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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

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

April 23, 2020 on 2:08 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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Unauthorized Practice of Law: When unlicensed attorneys serve as HOA board members

April 23, 2020 on 2:08 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Merger & Acquisition, Real Estate Strategies, Susan B. Tarley | No Comments

An article in the Virginia Gazette featured a story regarding the indictment of a local attorney for the unauthorized practice of law; a criminal charge classified as a class 1 misdemeanor. Although those allegations did not involve a homeowner association, it highlights a recurring issue for volunteer boards of directors for many organizations including homeowner associations and not-for-profit organizations on which attorneys serve. This article focuses on those issues facing boards for homeowner associations (“HOAs”) but the issues are similar for other volunteer boards of directors.

 

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When is a “Contract” not a Contract?

April 23, 2020 on 2:08 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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Can I “hire” an unpaid intern for my business?

April 23, 2020 on 2:08 pm | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | 2 Comments

I teach as an adjunct faculty member at the William & Mary Law School. I find this part-time teaching gig very stimulating intellectually because the law students at W&M are extremely intelligent, diligent, and driven. This past week a new class of first-year law students arrived with great expectations about their futures. The reality of the job market, though, is that the legal profession has not been immune from the effects of this difficult economy.

Some of my second-year law students have also arrived back into Williamsburg, and I have been surprised at the number of students who report they worked as an “unpaid intern.” Although this practice is permissible in certain situations, these working arrangements with private law firms probably violates federal labor laws, and it is particularly distressing that it occurs in the practice of law. This blog post provides some guidance for your small business when deciding whether to “hire” an unpaid intern.

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PPP Loan Update May 1, 2020 – Certification of your need for a PPP Loan

April 23, 2020 on 2:08 pm | In Business Law, Business Planning, John Tarley | Comments Off on PPP Loan Update May 1, 2020 – Certification of your need for a PPP Loan

Everybody who applies for a PPP loan must certify under oath that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Undoubtedly, all of our local businesses who have applied and who made that certification thought there was NO DOUBT that the economic uncertainty was obvious and evident.

But then it came to light that many publicly traded companies and larger private companies applied for and received PPP loans. Although those companies technically qualified for the PPP loan, there is no doubt that the CARES Act was not intended for entities like Shake Shack and the Los Angeles Lakers.

So to address these issues, the SBA offered more pointed guidance to dissuade these types of companies from applying for the loans. But the ambiguous guidance proposed in the interim rule applies to everybody who applies for a PPP loan, including a sole proprietor. In this post, I hope to provide you some guidance to help you “paper your file” supporting certification of need, which you may need when you apply for loan forgiveness, 8 weeks after receiving your loan proceeds.

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Three Factors An HOA Should Consider When Hiring An Attorney

April 23, 2020 on 2:08 pm | In Common Interest Community, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association | No Comments

Selecting an attorney is one of the more significant decisions made by the board of directors for a community association. Often times, the association makes its decision based upon price alone. Although “price” is a valid factor to consider, there are other important factors the board should review during its selection process. This article addresses three of the major considerations.

First, the board should determine the prospective attorney’s experience level in the representation of community associations. Attorneys for common interest communities are similar to the general counsel in major corporations because of the wide range of issues that arise. Extensive experience in many of the possible legal issues facing community associations should be a prerequisite.

Tarley Robinson

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Another Thanks to Construction Law Musings – HOAs and Construction Defects

April 23, 2020 on 2:08 pm | In Common Interest Community, General Interest, HOA, HOA litigation, John Tarley, Real Estate Strategies, Unit Owners Association | No Comments

Richmond Construction Law attorney Chris Hill, my friend and colleague, permitted me another opportunity to blog at his award-winning blog Construction Law Musings. Chris is an outstanding Virginia attorney, and his blog is a great source of information on construction law, including the intricacies of mechanic’s liens. You can also follow him on Twitter, @ConstructionLaw.

Chris has a regular feature called “Guest Post Friday” in which he invites other bloggers to contribute to his Musings. For this blog, we wrote a post exploring the statutory warranties, provided in Va. Code § 55-79.79 of the Condominium Act, that require the Declarant to warrant “all of the common elements for two years.”

Here’s a brief excerpt of the post:

When either a commercial or residential condominium development nears the time of automatic transition, the developer and the owners face many challenges. The developer, or “Declarant,” must transfer responsibility for management, enforcement of the Condominium Instruments, and finances, amongst other responsibilities, to the new owner-controlled Board of Directors. With the pending departure of the Declarant, owners can become concerned about possible construction defects with the common elements. This blog post discusses the process and responsibilities under the statutory warranties provided by the Virginia Condominium Act.

Read the complete blog at Construction Law Musings, as well as many other informative posts on Chris’ outstanding blog. Thanks again, Chris!

Thank you

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

April 23, 2020 on 2:08 pm | In Business Planning, Contributors, General Interest, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

For all you accountants, investment advisors, and even attorneys who provide advice and guidance to companies or other entities raising money or other property for investment purposes, it might be a good idea to pay particular attention to the

United States Supreme Court opinion, when issued, in the case of Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.). This case was argued before the Court on December 7, 2010. The Court’s opinion should be issued sometime during the first half of 2011.

Janus Capital Group, Inc. is somewhat factually and legally complex. However, in very simplified terms, First Derivative Traders is attempting to assert primary Securities Exchange Act Section 10(b) fraud liability against an entity,

Janus Capital Management LLC, that “helped” and “participat[ed] in” preparing a prospectus. The prospectus was actually that of, and was issued by, Janus Funds, a separate entity. Janus Funds had its own lawyers review the prospectus. Further, the Funds’ Board of Trustees, which was primarily responsible for it, reviewed it, as did the outside Trustees of Janus Funds, who also had their own counsel review it.

The United States (i.e., the Securities and Exchange Commission) filed an amicus brief in this case advocating such indirect liability in private actions, never mind the right of private action was judicially, not statutorily, created.

Williamsburg Virginia Business Lawyers

United States Supreme Court

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Employee Non-Competes: Why Must Prospective Employers Be Wary?

April 23, 2020 on 2:08 pm | In Business Law, Business Planning, General Interest, State & Federal Litigation | No Comments

We have written previously about employee “non-competes” (a/k/a covenants not to compete or non-competition agreements). You may have come across them in your own business, either by requiring them of your own employees or seeking to hire someone subject to a non-compete.   However, the area of law surrounding non-competition agreements can be tricky, and a new decision has added to the intrigue.

In DePuy Synthes Sales, Inc. v. Jones, the Eastern District of Virginia denied two motions to dismiss filed by the new employers of employees governed by non-compete agreements. DePuy employed two salespersons pursuant to employment agreements that contained non-compete provisions. They eventually left DePuy and began working for a competitor, Sky Surgical. DePuy sued the employees and Sky Surgical. This blog post examines the tortious interference of employment contract claim made by DePuy against the new employer, Sky Surgical.

employee noncompete agreement

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My Commercial Tenant is gone . . . should I re-enter the Property?

April 23, 2020 on 2:08 pm | In Business Law, Business Planning, John Tarley, Land Use Planning, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Sometimes commercial tenants, unable to stay current with their lease obligations, decide to close up shop and abandon their leased premises. In those circumstances, commercial landlords need to know their options. This blog post discusses a commercial landlord’s options when a commercial tenant abandons its lease.

MC900185910

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