VOLUME XXXV, NUMBER 1 SPRING 2014
COURTLAND LEE TRAVER, JR. September 20, 1935 – March 30, 2014
TABLE OF CONTENTS
Courtland Lee Traver, Jr.: Remembrances
A Tribute to the Father of the Modern Practice of Virginia Real Estate Law ...... 1 Lynda L. Butler
Courtland Lee Traver, Jr.: September 20, 1935—March 30, 2014 ...... 2
A Reflection on Three Decades: A Personal Tribute to Courtland Lee Traver, Jr...... 8 Susan M. Pesner
Chair’s Column ...... 9 William L. Nusbaum
From the Cluttered Desk (and Mind) of the Editor...... 11 Stephen C. Gregory
2014 Virginia General Assembly Selected Real Estate Legislation Bill List ...... 15 David S. Mercer and Lucia Anna Trigiani
2014 Virginia General Assembly Compilation of Selected Real Estate Legislation ...... 25 David S. Mercer and Lucia Anna Trigiani
Virginia’s Real Estate Case Law Update ...... 53 Otto Konrad and Hazel Wong
Virginia Uniform Real Property Transfer on Death Act (URPTODA) Virginia Code § 64.2-621 et seq. (Effective July 1, 2013) ...... 73 Kay M. Creasman
CFPB Combined Disclosures: The Basics ...... 77 Kay M. Creasman
Compliance With Gramm-Leach-Bliley’s Privacy Provisions in Civil Discovery and Lien Priority Litigation ...... 94 Thomas A. Hill
Paying Off Private Noteholders and Credit Line Loans: Updated For 2014 ...... 99 Susan M. Pesner and Mark W. Graybeal
Community Associations May Add Injunctive Relief in General District Court to Their Lengthy List of Remedies ...... 104 Lawrence J. McClafferty
Practice Tip: Beware of Advertising Materials Offering Free Deed Copies ...... 107 Mark W. Graybeal
The Joys of Title Law ...... 110 Jessica C. Tully
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A House Pet by Another Name? ...... 112 Ronald D. Wiley, Jr.
Committee Reports:
Commercial Real Estate ...... 115 Whitney Jackson Levin
Common Interest Community ...... 116 David C. Helscher
Creditors’ Rights and Bankruptcy ...... 117 F. Lewis Biggs
Ethics ...... 118 Paul H. Melnick
Eminent Domain ...... 119 Charles M. Lollar
Land Use and Environmental ...... 121 Stephen R. Romine
Membership ...... 122 Philip Hart
Residential Real Estate ...... 123 Eric V. Zimmerman
The Fee Simple ...... 124 Stephen C. Gregory
Title Insurance ...... 125 Kay M. Creasman
Board of Governors ...... 126
Area Representatives and Honorary Representatives ...... 129
Committee Chairpersons and Other Section Contacts ...... 136
Subject Index: November 1987-Spring 2014 ...... http://www.vsb.org/docs/sections/realproperty/subjectindex.pdf
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The Fee Simple is published semiannually for distribution to members of the Real Property Section of the Virginia State Bar. Anyone interested in publishing an article in the Fee Simple is invited to contact the Editor. Articles should be submitted by email as Microsoft Word documents. Your submission will also be your consent to the posting of the article on the Real Property Section website, http://www.vsb.org/site/sections/realproperty/newsletters. The Fee Simple has the authority to edit materials submitted for publication. Authors are responsible for the accuracy of the content of their article(s) in the Fee Simple and the views expressed in them are solely the views of the author(s).
The Board of Governors gratefully acknowledges the dedication and the hard work of the Assistant to the Editors, Felicia A. Burton ((757) 221-3813, (email) [email protected]), of the
College of William and Mary School of Law.
Co-Editor Co-Editor Stephen C. Gregory, Esquire Caitlin D. Cater Steptoe & Johnson, PLLC 319A S. Boundary Street 707 Virginia Street East, 8th Floor Williamsburg, VA 23185 Charleston, WV 25301 (email) [email protected] (304) 353-8185 (office) (703) 850-1945 (mobile) (email) [email protected]
FALL SUBMISSION DEADLINE: FRIDAY, OCTOBER 10, 2014
The next meeting of the Board of Governors of the Real Property Section of the Virginia State Bar will be held on Friday, June 13, 2014 at 11:45 a.m.
in the Gannett B Room of the Oceanaire Resort Hotel, 3421 Atlantic Ave., Virginia Beach.
Real Property Section member resources website login: User name: realpropertymember Password: Lwjr795f
Visit the section web site at http://www.vsb.org/docs/sections/realproperty/membershipapplication.pdf for the Real Property Section Membership form and http://www.vsb.org/site/sections/realproperty/newsletters for articles from the FEE SIMPLE and a whole lot more!
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A TRIBUTE TO THE FATHER OF THE MODERN PRACTICE OF VIRGINIA REAL ESTATE LAW by Lynda L. Butler I can still remember my first meeting of the Real Property Section’s Board of Governors in 1986. I had just agreed to join the Board and be in charge of the Section’s FEE SIMPLE, published twice a year. The meeting agenda was long, and the attorneys took each agenda item very seriously, debating many of the issues at great length. Indeed, they raised so many substantive issues about Virginia real estate law that I didn’t quite know where to start in getting articles for the FEE SIMPLE. Not only did I need to identify topics of interest to the readers but also to find authors willing to write about the topics. What topics would be timely and relevant to most of the readers’ practices? How would I find an author who was knowledgeable about the topic? How would I find an author who was committed enough to the Real Estate Bar in Virginia to deliver an article worth reading? As these questions were running through my mind, I heard a soft-spoken man talking, in great depth, about a particular topic. A few minutes later, I heard him speaking again about a different topic – and again in great depth. After this happened a third time, I realized I had found a gold mine – a human treasure trove of ideas and knowledge and love for Virginia real estate law. How could anyone know so much about a field of law as complex as real estate? How could anyone speak so eloquently and passionately about a field of law as substantively difficult as real estate? I didn’t quite know how to answer those questions, but I quickly realized that I needed to center my publication plans around and on this man, Court Traver. I decided to ask him, each time after he spoke, whether the topic would be of interest to the RPS. I decided to ask him whether he knew an attorney who could write the article. Fortunately, the plan worked well – so well that eventually I had attorneys submitting articles for publication without even being asked. Eventually, around 2001 when I became a law school administrator, I was also able to convince Court to become a co-editor of the FEE SIMPLE.
It was a great privilege to serve as the Editor of the FEE SIMPLE for 25 years. It was an even greater privilege to work with someone as interesting and intelligent and committed as Court Traver. I learned a great deal from him about the law, about life, about having a passion for the law, about being engaged in your profession. He wasn’t just a partner in a major law firm; he was also a teacher and mentor, a husband and a father, a Navy pilot and a storyteller. Time spent in conversation with him passed quickly. I missed those conversations when he retired. I miss his smile and presence even more. To me, at least, he was as close to being the father of modern real estate practice as any attorney in Virginia. Goodbye, Court. We do miss you.
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COURTLAND LEE TRAVER, JR. September 20, 1935—March 30, 2014
The Real Property Section of the Virginia State Bar lost a great friend and a giant in the practice of law with the death of Courtland Traver on March 30, 2014, after a short illness.
Court was born in Connecticut, and received his undergraduate degree from the University of Connecticut. He served in the U.S. Navy prior to entering Georgetown University Law School. He joined the Fairfax, Virginia, firm of Boothe, Prichard & Dudley, and remained with the firm through its various mergers and name changes into the present firm of McGuireWoods.
Court was a driving force behind the Real Property Section of the Virginia State Bar, serving as its Chair, on its Board of Governors, and as an Area Representative. (He also served a term as Chair of the Real Estate Council of the Virginia Bar Association.) Because of his strong belief in the ongoing education of real estate lawyers, Court pushed for an annual advanced real estate seminar, the 18th of which was held in Williamsburg in March. He also for many years presented the update on real estate law given during the annual Virginia Real Property CLE.
Upon his retirement in 2000, Court moved to Williamsburg and taught for two years at William & Mary Law School. He served as co-editor of this publication from May, 2002, through November, 2009. In 2004, the Real Property Section established the Courtland Traver award, given annually for outstanding service to the Section and contributions to Virginia real estate law. Fittingly, Court was the first recipient.
It would be impossible to overstate the regard in which Courtland was held by his friends and colleagues. His passing leaves a void felt by all who knew him. He is survived by his wife, Jerri, his sister, Linda Anderson, and his extended family of children, stepchildren, grandchildren, and great- grandchildren.
We are pleased to bring these tributes to him from those of us whose presence he graced over the years: The Hon. Jane Marum Roush, Judge, Fairfax County Circuit Court: When I was graduated from law school in 1981, I joined the firm of Boothe, Prichard & Dudley in Fairfax. Court Traver’s office was next to mine. Court was a partner in the real estate section of the firm. I was the junior-most associate in the business section. Court was always trying to get me to switch teams and join the real estate section. Although I never joined the real estate section during my four years at the firm, Court and I worked on several deals together. Court taught me a great deal about real estate law, including how to search a title, a skill that has held me in good stead over the years. Court loved to help out young lawyers, both in teaching them the ropes of the profession, and in other, more personal, ways. When my husband and I were stretching to buy our first house, Court offered to co-sign our mortgage loan. Although we did not accept his generous offer, we always appreciated the fact that it was made. The house was located out in the country and had some unusual title problems. Our title company declared the title “uninsurable.” Court came up with a creative solution to the title problems that enabled us to complete the purchase. We tried to thank him for his many hours of legal work on our behalf, but he told us not to worry. Court, an avid hunter, said that he was trustee under our deed of trust and that he had reserved to himself hunting rights to the property!
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Perhaps reflecting his years as a jet pilot for the Navy, Court had wonderful leadership skills. He was unfailingly loyal to his colleagues. Any real estate deal is bound to have glitches, but when things went wrong, Court never pointed fingers. We were all in this together and we would figure out a solution together. He chastised in private and praised in public. As a member of the legal profession in Virginia, I appreciate Court’s many contributions to the practice of real estate law. On a personal level, I am grateful that my early years as a lawyer were spent under Court’s watchful eye and that he was my mentor and my friend. C. Lee Fifer, Jr., Member, McGuireWoods (Ret.): I joined the firm of Boothe, Prichard & Dudley in August 1972. Court was already a partner and was second in seniority only to Sheild McCandlish, one of the firm’s founders. That was at the 4083 University Drive office. Court became a social friend too, and we got together with some regularity. We were both there as the firm morphed into first McGuire, Woods, Battle & Boothe, and, eventually, McGuireWoods, starting in about 1985. Court often described himself as a “country lawyer,” but his history and practice belied that claim. His casual use of “incorporeal hereditament” would send associates scrambling to look up the meaning. Court valued his expertise in real estate and enjoyed sharing it, as evidenced by his teaching years. He also valued his outdoor life, becoming an expert bow and arrow hunter to go with his high level of accuracy with guns, even hunting from inside of a truck when injury otherwise limited him. And during the time he headed up the real estate group, he would often advise others to not forget to smell the roses. He was unique and will be sorely missed. C. Grice McMullan, Jr., Member, Thompson McMullan, P.C. (Richmond):
Well, Court Traver left us all on Sunday, March 30, just a few weeks after many of us last saw him at an after-dinner award ceremony for the latest Traver Award recipient, Ed Waugaman. To say that Court was a huge influence on most of us is an understatement, just as is the statement that he will be missed.
Court was one of a very small number of people who over the years certainly had an influence on me as well as many others. He was a man possessed of great intelligence, which translated into causing changes and improvements in what he believed and in what he did. He was not only a wonderfully able lawyer in the field of real estate, but also quite an outdoorsman. (I reluctantly recall trying to equal his scores at skeet shooting ranges.)
Unlike many people, when Court had an idea that would improve something, he would use his tremendous energy and persuasiveness to achieve his vision. Fortunately, that energy and vision focused not only on those in his family and his good friends, but also on the improvement of real estate law in Virginia and the lawyers who practiced it.
Michael Mannix, Partner, Holland & Knight (Tysons Corner):
Court was a partner at McGuireWoods when I was starting my corporate and real estate practice in Fairfax County in the early eighties. He sat me down one night in Tysons Corner and told me that I was actually a good young lawyer and could be a leader in our profession one day. He later pushed me to become associated with the VSB Real
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Property Section and for about a decade I was very active, including on the Board of Governors. I began speaking publicly on real estate law and ethics, and I was Chairman of the Real Property Section in 1994. I eventually concentrated on the corporate side of my practice and now do M&A, so I have missed seeing all my old real estate friends, including Court, who had moved to Williamsburg. Some years ago I told Court how much of an impact he made on that young lawyer in Fairfax in the eighties.
Court was a great teacher and mentor who was always willing to undertake leadership roles on behalf of issues important to Virginia lawyers. Court believed lawyers have broad obligations to maintain respect for, and the integrity of, the operation of the law and the legal profession. This central theme was never far from his thinking. I was Chairman during the debate over whether a lay person could perform a real estate closing in Virginia. The Board asked the VSB UPL committee to opine. The conflagration over this issue involved insurance agents, lawyers, title companies and even real estate agents. There were law suits filed and bills introduced in the Virginia legislature as all the combatants lined up for the fight. Eventually, the VSB Legal Ethics Counsel got it right with UPL 183, which Susan Pesner and I wrote in draft form as an accommodation. But it was Court who went to the Association of Title Insurance Agents to explain it to them at their annual meeting.
I know others whom Court inspired as he did me, and many went on to become leaders in the Real Property Section as a consequence. The real estate practitioners in Virginia have come to rely on the Board of Governors for thought leadership as well as practical advice on how to practice real property law in the Commonwealth. We all owe a debt to Court Traver for his support and guidance in the evolution of the VSB Board of Governors the Real Property Section, but more importantly, for his loyalty, friendship and professionalism in everything he did.
Larry J. McElwain, Member, Parker, McElwain & Jacobs, P.C. (Charlottesville):
To begin with, there was the name. Has there ever been a more fitting one, both by profession and by nature?
It is my recollection that I became aware of Court in what I believe was the grand ballroom of the John Marshall Hotel in Richmond. The event was the VSB’s annual Real Estate Seminar. Court was the myth at the dais, cataloging for the assembled multitude the General Assembly’s most recent efforts that would in any way affect the practice of real estate law. Those being days in the pre-dawn of technology, the ability to disseminate a performance was limited, so there were literally hundreds in attendance. Court’s presentation was direct, insightful, and comprehensive. The buzz in the back of the room, my accustomed point of reference, held the presenter in awe. It was apparent that it took an impressive intellect to be able to coordinate and deliver that program on an annual basis.
Several years later, I was appointed as a VSB Area Representative at the instigation of my brother-in-law, Michael Mannix, who at the time was very involved with the Section (having served as its chair in 1994-1995). By that time, Michael and Court had been friends for a number of years. Michael was the repository of some very entertaining Court stories, both professional and personal, which had been related to me. All of this coalesced as a vision in my mind of a guy deserving of the fifth position on Mount Rushmore.
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The onset of my role as a VSB Area Representative was after the CRESPA wars had been fought and the FEE SIMPLE had been established, and was well after the formation of the Section. A number of the founders were diminishing their involvement with the Section, cutting back on their practice altogether, or moving on to practice in other areas of the law. Court was one of the initial principal architects of the Section who remained active as my involvement with the Section grew. After my initial intimidation wore off I became conversant with Court. It was during that process that myth met reality. Reality turned out to be a really good guy.
Our relationship solidified when I agreed to take over the lead on one of his many projects, the VSB’s Advanced Real Estate Seminar. Court had conceived of the idea, and had led the Section’s Old Guard to effect its fruition in 1996. After four years Court wanted to transfer the leadership of the seminar. The fifth edition of the event was organized and presented by a committee consisting of Susan Pesner, Howard Gordon and Mike Barney; however, that group let it be known that they would be serving in that capacity for only one year. I had the fortune, good or bad, of being asked to grow the event. It was in this capacity that I truly got to know Court. He was a constant source of counsel as attendance at the seminar lagged, bottomed out, and finally grew to the point where it has established itself as one of the Section’s cornerstones. As it turned out, I was afforded several years to partake firsthand of his intellect, grace, and guidance—and for that I am a better person.
It is fitting that the VSB-VACLE award given out by the Section is named after Court, as it will serve as a constant reminder to all practitioners of real estate law of one of the best our profession.
Joseph W. “Rick” Richmond, Jr., Partner, Richmond & Fishburne (Charlottesville):
My association with Court began in the 1980s, when I joined the Board of Governors of the Real Property Section. At that time, the Section was fairly inactive, but when Court assumed the chairmanship, with his drive and determination (and, probably, his flying background), the Section took off. When I succeeded Court as Chair, the Section was not only flying but breaking speed records.
One early project we undertook was the creation of a standard form residential real estate contract. Court’s mission was to serve the real estate practitioners in Virginia, and one way to do that was to develop a set of forms including, among others, a sales contract, a lease, and a power of attorney. The Board spent a fall weekend at Wintergreen and by the time we departed on Sunday, a real estate contract had come into existence.
Some time later, the Board of Governors was asked for its input on a proposed Legal Ethics Opinion dealing with an attorney’s involvement with a title insurance agency. Another weekend in Northern Virginia with Court at the center of discussion, and LEO 1564 soon became the governing opinion, where it remains today, to assist lawyers in their association with title insurance agencies.
The Real Property Section has been privileged to call Court our colleague and friend, and we have lost one of the brightest and best in our profession. It has been my personal good fortune to have been Court’s colleague and friend for almost forty years.
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Dorothea Dickerman, Member, McGuireWoods (Fairfax):
Court and I never practiced together, yet I count him among my most important mentors as a transactional real estate lawyer. Court was mentor to so many of us who never practiced in the same firm with him, merely through his presence in the community, in the Virginia Bar Association, in Commercial Real Estate Women of Northern Virginia, and in other organizations. He took all of us (then) young transactional real estate lawyers “under his wing,” regardless of whether we were opposing counsel, VBA members or just acquaintances. Court loved to explain the “why” of real estate law, parsing details of case law, the Code and history to make a consistent, logical whole.
Our generation felt comfortable calling Court for advice, even (or, perhaps, especially) in cases in which he was not involved, for his wisdom on the hard questions. “I don’t know; call Court and see what he thinks” was not an uncommon response when we had exhausted our network of peers as we puzzled over tough issues. He always took the calls, always listened patiently and advised, without charging a dime, even if it took several calls to resolve the problem. He seemed to know everything and everyone in Virginia real estate.
So, when I decided to change law firms in 2001, it was a natural for me to call Court and ask his advice on what firms would be a good fit for me and my clients.
