Absolute Privilege and Damages Caused by False Statements in Legal Papers

Virginia statutes provide enforcement remedies giving community association leaders great power over their members. Sometimes such powers are misused by submission of inaccurate statements in a lawsuit, notice, lien or certificate that harms the reputation of the owner or interferes with sale to a purchaser.

Problems with Pipestems

The value of various features of subdivision development can be evaluated by whether they makes people happy or leads to acrimony. The value of property is inextricably intertwined with its use potential. Generally, where there are few disputes among the owners, this may indicate that the developer did something right in creating the community.

Can HOA Boards be Overridden through Group Action by Owners?

Many owners want to know what options they have to overturn bad board decisions without using litigation and when waiting to the annual director election isn’t an option. This raises the issue of what legally binding results “community organizing” can accomplish when the board majority appears to have already made up their mind.

How a Lawyer Can Help Owners Protect their Rights in HOAs and Condominiums

According to trade association data, approximately 1,980,000 Virginians live in 778,000 homes in more than 8,7000 community associations (HOAs, condominiums, etc.). In the District of Columbia, approximately 111,000 residents live in 48,000 homes located in more than 1,300, community associations.

Can a Board of Directors Make Decisions for the HOA by Unanimous Emails?

Condominium and HOA leaders usually expect the owners and tenants to do what they tell them to do, and often struggle to back down when their authority is questioned. At the same time, boards and committees like to make decisions that affect others without being monitored or disclosing what was done.

Worlds are Colliding! When Attorneys Sit on HOA Boards

Before Jaime Harrison ran for U.S. Senate or became chair of the Democratic National Committee, he was a director on the board of a condominium in Alexandria, Virginia while I was an owner-occupant. We had annual elections for board positions. Sometimes there was an election, other times we left without voting because there was not quorum.

Making Property Decisions as the Region Reopens

On May 14, 2021, Virginia Governor Ralph Northam lifted the indoor mask mandate in light of updated CDC guidance. Governor Northam also declared that the indoor capacity restrictions and distancing restrictions will ease, effective May 28, 2021. The District of Columbia and neighboring states are also lifting restrictions, effective around the Memorial Day weekend.

Do Attorney General Lawsuits Actually Help Consumers?

Whenever a legal dispute seems intractable, many people want an agency or official to bring the power of the government to bear on their problem with their adversary. Aggrieved persons often try to exhaust such possibilities before retaining their own attorney. Regulatory enforcement through federal, state or local resources seems more attractive than expending one’s own.

Have We Already Agreed to Settle or Merely Agreed to Later Agree?

People usually think of a “litigation settlement” as written, agreed terms signed by the parties. However, parties can become legally bound to oral or electronic settlement terms before the parties get to a formal writing or court order. Generally speaking, a contract to settle a lawsuit or other dispute does not require a signed writing […]

Resolving HOA Enforcement Through Voluntary Compliance

When a homeowner receives a notice of violation from their HOA or condominium, they must decide if they are going to fight it, comply or file an architectural application to receive formal approval. There are many instances when the homeowner can and ought to keep the installed improvement. However, there are other situations in which […]

Role of Survey Plats in Resolving Property Disputes

When landowners purchase real estate, they get the opportunity to obtain a land survey or to save a few hundred dollars by avoiding it. During the home buying process, purchasers’ financial situation is usually stretched to their utmost limit. The owner may not understand the value of paying $200-$600 for a survey plat when there […]

Delay, Interference, and Acceleration in Construction Contracts

Certain complaints frequently arise in construction disputes. One is that the contractor inexcusably had delayed in completion of the project. Another is that the owner has interfered with the contractors work. This blog post takes a look at common schedule change and delay related issues in construction contracting.  Generally speaking, courts look to the language […]

What it Means for Ultra Vires HOA Actions to be Void

Wrongful legal actions by community association boards generally fall into two categories. The first are contracts, resolutions or other actions that the board generally has the authority under the declaration to take, but they failed to properly do so pursuant to the bylaws or applicable law. For example, suppose the HOA has the authority to […]

When a HOAs Entity Status becomes Inactive by Automatic Termination

Under Virginia law, a nonstock corporation must submit annual filings to avoid having its corporate status automatically “terminated” by the State Corporation Commission pursuant to Va. Code § 13.1-914. When people see that a corporation’s status is deemed “inactive” as terminated by a regulatory agency, they wonder if it no longer “exists,” particularly in the […]

Can Construction Contracts Require Arbitration Outside of Virginia?

To be useful, contract rights need a reasonably convenient remedy. What is convenient to one party may not be convenient to the other. When parties include an arbitration clause in a contract, such proceedings will have to occur in a “place” such as a lawyer’s conference room, a hotel room or nowadays, perhaps a zoom […]

Modernizing HOA Law or Exploiting a Crisis?

“Never let a good crisis go to waste.” -Winston Churchill. The Virginia General Assembly is currently in session. One interesting bill to Virginia homeowners is 2021 HB1816. This bill seeks to amend the Property Owners Association Act and Virginia Condominium Act regarding the use of “electronic means” for meetings and voting. Making videoconference a larger […]

The Negativity Effect in Real Estate Decision-making

Kids, we are counting down the final days to Christmas 2020. Many of my readers are familiar with the 1957 Dr. Seuss book, “The Grinch Who Stole Christmas.” In honor of the Grinch and the Whos, I would like to share a few insights from a 2019 book I recently finished reading, “The Power of Bad: How […]

Presenting to HOA Boards and Committees in Remote Hearings

Following enactment of 2020 General Assembly legislation, most HOAs and condominiums in Virginia carry on business through “remote” videoconferencing technology such as Zoom, WebEx and Microsoft Teams. Because of the Coronavirus, Americans of all ages are now more familiar with this technology. In the HOA context, boards and committees use remote hearings to decide matters […]

The Voluntary Payment Doctrine and HOA Liens

Homeowners disputes with HOAs and condominium associations frequently revolve around disputed demands for payments, large and small. Homeowners often wonder if they have to pay their monthly assessments if their HOA failed to fulfill an obligation. Generally speaking, if the assessments were legitimately determined by the HOA’s board of directors pursuant to its recorded instruments, […]

Dead Tree Lawsuit Against HOA Arborist Dismissed

Contemporary land development policies would not work well without trees. Lot owners use trees for shade, ornamentation, and to screening. Subdivisions, especially cluster developments, often include common areas where trees or shrubs provide dense visual screening of the development. Vegetation can be more attractive and taller than fences. When a tree dies, it transforms from an asset to a liability, threatening damage to nearby structures or people. It is in a lot owner’s self-interest to remove dead trees from their own lots to avoid […]

Is the Architectural Control Committee a Government of Laws or of Men?

