed the Will and that the Will was the result of undue influence, but the Virginia Supreme Court reversed. In this blog post, we examine the direction given by the Virginia Supreme Court in determining whether a decedent had the mental capacity at the time the Will was made.

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HOAs, ADA, and FHA: regulating “Service or Assistance Animals”

October 30, 2014 on 1:01 pm | In General Interest, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

Recent amendments to the Americans with Disabilities Act (the “ADA”) regulations limit the definition of “service animal” to any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The amendments specify that providing “emotional support, well-being, comfort, or companionship do not constitute work or tasks” under the new definition.

On the other hand, if your situation is not an ADA issue but rather a Fair Housing issue, a recent memo clarifies that the new definition is not applicable to the Fair Housing Act (the “FHA”). The FHA does not contain a specific definition of “service animal.” Under the FHA, animals that provide emotional support have, in certain instances, been recognized as necessary assistance animals as a reasonable accommodation. The 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.


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Can HOAs suspend pool privileges to collect unpaid assessments?

October 30, 2014 on 1:01 pm | In Common Interest Community, HOA, HOA litigation, Jason Howell, Susan B. Tarley, Unit Owners Association | No Comments

As summer begins and the temperature rises, people are eager to cool off in community pools. For homeowner’s associations and condominium associations, this can be an opportunity to encourage members behind in their assessments to get caught up.

Before an association starts suspending pool passes to encourage members to pay their dues, however, it should be aware of provisions in Virginia Law that affect what actions it can take. Both the Virginia Property Owners’ Association Act and the Virginia Condominium Act allow an association to suspend services (including use of common areas such as pools) for failure to pay assessments, as long as the association complies with certain requirements.

Williamsburg Virginia Business and HOA Lawyers ADA

Swimming Pools and ADA

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It’s time for your Small Business to audit its Corporate Documents

October 30, 2014 on 1:01 pm | In Business Planning, John Tarley | No Comments

Many of our New Year’s Resolutions address our personal health, but owners of small businesses should also resolve to address your corporate health. Small businesses operate with great attention to the product or service the company provides, but little energy is left to review the infrastructure of the company. Issues such as shareholder agreements, key person insurance, disability insurance, annual meetings and other corporate necessities are given short shrift because of the attention we pay to running the business.

Williamsburg Virginia Business Lawyers

Business Agreements

This blog post provides a few suggestions to help you overcome a problem unique to small businesses: spending too much time working in your business rather than working on your business.  Continue reading “It’s time for your Small Business to audit its Corporate Documents”

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How long should your HOA retain its records?

October 30, 2014 on 1:01 pm | In Common Interest Community, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

You are elected Secretary of your homeowners’ association. Congratulations! Someone hands you the minute book, owner roster, and the governing documents. You think, hey this is not overwhelming at all. Then the retiring Secretary mentions in passing that “If you’re home tomorrow I’ll deliver the boxes.” You ask “What boxes?” “Oh, all of the HOA’s records are boxed up and have been in my garage – I’ll bring them by,” replies the retiring Secretary.

What do you do with the boxes? What records and documents do HOAs need to keep? How long do you need to keep them? How should they be stored? This blog post provides some basic guidance on best practice tips for community association record retention.

HOA Filing Information

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“Thank you” to Construction Law Musings – HOAs and the Association Lien

October 30, 2014 on 1:00 pm | In Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | 1 Comment

For the second time, my friend and colleague, Richmond Construction Law attorney Chris Hill, permitted me the opportunity to blog at his award-winning blog Construction Law Musings on the topic of liens for assessments filed by community associations. You can get a lot of great information on construction law, including the intricacies of mechanic’s liens, from Chris and his blog. You can also follow him on Twitter, @ConstructionLaw.

 

Here’s a brief excerpt of the post:

In this blog, I will discuss another lien that can be filed on real property in Virginia, a lien that I will refer to in this blog as the “Association Lien.” Virginia has two separate code sections that permit community associations to file liens for unpaid assessments. For condominium associations, Va. Code § 55-79.84 sets forth the procedures for filing a lien. For developments governed by the Property Owners Association Act (“POAA”), Va. Code § 55-516 provides the statutory requirements.

I greatly appreciate the opportunity to contribute to Chris’ blog, which, for me, is the “gold standard” for a proper lawyer’s blog. For the full post on filing a community association lien, please check out Chris’ Guest Post Fridays.

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Watch out for email scams!

October 30, 2014 on 1:00 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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A New Twist on Identity Theft and Fraud: How can Realtors, Lenders, Title Companies and Law Firms Protect Your Clients and Yourselves?

October 30, 2014 on 1:00 pm | 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.

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

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Should I incorporate my business?

October 30, 2014 on 1:00 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

Frequently, budding entrepreneurs merely evolve into business without giving it the upfront thought the transition deserves.  They become what are usually known as “sole proprietors” operating “sole proprietorships,” or one-man/woman businesses.

Business Deal

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