“Do you have a resume?” he asked.
“Of course,” I said.
“Good. Put it in Federal Express and get it to me as soon as possible.”
“Court, you are so kind to offer to edit my resume, but please don’t feel you need to take your time for that.”
“No. That’s not why I want it. I am retiring from McGuireWoods next week and I need you to take over here for me. I want the firm to hire you to fill my shoes.”
Court, I came to practice at McGuireWoods, but there is no way anyone could ever fill your shoes. We can only take your inspiration and make the effort to be as generous of spirit and knowledge as you taught us to be.
John David Epperly, Jr., Virginia State Counsel, Fidelity National Title Group, Inc. (Centreville):
Was there ever a man more aptly named than Courtland Traver, Court for short? The name brings to mind manners, politeness, and refinement—all surely descriptive of Court Traver—who was a mentor, friend, and a source of wise counsel to many, including me. For a lawyer, though, there’s only one thing that comes to mind: a court of law, and nothing could be more appropriate when thinking of Court Traver. Court spent decades educating lawyers about the cases that came out of the courts of the Commonwealth each year and what they meant to the real estate lawyer. For more than twenty years, Court strolled to the podium each spring and delivered the annual update on the law. Hundreds of cases he read, examined, assayed, and then mined for the important nugget, and passed the treasure on to us all. Beyond analyzing the court cases, Court also told us about what the General Assembly had left for us to deal with. This he did tirelessly, year after year after year, at multiple venues around the state, wherever he was asked to go. I heard
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many lawyers say, “I’m going next week to hear Court.” And they went, knowing he would tell them about that case out of Culpeper on easements, that statute about required disclosures, that obscure ruling in he bankruptcy court in Alexandria, all of which were like shoals beneath the calm surface toward which we steered, unsuspecting. Court warned us about them and we avoided them, and it was always nice to know he was there to do it. It was all part of Court’s personal mission: to make sure that every busy, harassed, and time-challenged practitioner was armed with the latest and best information with which to serve his or her clients. It made us all better lawyers, and so Court’s personal mission served the larger mission of the Virginia State Bar, to serve and protect the public. For all the many hours he lectured us in seminars, Court spent many more hours working behind the scenes with the same goal in mind, in meetings, on committees, in private and public conferences. When Court finally decided to slow down a little, give up the annual seminar update, and pass the torch to someone else, the task of finding someone to replace him was daunting. No, let’s face it—it was impossible. I know because, as the newly-appointed chair of the Real Property Section, it fell to me to attempt it. Others have followed Court—many others mind you, because it took many to do the job. They have done well, and are to be saluted, but they haven’t really replaced him, because there will never be another Court. From the Editor:
Some of you may recall my reminiscences of my days as a title examiner when I took over as editor of this publication. Those days in the mid-to-late 1970s spanned my law school years, and took me to the lower floor of 4930 University Drive, Fairfax, which was the home of the real estate department of Boothe, Prichard & Dudley. F. Sheild McCandlish, R. Dennis McArver, Michael T. Bradshaw and, of course, Court Traver comprised the attorneys in the department; the late Bill Johnston (then Johnson), Jorge Fernandez and I did the title work, and Barbara Kemp held everything together. All four attorneys were among the most brilliant and respected in the Commonwealth, but Court was different; his demeanor was calmer and more laid-back than his colleagues, and he was always available and welcoming to the title examiners and paralegals in the firm.
After moving to Williamsburg, Court and Jerri regularly opened their home to the Governors and Area Representatives of the section. Court also organized lunches at the Jewish Mother restaurant in Virginia Beach following the annual meeting. Throughout his years with the Section, his was always a calm voice of reason, garnering the respect of everyone in the room.
Court was my predecessor as co-editor of this publication, with Professor Lynda Butler; her tribute precedes this article. I hope Court was proud of his protégé, succeeding him to the post. He will be missed.
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A REFLECTION ON THREE DECADES: A PERSONAL TRIBUTE TO COURTLAND L. TRAVER, JR. by Susan M. Pesner When I met Court Traver in the early eighties I could not have known how big an effect my association with him would have on my development as a lawyer, a teacher and a friend. Court was a big deal in every way. A partner at a prestigious law firm, a former Navy pilot; his name conjured an image of aristocracy, and he radiated a confidence and presence that showed his substance, even though he was soft-spoken and humble in his manner. Through the many years of our professional and collegial relationship I was struck by Court’s sense of the important things in life—by his understanding that giving did not involve the sharing of your possessions, it required the giving of yourself, your time, your attention; that a wise teacher would bring the student to the threshold of her own mind; and that friendship was best shared with laughter and good cheer. Our early interaction was through the Real Estate Section of the Virginia State Bar. At that time, I was certain that, by observing and emulating the more senior members, I could one day be just like them. I watched and volunteered in any way I could to bring me in contact with those great lawyers and I felt that I grew as a person and as a lawyer in their company. When Courtland found out that I had a teaching background he encouraged me to use that skill and step up to the podium and teach real estate lawyers. It was then that he introduced me to Gardener DeMallie of Virginia CLE; thus began the annual travel all over the Commonwealth to continue the great tradition of many other lawyers who gave of themselves to teach the Annual Real Estate Seminar for Virginia CLE. We lectured to real estate lawyers, and I found myself learning from their wisdom, experience and strength and, most importantly, their humility and humanity. Court shared with me many stories of his own learning experiences from the likes of Sheild McCandlish, Ed Prichard and Minerva Andrews, just as I was exploring and enjoying my own learning and growing collegial experiences from the likes of Rick Richmond (Charlottesville), Howard Gordon (Norfolk), Bob Hawthorne (Kenbridge), David Helscher (Roanoke) and Mike Pace (Roanoke), to mention only a few. Over the thirty years that I knew Court, I was always impressed by his knowledge, his experience and his cordial and congenial demeanor. He was a force of nature in his chosen field, and I believe he was nearly universally admired and respected for his efforts and accomplishments. He edited the FEE SIMPLE and never failed to include articles of interest and importance to his colleagues. Court’s leadership and vision brought the Advanced Real Estate Seminar to Virginia real estate lawyers in 1996; it continues to this day. Court was driven to learn what he didn’t know and to share that knowledge with others. He wanted each of us to be the best version of ourselves and to expand our horizons; mostly, though, I think he enjoyed observing how doing so elevated all of us in the process. Through Court’s inspiration and encouragement, I learned to seek wisdom. Thank you, Court, for being part of my life and career and of those of all those the other lawyers whom you have influenced. Keep watching—there is more to come.
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CHAIR’S COLUMN by William L. Nusbaum*
The FEE SIMPLE – Spring 2014 Issue It is cliché, yet nonetheless true, to say that a year in leadership goes by in the blink of an eye— almost as quickly as a year of a child growing up, it seems. As you receive the Spring issue of the FEE SIMPLE, my term as Chair is drawing to a close. Leading the Real Property Section for the past year has been an intellectually and emotionally gratifying experience for me. I am deeply grateful to my colleagues in the Section and on the Board of Governors gave me this opportunity. Without a doubt, one of the highlights of being involved with the Section is experiencing its collegiality. Our Section is privileged with a very rare spirit of fellowship, fostered from its earliest years by such giants as Courtland Traver (whose recent passing we mourn in this issue), Larry McElwain, Susan Pesner, and my partner, Howard Gordon. I was fortunate to get to know Court a bit in recent years, while accompanying Howard and Sandra Gordon to Court and Jerri’s home for cocktails following our January meetings. Even then, it was evident that many of our colleagues held a special fondness and respect for Court, and had developed a unique bond with him—something one doesn’t often find among lawyers from competing firms. It is in no small part due to the example set by early leaders like Court that our Section has managed to create and perpetuate a rare warmth and affection for our friends, colleagues, and even competitors, through special social events like the optional dinner during the Advanced Real Estate Seminar; the Section dinner during the Summer Annual Meeting; and the recognition generated by the annual Courtland Traver Award. I honestly believe that our Section has an extraordinary spirit, and I strongly encourage more of our members to seek out opportunities to take advantage of the benefits our Section offers. Another benefit of leading the Section has been taking on the challenging matters that occasionally found their way to me because the client believed that, if my peers had chosen me to lead the Real Property Section, then perhaps I could resolve for them what had been, to that point, an intractable problem. These are not, I can assure you, cases that make one’s year financially, but they do bring satisfaction when they are closed. With the clients’ permission, I am able to share their stories with you, to illustrate the good that we are able to accomplish with our leadership roles in your Section. The first case, which was a compensated matter, dealt with a beachfront title problem stemming from a late-1800s plat that was re-recorded in such a way that the second plat appeared to relocate the dividing line between two lots, arguably creating a gap between them. After careful analysis of the metes and bounds of the two lots, it became apparent that, although the legal descriptions of the two lots referred to the two different plats with their divergent courses, they still made it clear that the two lots were contiguous along their common boundary. Ultimately, the grateful client was able to obtain owner’s title insurance coverage which, to that point, had been in doubt. The second matter was a pro bono case brought to me by a doctor-friend familiar with my role in the Section. The husband of one of his employees, a Special Warfare Boat Operator for the U.S. Navy, had been grievously injured in a training accident and, after numerous surgeries, had decided to leave the Navy. The couple returned home to the Midwest so that the husband could continue his recovery and learn a new career. Due to the weak real estate market, however, they were unable to sell their home in Hampton Roads. As a Wounded Warrior, the husband qualified for the federal Homeowners’ Assistance Program (HAP), through which the U.S. Government would acquire the couple’s home, pay off the mortgage, and then resell the home for its own account. But there was a key problem: The couple’s home
* William L. (Bill) Nusbaum is a shareholder at Williams Mullen, practicing in its Norfolk office. His practice focuses on commercial real estate and brokerage, economic development, municipal bonds and alcoholic beverage licensing. He graduated with an A.B. from Harvard College in 1977 and received his J.D. from the University of Virginia School of Law in 1980.
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the FEE SIMPLE is located in a neighborhood with a homeowners’ association and, because of the federal Anti-Deficiency Act, HAP could not accept ownership of a property which could be subjected to the HOA assessments and lien, as doing so might impose an unappropriated obligation on the federal government! Initial communications between HAP and the HOA proved unsuccessful, leading the HOA to decline to cooperate with the transfer of the home into HAP. With the veteran and his wife facing the prospect of foreclosure and financial ruin, my friend asked if I would try to help them, pro bono—a request that none of us could imagine refusing. After a lot of careful listening, considerable cajoling, and some rhetorical tightrope-walking, an agreement is now taking shape as I write this column, in which (a) in a side letter to the HOA, the HAP will (i) represent to the HOA that it intends to pay the assessments and maintain the property, and (ii) give the HOA a local GSA maintenance person’s contact information to provide comfort that the property will be maintained while HAP tries to sell it; and (b) in an agreement between the couple and the HOA, the couple will place in escrow with the HOA’s law firm two years of the current assessments as security against HAP failing to pay the HOA and, in consideration of the escrow and the side letter, the HOA will agree to forbear (not waive) the enforcement of its assessment and lien rights against the home while the property is in the hands of the federal government. The chance to help this young veteran, who has already given so much for our country, is far more gratifying than any monetary compensation I could ever request from him, even if I had wanted to do so. I end this column, and my term as your Chair, grateful to have had the opportunity to serve you, my colleagues in the Real Estate Bar, and for the opportunities that have come to me as a result of my service to the Section. Leading a Section full of so many talented attorneys is truly humbling, because it is a reminder of how many brilliant real estate lawyers we have in our Section—as friends and colleagues, as mentors and resources, as referral sources, and in some cases, like our departed friend Court Traver, as inspirations. Respectfully submitted,
William L. Nusbaum, Chair
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FROM THE CLUTTERED DESK (AND MIND) OF THE EDITOR by Stephen C. Gregory I am closer to the end of my active legal career than to the beginning; this is at once depressing and strangely exhilarating. Herewith, then, are (only a few) reminiscences from almost forty years of toil in the legal field, and specifically, the title industry: 1. The technology advances are more rapid today than at perhaps any time in history. We’ve gone from “Do you have a fax machine?” to “What’s your fax number?” to “Do you have e- mail?” to “I’ll e-mail it to you.” My first computer was a TRS-80. (If this is meaningless to you, ask your parents.) It cost $3,000, and the operating system was on an 8” floppy disk. (I’ll spare everyone the risqué humor.) There was no hard drive; files were stored on other 8” floppy disks. Today’s electronics are not unmixed blessings, however; this magazine regularly runs articles on the latest hacks, scams, and other intrusions. 2. My impression is that the profession has come full circle with respect to collegiality. When I began, older, established attorneys voluntarily took new admittees “under their wings” and mentored them; then, as law schools began disgorging more and more graduates, the profession seemed to lose a degree of civility. I well remember in the late ‘90s calling opposing counsel to say that I had just been retained, an answer was due in less than a week, and would she agree to an order extending the time? Her response consisted of just three words: “File your motion.” I did, she didn’t show up, and the motion was (of course) granted. She knew that it would cost my client a lot more for me to have to appear in court than if we had submitted an agreed order. I am pleased to have observed, though, that the collegiality seems to have returned to this profession I hold in such high regard. Once again, older, more established attorneys are giving freely of their time to help younger, less experienced counsel acculturate. I think that benefits everyone, and I hope my observation is accurate. 3. I have always been fond of one particular John Ruskin quote: “There is hardly anything in the world that some man cannot make a little worse and sell a little cheaper, and the people who consider price only are this man's lawful prey.” The legal climate today encourages clients to “beat up” attorneys for lower fees, often by threatening to move the business to a firm that will charge less. I have on occasion summoned another favorite quote, this one from Lincoln: “A lawyer’s time and advice are his stock in trade.” Certainly, the client is entitled to a fair charge for services rendered; however, the attorney is similarly entitled to a fair fee for the time necessary to provide quality legal representation. In-house counsel is driving fees down, and not always reasonably; at some point, we have to be willing to say to a client that we can’t afford to provide him a particular service for the price he is willing to pay. (In the background, I hear my father’s voice saying, “you get what you pay for.”) 4. Making land records available online has proven to be a time and cost benefit to attorneys and clients alike. Still, there was a certain camaraderie to the record room, with a higher percentage of larger-than-life personalities than might be expected. Of course, tossing around twenty-five-pound deed books all day tends to make a person thirsty, and many a brew was consumed after the 5:00 p.m. closing of the courthouse doors. 5. Speaking of which, we were taught in law school that “the doors to the courthouse are open to everyone.” While that may be technically accurate, too many become lost souls once they enter the halls of justice. This is where pro bono initiatives play a role; we owe it to our profession, if not to our fellow citizens, to give a little of our expertise and ourselves to help those in need. I recognize that solo and small firms struggling to meet overhead can ill afford to donate otherwise-compensable time, but the rest of us can and should participate. No
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doubt the poor reputation attorneys have is due in some measure to the perception that justice can be, and is, bought. We need to prove that wrong. 6. I still have, among others in my collection, a recorded deed of a birthday (Madison County), and the classic filing in Fairfax County, Jack Lockwood’s “Covenant not to abandon.” 7. Whatever happened to carbon paper?
Last issue, we invited you, the reader, to a roundtable on the question of title insurance rate regulation. As of the date this is written, we have received no responses. We figure this means either (a) our readers didn’t have time to reply; (b) our readers didn’t have an opinion; or, most likely, (c) our readers didn’t read our column. Because no one came to the roundtable, we herewith bring the table, now rectangular, to you:
State Rate Regulation Alaska Filed; all inclusive. Seller pays owner’s premium Alabama Filed; seller usually pays owner’s premium Arkansas None; seller usually pays owner’s premium Arizona Filed; seller usually pays owner’s premium California Filed; owner’s premium contractual Colorado Filed; seller usually pays owner’s premium Connecticut Filed District of Columbia None Delaware Filed Florida Promulgated; seller usually pays owner’s Georgia Published; all-inclusive Hawaii Published; seller usually pays 60% of owner’s Iowa N/A—state issued Idaho Filed; seller usually pays owner’s premium Illinois None; seller usually pays owner’s premium Indiana None; seller usually pays owner’s premium Kansas Filed Kentucky Filed Louisiana Filed Massachusetts None Maryland Filed Maine Filed up to $1M Michigan Filed; seller usually pays owner’s premium Minnesota Filed; owner’s premium contractual Missouri Filed Mississippi None Montana Filed; seller usually pays owner’s premium North Carolina Filed North Dakota Filed Nebraska Filed New Hampshire Filed New Jersey Filed New Mexico Promulgated Nevada Filed
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New York Filed and approved by TIRSA Ohio Filed; seller usually pays owner’s premium Oklahoma None Oregon Filed; seller usually pays owner’s premium Pennsylvania Filed Rhode Island None South Carolina Filed South Dakota Filed; seller usually pays owner’s premium Tennessee Filed; seller usually pays owner’s premium Texas Promulgated Utah Filed; seller usually pays owner’s premium Virginia None Vermont Filed up to $2M Washington Filed; seller usually pays owner’s premium Wisconsin Filed; seller usually pays owner’s premium West Virginia Filed; separate for commercial and “non- commercial” Wyoming Filed; seller usually pays owner’s premium
(The foregoing information is from Stewart Title Guaranty Company’s website and information provided by First American Title Insurance Company.) My degree is in English and not math, but by my count there are only eight states that do not have some form of rate regulation. Because I have practiced in one state that has filed rates and one that has no regulation, the benefits of regulation are perhaps more evident to me than to others. The residential marketplace is for the most part unaffected by the lack of regulation; it’s been my experience that few buyers/borrowers will take the time to shop for or negotiate a lower title insurance premium, and those who do are rarely successful. On the other (commercial) side, though, settlement agents are frequently subject to buyers/borrowers “ping-ponging” between offices, playing one agent against another to get increasingly lower premiums. Even though the transactions tend to be higher dollar, and thus generate larger premiums, the lower rate often borders on being unfair. This is especially true when the deal is a referral from an underwriter, who is sharing the premium with the agent. Excessively low bid rates usually require the agent to be satisfied with a premium split of pennies on the (thousand) dollars, because underwriters have reserves they must maintain and profits they need to protect. Rate regulation levels the playing field. Where rates are fixed, service becomes the benchmark by which agents are judged—as it should be. A small shop thus is insulated from having a deal bid away by a multi-location office that can absorb a low bid rate, even to the extent of being a loss-leader. There would seem to be no real disadvantage to the industry for rate regulation in some form, injecting certainty into any given transaction for all parties involved. Of course, the real problem is that, unlike other forms of insurance, title insurance is not based on risk evaluation. When I apply for auto insurance, the company looks at my age (sigh), gender, driving record, vehicle brand and model, and other factors1 to determine the risk that they will suffer a loss. The weight that various insurers give to each of the factors determines the premium for an auto policy, but the companies are subject to oversight and regulation by each state’s insurance commission/bureau.