Founding father John Adams observed that a republic is, “a government of laws, and not of men.” Adams contrasted a republic with an empire, where, “what pleases the prince has the force of law.” In Adams view, a government of laws surpasses one where a single individual (or a small group) holds unlimited power. If […]

Memorandum of Association Assessment Lien

HOAs and condominiums continually chase after their members for unpaid assessments imposed for maintenance of common areas and amenities. Normally, a creditor who wants to go after a defaulting “customer’s” property or assets needs to sue them for a judgment if they want to record a lien in the land records. Association boards grew tired […]

Resolving Property Disputes through Mediation

Successful athletes, owners and coaches share a passion for winning. In 2020, ESPN aired a documentary about Michael Jordan’s Chicago Bulls basketball dynasty. Cancellation of professional sports during the Coronavirus is a disappointment to many Americans. Basketball Hall of Famer Steve Nash once said, “Nothing is black-and-white, except for winning and losing, and maybe that’s […]

HOA Design Review Application Form

Most homeowners’ associations require owners to submit a Design Review Application Form to approve changes to exterior features of their lots, be it a deck, patio, fence, driveway, or addition. Some even require approval to remove or add trees or change the grading. Owners often misunderstand their rights because the Design Review Application form includes […]

Virginia Temporarily Relaxes HOA Open Meeting Statutes for Coronavirus

In March 19, 2020, I posted an article entitled, “Do HOAs Have to Meet Openly During the Coronavirus?” This explored how existing community association open meeting statutes might apply during the Coronavirus epidemic. The epidemic has since spread, particularly in the Washington, D.C. metropolitan region and other cities. On March 23, 2020, Virginia Governor Ralph […]

Foreclosures and Evictions During Coronavirus

Americans are now familiar with the “flatten the curve” tactic to prevent spikes in coronavirus cases from overwhelming health care systems. Governors impose limits on the number of people who may publicly congregate and encourage people to stay at home to slow viral communication. Otherwise, the ill may soon go to the hospital and discover […]

Do HOAs Have to Meet Openly During the Coronavirus?

Updated March 20, 2020 Landowners frequently complain that the board for their HOA or condo association makes important decisions in secret. Virginia law imposes significant “open meeting” requirements on community associations, allowing for attendance and participation by members. This is almost always in person. Open meeting laws can protect landowners from arbitrary or self-interested board […]

HOA Regulation of Trees and Shrubs

Spring is prime planting season, and many landowners are now making decisions on what landscaping changes they want for 2020. Trees, shrubs and other plants fill essential roles in residential subdivisions. They unlock the value of property by providing shade, screening, beauty, use transitions, and erosion control. Property owners like to control the planting, trimming […]

Be Safe When Property Disputes Coincide with a Public Crisis

When a public crisis occurs, pre-existing problems don’t go away. The crisis falls on top of all other burdens and conflicts of life. The Coronavirus epidemic is no different. This pandemic poses unique challenges not present in other crises. No one knows how long this will last, how many people will be affected or how […]

HOA Records and the Exclusion of Hearsay from Evidence

HOAs and condominiums, as legal entities, are creatures that derive their power from documents. Governing documents must be in writing. Rules, regulations, policies, and resolutions must be put into writing. To maintain and manage the common areas, the board must make contracts with vendors. Covenant enforcement requires data collection and issuance of notices to lot […]

What is the Difference Between an Easement and a License in Virginia?

Landowners in disputes with neighbors usually are aware of how easements may define property rights among adjoining properties. However, easements are not the only kind of right that allows someone to do or erect something on the land of another. In property law, the “license” is a well-established property doctrine. This kind of license is […]

Proposed Virginia Legislation Would Empower Developers to Oppress Rights of Unit Owners in Sale of Terminated Condominium Developments

For many years, I have observed how state statutes enable condominium boards or developers to oppress the rights of unit owners in the termination and sale of condominium developments. I have work experience as an attorney representing unit owners or tenants in such cases. In 2019 I published a case study in a state bar […]

Where is Virginia on Selective Enforcement of HOA Covenants?

In Greek mythology, Procrustes was a robber who deceived his victims into entering his house by offering a free bed for the night. Once inside, if the visitor was too short, he violently stretched them to the full length of the bed. If the visitor was too tall, he would chop off their legs to […]

Judicial Limitations on HOA Fining Authority

It’s December. Santa is coming. But for many, Santa isn’t the only person leaving things at homes. Many households using outdoor decorations to share holiday cheer will receive, in addition to gifts from their friends and family, HOA violation notices. Fortunately, Christmas came early in 2019, bringing Virginia landowners new, owner-friendly legal precedent. Years ago, […]

Appeals Court Deems Association Street a First Amendment Public Forum

Disputes between individuals and HOAs frequently occur on the roads or sidewalks owned by the Association. The rights of way are usually the HOA’s largest budgetary and operational responsibility. The lot owners and their invitees rely upon the roads to access properties. State and local governments benefit financially by shifting the maintenance burden of the […]

Do I Even Have a HOA?

