Part 2 on Virginia’s Unauthorized Practice of Law Rules and HOAs – What is considered the unauthorized practice of law?

October 30, 2014 on 1:17 pm | In Business Law, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association | No Comments

We blogged previously about finding guidance in Virginia’s rules on the unauthorized practice of law as they pertain to community associations. In this post, we will review Virginia opinions that address whether certain work performed by managers is the unauthorized practice of law (“UPL”).

Gavel

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Do the Virginia Rules of Evidence change settlement negotiations and mediations?

October 30, 2014 on 1:17 pm | In Construction litigation, HOA litigation, Mediation, Real Estate Litigation | No Comments

Virginia’s new codified Rules of Evidence became effective on July 1, 2012. In an article in Virginia Lawyers Weekly, five of the rules were highlighted. One of those highlighted rules was Rule 2:408, “Compromise and Offers to Compromise.” The terms of this rule differ from the terms of the Federal Rule of Evidence 408, but those differences will not be explored in this post. Instead, this blog post will review Virginia Rule of Evidence 2:408, and its possible implications for settlement discussions and mediation.

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Caveat Emptor and a Buyer’s Duty to Investigate Real Estate Purchase

October 30, 2014 on 1:17 pm | In Construction litigation, General Interest, Real Estate Litigation, State & Federal Litigation | No Comments

We blogged about a Charlottesville Circuit Court case in which the court analyzed the duty to disclose for a seller of residential real estate.  We wrote another post regarding that case discussing an exception to the rule of caveat emptor. Specifically, if the seller attempted to “divert” the purchaser’s attention away from problem areas, a court could find fraud and rescind the contract.

However, in Virginia, if a prospective home purchaser discovers information alerting him to a potential problem, that person is charged with knowledge he would have found had he diligently pursued the inquiry. That rule was highlighted in an unpublished opinion released by the Virginia Supreme Court. This blog post reviews the facts of that case and the lessons to learn for real estate sellers and buyers.

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Make sure HOA Document Amendments are properly certified

October 30, 2014 on 1:17 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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General Partnerships, The Way To Go . . . Financially Under

October 30, 2014 on 1:17 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

 

Though the majority of businesses in the United States are sole proprietorships, those of you who read an earlier post know that I recommend, for a myriad of good reasons, that an entity of some kind be placed between a person doing business and the rest of the world. Find an experienced business attorney to help establish your business entity.

In this post, I address briefly the general partnership form of business entity, the only form I consider more dangerous to the financial health of an individual than the sole proprietorship.  Why, you ask?  Because with the sole proprietorship, the sole proprietor is personally liable for the acts of the sole proprietor, the business and the business employees.  In the general partnership, the partners are personally liable for the acts of the business, the employees and each other.  What partners do can be fairly unpredictable, like contracting to purchase or lease things that cannot possibly be paid for out of the profits of the business, or like contracting to do that which cannot possibly be done profitably.

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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 1:17 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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Don’t Let the Bedbugs Bite. . .Your Condominium Neighbor!

October 30, 2014 on 1:17 pm | In Common Interest Community, Contributors, General Interest, HOA, HOA litigation, Real Estate Litigation, Real Estate Strategies, Unit Owners Association | No Comments

When water leaks from one condominium into another, determining the responsible party is usually not too difficult.  But what about when the hazard isn’t water, but bed bugs, parasitic insects of the cimicid family that feed exclusively on blood and often take up residence nearby or inside of beds, bedding and/or other sleep areas, who is responsible then? This blog post will review some of the issues regarding condos and bedbugs.

Bedbugs and Condos

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A Checklist to improve the effectiveness of your HOA Board of Directors

October 30, 2014 on 1:17 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Real Estate Strategies, Susan B. Tarley | No Comments

 

For your homeowners association, here’s a simple, but effective and invaluable checklist of suggested resolutions to improve the Board of Directors in your community association.

Williamsburg Virginia Business and HOA Lawyers

Board Checklist

    1. Set-up your board of director orientation with Tarley Robinson, PLC.  This service is provided at no charge to our clients. We will send out a an email and letter to schedule an orientation shortly after your board of director elections. Email us to make sure you are on our mailing list.
    2. Review your documents with your manager and attorney, or if self-managed, with your board and attorney, to determine whether you are operating in compliance with your documents and whether your documents comply with the law.
    3. Encourage civility, applaud the good deeds of neighbors and provide solid leadership.  Remember that you are part of a community.
    4. Schedule an appointment with your insurance agent to review your current policies. Confirm that your policies comply with any insurance requirements in your documents. Find out if you should change your deductibles.  Determine if you are paying the best price.
    5. Implement your Complaint Policy and Copying Policy. You are required to have them.
    6. Conduct efficient and effective board meetings. Spend some time working on the processes and procedures for your board meetings. Seek input from your board members, manager and attorney.
    7. Follow the legislation affecting community associations. The Virginia Legislative Action Committee will be working hard to review proposed legislation and determine its impact on community associations. Updates will be posted at http://www.cai-valac.org/
    8. Review your Reserve Study. Virginia law request annual review of your Reserve Study. If you do not have a Reserve Study to review, resolve to obtain one. It is the law.
    9. Conduct a risk assessment relative to safety and the use of your Common Areas or Common Elements. Follow-up with appropriate action, be it implementing safety rules, repairing an unsafe area or item, or posting a warning sign.
    10. Attend seminars provided by CAI. The Central Virginia Chapter Community Association Day, for example, is a daylong event that includes some great educational opportunities.
Being a Board Member for your HOA or Condo Association is a big undertaking, but there are resources to help you understand your responsibilities and become a more responsive director. Resolve to take advantage of these resources and help your HOA Board become more effective.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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Benefits of HOAs Part 3: The Importance of Assessments to your Community

October 30, 2014 on 1:17 pm | In Common Interest Community, HOA, HOA litigation, Jason Howell, John Tarley, Real Estate Litigation, Susan B. Tarley, Unit Owners Association | No Comments

To many homeowners, the assessments they pay to their homeowners or condominium association are just one more bill each month. Too often, owners don’t realize the benefits they get in exchange for these assessments. Some owners even go so far as to stop paying their assessments. A careful review of your association’s budget would show that the benefits for owners that come from their assessment payments far surpass the cost of the assessment. But when an owner chooses not to pay, everyone in the community bears the consequences.

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

October 30, 2014 on 1:17 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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