1 Creditworthiness as a risk factor for auto or home insurance is a topic for another journal. Besides, it’s a soapbox upon which you do not want the author to stand.
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Title insurance doesn’t lend itself to risk factor evaluation. What would be the (reliable) predictors for the chance of loss in title to real property? Rate of turnover? Age of improvements? Foreclosure, tax sale, or bankruptcy in the chain of title? Location? None of these would really be indicative of a future claim against the title to the property. The only measure we have for determining a title insurance premium is the value of the property, it being the maximum amount the title insurer would have to pay out in the event of a total failure of ownership. Still, this leads to inequities. Is the risk of loss any greater or lesser in populous Fairfax County than it is in relatively rural Wise County? Is the risk of loss any greater or lesser in Virginia than it is in North Carolina or Florida? How about the risk of loss in a tract index state vis-à-vis a grantor/grantee index courthouse state? Yet, although rates are uniform throughout any given state, they vary widely among the several states. Is it really three times more likely the title will fail in Florida than in North Carolina? This author doesn’t have a solution for this issue. There doesn’t seem to be any way to look at a (clean) title search and evaluate the risk of insuring the ownership.2 Fairness, then, would dictate that rates be uniform throughout a state and not be dependent upon a knowledgeable buyer asking for a discount and the whim of an agent willing to accede to the request. It’s time for the Commonwealth of Virginia to join the majority of states and enact title insurance rate regulation.
We close, as always, with a reminder that this is your publication. Let us know what you like, what you don’t like, what we can do better. If you have ideas for articles, please contribute. The editor can be reached at [email protected], or 703-850-1945.
2 Certainly, there may be a reason to add a surcharge if there’s a so-called extra-hazardous risk (an open estate, e.g.), but other risks are simply identified and excluded from coverage.
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2014 VIRGINIA GENERAL ASSEMBLY SELECTED REAL ESTATE LEGISLATION BILL LIST Compiled by David S. Mercer and Lucia Anna Trigiani* BANKING AND FINANCE HB 358 Banks; interstate branching. Delegate A. Benton “Ben” Chafin HB 954 Transitional mortgage loan originators; Delegate Timothy D. Hugo licensing. HB 1026 Check cashers; recordkeeping requirements; Delegate Riley E. Ingram civil penalty HB 1044 Bank; director ownership of shares. Delegate Barbara J. Comstock HB 1062 Banks; minimum capital stock requirement. Delegate Ronald A. Villanueva SB 118 Transitional mortgage loan originators; Senator John C. Watkins licensing. SB 335 Money order sellers and money transmitters. Senator Phillip P. Puckett SB 359 Banks; director ownership of shares. Senator Jeffrey L. McWaters SB 517 Banks; minimum capital stock requirement. Senator Frank W. Wagner
BUSINESS ENTITIES
HB 167 Virginia Business One Stop electronic portal Delegate David I. Ramadan program; participation by State Corporation Commission HB 168 Clerk of the State Corporation Commission; Delegate David I. Ramadan secure online system; articles of dissolution.
* David S. Mercer and Lucia Anna Trigiani are partners in the firm of MercerTrigiani in Alexandria, Virginia. The focus of their practice is on the representation of common interest community associations. Mr. Mercer and Ms. Trigiani represent the community association industry before the Virginia General Assembly. They have presented the legislative update segment of Virginia CLE’s Annual Real Estate Seminar for the past eleven years. This bill list is compiled for that presentation and the Recent Developments in the Law Seminar, also presented by Virginia CLE. Mr. Mercer and Ms. Trigiani were recognized for their contributions to the education of real estate lawyers with the Court Traver Scholarship Award at the Annual Advanced Real Estate Law Seminar in 2013. Mr. Mercer is past President of Lawyers Helping Lawyers and serves on the Board of Governors of the Virginia Bar Association. He is a Virginia Law Foundation Fellow and is a charter member of, and served as, Dean of the College of Community Association Lawyers. He also serves on the committee that is advisory to Virginia CLE. Ms. Trigiani is past president of the Virginia Bar Association and served as Chair of the Virginia Bar Association Real Estate Section Council. She is an Area Representative of the Real Property Section of the Virginia State Bar. Ms. Trigiani is also a charter member of the College of Community Association Lawyers and a Fellow of the Virginia Law Foundation. She serves on the boards of Virginia Free and Lead Virginia.
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HB 313 Clerk of the State Corporation Commission; Delegate Daniel W. Marshall, III unauthorized filings. HB 1036 State Corporation Commission; availability of Delegate Johnny S. Joannou records. SB 119 State Corporation Commission; availability of Senator John C. Watkins records.
CEMETARIES
HB 588 Cemetery Board; powers and duties; special Delegate Israel D. Quinn interments. HB 997 Proceedings for the removal and relocation of Delegate Richard L. Anderson human remains. HB 1171 Confederate cemeteries and graves. Delegate Daniel W. Marshall, III SB 108 Confederate cemeteries and graves. Senator William M. Stanley, Jr. SB 540 Confederate graves. Senator Stephen H. Martin
CHARITABLE, CIVIC AND VOLUNTEER ORGANIZATIONS
SB 549 Donations by localities; emergency relief. Senator Phillip P. Puckett
CIVIL REMEDIES AND PROCEDURE
HB 269 Holding cases under advisement. Delegate Gregory D. Habeeb HB 301 Admissibility of business records. Delegate G. Manoli Loupassi HB 303 Attorney fees. Delegate G. Manoli Loupassi HB 312 Action for rescission of a deed or other Delegate David J. Toscano instrument on grounds of undue influence; attorney fees. HB 360 Reimbursement of expenses incurred by general Delegate A. Benton “Ben” Chafin receivers for direct out-of-pocket expenses when carrying out order of the court. HB 393 Judgment payment required to be noted by Delegate A. Benton “Ben” Chafin creditor; penalty.
HB 439 Fraud and Abuse Whistle Blower Protection Delegate James M. LeMunyon Act; applicability to Virginia citizens.
HB 477 Electronic summons system; fees. Delegate Ronald A. Villanueva HB 596 Summons for unlawful detainer issued by Delegate Jackson H. Miller magistrate or clerk or judge of a general district court; amendment of amount due.
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HB 969 Statute of limitations; damage to property; Delegate Benjamin L. Cline actions by the Commonwealth.
HB 972 Protective orders; companion animals. Delegate Benjamin L. Cline HB 1038 Certain rules prescribed by district courts; Delegate Johnny S. Joannou dismissal with prejudice.
HB 1039 Jury trial of right; demand; compliance with the Delegate Johnny S. Joannou Rules of Supreme Court.
HB 1041 Nonsuits; tolling. Delegate Johnny S. Joannou HB 1122 Service of process; social security numbers. Delegate Mark L. Cole HB 1157 Persons liable to serve as jurors. Delegate James A. “Jay” Leftwich SB 229 Injunctions; objection to petition for review. Senator J. Chapman Petersen SB 230 Judgment on affidavit in action upon contract or Senator J. Chapman Petersen note; grounds for dismissal.
SB 473 Foreign judgments. Senator Mark D. Obenshain
COMMUNITY ASSOCIATIONS
HB 530 Condominium and Property Owners’ Delegate Brenda L. Pogge Association Acts; compliance with declaration. HB 550 Condominium and Property Owners’ Delegate Eileen Filler-Corn Association Acts; notice for requests to examine association records. HB 566 Condominium and Property Owners’ Delegate Vivian E. Watts Association Acts; late fees. HB 690 Condominium and Property Owners’ Delegate James P. “Jimmie” Massie, Association Acts; merger of developments; III reformation of declaration. HB 791 Condominium and Property Owners’ Delegate James M. LeMunyon Association Acts; rule enforcement. HB 899 Condominium Act; purchaser’s right of Delegate Christopher K. Peace cancellation. HB 900 Condominium Act and Property Owners’ Delegate Christopher K. Peace Association Act; allowable fees. HB 901 Virginia Real Estate Time-Share Act; public Delegate Christopher K. Peace offering statement; multisite registration. SB 347 Virginia Real Estate Time-Share Act; contents Senator John A. Cosgrove of time-share owners’ association annual report; cost. SB 348 Virginia Real Estate Time-Share Act; Senator John A. Cosgrove alternative purchase.
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SB 577 Virginia Real Estate Time-Share Act; public Senator John A. Cosgrove offering statement; multisite registration.
CONDEMNATION AND EMINENT DOMAIN
HB 1092 Condemnation of oyster grounds. Delegate Margaret B. Ransone SB 194 Date of valuation; inverse condemnation Senator Richard H. Black proceeding. SB 603 Condemnation of oyster grounds. Senator Richard H. Stuart
CONSERVATION AND ENVIRONMENT
HB 445 Administrative Process Act; standard Delegate David L. Bulova procedures for adoption of waste load allocations by the State Water Control Board.
HB 572 Wetlands zoning ordinance; local credit for in- Delegate Bill R. DeSteph, Jr. lieu fees. HB 784 Various boards; membership and terms. Delegate Mark L. Cole. HB 844 Eastern Shore Water Access Authority Act. Delegate Lynwood W. Lewis, Jr. HB 856 Hazardous waste permit. Delegate C. Matthew Fariss HB 858 State forest activity fee. Delegate C. Matthew Fariss HB 911 Living shorelines general permit. Delegate Barry D. Knight HB 968 Purchasers of brownfield properties. Delegate Matthew James HB 1006 Update of the Probable Maximum Precipitation Delegate Kathy J. Byron level. HB 1034 Liability of owners of certain dams. Delegate Robert D. Orrock, Sr. HB 1116 Scenic River designation. Delegate Lee R. Adams HB 1124 Liability of owners or operators of dams. Delegate Robert D. Orrock, Sr. HB 1217 Chesapeake Bay Preservation Areas; Delegate Rick L. Morris. documentation in lieu of proof of septic tank pump-out. HB 1261 Virginia Energy Plan; carbon dioxide emission Delegate A. Benton “Ben” Chafin control impact; schedule. HJR 16 Study; recurrent flooding; report. Delegate Christopher P. Stolle HJR 28 Study; Manufacturing Development Delegate Daniel W. Marshall, III Commission; report. HJR 57 Study; toxicity of selenium; report. Delegate Terry G. Kilgore HJR 167 Historic Smithfield Plantation. Delegate Joseph R. Yost SB 25 Offshore natural gas and oil royalties; Senator Bryce E. Reeves establishment of Virginia Offshore Energy Emergency Response Fund.
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SB 257 Scenic river designation. Senator C. Creigh Deeds SB 431 Remediation fees. Senator John C. Watkins SB 466 Liability of owners of certain dams. Senator John C. Watkins SB 467 Conveyance of easement. Senator Thomas K. Norment, Jr. SB 545 Reforestation Operations Fund. Senator Frank M. Ruff, Jr. SB 551 Scenic river designation. Senator Phillip P. Puckett SB 569 Living shorelines general permit. Senator Richard H. Stuart SB 582 Update of the Probable Maximum Precipitation Senator Thomas A. Garrett level. SB 615 Virginia Energy Plan; carbon dioxide emission Senator Charles W. Carrico, Sr. control impact; schedule. SJR 3 Study; recurrent flooding; report. Senator Mamie E. Locke SJR 35 Study; toxicity of selenium; report. Senator Charles W. Carrico, Sr.
SJR 75 Study; Manufacturing Development Senator Frank W. Wagner Commission; report. SJR 76 Virginia Women’s Monument Commission; Senator Ryan T. McDougle membership. SJR 180 Designating Historic Smithfield Plantation in Senator John S. Edwards Blacksburg as “a Family Homestead of Virginia Governors CONTRACTS
HB 24 Contracts; recording requirements. Delegate Gregory D. Habeeb HB 948 Virginia Public Procurement Act; competitive Delegate Eileen Filler-Corn negotiation; limitation of certain term contracts; exception. SB 461 Virginia Public Procurement Act; competitive Senator Jill Holtzman Vogel negotiation; limitation of certain term contracts; exception.
DEEDS AND DEEDS OF TRUST
HB 607 Clerk; recordation; marginal release. Delegate Roxann L. Robinson HB 763 Recorded writings; deeds; cover sheets; indexes. Delegate J. Randall Minchew SB 116 Correcting errors in deeds, deeds of trust, and Senator John C. Watkins mortgages; affidavit.
HOUSING AND DEVELOPMENT
HB 296 Comprehensive plans; alignment of Delegate Ronald A. Villanueva transportation services with accessible housing and other community services.
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HB 331 First-time home buyer savings plans. Delegate Thomas A. Greason HB 990 Scope of Relocation Assistance and Real Delegate Hyland F. Flower Property Acquisition Policies; replacement housing for homeowners and tenants. SB 58 Comprehensive plans; alignment of Senator David W. Marsden transportation services with accessible housing and other community services. SB 356 Titling manufactured homes. Senator John A. Cosgrove
INSURANCE
SB 74 Real estate loans; flood insurance. Senator John P. Puckett
LANDLORD TENANT
HB 273 Virginia Residential Landlord and Tenant Act; Delegate G. Manoli Loupassi applicability; security deposits. HB 614 Landlord and tenant law; energy submetering; Delegate Jackson H. Miller local government fees. HB 638 Virginia Residential Landlord and Tenant Act; Delegate Jackson H. Miller tenant’s noncompliance; death of tenant. SB 490 Carbon monoxide alarms; required installation Senator Thomas K. Norment, Jr. in rental dwelling units.
LAND RECORDS AND COURT RECORDS
HB 952 Protection of confidential information in court Delegate Benjamin L. Cline files. HB 1013 Record retention in district courts. Delegate Jeffrey L. Campbell HB 1196 Clerks offices; recordation; possession of child Delegate Benjamin L. cline pornography; when security is required. SB 435 Clerks; order books; remote access to court Senator Ryan T. McDougle records; electronic filing; information technology fees; posting of certain information on the Internet.
MECHANICS’ AND OTHER LIENS
HB 768 Enforcement of liens; mechanics liens; Delegate Timothy D. Hugo property value.
MISCELLANEOUS
HB 652 Boundary adjustments; notice. Delegate Dave A. LaRock HB 663 Technical correction; judicial sale of real estate. Delegate Robert H. Brink
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HB 790 Department of General Services; inventory of Delegate James M. LeMunyon all real property owned by the Commonwealth. HB 837 Virginia Freedom of Information Act (FOIA); Delegate Mark L. Keam state agencies to post notice of allowable charges for producing records. HB 1067 Animal shelters; definitions. Delegate Robert D. Orrock, Sr. SB 5 Right to Farm Act; restoration of provisions. Senator John S. Edwards SB 177 Definition of “service dog.” Senator Bryce E. Reeves
NOTARIES
HB 492 Notaries; advertising; notice requirement. Delegate David B. Albo SB 378 Notary public; application for recommission. Senator Bryce E. Reeves SB 503 Notaries; providing advice on immigration; Senator Adam P. Ebbin advertising.
PROFESSIONS AND OCCUPATIONS
HB 184 Auctioneers; exemption from licensure. Delegate Barry D. Knight HB 251 Real Estate Board; death or disability of a Delegate Scott A. Surovell broker. HB 259 Allegations of untrue, deceptive, or misleading Delegate Jackson H. Miller advertising; real estate licensees. HB 712 Department of Treasury; Risk Management Delegate G. Manoli Loupassi Division; liability coverage for certain pro bono attorneys. HB 762 Regulation of appraisal management companies. Delegate J. Randall Minchew HB 897 Private security services businesses; exception Delegate Christopher K. Peace for certified public accountants. HB 907 Board of Accountancy; licensing requirements. Delegate Barry D. Knight HB 1008 Voluntary apprenticeships. Delegate Kathy J. Byron HB 1045 Board for Contractors; additional monetary Delegate Christopher K. Peace penalty for certain violations. HB 1247 Professions and occupations; expedited review; Delegate Eileen Filler-Corn applications of spouses of military service members. SB 7 Virginia State Bar; Clients’ Protection Fund; Senator Richard H. Stuart sunset. SB 202 Auctioneers; exemption from licensure. Senator Jeffrey L. McWaters SB 299 Virginia Board for Asbestos, Lead, and Home Senator Adam P. Ebbin Inspectors; asbestos contractors; notice to asbestos workers.
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SB 302 Allegations of untrue, deceptive, or misleading Senator Ryan T. McDougle advertising; real estate licensees. SB 438 Real Estate Board; death or disability of a Senator George L. Barker broker. SB 486 Department of Treasury; Risk Management Senator Thomas K. Norment, Jr. Division; liability coverage for certain pro bono attorneys. SB 564 Board of Accountancy; licensing requirements. Senator Walter A. Stosch SB 657 Board for Waterworks and Wastewater Works Senator Richard H. Black Operators and Onsite Sewage System Professionals; onsite sewage installers and operators.
REAL ESTATE SETTLEMENTS
HB 799 Virginia Residential Property Disclosure Act; Delegate Marcus B. Simon change in circumstances.
TAXATION
HB 46 Constitutional amendment (voter referendum) Delegate David I. Ramadan and implementing legislation; property tax exemption for surviving spouses of soldiers killed in action. HB 149 Real property tax; board of equalization. Delegate J. Randall Minchew HB 156 Real property tax exemption for religious Delegate J. Randall Minchew bodies. HB 187 Real and personal property tax exemption; Delegate Barry D. Knight aviation museum. HB 499 Real property tax; nonjudicial sale of certain Delegate Joseph R. Yost delinquent property.
HB 525 Real property tax; notice of assessment. Delegate Brenda L. Pogge
HB 1000 Real property tax exemption; elderly and Delegate J. Randall Minchew disabled. HB 1012 City of Suffolk; ordinance providing that Delegate Lionell Spruill, Sr. charges for water and sewer shall be a lien on real estate. HB 1239 Real and personal property tax exemption; solar Delegate Timothy D. Hugo energy equipment, facilities, or devices. HJR 8 Constitutional amendment (second resolution); Delegate David I. Ramadan real property tax exemption for spouses of soldiers killed in action. SB 68 Real estate with delinquent taxes. Senator Henry L. Marsh, III
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SB 175 Home-produced or farm-produced products. Senator Richard H. Black (by request) SB 418 Certified pollution control equipment and Senator Emmett W. Hanger, Jr. facilities; solar equipment. SB 480 Real property tax; notice of assessment. Senator Thomas K. Norment, Jr. SB 508 Real and personal property tax exemption; Senator Frank W. Wagner aviation museum.