It’s usually clear to home buyers whether a HOA governs their subdivision. A well-maintained sign adorns the entrance. The community manager emails the buyer’s agent an official-looking disclosure packet. For many other landowners, especially in rural areas, it is not clear at the settlement table whether any HOA is active. Months or years after purchase, […]

Injunctions in HOA Cases

Some people like to talk about awards of money damages or attorneys’ fees that the courts order losing parties to pay. Litigation involving landowners, HOA or condominium boards revolve around what remedies the court may apply if it sees things the same way as one of the parties. Contrary to the focus of many news […]

How to Fire a Contractor

Property owners often have bad experiences with contractors and desire to end the relationship. In such instances, knowing just how to fire a contractor is important. An owner “invests” in the contractor by signing a written agreement, paying substantial amounts of money, and allowing demolition and construction to begin. At this time, the owner is […]

Rain, Rain, Go Away: Drainage Problems in the HOA

Drainage disputes among adjoining property owners are common anywhere developers subdivide and build on land. Raw land’s natural grading channels surface water into streams and rivers. Development plans frequently ignore potential drainage problems and construction disturbs drainage patterns, often causing water to divert or accumulate. When buildings and hardscapes replace trees and grass, soil cannot […]

Rental Restrictions in Virginia Condominiums

            Teachers often compare property rights to a “bundle of sticks.” Each stick represents a discernable owner’s right such as the right to occupy, the right to use the community swimming pool, the right to live free of water intrusion, the right of access, and so on. One powerful right is the ability to rent […]

Standing to Sue While Sitting on the Board

Standing is a party’s right to make a legal claim in Court. When the judge comes out to sit on the bench, she will read the cases and the parties or their attorneys come forward as called. “Standing” is the right to seek a legal remedy as shown by the facts alleged. Judges ordinarily decide […]

Show and Tell

September is when students go back to school. My daughter recently started at a new daycare. I feel like I have gone back to school too. Her school’s daily procedures are as new to me as they are to my daughter. One back-to-school activity is “Show and Tell.” Show and Tell is a great introductory […]

Freedom of Speech is a Hot Topic in Community Associations

Freedom of speech is a hot topic in community associations. Some of these First Amendment disputes concern the freedom of a property owner to display flags, signs or symbols on their property in the face of board opposition. Conflict between association leadership and members over free speech also spreads into cyberspace. One such case recently […]

Are Legal Remedies of Owners and HOAs Equitable?

Supreme Court Justice Anthony Kennedy recently wrote in an opinion that, “Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.” Murr v. Wisconsin, 198 L.Ed.2d 497, 509 (U.S. Jun. 23, 2017). […]

To Whom Should Owners Turn with Contractor Complaints?

Property owners are frustrated when their builder fails to properly complete the agreed upon work for the purchase price. Sometimes these difficulties are relatively minor. Perhaps only a timely warranty claim letter to the builder will get the problems fixed. Not all disputes can be resolved amicably. For relatively simple matters, the owner may be […]

Stop Explaining Community Associations Law the Wrong Way

The proponents and critics of HOAs and Condominiums both tend to over-simplify the law and governing documents in a way that ignores many rights of owners (and boards). Some are explaining community associations law the wrong way. This area of the law is confusing, even to law school graduates and real estate professionals. Among the […]

Breach of Agreement to Purchase Insurance

Many construction contracts contain provisions requiring one or more parties to purchase insurance to cover certain activities or property related to the project. These provisions put an affirmative duty on a party to go out and obtain insurance to protect themselves, the other party in the contract or for against third party claims. Given the […]

Community Association Dispute Resolution Procedures in Virginia

When owners have disputes with their condominium or HOA boards, sometimes it is unclear where or how they must go about seeking redress or defending their rights. Owners must understand how association dispute resolution procedures work so that they do not prejudice their own claims or defenses by failure to go to the proper forum […]

Condo Owner Prevails on Her Request for Attorney Fees

One problem that owners in HOAs and condominiums face is access to justice. Boards enjoy various out-of-court remedies, such as fines, liens and foreclosures. To obtain remedies for the board’s breach of the governing documents, owners must bring a lawsuit. This requires legal counsel familiar with how governing documents, statutes and judicial precedent fit together. […]

Overcoming Delay Tactics in Arbitration

On March 9, 2017, the Supreme Court of New Jersey delivered a significant victory to consumers against an auto dealership attempting to use an arbitration agreement to obstruct claims from being heard. Roach v. BM Motoring, LLC shows a strategy for overcoming delay tactics in arbitration so that consumer protection claims can be considered on […]

Should Homeowners Bring Complaints Against Contractors Before Courts or Regulators?

Property owners frequently have complaints about construction contractors. Some of these complaints involve thousands of dollars in damage or serious infringement upon the use or value of property. These property owners (and their attorneys) want to know who to turn to. Should homeowners bring complaints against contractors before courts or regulators? This question raises issues […]

Little Love Lost in Sedimental Affair

A lawsuit for damage to property must be timely filed to prevail in court. In Virginia, the statute of limitations for property damage is five years from accrual of the claim. When an owner suffers damage caused by a neighboring owner, when does this five year time-period start running towards its expiration date? Does the […]

The Surface Water Diversion Blame Game

According to the Bible, water is both the fountain of life and a destroyer by flood. Water naturally plots its own course, creating wetlands to store excess storm water. Human development, for better or worse, seeks to maximize the value of property and minimize land set aside for natural wetlands or artificial drainage purposes. The […]

What’s left of Virginia’s HOA Open Meeting Policy?

