Homeowner cannot be forced to join a voluntary HOA

October 30, 2014 on 1:11 pm | In Common Interest Community, HOA, John Tarley, Real Estate Strategies, State & Federal Litigation | No Comments

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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Neighbor Law: Tips for Avoiding Boundary Line Disputes

October 30, 2014 on 1:11 pm | In Construction litigation, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Few real estate topics cause more disputes between owners than those involving activities at a common boundary. We have reviewed boundary line disputes involving trees that straddle property lines and fences that encroach upon boundary lines.

A recent Portsmouth case highlights another issue relating to boundary lines.

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You obtained a judgment against your construction contractor, how do you collect?

October 30, 2014 on 1:11 pm | In Construction litigation, General Interest, John Tarley, State & Federal Litigation | No Comments

Sometimes your dispute with your contractor goes all the way to court and you obtain a judgment. However, sometimes the contractor does not have the ability to pay the judgment, so financially, you are out-of-pocket your judgment damages plus your attorneys’ fees. You may have one last alternative to recover at least a portion of your losses through the Virginia Contractor Transaction Recovery Fund (the “Recovery Fund”).

Williamsburg Virginia Business Lawyers

Williamsburg Courthouse

 

 

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Smokin’ in the Condo

October 30, 2014 on 1:11 pm | In Common Interest Community, General Interest, HOA, HOA litigation, State & Federal Litigation, Susan B. Tarley | No Comments

Imagine if someone told Don Draper and Roger Sterling of Mad Men that they could no longer smoke in their apartments. They would look at you curiously, smirk and light up a cigarette. But Mad Men, the television show about a Madison Avenue advertising agency is set in 1965 and as the ad for Virginia Slims said, “[we’ve] come a long way, baby.” Almost half of all adults smoked in 1965 but that percentage has dropped to 18% by 2012.

The negative health effects have been documented and the reported adverse health effects caused by second-hand smoke has resulted in smoking bans in restaurants. One of the next areas in which smoking bans have been put in place is in condominium communities. Some of the smoking bans address common elements only but others have imposed a ban on smoking in the condominium unit.

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Attorney-Client Privilege: What is it and how do you protect it?

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, State & Federal Litigation, Susan B. Tarley | No Comments

The attorney-client privilege permits confidential communication between an attorney and her client.  The objective is to encourage open communication, which permits an attorney to provide thorough, competent and complete advice.  Generally speaking, only a client can waive the privilege, but as found by the Virginia Supreme Court in Walton v. Mid-Atlantic Spine Specialist, PC, et al., a client’s inadvertent disclosure of a privileged communication may operate as a waiver of the attorney-client privilege.

In this Williamsburg medical malpractice case, a defendant doctor wrote a letter to his attorney calling into question his medical diagnosis he gave to his patient. The doctor kept this letter in a separate notebook. During discovery the defendant medical practice used a third party service to copy document requests. The letter was provided inadvertently to the plaintiff.

Although the defendant claimed that he did not produce the letter or permit anyone else to produce the letter, the Court found that the defendant did not take adequate protection to protect the letter. The Court noted that the notebook in which the letter was found was not marked as confidential or privileged. Furthermore, the Court held that the client did not take prompt action following disclosure.

The Virginia Supreme Court considered five main factors in determining whether the inadvertent disclosure waived the client’s privilege.  The Court looked at:  (1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation making it unfair to allow the party to invoke confidentiality under the circumstances.

As a start, clients should maintain attorney-client privileged communications in a separate file or notebook and clearly mark the file or notebook and each communication as “CONFIDENTIAL-ATTORNEY-CLIENT PRIVILEGED COMMUNICATION.”  Then, if an inadvertent disclosure is made, the client should contact her attorney as soon as possible to determine a plan of action to restore the attorney-client privilege.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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Can an engineering firm limit its liability by contract?

October 30, 2014 on 1:11 pm | In Business Planning, John Tarley, State & Federal Litigation | No Comments

 

Maybe not, in certain circumstances. A Fairfax County judge has determined that an engineering firm cannot limit its liability by contract in a case involving a 2008 fee contract. The typical fee agreement for an engineering firm includes some form of “limitation of liability” in which the firm seeks to limit its liability “to the amount of fees paid” to the firm, whether the claim is for breach of contract or warranty, or for negligence. In the case of Dewberry & Davis, Inc. v. C3NS, Inc., the engineering services firm, Dewberry, filed a fee claim against C3NS. C3NS filed a counterclaim for breach of contract. Dewberry had a limitation of liability clause in its fee agreement. It sought summary judgment to prevent C3NS from claiming that the limitation of liability paragraph was void. The Court sided with C3NS.

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Builders and Owners: Have your residential construction contract reviewed before you sign it

October 30, 2014 on 1:11 pm | In Common Interest Community, Construction litigation, HOA litigation, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

 

Construction litigation has become a time-consuming and expensive area of legal practice. Even in residential construction, attorney and expert fees, and other costs of the lawsuits can rise high into five figures. Unfortunately, in many instances, better planning and attorney review at the beginning may have prevented the bitter litigation that ensued.

Williamsburg Virginia Business Lawyers

Construction Contracts

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Rental Restrictions in HOAs permitted according to the Virginia Attorney General

October 30, 2014 on 1:11 pm | In Common Interest Community, General Interest, HOA, HOA litigation, Real Estate Litigation, Real Estate Strategies, Susan B. Tarley, Unit Owners Association | No Comments

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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Virginia Supreme Court upholds arbitration award granted to homeowners who sued their HOA

October 30, 2014 on 1:11 pm | In Common Interest Community, HOA, John Tarley, State & Federal Litigation | No Comments

It is relatively routine for developers or “declarants” to include arbitration provisions into the declaration of restrictive covenants recorded to establish a common interest community. Generally, arbitration clauses are preferred by developers for a variety of reasons including avoiding a jury and having a say in the choice of the fact-finder. However, those decisions made by the developers have long lasting effects upon homeowner boards following transition, because it is difficult for a board to effect a change in the documents.

 

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Arbitration instead of Court? Be careful what you ask for

October 30, 2014 on 1:11 pm | In Business Planning, Common Interest Community, John Tarley, Real Estate Strategies, State & Federal Litigation | No Comments

Over the past 15 years or so, “arbitration” provisions have appeared with increasing frequency in a wide variety of contracts. For example, declarations of covenants and restrictions recorded for homeowners associations, construction contracts, employment contracts, and commercial leases all may contain arbitration clauses. Arbitration may be a good idea, but you should know what “arbitration” means before you agree to be bound by such a provision.

Many people confuse the terms “mediation” and “arbitration.” Mediation refers to a process whereby a third-party helps facilitate a negotiated settlement between two or more parties. A mediator does not make decisions, does not take evidence, and does not conduct hearings. Parties simply negotiate and the mediator helps foster those negotiations.

Conversely, arbitrations are conducted like regular trials, with a judge-like arbitrator (or arbitrators) making a final decision based upon the evidence presented, and hopefully the law of your jurisdiction. Appeals of an arbitrator’s decision are virtually nonexistent.

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