TRUSTS AND ESTATES
HB 413 Filing of evaluation reports for incapacitated Delegate Patrick A. Hope persons; requirement for filing under seal. HB 743 Mental health; commitment proceedings. Delegate Jennifer L. McClellan SB 245 Qualification of administrator in action for Senator A. Donald McEachin wrongful death or personal injury. SB 345 Trust directors; defenses to liability. Senator John S. Edwards SB 346 Increasing various allowances and other Senator John S. Edwards amounts related to wills, trusts, and fiduciaries. SB 576 Mental health; commitment proceedings. Senator A. Donald McEachin SB 634 Decanting statute; conditions for second trust. Senator John S. Edwards
WATER, SEWER AND STORMWATER
HB 473 Local utilities; City of Richmond. Delegate Delores L. McQuinn HB 1012 City of Suffolk; ordinance providing that Delegate Lionell Spruill, Sr. charges for water and sewer shall be a lien on real estate. HB 1173 Stormwater management programs; optional for Delegate M. Keith Hodges some localities. HB 1177 Safe drinking water; local private well testing Delegate Terry L. Austin requirements. HB 1217 Chesapeake Bay Preservation Areas; Delegate Rick L. Morris documentation in lieu of proof of septic tank pump-out. SB 10 Discounted fees and charges for certain low- Senator Thomas A. Garrett income and disabled customers; Town of Louisa. SB 67 Discounted fees and charges for certain Senator Henry L. Marsh, III customers; City of Richmond.
SB 98 Water and sewer system; City of Richmond. Senator Henry L. Marsh, III SB 290 Real property lien; water and sewer charges. Senator Charles W. Carrico, Sr.
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SB 423 Stormwater management programs; optional for Senator Emmett W. Hanger, Jr. some localities.
ZONING AND LAND USE
HB 208 Vested rights. Delegate Daniel W. Marshall, III HB 209 Preliminary subdivision plats. Delegate Daniel W. Marshall, III HB 268 Agricultural operations; local regulation of Delegate Robert D. Orrock, Sr. certain activities. HB 296 Comprehensive plans; alignment of Delegate Ronald A. Villanueva transportation services. HB 527 Group homes; zoning. Delegate Brenda L. Pogge HB 560 Issuance of land use permits by Department of Delegate C. Matthew Fariss Transportation in connection with certain utility service. HB 652 Boundary adjustments; notice. Delegate David A. LaRock HB 1084 Damages, attorney fees, and costs for Delegate Rick L. Morris unconstitutional grant or denial by locality of certain permits and approvals. HB 1089 Zoning; agricultural products. Delegate Rick L. Morris HB 1209 Family day homes. Delegate Luke E. Torian HB 1210 Community improvement district. Delegate Daun S. Hester SB 51 Agricultural operations; local regulation of Senator Richard H. Stuart certain activities. SB 237 Optional provisions in subdivision ordinances; Senator J. Chapman Petersen sidewalk improvements. SB 241 Transfer of development rights. Senator Richard H. Stuart SB 430 Alcoholic beverage control; limited brewery Senator John C. Watkins license created; local regulation of certain activities. SB 578 Damages, attorney fees, and costs for Senator Mark D. Obenshain unconstitutional grant or denial by locality of certain permits and approvals. SB 593 Urban county executive form of government; Senator David W. Marsden Loudoun County; disclosure in land use proceedings.
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2014 VIRGINIA GENERAL ASSEMBLY COMPILATION OF SELECTED REAL ESTATE LEGISLATION by David S. Mercer and Lucia Anna Trigiani* The 2014 Session of the Virginia General Assembly convened on January 8, 2014, and adjourned on March 8, 2014. This was the year of the “long session” of the General Assembly, lasting sixty days. The reconvened session (more commonly referred to as the veto session) began on April 23, 2014. The General Assembly convened in Special Session following adjournment of the regular Session, to complete consideration of the budget; as of our publication date, the Special Session is not yet concluded. The General Assembly considered 2,888 bills during the 2014 Session. This number continues a downward trend—the number of bills introduced in the 2014 Session is slightly less than the number of bills introduced during the 2013 Session (2,899). Of the bills considered, 1,647 were passed by the Senate and the House of Delegates and forwarded to the Governor for signature. By comparison, only 1,527 bills passed in the 2013 Session. A total of 1,006 bills failed. The Governor vetoed five measures this year, and recommended amendments to approximately sixty bills. The General Assembly carried over for consideration in the 2015 Session 235 bills. Unless otherwise noted, statutory changes become effective July 1, 2014. This year, a number of categories (Building Code and Foreclosure among them) were omitted from this annual survey because there was no legislation on those topics. At the same time, we added several categories (some new and others returning): Charitable, Civic and Volunteer Organizations; Contracts; Land Records and Court Records; Deeds and Deeds of Trust. The legislation summaries that follow are intended only to offer a brief description of the bills that passed the General Assembly. To gain a complete understanding of the legislation, review the bills on the General Assembly website, at http://leg1.state.va.us. The summaries are taken from the abstracts prepared by the Virginia Division of Legislative Services. The authors express their appreciation to the Division of Legislative Services for its work in facilitating this compilation, as well as to those colleagues who are conversant with the legislation and legislative process, with whom we consult in order to be able to present additional perspective.
* David S. Mercer and Lucia Anna Trigiani are partners in the firm of MercerTrigiani in Alexandria, Virginia. The focus of their practice is the representation of common interest community associations. Mr. Mercer and Ms. Trigiani represent the community association industry before the Virginia General Assembly. Mr. Mercer and Ms. Trigiani have presented the legislative update segment of Virginia CLE’s Annual Real Estate Seminar for the past twelve years. At the 2013 Annual Advanced Real Estate Law Seminar, they were recognized for their contributions to the education of real estate lawyers with the Court Traver Scholarship Award. Mr. Mercer is past President of Lawyers Helping Lawyers and serves on the Board of Governors of the Virginia Bar Association. He is a Virginia Law Foundation Fellow and is a charter member, and served as Dean, of the College of Community Association Lawyers. He also serves on the Virginia CLE advisory committee. Ms. Trigiani is past President of the Virginia Bar Association and served as Chair of the Virginia Bar Association Real Estate Section Council. She is an Area Representative for the Real Property Section of the Virginia State Bar. Ms. Trigiani is also a charter member of the College of Community Association Lawyers and a Fellow of the Virginia Law Foundation. She serves on the boards of Virginia Free and Lead Virginia.
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BANKING AND FINANCE
HB 358 - Banks; interstate branching. Repeals a limitation on the establishment within the Commonwealth of branches of out-of-state banks. The limitation provides that such a branch may not be established unless the laws of the home state of the out-of-state bank permit Virginia banks to establish and maintain de novo in that state under substantially the same terms as provided under Virginia law. The measure also repeals (i) a requirement that the State Corporation Commission, when acting on an application by a Virginia bank to establish a branch in another state, consider the views of the state bank supervisor of the state where a branch is proposed to be located and (ii) a nonseverability provision that states that if any provision of Virginia’s 1995 law regulating interstate branching is held to be invalid, the entire article is invalid. Patron – A. Benton “Ben” Chafin. HB 954 - Transitional mortgage loan originators; licensing. Authorizes the State Corporation Commission (SCC) to issue transitional mortgage loan originator licenses. Such a license allows an individual to engage in business as a mortgage loan originator for a period of no more than 120 days, during which time the individual may fulfill pre-licensing education and written test requirements and apply for a mortgage loan originator license. The SCC may issue a transitional mortgage loan originator license to an individual who is licensed to originate mortgage loans under the laws of another state or, to the extent permitted under the federal Secure and Fair Enforcement for Mortgage Licensing Act, to an individual who was a registered mortgage loan originator within two months prior to the date that the individual applied for a transitional mortgage loan originator license. An individual applying for a transitional mortgage loan originator license is not required to comply with prelicensing education requirements or pass a written test requirement. In addition, the Commission shall not issue a transitional mortgage loan originator license unless it (i) finds that the applicant has never had a mortgage loan originator license revoked by any governmental authority, has not been convicted of, or pled guilty or nolo contendere to, certain felonies, and has become registered through, and obtained a unique identifier from, the Nationwide Mortgage Licensing System and Registry and (ii) finds that the applicant is employed by a person licensed by the SCC as a mortgage lender or mortgage broker. This bill is identical to Senate Bill 118. Patron – Timothy D. Hugo. HB 1026 - Check cashers; recordkeeping requirements; civil penalty. Requires each registered check casher to make copies of, or maintain a record of information from, each item cashed and the customer’s identification document prior to cashing the item. Records for each transaction are required to be retained for six months. A violation of these requirements is punishable by a civil penalty not to exceed $100. The measure does not apply to registered check cashers that are principally engaged in the bona fide retail sale of goods or services. Patron – Riley E. Ingram. HB 1044 - Bank; director ownership of shares. Provides that a bank director shall be deemed to be the sole owner of, and have in his personal possession or control, shares of stock that are (i) held through a brokerage account or similar arrangement, provided that the director retains sole beneficial ownership and sole legal control over the shares; (ii) held jointly or as a tenant in common, but only to the extent of the book value of the shares divided by the number of joint or tenant in common holders; (iii) deposited by the director in a living trust, or inter vivos trust, as to which the director is the sole trustee and retains an absolute power of revocation; or (iv) held through a profit-sharing plan, individual retirement account, retirement plan, or similar arrangement, provided that the director retains sole beneficial ownership and sole legal control over the shares. Such shares of stock in the bank of which the individual is a director may be used to determine if the director meets the requirement that he own and have in his personal possession or control shares of such stock with a book value of not less than $5,000. The measure also corrects a reference to the par value, rather than the book value, of such stock. This bill is identical to Senate Bill 359. Patron – Barbara J. Comstock. HB 1062 - Banks; minimum capital stock requirement. Provides that the directive that the State Corporation Commission not issue a certificate of authority to a bank unless it finds that individuals have subscribed for specific amounts of the bank’s capital stock and surplus does not apply to the Commission’s issuance of such a certificate to a bank holding company or to a resulting bank in connection with certain
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the FEE SIMPLE types of mergers involving the holding company and its subsidiary bank. This bill is identical Senate Bill 517. Patron – Ronald A. Villanueva. SB 118 - Transitional mortgage loan originators; licensing. Authorizes the State Corporation Commission (SCC) to issue transitional mortgage loan originator licenses. Such a license allows an individual to engage in business as a mortgage loan originator for a period of no more than 120 days, during which time the individual may fulfill pre-licensing education and written test requirements and apply for a mortgage loan originator license. The SCC may issue a transitional mortgage loan originator license to an individual who is licensed to originate mortgage loans under the laws of another state or, to the extent permitted under the federal Secure and Fair Enforcement for Mortgage Licensing Act, to an individual who was a registered mortgage loan originator within two months prior to the date that the individual applied for a transitional mortgage loan originator license. An individual applying for a transitional mortgage loan originator license is not required to comply with prelicensing education requirements or pass a written test requirement. In addition, the Commission shall not issue a transitional mortgage loan originator license unless it (i) finds that the applicant has never had a mortgage loan originator license revoked by any governmental authority, has not been convicted of, or pled guilty or nolo contendere to, certain felonies, and has become registered through, and obtained a unique identifier from, the Nationwide Mortgage Licensing System and Registry and (ii) finds that the applicant is employed by a person licensed by the SCC as a mortgage lender or mortgage broker. This bill is identical to House Bill 954. Patron – John C. Watkins. SB 335 - Money order sellers and money transmitters. Requires criminal background checks on members, senior officers, directors, and principals of applicants for licensure as a money order seller or money transmitter. Obligations imposed on a member apply only to a person who owns or controls a five percent or greater interest in an applicant or licensee that is a limited liability company. The measure allows the Bureau of Financial Institutions to file a claim to recover any required annual fees or actual examination expenses incurred that are not paid by a licensed money order seller and money transmitter. The measure also conforms requirements applicable to licensure by the State Corporation Commission of money order sellers and money transmitters to provisions used for regulation of other nondepository financial institutions, including provisions requiring a licensee to notify the Commissioner of Financial Institutions when it relocates its principal place of business or changes its legal name or fictitious name and prohibiting a licensee from using any name other than a name on its license. Patron – Phillip P. Puckett. SB 359 - Banks; director ownership of shares. Provides that a bank director shall be deemed to be the sole owner of, and have in his personal possession or control, shares of stock that are (i) held through a brokerage account or similar arrangement, provided that the director retains sole beneficial ownership and sole legal control over the shares; (ii) held jointly or as a tenant in common, but only to the extent of the book value of the shares divided by the number of joint or tenant in common holders; (iii) deposited by the director in a living trust, or inter vivos trust, as to which the director is the sole trustee and retains an absolute power of revocation; or (iv) held through a profit-sharing plan, individual retirement account, retirement plan, or similar arrangement, provided that the director retains sole beneficial ownership and sole legal control over the shares. Such shares of stock in the bank of which the individual is a director may be used to determine if the director meets the requirement that he own and have in his personal possession or control shares of such stock with a book value of not less than $5,000. The measure also corrects a reference to the par value, rather than the book value, of such stock. This bill is identical to House Bill 1044. Patron – Jeffrey L. McWaters. SB 517 - Banks; minimum capital stock requirement. Provides that the directive that the State Corporation Commission not issue a certificate of authority to a bank unless it finds that individuals have subscribed for specific amounts of the bank’s capital stock and surplus does not apply to the Commission’s issuance of such a certificate to a bank holding company or to a resulting bank in connection with certain types of mergers involving the holding company and its subsidiary bank. This bill is identical to House Bill 1062. Patron – Frank W. Wagner.
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BUSINESS ENTITIES HB 167 - Virginia Business One Stop electronic portal program; participation by State Corporation Commission. Requires the State Corporation Commission (SCC) and the Department of Small Business and Supplier Diversity (DSBSD), by December 1, 2014, to implement a hyperlink from the SCC’s eFile system to the Business Permitting Center that will facilitate the collection of a user’s information to populate any forms that will be required to be completed at a future date. The measure also requires that the SCC and the DSBSD meet as necessary to further such collaboration. The Secretary of Commerce and Trade is directed to oversee the DSBSD’s implementation of the provisions. The Secretary of Commerce and Trade and the Secretary of Technology shall have the opportunity to participate in such meetings. Patron – David I. Ramadan. HB 168 - Clerk of the State Corporation Commission; secure online system; articles of dissolution. Requires the State Corporation Commission limit the submission of data and documents on behalf of a business entity through its eFile electronic registration system to any user (i) designated to make such submission on behalf of the business entity and (ii) whose identity has been established satisfactorily through a verification process by July 1, 2018. After July 1, 2014 and until this has been implemented by the Commission, no articles of dissolution of a business entity or data or documents that contain officer or director changes shall be accepted through the Commission’s eFile electronic registration system. Patron – David I. Ramadan. HB 313 - Clerk of the State Corporation Commission; unauthorized filings. Authorizes the clerk of the State Corporation Commission, upon determining that a person who executed or delivered a business entity document to the clerk’s office lacked the authority to act on behalf of the business entity, to refuse to accept the document for filing. The clerk is further authorized under such circumstances to summarily remove a filed document, correct the records, and notify the affected business entity. The measure also includes stylistic and technical changes. Patron – Daniel W. Marshall, III. HB 1036 - State Corporation Commission; availability of records. Requires the State Corporation Commission to make available for public inspection records that are related to matters related to the Commission’s operational responsibilities and operational functions, including revenues, expenditures, financial management and budgetary practices, personnel policies and practices, and procurement policies and practices. Disclosure of the records is not required if the records are otherwise covered by applicable legal privileges; disclosure of such records could threaten the safety or security of the Commission’s employees, physical plant, or information technology assets or data; or the records are not publicly available from other public entities. In addition, the requirement does not apply to records related to the Commission’s formal or informal regulatory or legal proceedings or activities. The Commission is required to respond within five business days of receiving requests for administrative records, which may be extended by an additional seven business days if it is impracticable to provide the records requested within that time period. If the scope of the records requested or length of search necessitates, additional time is allowed. When requested records are not provided, the Commission shall notify the requester of the basis of the denial. Records held by the clerk of the Commission related to business entities shall be made public or held confidential in accordance with laws and regulations applicable specifically to such records. This bill is identical to Senate Bill 119. Patron – Johnny S. Joannou. SB 119 - State Corporation Commission; availability of records. Requires the State Corporation Commission to make available for public inspection records that are related to matters related to the Commission’s operational responsibilities and operational functions, including revenues, expenditures, financial management and budgetary practices, personnel policies and practices, and procurement policies and practices. Disclosure of the records is not required if the records are otherwise covered by applicable legal privileges; disclosure of such records could threaten the safety or security of the Commission’s employees, physical plant, or information technology assets or data; or the records are not publicly available from other public entities. In addition, the requirement does not apply to records related to the Commission’s formal or informal regulatory or legal proceedings or activities. The Commission is required to respond within five business days of receiving requests for administrative records, which may be
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the FEE SIMPLE extended by an additional seven business days if it is impracticable to provide the records requested within that time period. If the scope of the records requested or length of search necessitates, additional time is allowed. When requested records are not provided, the Commission shall notify the requester of the basis of the denial. Records held by the clerk of the Commission related to business entities shall be made public or held confidential in accordance with laws and regulations applicable specifically to such records. This bill is identical to House Bill 1036. Patron - John C. Watkins. CEMETARIES HB 588 - Cemetery Board; powers and duties; special interments. Provides that, under certain conditions, a cemetery company may have a section in the cemetery devoted to the interment of human remains and the pets of such deceased humans or the interment of pets only. The bill requires the Cemetery Board to adopt such regulations as the Board deems appropriate and necessary to implement its provisions. The bill defines pet. Patron - Israel D. Quinn. HB 997 - Proceedings for the removal and relocation of human remains. Provides that should any locality having acquired by any means land on which an abandoned graveyard is located, including lands acquired in accordance with § 22.1-126.1 for educational purposes, initiate plans to use that land for purposes other than to maintain the graveyard, such locality shall, prior to completion of said plans, develop and engage in active public notice and participation regarding efforts to avoid adverse impacts to the graveyard or to remove the remains interred in such graveyard to an alternative repository. The bill provides that such notice and participation shall include, at minimum, publication of at least one notice in a local newspaper of general circulation, notice posted at the site of the graveyard, and notice to and consultation with any historic preservation or other such commission, as well as area historical and genealogical societies, and at least one public hearing, and notice to the Department of Historic Resources (Department) and any local historical commission or organization. In addition, if a locality has acquired land on which an abandoned cemetery or gravesite of Virginians held as slaves at the time of their deaths is located, the locality must notify the Department of the location of such cemetery or gravesite. The Department shall maintain as a public record a listing of all locations of all abandoned cemeteries and gravesites of Virginians held as slaves at the time of their deaths that have been submitted to the Department. Patron - Richard L. Anderson. HB 1171 - Confederate cemeteries and graves. Changes the entity responsible for the care of graves in Pittsylvania County from the Rawley Martin Chapter, U.D.C., to the Pittsylvania County Historical Society. This bill is identical to Senate Bill 108. Patron - Daniel W. Marshall, III. SB 108 - Confederate cemeteries and graves. Changes the entity responsible for the care of graves in Pittsylvania County from the Rawley Martin Chapter, U.D.C., to the Pittsylvania County Historical Society. This bill incorporates Senate Bill 405 and is identical to House Bill 1171. Patron - William M. Stanley, Jr. SB 540 - Confederate graves. Allows disbursement of funds for the care and maintenance of three additional graves at Skinquarter Baptist Church Cemetery in Chesterfield County. Patron - Stephen H. Martin. CHARITABLE, CIVIC AND VOLUNTEER ORGANIZATIONS SB 549 - Donations by localities; emergency relief. Provides that a locality may make gifts and donations to any nonprofit tax-exempt organization that is engaged in providing emergency relief to residents, including providing the repair or replacement of private property damaged or destroyed by a natural disaster. Patron - Phillip P. Puckett.