Promoters of community associations tout them as “mini-democracies,” reflecting the American tradition of public participation in governmental activity on a local level. One hallmark of “representative government” is that constituents may openly observe and review what their elected officials are doing with the money and property controlled for common benefit. Norman Rockwell enshrined this in […]

Check Your Privilege, HOA

The attorney-client privilege is frequently misunderstood in the community associations context. When many owners request information, sometimes their board, board’s attorney or property manager asserts the attorney-client privilege. This may seem to obstruct their attempts to assess their property rights or how community funds are being spent. I recently had a conversation with a friend […]

Construction Defect Warranty Claims

Construction defect warranty claims are a frequent source of conflict between contractors and new home buyers. Builders feel pressure to get the purchasers through closing so they can pay their employees, subcontractors and suppliers. For the past few years there has been a severe shortage of experienced tradespeople and supervisors. This makes the contractor’s quality […]

Attorneys Fees Awards Against HOAs

In this blog and in my law practice, I focus on practical solutions to clear & present legal dangers to property rights of owners of properties in HOAs, condominiums or cooperatives. Many raise questions about getting attorneys fees awards against HOAs. This is an interesting topic in community associations law, where the outcomes of many […]

Lawsuits Against HOAs Potentially Benefit Other Owners  

In many HOA disputes, only one (or a small handful of) owners desire to challenge board actions that negatively impact a larger class of owners in the community. If the court finds that the board action was invalid, then the court decision would materially impact everyone, not just the plaintiff owners and the HOA. Today’s […]

Virginia Consumer Protection Claims Against Contractors

There is a lot of litigation and arbitration in the construction contracting industry. Most of these cases are disputes over whether the contractor did the work and if so, whether it has been appropriately compensated under the terms of the agreement. Some construction disputes include allegations of deceptive practices. Virginia law approaches unprofessional practices in […]

High Court Upholds Public Policies Against Restrictive Covenants

The issue of restrictive covenants often comes up in news or social media stories where a HOA or condominium demands that an owner take down an addition, a shed, a statue or some other architectural feature on the grounds that it offends the rules. The board claims that the rule is found in (or derived […]

What is a Community Development Authority?

Every community is supposed to have a downtown as a destination for people to live, shop and play. The town center ideally keeps retail dollars and tax income from leaving the community. When these developments pop up, you hear discussions about whether “gentrification” helps or harms blue-collar people who live or work there. How does […]

Does an HOA Disclosure Packet Effectively Protect a Home Buyer?

There is an interesting September 14, 2016 article in the Washington Post by Ilyce Glink and Samuel Tamkin entitled, “Why you should look carefully at an HOA’s plans for that community before buying a home there.” The article responds to Virginia home buyers who have great questions that aren’t answered in an HOA disclosure packet. […]

Court Determines that an HOA is Not Legally Valid

HOAs and Condominiums derive from the covenants and state statutes’ powerful tools to use against homeowners. However, if the association does not meet the legal definition of a HOA or condo, then it cannot use the statuary toolbox. Instead of issuing fines, it must file a lawsuit each time it wants to obtain a lien […]

Escaping an Unlivable Rental Property

Americans continue to feel the effects of the recession that began in 2008. In April 2016, the Wall Street Journal reported that U.S. home ownership rates dropped to 63.5%, near the 48 year low of 63.4% experienced in 2015. Meanwhile more families are renting homes. Washington, D.C.’s local economy is more resistant to recession because […]

Walking on Sunshine

Americans are increasingly frustrated by federal, state, local and HOA officials making decisions in secret. On the floor of the nominating convention, supporters of Senator Bernie Sanders protested Hillary Clinton’s undisclosed collusion with the Democratic Party leadership during the presidential primary. On the Republican side, Donald Trump continues to refuse to disclose his tax returns. […]

Dealing with Memorandum for Mechanics Lien

A disgruntled contractor or supplier may attempt to collect a payment from owners by filing a Memorandum for Mechanics Lien against the real estate. Under Virginia law, claimants (contractors or material suppliers) can interfere with owners’ ability to sell or refinance property by filing a lien in land records without first filing a lawsuit and obtaining […]

What is a Summons for Unlawful Detainer?

This blog post discusses the role of the Summons for Unlawful Detainer in Virginia foreclosures. “Unlawful Detainer” is a legal term for the grounds for eviction from real estate. The foreclosure trustee and new buyer go to a real estate closing a few days after the foreclosure sale. Upon settlement, the title company records the […]

What is a Notice of Trustees Sale?

Bankers and lawyers send many notices, letters and statements to borrowers struggling with their mortgage. The purpose of such paperwork is to collect on the mortgage debt. In Virginia, the Notice of Trustees Sale is very significant. In Virginia, the bank does not have to go to court first in order to obtain a foreclosure […]

False Promises of Loan Modifications in Fraudulent Foreclosure Cases

In the classic comedy, Ferris Bueller’s Day Off, Ferris’s mother meets with the assistant principal to discuss his absenteeism. She had no idea he took 9 sick days. The school official bluntly explains: “That’s probably because he wasn’t sick. He was skipping school. Wake up and smell the coffee, Mrs. Bueller. It’s a fool’s paradise. […]

The Day the Universe Changed

My parents are retired schoolteachers. Growing up, we watched our share of public television. I remember watching a British documentary by James Burke called, “The Day the Universe Changed.” This program focused on the history of science in western civilization. Scientific developments affect public perceptions of man’s place in the world. Each episode dramatically built […]

Liberty University Suing Neighbors Over Unwanted Lake

Lynchburg got in the news lately on account of Liberty University suing neighbors over unwanted lake. People know about Liberty University (“LU”) from the political-incorrectness of its leaders, especially Jerry Falwell, Sr. Long before Donald Trump captured the headlines with controversial statements, Mr. Falwell had a comparable relationship with the news media. Liberty brands itself […]

Can a HOA Represent Individual Landowners in Court without Their Permission?