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CIVIL REMEDIES AND PROCEDURE HB 269 - Holding cases under advisement. Provides that a circuit court judge in a civil action who holds a decision on any matter, motion, or issue submitted to the court or any final decision in the action under advisement for more than 60 days after a decision was requested must provide the parties in the action a written report stating the expected time of a decision. A judge who fails to make such a report or fails to render a decision within the time set forth in the report may be reported to the Chief Justice of the Virginia Supreme Court. Currently, a circuit court judge only has to provide such a report for final decisions in civil actions that have been held under advisement for more than 90 days. Patron – Gregory D. Habeeb. HB 301 - Admissibility of business records. Provides that in any civil proceeding the authentication and foundation necessary for the admission of a business record under the business records exception to the rule against hearsay may be laid by witness testimony, a certificate of authenticity of and foundation for the record made by the record’s custodian or another qualified witness, or a combination of testimony and a certification. The bill also provides that the proponent of the record must give written notice to all other parties no later than 15 days in advance of the trial or hearing if a certification will be relied on for the admission of such record and provide a copy of the record and certification to all other parties. If any party objects to the use of the certification, the authentication and foundation necessary for the admission of the record must be made by witness testimony. This bill as introduced was a recommendation of the Boyd-Graves Conference. Patron – G. Manoli Loupassi. HB 303 - Attorney fees. Eliminates the award of de minimis attorney fees to any party that recovers costs. This bill as introduced was a recommendation of the Boyd-Graves Conference. Patron – G. Manoli Loupassi. HB 312 - Action for rescission of a deed or other instrument on grounds of undue influence; attorney fees. Provides that in any civil action to rescind a deed, contract, or other instrument, the plaintiff may be awarded reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the instrument was obtained by fraud or undue influence on the part of the defendant. Patron – David J. Toscano. HB 360 - Reimbursement of expenses incurred by general receivers for direct out-of-pocket expenses when carrying out order of the court. Provides for payment of $50 to a general receiver for conducting a hearing to ascertain the identity or location of trust fund beneficiaries and $50 per hour for an appearance in court. The bill also provides that when direct out-of-pocket expenses are necessary to carry out an order of the court, a general receiver may receive reimbursement for such expenses as the court deems reasonable. The bill also clarifies that compensation retained by a general receiver derives from moneys received and held under his duties. Patron – A. Benton “Ben” Chafin. HB 393 - Judgment payment required to be noted by creditor; penalty. Provides that payment by a debtor shall be entered on the judgment docket by the creditor within 90 days of payment of a judgment or within 10 days of being notified of satisfaction. The bill also provides that the judgment creditor shall be liable for a fine of $100 as well as the cost of releasing the judgment if he fails to enter such payment under such terms. Under current law, the judgment creditor is only subject to a $50 fine for failure to enter judgment within 10 days after receiving notice of satisfaction. Patron – A. Benton “Ben” Chafin. HB 439 - Fraud and Abuse Whistle Blower Protection Act; applicability to Virginia citizens. Expands the protections of the Fraud and Abuse Whistle Blower Protection Act to Virginia citizens and makes Virginia citizens eligible for an award from the Fraud and Abuse Whistle Blower Reward Fund, provided they meet the requirements of the Act, including where the disclosure results in a recovery of at least $5,000. The bill contains technical amendments. Patron - James M. LeMunyon.
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HB 477 - Electronic summons system; fees. Allows counties and cities to assess a fee not to exceed $5 as part of the costs in each criminal or traffic case in district or circuit court to be used for the implementation and maintenance of an electronic summons system. Patron - Ronald A. Villanueva. HB 596 - Summons for unlawful detainer issued by magistrate or clerk or judge of a general district court; amendment of amount due. Provides that when a defendant does not make an appearance in an unlawful detainer hearing, upon request by the plaintiff and a determination by the court as to the accuracy of the amount due and that the summons served upon the defendant requests judgment for all amounts due as of the date of the hearing, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court and shall enter a judgment for such amount due as of the date of the hearing. Patron - Jackson H. Miller. HB 969 - Statute of limitations; damage to property; actions by the Commonwealth. Provides for a statute of limitations of five years for actions for injury to property brought by the Commonwealth against a tort-feasor for expenses arising out of the negligent operation of a motor vehicle. Patron - Benjamin L. Cline. HB 972 - Protective orders; companion animals. Provides that a court may include in a protective order provisions granting to the petitioner possession of a companion animal if the petitioner is the owner of the animal. This bill incorporates House Bill 624. Patron - Benjamin L. Cline. HB 1038 - Certain rules prescribed by district courts; dismissal with prejudice. Provides that no civil matter shall be dismissed with prejudice by any district or circuit court for failure to comply with any rule prescribed by that district or circuit court concerning proper order and decorum and the safe use of courthouse facilities and clerks’ offices. Patron - Johnny S. Joannou. HB 1039 - Jury trial of right; demand; compliance with the Rules of Supreme Court. Provides that unless waived, any demand for a trial by jury in a civil case made in compliance with the Rules of Supreme Court of Virginia shall be sufficient, without further notice or order, to proceed with trial by a jury. The bill also reduces from $100 to $20 the minimum dollar amount necessarily sought in order for the whole matter to be heard by the court absent a waiver of a jury trial. Patron – Johnny S. Joannou. HB 1041 - Nonsuits; tolling. Highlights that when a voluntary nonsuit is taken in a civil case, the statute of limitations with respect to the cause of action in the case is tolled and the nonsuiting party may recommence his action within six months from the date the nonsuit is taken or within the original limitations period, whichever is longer. Patron – Johnny S. Joannou. HB 1122 - Service of process; social security numbers. Requires a person serving process to redact a party’s social security number from any writing, process, or attached pleading before service of process is effected on the party by any method other than delivering a copy to the party in writing and in person. The bill also requires a person serving process to make an attempt at personal service prior to effectuating any method of substituted service. Patron – Mark L. Cole. HB 1157 - Persons liable to serve as jurors. Provides that, for purposes of determining whether a person is liable to serve as a juror, military personnel of the United States Marine Corps and Coast Guard are not considered residents of the Commonwealth merely by reason of being stationed in the Commonwealth. Members of the United States Army, Air Force, and Navy are likewise not considered Commonwealth residents under current law. Patron – James A. “Jay” Leftwich. SB 229 - Injunctions; objection to petition for review. Requires an aggrieved party that files a petition for review of the granting or denial of an injunction with the Virginia Supreme Court or Court of Appeals to serve a copy of the petition for review on the counsel for the opposing party. The bill allows the opposing party seven days after service within which to submit its opposition to the petition, unless the court determines a shorter time frame. Patron - J. Chapman Petersen.
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SB 230 - Judgment on affidavit in action upon contract or note; grounds for dismissal. Provides that in an action upon a contract or note for which the plaintiff is entitled to judgment on an affidavit the plaintiff shall be entitled to a continuance in the event of a defect in the affidavit. Patron - J. Chapman Petersen.
SB 473 - Foreign judgments. Replaces the Uniform Foreign Country Money-Judgments Recognition Act enacted in Virginia in 1990 with the version approved by the National Conference of Commissioners on Uniform State Laws in 2005, which has been adopted in 18 states and the District of Columbia. Both versions provide for recognition and enforcement of foreign-country judgments in a United States state court. Judgments on taxes, fines, or criminal-like penalties and judgments relating to domestic relations are not covered by the Act. The Act provides that a foreign-country judgment will not be recognized if it comes from a court system that is not impartial or that dishonors due process, or when there is no personal jurisdiction over the defendant or over the subject matter of the litigation. The 2005 Act clarifies that a judgment entitled to full faith and credit under the United States Constitution is not enforceable under this Act and expressly provides that a party seeking recognition of a foreign-country judgment has the burden to prove that the judgment is subject to the Uniform Act. The Act imposes the burden of proof for establishing a specific ground for nonrecognition upon the party raising it, addresses the specific procedure for seeking enforcement, and provides a statute of limitations on enforcement of a foreign- country judgment. Patron – Mark D. Obenshain. COMMUNITY ASSOCIATIONS HB 530 - Condominium and Property Owners’ Association Acts; compliance with declaration. Clarifies that an action against the association for noncompliance with all lawful provisions of the Condominium and Property Owners’ Association Acts and all provisions of the declaration is not precluded. The bill also authorizes the court to award attorney fees to the prevailing party. Patron – Brenda L. Pogge. HB 550 - Condominium and Property Owners’ Association Acts; notice for requests to examine association records. Provides that, notwithstanding any provision of law to the contrary, the right of examination of association books and records may be exercised upon five business days’ written notice for a professionally managed association and 10 business days’ written notice for a self-managed association, which notice reasonably identifies the purpose for the request and the specific books and records of the association requested. Patron – Eileen Filler-Corn. HB 566 - Condominium and Property Owners’ Association Acts; late fees. Clarifies the amount of late fees that may be assessed against an owner for nonpayment of assessments. Patron – Vivian E. Watts. HB 690 - Condominium and Property Owners’ Association Acts; merger of developments; reformation of declaration. Provides a process for the merger of two or more associations and a process for seeking judicial reformation of the declaration in both Acts. The reformation procedure includes, among other requirements, at least 30 days’ notice to the owners and the mortgagee and gives the mortgagee standing to participate in the reformation proceedings. Patron – James P. “Jimmie” Massie, III. HB 791 - Condominium and Property Owners’ Association Acts; rule enforcement. Gives associations the right, to the extent the governing documents duly adopted rules expressly so provide, to file or defend a legal action in general district or circuit court to seek an order to require that any violation of the condominium instruments or rules duly adopted pursuant thereto be corrected. The bill further provides that before any action authorized in the bill or in the governing documents is taken and after written notice of the alleged violation to the owner at the address required for notices of meetings, the owner shall be given a reasonable opportunity to correct the alleged violation. If the violation remains uncorrected, the owner shall be given an opportunity to be heard and to be represented by counsel before the board or such other tribunal as the governing documents or rules duly adopted pursuant thereto specify. The bill gives an appeal of right from general district court an action involving rule enforcement
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the FEE SIMPLE filed by a condominium unit owners’ association or unit owner or of an action filed by a property owners’ association or lot owner. Lastly, the bill provides that in the event of a legal action involving rule enforcement, the prevailing party is entitled to recover court costs and reasonable attorney fees. Currently, only the association is entitled to recover such costs and fees. Amendments recommended by the Governor were accepted by the Senate and House of Delegates. Patron – James M. LeMunyon. HB 899 - Condominium Act; purchaser’s right of cancellation. Reduces a purchaser’s right of cancellation from 10 to five calendar days from the contract date of the disposition or delivery of the current public offering statement, whichever is later. The bill also requires the purchaser’s right to cancel the purchase contract to be set forth on the first page of the purchase contract in boldface print of not less than 12-point type. Patron – Christopher K. Peace. HB 900 - Condominium Act and Property Owners’ Association Act; allowable fees. Provides that nothing in either Act shall be construed to authorize an association or common interest community manager to charge an inspection fee for a unit or lot unless specifically authorized, nor may an additional fee be charged for access to the association’s or common interest community manager’s website. The bill provides that if a resale certificate or disclosure packet is provided in electronic format, a total fee not to exceed $125 is authorized for one electronic copy to each of the following named in the request: the seller, the seller’s authorized agent, the purchaser, the purchaser’s authorized agent, and not more than one other person designated by the requester. Patron - Christopher K. Peace. HB 901 - Virginia Real Estate Time-Share Act; public offering statement; multisite registration. Allows for the developer, in the case of a time-share project located outside the Commonwealth, to amend the public offering statement to reflect any additions or deletions of the time-share project to an existing time-share program registered in the Commonwealth. This bill is identical to Senate Bill 577. Patron - Christopher K. Peace. SB 347 - Virginia Real Estate Time-Share Act; contents of time-share owners’ association annual report; cost. Details the contents of the annual report provided by the timeshare owners’ association to its members. In addition, the bill extends the time in which the time-share owners’ association annual report must be prepared and distributed to all time-share estate owners from 120 to 180 days after the close of the fiscal year. Patron - John A. Cosgrove. SB 348 - Virginia Real Estate Time-Share Act; alternative purchase. Provides for the registration with the Common Interest Community Board of alternative purchases that are offered to potential purchasers during the developer’s sales presentation. The bill also requires the developer to notify the Board within 30 days of any material change in any previously registered alternative purchase. Patron - John A. Cosgrove. SB 577 - Virginia Real Estate Time-Share Act; public offering statement; multisite registration. Allows for the developer, in the case of a time-share project located outside the Commonwealth, to amend the public offering statement to reflect any additions or deletions of the time-share project to an existing time-share program registered in the Commonwealth. This bill is identical to House Bill 901. Patron - John A. Cosgrove. CONDEMNATION AND EMINENT DOMAIN HB 1092 - Condemnation of oyster grounds. Prohibits localities from exercising the right of eminent domain to condemn privately leased riparian and general oyster planting grounds. These planting grounds are assigned to persons under a lease agreement approved by the Virginia Marine Resources Commission. An exception to the condemnation prohibition is made for permitted water-dependent linear wastewater projects where there is no practical alternative. This bill is identical to Senate Bill 603. Patron - Margaret B. Ransone.
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SB 194 - Date of valuation; inverse condemnation proceeding. Provides that the “date of valuation” of property in an inverse condemnation proceeding is the date determined by the court to be the date the property was taken or damaged. Patron – Richard H. Black. SB 603 - Condemnation of oyster grounds. Prohibits localities from exercising the right of eminent domain to condemn privately leased riparian and general oyster planting grounds. These planting grounds are assigned to persons under a lease agreement approved by the Virginia Marine Resources Commission. An exception to the condemnation prohibition is made for permitted water-dependent linear wastewater projects where there is no practical alternative. This bill is identical to House Bill 1092. Patron – Richard H. Stuart. CONSERVATION AND ENVIRONMENT HB 445 - Administrative Process Act; standard procedures for adoption of waste load allocations by the State Water Control Board. Establishes minimum procedural requirements for the adoption of all waste load allocations, including public notice, public comment opportunity, a stakeholders advisory group process, agency response to comments, and a public meeting. Historically, waste load allocations were established under various procedures on a case-by-case basis. The bill requires that a comprehensive listing of all total maximum daily load waste load allocations adopted or approved by the State Water Control Board prior to July 1, 2014, be set forth in the Water Quality Management Planning Regulation (9VAC25-720). The bill also provides that any amendment prior to July 1, 2025, of the Water Quality Management Planning Regulation waste load allocations for nitrogen or phosphorus related to chlorophyll-a water quality criteria for multiple James River basin facilities shall be undertaken in accordance with the Administrative Process Act. Patron – David L. Bulova. HB 572 - Wetlands zoning ordinance; local credit for in-lieu fees. Requires a local wetlands board to give a permit applicant credit toward local in-lieu fees in the amount of the fee he has paid, as an agreed- upon permit condition, to the Virginia Aquatic Resources Trust Fund or another dedicated wetlands restoration fund. The bill makes technical changes. Patron – Bill R. DeSteph, Jr. HB 784 - Various boards; membership and terms. Reduces the number of nonlegislative citizen members who serve on the Virginia Geographic Information Network Advisory Board from nine to seven by eliminating the position for an elected official who serves on a planning district commission and eliminating one of the two current representatives of a utility or transportation industry utilizing geographic data. The bill specifies that vacancies on the Litter Control and Recycling Fund Advisory Board that occur other than by expiration of term are to be filled for the unexpired term and that no person is eligible to serve on the Advisory Board for more than two terms. Patron – Mark L. Cole. HB 844 - Eastern Shore Water Access Authority Act. Allows the Counties of Accomack and Northampton by resolution to declare that there is a need for a public access authority. If an operating agreement is developed, the counties may form the Eastern Shore Water Access Authority. The Authority’s duties shall include identifying land that can be secured for use by the general public as a public access site, researching all identified sites, determining appropriate public use levels of identified access sites, developing appropriate mechanisms for transferring title of Commonwealth or private holdings to the Authority, developing appropriate acquisition and site management plans for public access usage, determining what holdings should be sold to advance the mission of the Authority, securing funding and permits for dredging projects and facilities construction projects that enhance recreational and commercial public access, and performing other duties. The Authority shall be governed by a board of directors. Whenever it shall appear to the Authority that the need for the Authority no longer exists, the Authority, or in the proper case, any participating political subdivision, may petition the circuit court of a participating political subdivision for the dissolution of the Authority. Patron – Lynwood W. Lewis, Jr. HB 856 - Hazardous waste permit. Removes the requirement that a permit is required from the Department of Environmental Quality to transport hazardous waste. The federal government currently regulates the transporting of hazardous waste. Patron – C. Matthew Fariss.
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HB 858 - State forest activity fee. Authorizes the Department of Forestry to promulgate emergency regulations to establish a special use permit fee for activities taking place in state forests. Until the regulations become effective, a fee not to exceed $15 shall be charged for a special use permit for five specific activities: hunting, fishing, trapping, riding bikes, and riding horses. Currently, the Department can charge a fee for these specific activities but does not have the flexibility to include other types of forest-based recreational activities. The bill would allow the Department to use the regulatory process to include additional activities authorized under the special use permit, without having to amend the statutory authorization. Patron – C. Matthew Fariss. HB 911 - Living shorelines general permit. Requires regulations for the issuance of general permits for living shoreline projects to include an expedited review process. The bill allows construction of such projects under the local wetlands and coastal primary sand dunes ordinances. A living shoreline is a shoreline management practice that provides erosion control and water quality benefits; protects, restores, or enhances natural shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, and fill. This bill is identical to Senate Bill 569. Patron – Barry D. Knight. HB 968 - Purchasers of brownfield properties. Changes the definition of the “bona fide prospective purchaser” of brownfield property to include not only the person who acquires or proposes to acquire ownership of a brownfield property but also the tenant of such person. The bill conforms Virginia’s definition with the federal definition. Patron – Matthew James. HB 1006 - Update of the Probable Maximum Precipitation level. Directs the Department of Conservation and Recreation to utilize a storm-based approach to calculate the Probable Maximum Precipitation (PMP) for various locations in or affecting Virginia. The methodology for a storm-based approach shall be completed by December 1, 2015. Owners of impounding structures with spillway design inadequacies who maintain coverage under the conditional certificate are not required to rehabilitate the spillway until the PMP analysis is completed and reviewed by the Virginia Soil and Water Conservation Board. The bill requires the Board to consider the results of the PMP analysis in its decision of whether to authorize replacement of the current PMP values. The Department of Conservation and Recreation is authorized to expend up to $500,000 in unobligated balances from two agency funds to finance the analysis. The bill contains an emergency clause; the bill is effective April 1, 2014, the date the Governor signed the bill. This bill is identical to Senate Bill 582. Patron – Kathy J. Byron. HB 1034 - Liability of owners of certain dams. Protects owners of land upon which dams that are owned, maintained, or operated by soil and water conservation districts are situated from liability for damages to the property of others or the injury to persons resulting from the failure of the dam. However, this protection is not afforded to the landowner if the damage to others is a result of an act or omission by the landowner that is unrelated to ownership, maintenance, or operation of the dam. This bill is identical to Senate Bill 466. Patron – Robert D. Orrock, Sr. HB 1116 - Scenic River designation. Extends the State Scenic River designation of the Banister River from the current 38.4 miles to 63.3 miles. Patron – Les R. Adams. HB 1124 - Liability of owners or operators of dams. Requires the owner of a dam, prior to conveying ownership of the dam or decommissioning the dam to a third party, to notify the Director of the Department of Conservation and Recreation of the transfer in accordance with the Virginia Impounding Structure Regulations requirements. Patron – Robert D. Orrock, Sr. HB 1217 - Chesapeake Bay Preservation Areas; documentation in lieu of proof of septic tank pump-out. Directs the State Water Control Board to adopt certain criteria for use by local governments in evaluating development in Chesapeake Bay Preservation Areas. The bill provides that any locality allowing owners of certain on-site sewage treatment systems to submit documentation in lieu of proof of septic tank pump-out shall require that such documentation be certified by a licensed or certified on-site sewage system operator or soil evaluator. Patron – Rick L. Morris.
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HB 1261 - Virginia Energy Plan; carbon dioxide emission control impact; schedule. Requires the Virginia Energy Plan to include, with regard to any regulations proposed or promulgated by the U.S. Environmental Protection Agency to reduce carbon dioxide emissions from fossil fuel-fired electric generating units under Section 37 111(d) of the Clean Air Act, an analysis of the costs to and benefits for energy producers and electric utility customers; the effect on energy markets and reliability; and the commercial availability of technology required to comply with such regulations. The measure postpones the due date for quadrennial updates to the Virginia Energy Plan from July 1 to October 1. Interim updates on the Plan are required to be provided by October 1 of the third year of each administration. The measure also requires the Division of Energy of the Department of Mines, Minerals and Energy, in Plan updates starting in 2014, to set forth energy policy positions relevant to any potential regulations of the State Air Pollution Control Board to reduce carbon dioxide emissions from fossil fuel-fired electric generating units under Section 111(d) of the Clean Air Act. The Division is required to address policy options for establishing separate standards of performance for carbon dioxide emissions from existing fossil fuel-fired electric generating units to promote the Plan’s overall goal of fuel diversity. The Plan is also required to (i) examine policy options for state regulatory action to adopt less stringent standards or longer compliance schedules than those provided for in applicable federal rules or guidelines and (ii) identify options, to the maximum extent permissible, for any federally required regulation of carbon dioxide emissions from existing fossil fuel-fired electric generating units. This bill is identical to Senate Bill 615. Patron – A. Benton “Ben” Chafin. HJR 16 - Study; recurrent flooding; report. Establishes an 11-member joint subcommittee to formulate recommendations for the development of a comprehensive and coordinated planning effort to address recurrent flooding. The joint subcommittee is charged with recommending short- and long-term strategies for minimizing the impact of recurrent flooding. The joint subcommittee must submit its report to the Governor and the 2016 Regular Session of the General Assembly. This bill is identical to Senate Joint Resolution 3. Patron – Christopher P. Stolle. HJR 28 - Study; Manufacturing Development Commission; report. Directs the Manufacturing Development Commission to examine the economic and environmental benefits of the use of recycled material in the manufacturing process in Virginia. This resolution is identical to Senate Joint Resolution 75. Patron – Daniel W. Marshall, III. HJR 57 - Study; toxicity of selenium; report. Requests the Department of Environmental Quality to study the toxicity of selenium to aquatic life. This bill is identical to Senate Joint Resolution 35. Patron – Terry G. Kilgore. HJR 167 - Historic Smithfield Plantation. Designates Historic Smithfield Plantation in Blacksburg as “a Family Homestead of Virginia Governors.” Patron – Joseph R. Yost. SB 25 - Offshore natural gas and oil royalties; establishment of Virginia Offshore Energy Emergency Response Fund. Establishes the Virginia Offshore Energy Emergency Response Fund and directs to it the first $50 million in royalties received by the Commonwealth as the result of offshore natural gas and oil drilling and exploration. Additional revenues and royalties will be applied to maintain the Fund at $50 million if moneys are withdrawn from the Fund. After the Fund reaches $50 million, excess revenues and royalties will be transferred to the general fund annually. Patron – Bryce E. Reeves. SB 257 - Scenic river designation. Designates a 12.7-mile segment of the Tye River as a component of the Virginia Scenic Rivers System. Patron – C. Creigh Deeds. SB 431 - Remediation fees. Removes the $5,000 cap on registration fees collected by the Department of Environmental Quality from persons conducting voluntary remediation on contaminated properties. The fees defray the costs of administering the voluntary remediation program. The bill also exempts the Virginia Waste Management Board from the regulatory requirements of the Administrative Process Act (APA) so that new regulations needed to adjust the fee schedule will be in place by July 1, 2014. The bill
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the FEE SIMPLE requires any subsequent adjustment to the fee schedule to be in compliance with the APA. Patron – John C. Watkins. SB 466 - Liability of owners of certain dams. Protects owners of land upon which dams that are owned, maintained, or operated by soil and water conservation districts are situated from liability for damages to the property of others or the injury to persons resulting from the failure of the dam. However, this protection is not afforded to the landowner if the damage to others is a result of an act or omission by the landowner that is unrelated to ownership, maintenance, or operation of the dam. This bill is identical to House Bill 1034. Patron - John C. Watkins. SB 467 - Conveyance of easement. Authorizes the Marine Resources Commission to grant an easement and rights-of-way across beds of the York River, including a portion of the Baylor Survey Grounds No. 5, to Plains Marketing for the expansion, construction, updating, and maintenance of the Yorktown oil facility, an area containing 160,908 square feet or 3.694 acres. Patron - Thomas K. Norment, Jr. SB 545 - Reforestation Operations Fund. Changes the current Reforestation Operations Fund to a nonreverting special fund in which the interest generated by the Fund is credited to the Fund. Patron - Frank M. Ruff, Jr. SB 551 - Scenic river designation. Designates a 10.7-mile segment of the Cranesnest River in Dickenson County as a component of the Virginia Scenic Rivers System. The bill also removes from several sections a provision regarding the suitability of certain lands for mining under the Scenic Rivers Act and places them under one section that would then apply to all scenic rivers. Patron - Phillip P. Puckett. SB 569 - Living shorelines general permit. Requires regulations for the issuance of general permits for living shoreline projects to include an expedited review process. The bill allows construction of such projects under the local wetlands and coastal primary sand dunes ordinances. A living shoreline is a shoreline management practice that provides erosion control and water quality benefits; protects, restores, or enhances natural shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, and fill. This bill is identical to House Bill 911. Patron - Richard H. Stuart. SB 582 - Update of the Probable Maximum Precipitation level. Directs the Department of Conservation and Recreation to utilize a storm-based approach to calculate the Probable Maximum Precipitation (PMP) for various locations in or affecting Virginia. The methodology for a storm-based approach shall be completed by December 1, 2015. Owners of impounding structures with spillway design inadequacies who maintain coverage under the conditional certificate are not required to rehabilitate the spillway until the PMP analysis is completed and reviewed by the Virginia Soil and Water Conservation Board. The bill requires the Board to consider the results of the PMP analysis in its decision of whether to authorize replacement of the current PMP values. The Department of Conservation and Recreation is authorized to expend up to $500,000 in unobligated balances from two agency funds to finance the analysis. The bill contains an emergency clause; the bill is effective April 1, 2014, the date the Governor signed the bill. This bill is identical to House Bill 1006. Patron - Thomas A. Garrett. SB 615 - Virginia Energy Plan; carbon dioxide emission control impact; schedule. Requires the Virginia Energy Plan to include, with regard to any regulations proposed or promulgated by the U.S. Environmental Protection Agency to reduce carbon dioxide emissions from fossil fuel-fired electric generating units under Section 37 111(d) of the Clean Air Act, an analysis of the costs to and benefits for energy producers and electric utility customers; the effect on energy markets and reliability; and the commercial availability of technology required to comply with such regulations. The measure postpones the due date for quadrennial updates to the Virginia Energy Plan from July 1 to October 1. Interim updates on the Plan are required to be provided by October 1 of the third year of each administration. The measure also requires the Division of Energy of the Department of Mines, Minerals and Energy, in Plan updates starting in 2014, to set forth energy policy positions relevant to any potential regulations of the State Air Pollution Control Board to reduce carbon dioxide emissions from fossil fuel-fired electric generating units under Section 111(d) of the Clean Air Act. The Division is required to address policy
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the FEE SIMPLE options for establishing separate standards of performance for carbon dioxide emissions from existing fossil fuel-fired electric generating units to promote the Plan’s overall goal of fuel diversity. The Plan is also required to (i) examine policy options for state regulatory action to adopt less stringent standards or longer compliance schedules than those provided for in applicable federal rules or guidelines and (ii) identify options, to the maximum extent permissible, for any federally required regulation of carbon dioxide emissions from existing fossil fuel-fired electric generating units. This bill is identical to House Bill 1261. Patron - Charles W. Carrico, Sr. SJR 3 - Study; recurrent flooding; report. Establishes an 11-member joint subcommittee to formulate recommendations for the development of a comprehensive and coordinated planning effort to address recurrent flooding. The joint subcommittee is charged with recommending short- and long-term strategies for minimizing the impact of recurrent flooding. The joint subcommittee must submit its report to the Governor and the 2016 Regular Session of the General Assembly. This bill incorporates Senate Joint Resolution 34 and is identical to House Joint Resolution 16. Patron - Mamie E. Locke. SJR 35 - Study; toxicity of selenium; report. Requests the Department of Environmental Quality to study the toxicity of selenium to aquatic life. This bill is identical to House Joint Resolution 57. Patron - Charles W. Carrico, Sr. SJR 75 - Study; Manufacturing Development Commission; report. Directs the Manufacturing Development Commission to examine the economic and environmental benefits of the use of recycled material in the manufacturing process in Virginia. This resolution is identical to House Joint Resolution 28. Patron - Frank W. Wagner. SJR 76 - Virginia Women’s Monument Commission; membership. Increases the membership of the commemorative commission to honor the contributions of the women of Virginia with a monument on the grounds of Capitol Square by adding one member, the immediate past Secretary of Administration. Patron - Ryan T. McDougle. SJR 180 - Designating Historic Smithfield Plantation in Blacksburg as “a Family Homestead of Virginia Governors.” Patron - John S. Edwards. CONTRACTS HB 24 - Contracts; recording requirements. Deletes a reference to a subsection of the Code that was repealed in 2000 by House Bill 1204, which updated Article 9 (Secured Transactions) of the Uniform Commercial Code. There is no corresponding subsection in Article 9A, which replaced Article 9. The bill is a recommendation of the Code Commission. Patron – Gregory D. Habeeb. HB 948 - Virginia Public Procurement Act; competitive negotiation; limitation of certain term contracts; exception. Provides that limitations imposed upon single project fees procured by competitive negotiation shall not apply to environmental, location, design, and inspection work regarding highways and bridges by the Commissioner of Highways or architectural and engineering services for rail and public transportation projects by the Director of the Department of Rail and Public Transportation. This bill is identical to Senate Bill 461. Patron – Eileen Filler-Corn. SB 461 - Virginia Public Procurement Act; competitive negotiation; limitation of certain term contracts; exception. Provides that limitations imposed upon single project fees procured by competitive negotiation shall not apply to environmental, location, design, and inspection work regarding highways and bridges by the Commissioner of Highways, or architectural and engineering services for rail and public transportation projects by the Director of the Department of Rail and Public Transportation. This bill is identical to House Bill 948. Patron – Jill Holtzman Vogel.
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DEEDS AND DEEDS OF TRUST HB 607 - Clerk; recordation; marginal release. Removes the requirements that the clerk of the circuit court make recordings in the margins of pages in record books to accommodate the use of electronic filing databases by circuit court clerks. Patron – Roxann L. Robinson. HB 763 - Recorded writings; deeds; cover sheets; indexes. Permits, but does not require, the use of a cover sheet in the presentation of instruments for recordation in jurisdictions that do not currently mandate the use of cover sheets. The bill provides for specific requirements for cover sheets used in the filing of deeds and other instruments relating to real property and provides that the cover sheets shall be developed in conjunction with the Office of the Executive Secretary of the Supreme Court. The bill changes the statutory form of deeds, deeds of trust, and credit line deeds of trust. The bill removes the requirement that a deed of trust trustee’s office be located within the Commonwealth. The bill expressly permits limited liability companies, partnerships, and other entities to act as trustees of a deed of trust. Under current law, only individuals and corporations may act as deed of trust trustees. The bill substitutes the term “beneficiary” for “noteholder,” thereby including other types of secured parties. The bill also defines “prior mortgage” and redefines “refinance mortgage” to clarify the priority of mortgages. The bill contains a partial delayed effective date of January 1, 2015, as to provisions governing cover sheets in Title 17.1. Patron – J. Randall Minchew. SB 116 - Correcting errors in deeds, deeds of trust, and mortgages; affidavit. Allows an attorney to record a corrective affidavit to correct an obvious description error contained in a recorded deed, deed of trust, or mortgage. Obvious description errors include (i) errors transcribing courses and distances, (ii) errors incorporating a recorded plat or deed reference, (iii) errors in listing a lot number or designation, and (iv) omitted exhibits that supply the legal description of the property. Before a corrective affidavit may be recorded, all parties to the deed, deed of trust, or mortgage, including the current property owner, the attorney who prepared the deed, deed of trust, or mortgage, and the title insurance company, must be provided with a copy of the affidavit, and such parties have 30 days to object in writing to the recordation of the corrective affidavit. Patron – John C. Watkins. HOUSING AND DEVELOPMENT HB 296 - Comprehensive plans; alignment of transportation services with accessible housing and other community services. Requires localities to take into consideration how to align transportation infrastructure and facilities with affordable, accessible housing and community services when developing the transportation component of the comprehensive plan for the physical development of the territory. The bill as introduced was a recommendation of the Virginia Disability Commission and is identical to Senate Bill 58. Patron – Ronald A. Villanueva. HB 331 - First-time home buyer savings plans. Establishes first-time home buyer savings accounts that are to be used for saving funds for the purchase of homes by first-time home buyers. Moneys in the account are required to be used solely for the down payment and closing costs for the purchase of a home by a first-time home buyer. The bill establishes an individual income tax subtraction for income earned on contributions to the account. However, if moneys are withdrawn from the account for purposes other than to pay eligible costs, any income previously subtracted would be subject to recapture by the Commonwealth and a five percent penalty would be imposed. There would be no recapture and addition to taxable income if the amounts withdrawn were (i) withdrawn because of the death or disability of the account beneficiary, (ii) a disbursement of assets pursuant to a filing for protection under federal bankruptcy laws, or (iii) transferred to another first-time home buyer savings account. The bill limits the amount of principal that can be contributed to any account to $50,000 and limits the total amount that can be retained in an account at any time to $150,000. Persons would be allowed to contribute only cash or marketable securities to a first-time home buyer savings account. This bill as introduced was a recommendation of the Virginia Housing Commission. Patron – Thomas A. “Tag” Greason.