Can a HOA Represent Individual Landowners in Court without Their Permission? What gives an HOA or Condo Association standing to sue to address threats coming from outside the community, or to appeal administrative decisions by the government that affect the neighborhood? On April 22, 2016, the Circuit Court of Loudoun County issued an opinion that […]

Milwaukee is in a Tussle with Banks over Zombie Foreclosures

When an owner defaults on her mortgage, sooner or later she must determine if she is willing and able to keep the property. In my last blog post, I considered a situation where an owner might find their HOA attempting to force the bank to expedite a delayed foreclosure. In my opinion, neighbors and HOAs […]

HOAs Prepare for a Zombie Foreclosure Apocalypse

In the contemporary dystopia, property ownership provides ordinary people with space in which to live, work and play in peace, safety, and freedom. Americans also see real estate as an investment. My high school friend Tom was one of my first classmates to purchase a home. Years ago, he explained that the great thing about […]

Finding Traction in Construction Defect Claims against Contractors

New owners frequently struggle to timely resolve construction defect disputes with builders. For example, owners in Palm Beach Gardens, Florida have home workmanship complaints. Their HOA sued Kolter Homes, LLC for defects including lighting problems, window gaps, sloping balconies and water intrusion. On March 15, 2016, the Daily Business Review reported that Kolter began a […]

San Bernardino Landlord Holds Controversial Open House

Was the California landlord to the terrorist couple entitled to open up the rental property to the news media? Internet videos show a frenzied swarm of camera crews exploring every cabinet and closet. So what if the San Bernardino landlord holds controversial open house?  Commentators raised questions about preservation of evidence in the criminal investigation. There […]

Plaintiff Sanctioned for Intimidating Lawsuit

Experienced trial lawyers know that judges disfavor parties using litigation as a means of inflicting extra punishment on their opponent beyond the outcome of the case. Lawyers and their clients are supposed to use claims, defenses, motions and other procedures for their intended purposes of working justice. Real estate and construction litigation is an emotional […]

Confidentiality Terms in Litigation Settlement

When parties to lawsuits finally agree in principle to resolve dispute, sometimes one side will request insertion of confidentiality terms in litigation settlement. These “gag orders” typically forbid the parties from disclosing the terms of the settlements. These requests can come as a surprise because requests for confidentiality may have not come up yet in […]

Are Dinosaurs a Nuisance or Merely Provocative?

My 4-year-old nephew loves dinosaurs. His favorite is the Triceratops. Before my sister gave birth to her second son, their family discussed names for the new baby. My nephew wanted to name his little brother “Brachiosaurus.” Needless to say, his parents outvoted him on that! He would love to live in the New Territory Residential […]

How Can Purchasers Protect Themselves at Foreclosure Sales?

What reasonable steps can investors take to build a better foreclosure property portfolio? People who have access to more information tend to make better decisions in the long haul. In the 1990’s Sci-fi TV show, The X Files, David Duchovny portrayed a rogue FBI agent determined to uncover a government conspiracy to cover-up the existence […]

Common Misconceptions about Home Builder Warranties

Home buyers want assurances that someone will correct defects in construction to make it conform to what they bargained for. In the sale of new homes, these assurances usually come in the form of the builder’s warranties. Homeowners must make serious decisions about whether to go under contract, go through with closing and allow a […]

Donald Trump is in the Condominium Business but he does not trust Owner Associations

Donald Trump’s colorful background in the business of condominium development speaks volumes about two topics:  (1) his track record as a real estate developer, and (2) the weaknesses of the community association model of real estate ownership.  There are many commentators writing about the political nuances of Trump’s 2016 presidential campaign.  Words of Conveyance is […]

Do Your Association’s Parking Rules Pass the Smell Test?

There are few property rights as unappreciated as the privilege to park. For nine years, I lived in a condominium where the association’s parking lot did not have enough physical spaces for all of the permitted vehicles.  If you came home late, you might have to park on the street several blocks away, even if […]

Can a Buyer Sue a Sellers Real Estate Agent?

This past month, I experienced wonderful changes in my life which drew me temporarily away from my passion for blogging about property rights. On May 1st, I started my own solo law practice, Cowherd PLC. The new law firm continues my professional focus on the types of legal matters discussed in “Words of Conveyance.” On […]

You May Be Targeted for Condominium Termination

When I was in grade school, one of the most discussed films was The Terminator (1984). Long before he became the “governator” of California, Arnold Schwarzenegger starred as a cyborg from 2029. A world-dominating cloud computing program sent the Terminator to assassinate the future mother of the leader destined to save humanity. Growing up in […]

Valuable Voices of Dissenting Directors in Homeowners Associations

Homeowners often acquire the impression that the HOA Board of Directors and property managers act in unison. However, there are often dissenting directors in homeowners associations. Homeowners seek changes to improve their community. Enough of her neighbors agree to get her elected at the annual meeting. Once they attend their first Board meeting as a […]

Court Scrutinized Role of Foreclosure Law Firm Rating System

Successful law firms cultivate, among other things, professional referral sources and a reputation for responding to client needs. Can these best practices be taken too far? This topic came up in a federal court opinion issued in a class action lawsuit brought by home loan borrowers against Friedman & MacFadyen, a Richmond debt collection law […]

Don’t Go it Alone on a Notice of Violation

By law, the homeowners govern mandatory property associations, whether for single-family homes or condominiums. They are roughly equivalent to the shareholders in a corporation. The property manager and employees answer to the board of directors, who in turn answers to the owners. Unfortunately, many homeowners have experiences where this structure seems turned upside down. The […]

Buying a Home Through Realtors Versus Foreclosure Sales

Recently a friend shared with me her interest in purchasing a home at a foreclosure auction. Many buyers look to foreclosures in the hope of finding a bargain. Foreclosure sales occur year-round. On the other hand, “conventional” sales through realtors follow a seasonal pattern. When the ice and snow melt and winter winds retreat northward, […]

Legal Thriller Published in Foreclosure Notices to Borrowers?