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HB 990 - Scope of Relocation Assistance and Real Property Acquisition Policies; replacement housing for homeowners and tenants. Provides that relocation assistance and real property acquisition policies of the Commonwealth apply in the case of transportation projects funded in whole or in part with state or federal funds unless compliance would jeopardize the receipt and expenditure of all or a portion of federal funds that would otherwise be available for transportation projects. The bill also raises the authorized payment to a displaced homeowner from $22,500 to $31,000 and reduces from 180 to 90 the number of days that may pass between displacement and negotiations for the acquisition of property before such payment is authorized. The bill also increases from $5,250 to $7,200 the maximum payment permitted to a person leasing or renting a comparable replacement dwelling for a period of 42 months. The provisions of the bill relating to such payments and time period have a delayed effective date of October 1, 2014. Patron – Hyland F. “Buddy” Fowler. SB 58 - Comprehensive plans; alignment of transportation services with accessible housing and other community services. Requires localities to take into consideration how to align transportation infrastructure and facilities with affordable, accessible housing and community services when developing the transportation component of the comprehensive plan for the physical development of the territory. The bill as introduced was a recommendation of the Virginia Disability Commission and is identical to House Bill 296. Patron – David W. Marsden. SB 356 - Titling manufactured homes. Revises requirements and procedures for titling manufactured homes. Patron – John A. Cosgrove. INSURANCE SB 74 - Real estate loans; flood insurance. Prohibits a lender from requiring a borrower to provide flood insurance coverage against risks to improvements on real property securing its loan in an amount that exceeds the replacement value of the improvements. Patron – Phillip P. Puckett. LANDLORD TENANT HB 273 - Virginia Residential Landlord and Tenant Act; applicability; security deposits. Changes the applicability of the Virginia Residential Landlord Tenant Act from the ownership of no more than 10 single-family residences to ownership of no more than two single-family residences and makes the application uniform across the state. The bill also authorizes a landlord to expedite the disposition of security deposits under certain circumstances and sets the interest rate (0.00%) on security deposits for 2014. The bill repeals the requirement for a landlord to accrue interest on security deposits, effective January 1, 2015. Patron – G. Manoli Loupassi. HB 614 - Landlord and tenant law; energy submetering; local government fees. Provides that in lieu of increasing the rent, the owner, manager, or operator of a commercial or residential building or campground may employ a program that utilizes a mathematical formula for allocating the actual or anticipated local government fees billed to the building or campground owner among the tenants in such building or campground if clearly stated in the rental agreement or lease. Such owner, manager, or operator of a commercial or residential building or campground may also charge and collect from each tenant additional service charges, including monthly billing fees, account set-up fees, or account move- out fees, to cover the actual costs of administrative expenses for administration of such a program. If the building is residential and is subject to the Virginia Residential Landlord and Tenant Act, such local government fees and administrative expenses shall be deemed to be rent. The bill defines the term “local government fees” as any local government charges or fees assessed against a commercial or residential building or campground, including stormwater, recycling, trash collection, elevator testing, fire or life safety testing, or residential rental inspection programs. Patron – Jackson H. Miller. HB 638 - Virginia Residential Landlord and Tenant Act; tenant’s noncompliance; death of tenant. Provides that the Virginia Residential Landlord and Tenant Act may also be cited as the “Virginia Rental Housing Act.” The bill also allows a landlord, regardless of whether or not a lawsuit is filed or an order
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the FEE SIMPLE obtained from a court, to recover the following if the rental agreement so provides: (i) rent due and owing as contracted for in the rental agreement, (ii) other charges and fees as contracted for in the rental agreement, (iii) late charges contracted for in the rental agreement, (iv) reasonable attorney fees as contracted for in the rental agreement or as provided by law, (v) costs of the proceeding as contracted for in the rental agreement or as provided by law only if court action has been filed, and (vi) damages to the dwelling unit or premises as contracted in the rental agreement. The bill also requires, in an action for breach of the rental agreement or noncompliance by the tenant, the court to award a money judgment to the landlord if the landlord prevails and specifies what is to be awarded by the court, unless in any such action, the tenant proves by a preponderance of the evidence that the tenant’s failure to pay rent or vacate was reasonable. The bill also provides that in the event of the death of a tenant who is the sole occupant of the dwelling unit, the rental agreement is deemed to be terminated by the landlord as of the date of death and provides that the estate of the tenant remains liable for actual damages. Patron – Jackson H. Miller. SB 490 - Carbon monoxide alarms; required installation in rental dwelling units. Amends the Virginia Residential Landlord and Tenant Act to require a landlord to install carbon monoxide alarms upon the written request of a tenant. The bill also provides that the landlord may charge a reasonable fee for the installation of the alarms and that the installation must be in compliance with the Uniform Statewide Building Code. Patron – Thomas K. Norment, Jr. LAND RECORDS AND COURT RECORDS HB 952 - Protection of confidential information in court files. Provides that whenever a party in a civil action files a motion or other document with a court containing a social security number or other identification numbers on driver’s licenses, credit cards, debit cards, bank accounts, or other electronic billing and payment systems, such party shall make reasonable efforts to redact all but the last four digits of such number. The bill also provides that failure to redact such information does not create private cause of action against the party or lawyer who filed the document or any court personnel, clerk, or other employees who received the document for filing. As introduced, this bill was a recommendation of the Boyd-Graves Conference. Patron - Benjamin L. Cline. HB 1013 - Record retention in district courts. Permits the chief judge of a juvenile and domestic relations district court to direct the clerk of that court to destroy documents related to civil and criminal cases that have been ended for a period of three years, provided that the documents have been microfilmed or converted to an electronic format. Currently, only the chief judge of a general district court has such authority. Patron - Jeffrey L. Campbell. HB 1196 - Clerks offices; recordation; possession of child pornography; when security is required. Makes various changes to laws relating to clerks of court, including (i) providing that the orders making up each day’s proceedings that have been recorded in the order book shall be deemed the official records; (ii) providing that clerks may possess evidence of child pornography in the course of their duties; (iii) requiring clerks to receive and maintain control over evidence at the time it is admitted; (iv) allowing the secretary of a firefighting company to appoint a designee for the purpose of filing membership lists with the clerk; (v) removing the requirement in the Uniform Federal Lien Registration Act that a filing officer endorse on the notice of a federal lien the title and address of the official or entity certifying the lien; and (vi) providing that the clerk may make a motion to require a personal representative to furnish security. Patron - Benjamin L. Cline. SB 435 - Clerks; order books; remote access to court records; electronic filing; information technology fees; posting of certain information on the Internet. Provides that circuit court clerks may keep an automated system in lieu of order books and land books as well as allow remote access to such system with regard to nonconfidential court records. The bill permits circuit court clerks to keep court records at a designated location outside of the clerk’s office. The bill also exempts instruments and records that are more than 100 years old from the prohibition against the clerks’ posting personal information on the Internet. Patron - Ryan T. McDougle.
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MECHANICS’ AND OTHER LIENS HB 768 - Enforcement of liens; mechanics liens; property value. Increases from $7,500 to $10,000 the maximum value of property that may be sold for cash at auction to satisfy a lien of an innkeeper, etc., keeper of a livery stable, marina, etc., mechanic, garage keeper, or bailee without petitioning for a court order for the sale of such property. Patron - Timothy D. Hugo. MISCELLANEOUS HB 652 - Boundary adjustments; notice. Provides that all affected landowners shall be given notice of a proposed voluntary boundary adjustment. The bill authorizes landowners to file a petition to intervene in the action under certain circumstances. Patron - David A. LaRock. HB 663 - Technical correction; judicial sale of real estate. Removes obsolete language that referred to the judicial sale of abandoned real estate. The term “abandoned” is no longer used to describe any class of real estate in Title 58.1. Patron - Robert H. Brink. HB 790 - Department of General Services; inventory of all real property owned by the Commonwealth. Requires the Department of General Services to provide a listing of certain real property owned by the Commonwealth on the Department’s website. The bill requires that the description of such property include parcel identification consistent with national spatial data standards in addition to a street address as available and reported to the Department. Patron - James M. LeMunyon. HB 837 - Virginia Freedom of Information Act (FOIA); state agencies to post notice of allowable charges for producing records. Requires state agencies in the executive branch to post on their respective public government websites the following statement: “A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of § 2.2-3704 of the Code of Virginia.” Patron - Mark L. Keam. HB 1067 - Animal shelters; definitions. Substitutes the terms “private animal shelter” for “animal shelter” and “public animal shelter” for “pound.” The bill also amends the definitions of “foster care provider,” “foster home,” and “home-based rescue.” Patron - Robert D. Orrock, Sr. SB 5 - Right to Farm Act; restoration of provisions. Restores application of certain provisions of the Right to Farm Act to cities and towns that currently only apply to counties. The proposed amendments were enacted in 2007 (Chapter 444 of the Acts of Assembly of 2007) but were omitted a year later in the 2008 revision of Title 3.1, Agriculture, Horticulture and Food. This bill is a recommendation of the Code Commission. Patron – John S. Edwards. SB 177 - Definition of “service dog.” Expands the definition of “service dog” to include dogs trained to assist persons suffering from a physical, sensory, intellectual, developmental, or mental disability or mental illness. The current definition is limited to dogs assisting a mobility-impaired person. The definition affects the rights of persons with disabilities who use trained service dogs with regard to dog license taxes, public accommodations, and housing. The bill contains technical amendments. Patron – Bryce E. Reeves.
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NOTARIES HB 492 - Notaries; advertising; notice requirement. Prohibits a notary public from offering or providing legal advice to any person in immigration or other legal matters or representing any person in immigration proceedings unless such notary public is an attorney or a federally accredited representative. The bill requires notaries engaged in non-English advertising to include in such advertising, as well as post within their place of business, a statement that the notary is not licensed to practice law and has no authority to give advice on immigration or other legal matters. The bill also provides for civil penalties and revocation of the notary commission for failing to include the required statements and postings. Patron – David B. Albo. SB 378 - Notary public; application for recommission. Allows persons already commissioned as notaries public or electronic notaries public to submit applications for recommission to the Secretary of the Commonwealth in person, by first-class mail, or online, provided that online applications are accompanied by an electronic signature authorized by the Uniform Electronic Transactions Act. Under current law, the Secretary of the Commonwealth is allowed but not required to accept online applications containing electronic signatures. Patron – Bryce E. Reeves. SB 503 - Notaries; providing advice on immigration; advertising. Prohibits a notary public from offering or providing legal advice to any person in immigration or other legal matters or representing any person in immigration proceedings unless such notary public is an attorney or a federally accredited representative. The bill also restricts misleading notary advertising in languages other than English. The bill also provides for civil penalties and revocation of the notary commission for such unauthorized advertising. Patron – Adam P. Ebbin. PROFESSIONS AND OCCUPATIONS HB 184 - Auctioneers; exemption from licensure. Requires an organization to be a charitable organization granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code in order to be exempt from licensure as an auctioneer or auction firm for sales, not exceeding one sale per year, by or on behalf of the organization. The current exemption does not specify that the organization be charitable and granted tax-exempt status. This bill is identical to Senate Bill 202. Patron Barry D. Knight. HB 251 - Real Estate Board; death or disability of a broker. Requires the Real Estate Board to grant approval to certain persons in a specific order of priority as may be designated by a broker in the event of his disability or death to conclude the business of the broker. Under current law, the Board may grant approval to the estate or an adult family member or employee of the licensed broker. The bill also requires the Real Estate Board to inform licensed brokers, in a manner deemed appropriate by the Board, of the broker’s ability to designate an agent in the event of the broker’s death or disability. This bill is a recommendation of the Virginia Housing Commission. The bill is identical to Senate Bill 438. Patron - Scott A. Surovell. HB 259 - Allegations of untrue, deceptive, or misleading advertising; real estate licensees. Provides that an allegation that a real estate licensee has engaged in untrue, deceptive, or misleading advertising shall be stated with particularity. This bill is identical to Senate Bill 302. Patron - Jackson H. Miller. HB 712 - Department of Treasury; Risk Management Division; liability coverage for certain pro bono attorneys. Provides for inclusion under the state’s risk management plan of attorneys providing pro bono legal services under a Virginia State Bar approved program. The bill requires the Virginia State Bar to pay the cost of coverage for eligible attorneys. This bill is identical to Senate Bill 486. Patron - G. Manoli Loupassi. HB 762 - Regulation of appraisal management companies. Provides the Real Estate Appraiser Board with the power to do all things necessary to effectuate the provisions of Chapter 20.2 of Title 54.1 (Real Estate Appraisal Management Companies) and requires persons or entities engaged in business as an appraisal management company to obtain a license from the Real Estate Appraiser Board. The bill also
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the FEE SIMPLE increases the required bond amount for each applicant for licensure from $25,000 to $100,000. Patron - J. Randall Minchew. HB 897 - Private security services businesses; exception for certified public accountants. Provides that a certified public accountant (CPA) authorized to practice in the Commonwealth and his employees are excepted from the licensing, certification, and training requirements for private security services businesses. Currently, CPAs who are licensed to practice in the Commonwealth are excepted from these requirements, but other CPAs who are authorized to practice in the Commonwealth, i.e., out-of-state license holders, are not. Patron - Christopher K. Peace. HB 907 – Board of Accountancy; licensing requirements. Requires certified public accounting firms to participate in the Facilitated State Board Access process established by the American Institute of Certified Public Accountants for peer review. This bill is identical to Senate Bill 564. Patron - Barry D. Knight. HB 1008 - Voluntary apprenticeships. Conforms provisions of Virginia’s voluntary apprenticeship program to federal law in order to ensure the Department of Labor and Industry’s continued recognition as a State Apprenticeship Agency. Changes include transferring to the Commissioner of Labor and Industry powers that currently may be exercised by the Apprenticeship Council, amending references to the Apprenticeship Council to refer to the Commissioner of Labor and Industry, and removing the exemption for apprentices currently in the Virginia Minimum Wage Act. Patron - Kathy J. Byron. HB 1045 - Board for Contractors; additional monetary penalty for certain violations. Provides that if the Board for Contractors finds any licensed contractor to be in violation of a statute or regulation involving fraudulent or improper or dishonest conduct as defined in § 54.1-1118, which violation occurred while engaged in a transaction arising from a declared state of emergency as defined in § 44- 146.16, the Board shall impose a monetary penalty of up to $10,000 for each such violation. The bill provides that the penalty imposed shall be in addition to that provided in § 54.1-202. Patron – Christopher K. Peace. HB 1247 - Professions and occupations; expedited review; applications of spouses of military service members. Reduces from 30 to 20 days the allowable application review period after which a regulatory board within the Department of Professional and Occupational Regulation or the Department of Health Professions or any other board named in Title 54.1 will be required to issue a temporary license to certain military spouses while the board completes its review. The bill amends a provision that is scheduled to become effective on July 1, 2014. Patron – Eileen Filler-Corn. SB 7 - Virginia State Bar; Clients’ Protection Fund; sunset. Extends the sunset provision on the Supreme Court’s authority to adopt rules assessing members of the Virginia State Bar an annual fee of up to $25 to be deposited in the Clients’ Protection Fund from July 1, 2015, to July 1, 2020. Patron – Richard H. Stuart. SB 202 - Auctioneers; exemption from licensure. Requires an organization to be a charitable organization granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code in order to be exempt from licensure as an auctioneer or auction firm for sales, not exceeding one sale per year, by or on behalf of the organization. The current exemption does not specify that the organization be charitable and granted tax-exempt status. This bill is identical to House Bill 184. Patron – Jeffrey L. McWaters. SB 299 - Virginia Board for Asbestos, Lead, and Home Inspectors; asbestos contractors; notice to asbestos workers. Requires employers to provide each licensed asbestos worker with a written notice containing the following information: (i) a statement that the worker has the right to work in a safe environment, (ii) a summary of basic safety rules for handling asbestos, and (iii) information on how to file a complaint with the Board for Asbestos, Lead, and Home Inspectors. In addition, the bill empowers the Board to summarily suspend the license of an asbestos contractor if the Board finds that the asbestos contractor’s conduct poses a substantial danger to the public health or safety and authorizes the Board to suspend, revoke, or deny renewal of an existing license of any asbestos contractor who is shown to have a
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the FEE SIMPLE substantial identity of interest with an asbestos contractor whose license has been revoked or not renewed. Patron – Adam P. Ebbin. SB 302 - Allegations of untrue, deceptive, or misleading advertising; real estate licensees. Provides that an allegation that a real estate licensee has engaged in untrue, deceptive, or misleading advertising shall be stated with particularity. This bill is identical to House Bill 259. Patron – Ryan T. McDougle. SB 438 - Real Estate Board; death or disability of a broker. Requires the Real Estate Board to grant approval to certain persons in a specific order of priority as may be designated by a broker in the event of his disability or death to conclude the business of the broker. Under current law, the Board may grant approval to the estate or an adult family member or employee of the licensed broker. The bill also requires the Real Estate Board to inform licensed brokers, in a manner deemed appropriate by the Board, of the broker’s ability to designate an agent in the event of the broker’s death or disability. The bill is a recommendation of the Virginia Housing Commission. This bill is identical to House Bill 251. Patron - George L. Barker. SB 486 - Department of Treasury; Risk Management Division; liability coverage for certain pro bono attorneys. Provides for inclusion under the state’s risk management plan of attorneys providing pro bono legal services under a Virginia State Bar approved program. The bill requires the Virginia State Bar to pay the cost of coverage for eligible attorneys. This bill is identical to House Bill 712. Patron - Thomas K. Norment, Jr. SB 564 - Board of Accountancy; licensing requirements. Requires certified public accounting firms to participate in the Facilitated State Board Access process established by the American Institute of Certified Public Accountants for peer review. This bill is identical to House Bill 907. Patron - Walter A. Stosch. SB 657 - Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals; onsite sewage installers and operators. Directs the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals to extend one time and deem to be valid interim licenses as an alternative onsite sewage system installer held by an individual at such time as the individual applies to take the examination required for issuance of an alternative onsite sewage system installer license. A license extended in accordance with this act shall be valid until such time as the individual receives a passing score on the examination required for issuance of a license as an alternative onsite sewage system installer or for a period of six months, whichever occurs sooner. This bill contains an emergency clause. The Governor recommended amendments to the bill, some of which were adopted by the Senate and House of Delegates. Patron – Richard H. Black. REAL ESTATE SETTLEMENTS HB 799 - Virginia Residential Property Disclosure Act; change in circumstances. Removes from the requirement that, at or before settlement, the owner be required to disclose to the purchaser any material change in the disclosures made relative to the property the option that the owner may certify to the purchaser at settlement that the disclosures already made are substantially the same. Patron – Marcus B. Simon. TAXATION HB 46 - Constitutional amendment (voter referendum) and implementing legislation; property tax exemption for surviving spouses of soldiers killed in action. Provides for a referendum at the November 4, 2014, election to approve or reject an amendment to allow the General Assembly to exempt from taxation the real property of the surviving spouse of a soldier killed in action. The constitutional amendment provides that the surviving spouse must occupy the real property as his or her principal place of residence and any exemption ceases if the surviving spouse remarries. If the amendment is approved, the bill provides that beginning with tax year 2015 the exemption would apply to a dwelling with an assessed value in the most recently ended tax year that does not exceed the average assessed value for such year for dwellings in the locality that are zoned as single family residential. The