  On December 4, 2014, I wrote a blog post about a borrower who brought a lawsuit against her lender after the Richmond law firm that conducted the foreclosure went out of business. The federal judge denied the bank’s motion to dismiss the borrower’s claims based on a faulty loan default notice. In that post, […]

The Basics of Civil Litigation Discovery

At some point after the filing of a lawsuit in Virginia Circuit Court, initial disputes over the sufficiency of the complaint are resolved. The parties are now on notice of their opponents’ claims and defenses. The process of getting to this point was the focus of my previous blog post. Contrary to what one sees […]

The Beginning of a Virginia Circuit Court Case

Many people will never be party to a lawsuit that goes to trial. For those that do, the first time may be the only time. Being a party to a Virginia circuit court civil case requires significant time, focus and resources for what may be several months or longer. What should a party expect from the […]

Association Rule Enforcement and Homeowner Rights

A property association’s board of directors has the controversial power to issue and enforce fines against its members for rule violations. When an owner receives a threatening notice from the association, it is not always clear what options are available other than to simply obey the demand. This blog post summarizes the process of association […]

New Book Review: The Articulate Witness

One of the duties of a litigator is to prepare the client to testify at a deposition, mediation, hearing or trial. Clear, credible and cogent testimony puts the party in the best position to prevail. While judges, arbitrators and juries want to see the contracts and key documents, they also want to hear directly from […]

Sweet Home Chicago: Are Association Property Managers Debt Collectors?

A few days ago, Virginia state senator Chap Peterson introduced new Homeowner Bill of Rights legislation in the 2015 General Assembly. The proposal sets out certain rights of property owners in HOA and condominium communities. For example, SB1008 recites a owner’s right to due process in the association’s rule violation decision-making. I anticipate political debate […]

Federal Regulation of Nonjudicial Residential Foreclosure

Foreclosure of residential real estate is traditionally based on state law and agreements between the borrower and lender in the loan documents themselves. Each state has its own rules governing whether foreclosure should occur in or out of a court proceeding. In Virginia, the vast majority of foreclosures occur in bank-appointed trustee’s sales. State and […]

Attempt to Relitigate Foreclosure in Bankruptcy Sanctioned by Judge

In Virginia, borrowers have several options of where to bring a legal challenge to a foreclosure trustee’s sale. The shortest commute is usually the Virginia circuit court for the city or county where the property is located. Alternatively, the facts may allow suit to be brought in a federal district courthouses. Another common venue is […]

Resolutions for Homeowners Dealing with Construction Defects

A good home  provides a safe, comfortable and enjoyable place to live. When a contractor makes mistakes in construction, renovation or repair, the owner or tenant has to live with those defects every day until the problem is resolved. The coming New Year is a good time for homeowners to prioritize addressing contractor defects. In […]

Litigation over Property After the Foreclosure Law Firm Goes Out of Business

On January 31, 2012, F&M Services, L.C., conducted a foreclosure sale in Hampton, Virginia. F&M was the foreclosure trustee affiliate of the Richmond law firm Friedman & MacFadyen. Freedom Mortgage Corporation appointed F&M as successor trustee for the foreclosure of Hampton property owned by Ms. Gloria J. Harris. At the sale, Freedom Mortgage purchased the […]

Wrongful Foreclosure Claims for Robo-Signing

Among the controversies of the mortgage foreclosure crisis is that of “Robo-Signing.” A homeowner may receive notice that the original mortgage lender assigned their rights under the loan documents to another financial institution.  When a representative of a lender signs paperwork to foreclose on a property, how does the borrower (or anyone else) know whether […]

Association Attempting to Foreclose on Home of a Veteran for Flying the Flag

  Today, on Veterans Day, I would like to honor veterans who have served our country. Many of them return to civilian life and make additional, substantial contributions to their communities. A few go on to struggle to protect the property rights of themselves and others. In some cases, HOA’s may even attempt to foreclose […]

The Future in Virginia of Foreclosure of Condominium Association Liens

Today’s blog post is the third installment in a series on the emerging trend of foreclosure of condominium association liens on private property owners. In a previous article, I discussed a new appellate court decision, Chase Plaza Condominium v. Wachovia Bank, recognizing the right of an association under the D.C. Code to sell a condo […]

Can A Condominium Association Foreclosure Extinguish a Mortgage Lien?

On October 16, 2014, I asked in a blog post, “What Rights Do Lenders and Owners Have Against Property Association Foreclosure?” In that installment, I discussed a Nevada foreclosure case that was not between the borrower and the lender. It reflected a litigation trend between the lender, homeowners association and the federal government. Today’s article continues […]

What Rights Do Lenders and Owners Have Against Property Association Foreclosure?

How are Virginia homeowners to evaluate competing threats from their mortgage bank and property association foreclosure? For many years, owners unable to pay their bills associated with their homes have focused on the threat of foreclosure from their mortgage lender. Homeowners’ Varying Obligations to Lenders and Property Associations: The conventional wisdom, in Virginia at least, is that […]

We Built this City: Homeowner Associations and Traffic Stops

  The classic image of a homeowners association is a neighborhood with stately homes or attractive townhouses. Owners occupy their own properties. Neighbors socialize with one another, perhaps around a park, golf course, tennis court or swimming pool. The common areas make the development an attractive place to live. Common values of commitment and neighborly […]

Real Estate Decisionmaking in the Face of the Unknown

Eight months ago, I posted about a January 10, 2014 Supreme Court of Virginia opinion interpreting ambiguous words of conveyance in a Southwest Virginia coal severance deed. In CNX Gas Company, LLC v. Rasnake, the Court decided that CNX had the right to continue to extract the Coal Bed Methane from a tract of land […]

Court Confirms Border Between Maryland and Virginia is Changing

  The boundary between Maryland and Virginia has been the subject of legal disputes for hundreds of years. On August 29, 2014, the Maryland Court of Special Appeals added another chapter to this “meandering” tale. The Court issued an opinion in a dispute over rights to certain waterfront property near Harper’s Ferry, West Virginia. River Riders, […]

Accepting a New Contract During an Earnest Money Deposit Dispute

On July 31, 2014, I posted about a recent Fairfax Circuit Court opinion concerning Earnest Money Deposits (“EMD’s”). The seller, Sagatov Builders, LLC, sued buyer Christian Hunt. Mr. Hunt had entered into a contract and later failed to make the EMD or complete closing. The Court refused to allow the seller to sue the buyer […]

Crying Sham: Challenges to Character at Trial

On Aug. 12, 2014, I blogged about a judicial admission issue in the trial of Minter vs. Prosperity Mortgage, et al. Today’s post is Part Two in a series on this case. The following focuses on challenges to character at trial. The integrity of the parties lies near the heart of every trial. The classic […]

Admit One: Attorney Wins By Failing to Effectively Communicate to Jury

A complex case goes to trial. The parties, witnesses, jurors and lawyers endure weeks of frantic preparation, arguments and witness testimony. Near the end, the defense lawyer faces the jury to deliver his closing argument. He does not want to let his client down by failing to effectively communicate. However, while articulating his client’s position, […]

Earnest Money Deposit as Liquidated Damages

Your typical disputes over an earnest money deposit as liquidated damages in residential real estate sales go something like this: Home buyers decide to submit a contract and an earnest money deposit as an offer to purchase the property. Before closing, the buyer cannot find financing or discovers a defect with the home. If the […]

Tenancy by the Entirety and Creditor Recourse to Marital Real Estate

Last week I focused on first-time home buyers and new opportunities for state tax-exempt estate planning. This week’s post continues on the theme of family. Spouses who own Virginia property together may enjoy special protections against the claims of their individual creditors. This special form of ownership is called “Tenancy by the Entirety.” For this […]

The California Nanny and Mediating Legal Disputes Through the Media

Marcella and Ralph Bracamonte brought Diane Stretton into their Upland, California home to provide childcare services in exchange for room and board. Ms. Stretton and the Bracamontes got into a dispute over their arrangement. Ms. Stretton stopped working and refuses to move out. Why is this story national news? The answer illustrates some pitfalls of […]

Attorneys Fees for Rescission of Contracts Obtained by Fraud

In lawsuits over real estate, attorney’s fees awards are a frequent topic of conversation. In Virginia, unless there is a statute or contract to the contrary, a court may not award attorney’s fees to the prevailing party. This general rule provides an incentive to the public to make reasonable efforts to conduct their own affairs […]

Contesting Foreclosure In Bankruptcy Court

Can a homeowner block a foreclosure by filing for bankruptcy protection immediately after the bank-appointed trustee auctions the property? On June 2, 2014, a bankruptcy court judge ruled that Rachel Ulrey’s Roanoke property was not excluded from the bankruptcy estate because the foreclosure trustee completed the memorandum of sale prior to the court filing. The […]

Engineer Personal Liability: Signed, Sealed & Delivered?

  An engineer must obtain and maintain a Professional Engineer’s license from the APELSCIDLA Board to practice in the Commonwealth of Virginia. Pursuant to professional regulations, when an engineer, or other design professional, completes a set of drawings, he affixes his professional seal with the date and signature. His seal displays his professional license number. This […]

What is a Revocable Transfer on Death Deed?

On May 20th I attended the 32nd Annual Real Estate Practice Seminar sponsored by the Virginia Law Foundation. Attorney Jim Cox gave a presentation entitled, Affecting Real Estate at Death: the Virginia Real Property Transfer on Death Act. Jim Cox presented an overview of this new estate planning tool that went into effect July 1, 2013. Use of […]

Dealing With Trust Issues: Fiduciary Duties of Foreclosure Trustees

In Virginia, unlike some other states, a foreclosure is a transaction and not necessarily a court proceeding. A trustee appointed by the lender auctions the property. The proceeds of the sale must be applied to reduce the outstanding loan amount and transaction costs. A Trustee has special duties to the parties as their “fiduciary.” What […]

What Difference Does It Make? Technical Breaches By Banks in Foreclosure

If a bank makes a technical error in the foreclosure process, what difference does it make? This blog post explores new legal developments regarding the materiality of breaches of mortgage documents. Residential foreclosure is a dramatic remedy. A lender extended a large sum of credit. Borrowers stretch themselves to make a down payment, monthly payments, […]

Mortgage Fraud Shifts Risk of Decrease in Value of Collateral in Sentencing

On March 5, 2014, I blogged about the oral argument before the U.S. Supreme Court in U.S. v. Benjamin Robers, a criminal mortgage fraud sentencing appeal. At stake was how Courts should credit the sale of distressed property in calculating restitution awards. The U.S. Court of Appeals for the Seventh Circuit interpreted the Mandatory Victims Restitution […]

Sterling v. Stiviano: Spouse Sues Paramour Over Title to Property

Earlier this week, the National Basketball Association imposed a lifetime ban on Donald Sterling, owner of the Los Angeles Clippers. Adventuress Vanessa Stiviano recorded racist and demeaning statements made by Sterling about Basketball Hall of Famer Earvin “Magic” Johnson. The recordings subsequently leaked to the public. In 1991, I watched the first NBA Finals for the […]

Unlicensed Real Estate Agent Costs Brokerage $6.6 Million Commission

What tasks can real estate brokerages assign to employees lacking a real estate license? What risks does a brokerage run from allowing unlicensed agents to manage relationships with clients and other parties to the transaction? On April 4, 2014, Judge Anthony Trenga decided that a prominent commercial broker forfeited a $6.6 million dollar commission because […]

Landlord Strategies for Avoiding Security Deposit Disputes

The departure of a tenant leaves the landlord with long to-do list, including listing the property for rent, evaluating applicants, repairing or remodeling the property and preparing a new lease agreement.  Wrapping-up the relationship with the previous tenant can inadvertently fall to the bottom of the list of priorities. A lawsuit over the prior tenant’s […]

Commercial Leasing: New Developments in Acceleration of Rents

How much unpaid rent can a landlord of a commercial property collect against a tenant who has fallen into default? Arlington attorney John G. Kelly explored this issue in his blog post, Acceleration of Rents: Part 1, How to Ensure It’s Enforceable? Acceleration of Rents provisions typically give the landlord the right, after default by the […]

“Is This a Film?” Video Within Video in the Justin Bieber Deposition

How is technology used in deposition and trials? Last week I attended Technology in Fairfax Courtrooms: Come Kick Our Tires!, a Continuing Legal Education seminar sponsored by the Fairfax Bar Association. This program interested me because real estate and construction cases are rich in photographs, plats, large drawings, sample construction materials and other visual evidence. Courts across Virginia […]

How Should the Courts Determine Mortgage Fraud Restitution?

  James Lytle and Martin Valadez ran a mortgage fraud operation. They submitted falsified applications and loan documents to mortgage lenders to finance the sale of real estate to straw purchasers. For procuring the purchasers and loans, Messrs. Lytle & Valadez obtained kickbacks from the sellers out of proceeds of the sales. See Mar. 15, […]

Reel Property: “The Attorney” and the Appearance of Justice

(This post is the second and final part in my blog series about the 2013 South Korean film “The Attorney.” Part I can be found HERE) “The appearance of justice, I think, is more important than justice itself.” Tom C. Clark explained in an interview why he resigned as a Justice of the U.S. Supreme Court. President […]

Reel Property: “The Attorney” (Korean, 2013)

Before Roh Moo-hyun became a human rights advocate and President of South Korea, he was a lawyer in private practice. Director Yang Woo-seok loosely based the 2013 Korean movie The Attorney (Byeon-ho-in) on Mr. Roh’s early career. After a blockbuster run in S. Korea, “The Attorney” now appears in American theaters. On Presidents Day, my wife […]

George Clooney, Ken Shigley & Legal Case Selection

  “Accept only cases you would be willing to take to trial.” Ken Shigley, past president of the Georgia Bar, included this in his 10 Resolutions for Trial Lawyers in 2014. There are millions of ways that lawyers convince themselves to accept a questionable case: “The case might lead to larger, stronger cases in the future.” “I’ll […]

Court Sentences Son for Storing Inoperable Vehicles at Mom’s House in Harrisonburg

I grew up in a rural county in Virginia. Seeing broken-down cars parked in front of a house was part of the landscape. The perfect backdrop for the Blue Collar Comedy Tour. If you are waiting to get the money to fix it, where else would you store a car that doesn’t work? In college, a […]

They Might Be Mortgage Giants: Fannie & Freddie’s Tax Breaks

On January 3, 2014, the U.S. Consumer Financial Protection Bureau published a request for input from the public about the home mortgage closing process. 79 F.R. 386, Docket CFPB-2013-0036. The CRPB requested information about consumers’ “pain points” associated with the real estate settlement process and possible remedies. The agency asked about what aspects of closings are […]

Cold Temperatures in a Slow Economy: Insurance Claims from Frozen Pipes in Unoccupied Buildings

NBC News reported Wednesday that home insurance claims for damage resulting from frozen pipes are so high that insurers are hiring temporary adjusters to handle increased claims: “We anticipate a large spike in frozen pipe claims,” said Peter Foley, the [American Insurance Association’s] vice president for claims. “In Washington, D.C., some of my colleagues have […]

Divorce, Family Homes and Elliot in the Morning

On my Friday morning commute, I heard a guest on the radio show, Elliot in the Morning talking about his parents’ divorce, marriages and the legal fate of a family home. I rarely partake of EITM, but this time I stopped to listen (relevant portions of recording between minute marks 8:20-16:30 on YouTube). Tommy Johnagin on Elliot […]

Title Litigation: Centenarian Deed Decides Methane Royalty Rights

On January 10, 2014, the Supreme Court of Virginia decided CNX Gas Company, LLC v. Rasnake, interpreting disputed language in a 95-year-old deed. The Court determined who owned the mineral rights in a parcel of land in Russell County in Southwest Virginia. The contested deed contained both (a) words conveying a parcel and (b) limiting language that […]

Reel Property: Hitchcock’s Skin Game

A working-class family is wrongfully evicted from their rental homes and may lose their jobs. A neighboring landowner and his shrewd agent try to stop the sharp-dealing landlord from destroying property values with industrial air pollution. Can they successfully escalate conflict without unintended fallout? This is the subject of Alfred Hitchcock’s  early film, “The Skin Game” […]

Can My Landlord Evict My Business Without Going to Court First? – Part II – Complications to Landlord Self-Help

In Virginia, landlords have a right to evict commercial tenants without going to Court first. This does not make it likely or wise. Even in jurisdictions where self-help is legal, it is unusual to see landlords piling up their tenants’ business property on the curb. There are several reasons why: 1. Lease Terms: Any self-help […]

Can My Landlord Evict My Business Without Going to Court First? – Part I

Part I – Landlord Self Help in Virginia Suppose a company leases commercial property to run its business. Due to economic conditions, the tenant struggles to pay rent. The landlord has declared the tenant in default, or is threatening to do so. One of the remedies asserted by the landlord is “self-help” such as changing […]

Client Relationships for the Custom Home Builder in 2014

In the past year or so, demand outpaced supply in the Northern Virginia real estate market. Many home builders and tradesmen went out of business in 2008-2009, creating a shortage of home builders. For home buyers, a custom home offers the prospect of owning a made-to-order dream home. For the builder, the custom home business […]

Navigating the Walk Through Part II – Inspection Contingencies in Real Estate Contracts

Check Your Contract for Your Inspection Rights & Duties: Many real estate contracts impose a right or duty to inspect and approve the development of a property before going to closing. Many contracts for custom homes or commercial developments contemplate that the parties will walk through the property prior to consummating the purchase. If you […]

Navigating the Walk Through – Part I

From the moment the first person piled up rocks or rough-hewn timber to distinguish his farmland from the neighbors’, real estate has been visually-oriented. In the business of real estate, the walk-through of the premises provides you with an eyes-wide-open basis for due diligence and negotiation in sales, leases and dispute resolution. In the age […]

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