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the FEE SIMPLE exemption would apply for the dwelling and the land upon which it is situated, not exceeding one acre. Patron David I. Ramadan HB 149 - Real property tax; board of equalization. Provides that an alternate member be appointed to a board of equalization if a regular member applies to the board for relief. Patron - J. Randall Minchew. HB 156 - Real property tax exemption for religious bodies. Clarifies the meaning of real property used exclusively for religious worship for determining the real property tax exemption for religious bodies. This bill is identical to Senate Bill 175. Patron - J. Randall Minchew. HB 187 - Real and personal property tax exemption; aviation museum. Permits any locality to exempt any real or personal property the legal title to which is not held by a nonprofit entity but is subject to the sole use and occupancy of a nonprofit entity, as long as the nonprofit entity uses such property solely to (i) exhibit or display certain military aircraft to the general public or (ii) use such aircraft for educational purposes. The bill is identical to Senate Bill 508. Patron - Barry D. Knight. HB 499 - Real property tax; nonjudicial sale of certain delinquent property. Reduces the number of years of delinquency in payment of taxes from five years to three years before a locality may sell real property that (i) measures less than 4,000 square feet or (ii) is determined to be unsuitable for building. Patron - Joseph R. Yost. HB 525 - Real property tax; notice of assessment. Requires every notice of assessment to set forth (i) the new and prior two appraised values of land and appraised value of improvements, and the assessed values of such if different from the appraised values; (ii) the new tax rate and the rates for the prior two tax years; (iii) the total new tax levy and the tax levies for the prior two years; and (iv) the percentage changes in such levies. Under current law, such information is required for the current year and the prior year. The bill also requires the notice to inform each property owner of his right to review and make copies of records maintained by the local assessment office. Patron - Brenda L. Pogge. HB 1000 - Real property tax exemption; elderly and disabled. Provides that the real property tax exemption for the sole dwelling of the elderly and disabled includes dwellings held by certain trusts. The bill also provides that if a locality establishes income restrictions for the exemption, then the locality shall exclude (i) the income of relatives living in the dwelling providing caregiving services, whether or not they are compensated, and (ii) the income of non-relative caregivers living in the home, whether or not they are compensated. Patron - J. Randall Minchew. HB 1012 - City of Suffolk; ordinance providing that charges for water and sewer shall be a lien on real estate. Adds the City of Suffolk to the list of localities permitted to provide by ordinance that charges for water and sewer shall be a lien on the real estate served by such waterline or sewer. Patron - Lionell Spruill, Sr. HB 1239 - Real and personal property tax exemption; solar energy equipment, facilities, or devices. Exempts from real and personal property tax business-owned or business-operated solar energy equipment, facilities, or devices that collect, generate, transfer, or store thermal or electric energy. This bill is identical to Senate Bill 418. Patron - Timothy D. Hugo. HJR 8 - Constitutional amendment (second resolution); real property tax exemption for spouses of soldiers killed in action. Provides that the General Assembly may provide a real property tax exemption for the primary residence of surviving spouses of members of the military who are killed in action. Such tax exemption may not be claimed by a surviving spouse who has remarried. Patron - David I. Ramadan. SB 68 - Real estate with delinquent taxes. Changes, under certain circumstances, the criteria for transferring certain tax-delinquent real property to localities through a special commissioner in the Cities of Norfolk, Richmond, Hopewell, Newport News, Petersburg, and Hampton by reducing the percentage of taxes and liens from exceeding 35 percent to 20 percent and of taxes alone from 15 percent to 10 percent, respectively, and including parcels with an assessed value of $100,000 or less. The reduced criteria apply
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the FEE SIMPLE only if the dwelling is not occupied and the locality enters into an agreement to sell the property to a nonprofit entity to renovate or construct housing to be sold to a low-income person. Patron - Henry L. Marsh, III. SB 175 - Home-produced or farm-produced products. Allows the sale of food products made from any fruit, grain, herbs, honey, meat, milk, mushrooms, nuts, poultry, seafood, or vegetables by a farm operation employing 10 or fewer people or by a private home, so long as (i) the sale is made directly to consumers and (ii) the product is labeled with the producer’s name and address, the product’s ingredients, and a disclosure statement indicating the product is not subject to Virginia’s food safety laws or regulations. This bill is identical to House Bill 156. Patron - Richard H. Black (by request). SB 418 - Certified pollution control equipment and facilities; solar equipment. Exempts from real and personal property tax business-owned or business-operated solar energy equipment, facilities, or devices that collect, generate, transfer, or store thermal or electric energy. This bill incorporates Senate Bill 512 and is identical to House Bill 1239. Patron - Emmett W. Hanger, Jr. SB 480 - Real property tax; notice of assessment. Requires every notice of assessment to set forth (i) the new and prior two appraised values of land and appraised value of improvements, and the assessed values of such if different from the appraised values; (ii) the new tax rate and the rates for the prior two tax years; (iii) the total new tax levy and the tax levies for the prior two years; and (iv) the percentage changes in such levies. Under current law, such information is required for the current year and the prior year. The bill also requires the notice to inform each property owner of his right to review and make copies of records maintained by the local assessment office. Patron - Thomas K. Norment, Jr. SB 508 - Real and personal property tax exemption; aviation museum. Permits any locality to exempt any real or personal property the legal title to which is not held by a nonprofit entity but is subject to the sole use and occupancy of a nonprofit entity, as long as the nonprofit entity uses such property solely to (i) exhibit or display certain military aircraft to the general public or (ii) use such aircraft for educational purposes. The bill is identical to House Bill 187. Patron – Frank W. Wagner. TRUSTS AND ESTATES HB 413 - Filing of evaluation reports for incapacitated persons; requirement for filing under seal. Requires that medical evaluation reports filed in guardian or conservator proceedings before the circuit court be filed under seal. The bill also requires that a copy of the report be provided to the guardian ad litem, the respondent, and all adult individuals and entities whose names and post office addresses appear in the petition within a reasonable time prior to the hearing on the petition. Patron – Patrick A. Hope. HB 743 - Mental health; commitment proceedings. Requires the district court judge or special justice to file any order from a commitment hearing for involuntary admission or involuntary outpatient treatment or any certification of voluntary admission subsequent to a temporary detention order with the district court clerk for the county or city where the hearing took place as soon as practicable but no later than the close of business on the next business day following the completion of the hearing. The bill also amends guardianship provisions to require that a copy of the court’s findings that a person is incapacitated or has been restored to capacity or a copy of any order appointing a conservator or guardian shall be filed by the judge with the clerk of the circuit court for the county or city where the hearing took place as soon as practicable, but no later than the close of business on the next business day following the completion of the hearing. Current law does not specify in which county or city the copy shall be filed, nor does it provide a deadline. The bill also changes the deadline for a clerk to certify and forward to the Central Criminal Records Exchange a copy of any order adjudicating a person incapacitated, any order appointing a conservator or guardian, or any order of restoration of capacity to as soon as practicable, but no later than the close of business on the following day instead of the current requirement that a clerk perform these actions “forthwith.” This bill is identical to Senate Bill 576. Patron – Jennifer L. McClellan.
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SB 245 - Qualification of administrator in action for wrongful death or personal injury. Clarifies that the appointment of a fiduciary in a foreign jurisdiction shall not preclude the fiduciary from qualifying as an administrator of an estate for the purpose of bringing a wrongful death or personal injury cause of action. Additionally, the bill provides that a resident and nonresident may be appointed as coadministrators. As introduced, this bill was a recommendation of the Boyd-Graves Conference. Patron – A. Donald McEachin. SB 345 - Trust directors; defenses to liability. Clarifies that a trust director is liable for a breach of the trust director’s fiduciary duty to the same extent a trustee would be liable for a breach of his fiduciary duty and that a trust director is able to assert defenses to liability on the same basis as a trustee serving under the governing instrument. The bill also provides that a term of a trust relieving a trust director of liability for breach of trust is unenforceable to the extent that it (i) relieves the trust director of liability for a breach of trust that was committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries or (ii) was inserted as a result of abuse by the trust director. Patron – John S. Edwards. SB 346 - Increasing various allowances and other amounts related to wills, trusts, and fiduciaries. Increases the amounts of various allowances, threshold amounts, and other dollar-based provisions in Title 64.2 (Wills, Trusts, and Fiduciaries) to account for the effect of inflation. The bill also provides that a commissioner of accounts has the same authority to determine the amounts, recipients, and proportions of any gifts made from the estate of an incapacitated person for whom a conservator has been appointed, provided that the total gifts authorized shall not exceed $25,000 in a calendar year and the commissioner shall report to the circuit court his determination as to such gifts. Patron – John S. Edwards. SB 576 - Mental health; commitment proceedings. Requires the district court judge or special justice to file any order from a commitment hearing for involuntary admission or involuntary outpatient treatment or any certification of voluntary admission subsequent to a temporary detention order with the district court clerk for the county or city where the hearing took place as soon as practicable but no later than the close of business on the next business day following the completion of the hearing. The bill also amends guardianship provisions to require that a copy of the court’s findings that a person is incapacitated or has been restored to capacity or a copy of any order appointing a conservator or guardian shall be filed by the judge with the clerk of the circuit court for the county or city where the hearing took place as soon as practicable, but no later than the close of business on the next business day following the completion of the hearing. Current law does not specify in which county or city the copy shall be filed, nor does it provide a deadline. The bill also changes the deadline for a clerk to certify and forward to the Central Criminal Records Exchange a copy of any order adjudicating a person incapacitated, any order appointing a conservator or guardian, or any order of restoration of capacity to as soon as practicable, but no later than the close of business on the following day instead of the current requirement that a clerk perform these actions “forthwith.” This bill is identical to House Bill 743. Patron – A. Donald McEachin. SB 634 - Decanting statute; conditions for second trust. Makes a technical correction to § 64.2-778.1. This statute authorizes a trustee to appoint all or part of the principal or income of a trust into a second trust for the benefit of the beneficiaries of the original trust. Patron – John S. Edwards. WATER, SEWER AND STORMWATER HB 473 - Local utilities; City of Richmond. Provides that the City of Richmond may develop criteria for providing discounted water and sewer fees and charges for low-income, elderly, or disabled customers. The City may also develop criteria for financial assistance to customers for plumbing repairs and the replacement of water-inefficient appliances. Patron – Delores L. McQuinn. HB 1012 - City of Suffolk; ordinance providing that charges for water and sewer shall be a lien on real estate. Adds the City of Suffolk to the list of localities permitted to provide by ordinance that charges for water and sewer shall be a lien on the real estate served by such waterline or sewer. Patron – Lionell Spruill, Sr.
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HB 1173 - Stormwater management programs; optional for some localities. Requires the Department of Environmental Quality to establish a Virginia Stormwater Management Program (VSMP) for any locality that neither opts to establish its own program nor operates a municipal separate storm sewer system (MS4). The bill defers the VSMP requirement for six months for certain recent MS4 localities. The bill alters the permitting appeals process and allows for an agreement in lieu of a stormwater management plan, and it directs the State Water Control Board to adopt regulations relating to the issuance of permits for parcels in subdivisions, the registration of single-family residences, and the reciprocity given by Virginia for proprietary Best Management Practices established elsewhere. The bill exempts single-family residences from payment of the Department’s portion of the fee for the state general permit. Finally, the bill provides that the consolidation of state post-construction requirements into Virginia’s General Permit shall not modify the scope of enforcement of the federal Clean Water Act and exempts from most requirements of the Administrative Process Act those regulations of the State Water Control Board that will be necessary to implement the act. This bill incorporates House Bill 58, House Bill 649, and House Bill 261 and contains an emergency clause. This bill is identical to Senate Bill 423. Patron - M. Keith Hodges. HB 1177 - Safe drinking water; local private well testing requirements. Adds the County of Bedford to the list of localities the governing bodies of which may establish reasonable testing requirements to determine compliance with existing drinking water quality standards prior to the issuance of building permits. Patron - Terry L. Austin. HB 1217 - Chesapeake Bay Preservation Areas; documentation in lieu of proof of septic tank pump-out. Directs the State Water Control Board to adopt certain criteria for use by local governments in evaluating development in Chesapeake Bay Preservation Areas. The bill provides that any locality allowing owners of certain on-site sewage treatment systems to submit documentation in lieu of proof of septic tank pump-out shall require that such documentation be certified by a licensed or certified on-site sewage system operator or soil evaluator. Patron - Rick L. Morris. SB 10 - Discounted fees and charges for certain low-income and disabled customers; Town of Louisa. Permits the Town of Louisa by ordinance to develop criteria for providing discounted water and sewer fees and charges for low-income and disabled customers. Current law allows only a locality that owns a water and sewer system and has a population density of no more than 200 persons per square mile to develop such criteria. Patron - Thomas A. Garrett. SB 67 - Discounted fees and charges for certain customers; City of Richmond. Allows the City of Richmond to develop criteria for providing discounted water and sewer fees and charges for low-income, elderly, and disabled customers. Patron - Henry L. Marsh, III. SB 98 - Water and sewer system; City of Richmond. Provides that the City of Richmond may develop criteria for financial assistance to customers for plumbing repairs and the replacement of water-inefficient appliances. Patron - Henry L. Marsh, III. SB 290 - Real property lien; water and sewer charges. Adds Prince George and Smyth Counties to those localities in which charges for water and sewer constitute a lien against the real property. This bill incorporates Senate Bill 81. Patron – Charles W. Carrico, Sr. SB 423 - Stormwater management programs; optional for some localities. Requires the Department of Environmental Quality to establish a Virginia Stormwater Management Program (VSMP) for any locality that neither opts to establish its own program nor operates a municipal separate storm sewer system (MS4). The bill defers the VSMP requirement for six months for certain recent MS4 localities. The bill alters the permitting appeals process and allows for an agreement in lieu of a stormwater management plan, and it directs the State Water Control Board to adopt regulations relating to the issuance of permits for parcels in subdivisions, the registration of single-family residences, and the reciprocity given by Virginia for proprietary Best Management Practices established elsewhere. The bill exempts single-family residences from payment of the Department’s portion of the fee for the state
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the FEE SIMPLE general permit. Finally, the bill provides that the consolidation of state post-construction requirements into Virginia’s General Permit shall not modify the scope of enforcement of the federal Clean Water Act and exempts from most requirements of the Administrative Process Act those regulations of the State Water Control Board that will be necessary to implement the act. This bill incorporates Senate Bill 425 and Senate Bill 530 and contains an emergency clause. This bill is identical to House Bill 1173. Patron – Emmett W. Hanger, Jr. ZONING AND LAND USE HB 208 - Vested rights. Amends the existing vested rights statute by clarifying that structures that meet certain conditions shall be considered nonconforming. Additional changes make clear that a requirement under existing law to bring certain structures into compliance with the Uniform Statewide Building Code shall not affect the nonconforming status of those structures. Patron – Daniel W. Marshall, III. HB 209 - Preliminary subdivision plats. Provides that localities may mandate the submission of preliminary subdivision plats for tentative approval only for plats involving more than 50 lots. Patron – Daniel W. Marshall, III. HB 268 - Agricultural operations; local regulation of certain activities. Protects certain activities at agricultural operations from local regulation in the absence of substantial impacts on the public welfare and requires localities to take certain factors into account when regulating any of several activities: the conduct of agritourism activities, the sale of agricultural or silvicultural products or related items, the preparation or sale of foods that otherwise comply with state law, and other customary activities. Localities are prohibited from subjecting the listed activities to a special-use permit requirement in the absence of a substantial impact on health, safety, or public welfare and in most situations are prevented from stringently regulating the sound produced by the listed activities. The bill provides that its provisions shall not affect an entity licensed in accordance with the alcoholic beverage control laws, affect the provisions of the Right to Farm Act, alter the provisions of § 15.2-2288.3 (licensed farm wineries), or restrict the taxation authority of any locality. This bill is identical to Senate Bill 51. Patron - Robert D. Orrock, Sr. HB 296 - Comprehensive plans; alignment of transportation services with accessible housing and other community services. Requires localities to take into consideration how to align transportation infrastructure and facilities with affordable, accessible housing and community services when developing the transportation component of the comprehensive plan for the physical development of the territory. The bill as introduced was a recommendation of the Virginia Disability Commission and is identical to Senate Bill 58. Patron - Ronald A. Villanueva. HB 527 - Group homes; zoning. Provides that for purposes of zoning, a residential facility in which no more than eight individuals with mental illness, intellectual disability, or developmental disabilities reside, with one or more resident or nonresident staff persons, shall be considered residential occupancy by a single family. Currently, such facilities are required to have one or more resident counselors or other staff persons to qualify for this zoning designation. Patron – Brenda L. Pogge. HB 560 - Issuance of land use permits by Department of Transportation in connection with certain utility service. Exempts persons, including corporations, that provide utility service for their own agricultural or residential use from having to get land use permits from VDOT. Patron – C. Matthew Fariss. HB 652 - Boundary adjustments; notice. Provides that all affected landowners shall be given notice of a proposed voluntary boundary adjustment. The bill authorizes landowners to file a petition to intervene in the action under certain circumstances. Patron - David A. LaRock. HB 1084 – Damages, attorney fees, and costs for unconstitutional grant or denial by locality of certain permits and approvals. Provides that an applicant aggrieved by the grant or denial by a locality of any approval or permit, where such grant included, or denial was based upon an unconstitutional condition, shall be entitled to an award of compensatory damages and may be awarded reasonable
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the FEE SIMPLE attorney fees and costs. Provides that an applicant aggrieved by the grant or denial by a locality of any approval or permit, where such grant included, or denial was based upon, an unconstitutional condition, shall be entitled to an award of compensatory damages and may be awarded reasonable attorney fees and costs. The bill also creates a presumption that a condition proven to be unconstitutional was a factor in the grant or denial of the permit, and it provides that the applicant shall be entitled to an order remanding the matter to the locality with a direction to grant or issue such permits or approvals without the unconstitutional condition. Any action brought pursuant to this bill shall be filed within the applicable time period, as set forth in the Code, after the grant or denial of the application, and the provisions of this bill shall only apply to approvals or permits that are granted or denied on or after July 1, 2014. This bill is identical to Senate Bill 578. Patron – Rick L. Morris. HB 1089 - Zoning; agricultural products. Clarifies the definition of agricultural products. The bill has a delayed effective date of January 1, 2015. Patron – Rick L. Morris. HB 1209 - Family day homes. Clarifies that a local governing body may, after notice and a public hearing, either approve, subject to such conditions as agreed upon by the applicant and the locality, or deny a zoning permit application for a family day home serving six through 12 children. Patron – Luke E. Torian. HB 1210 - Community improvement district. Allows for the creation of a community improvement district in any locality by ordinance. The bill provides that the locality’s governing board will have all of the powers with respect to the district that it has with respect to a standard service district. The bill also requires that if the locality contracts for any government services on behalf of the district, it shall do so with a nonprofit corporation, a majority of whose board members own property in the district. Patron - Daun S. Hester. SB 51 – Agricultural operations; local regulation of certain activities. Protects certain activities at agricultural operations from local regulation in the absence of substantial impacts on the public welfare and requires localities to take certain factors into account when regulating any of several activities: the conduct of agritourism activities, the sale of agricultural or silvicultural products or related items, the preparation or sale of foods that otherwise comply with state law, and other customary activities. Localities are prohibited from subjecting the listed activities to a special-use permit requirement in the absence of a substantial impact on health, safety, or public welfare and in most situations are prevented from stringently regulating the sound produced by the listed activities. The bill provides that its provisions shall not affect an entity licensed in accordance with the alcoholic beverage control laws, affect the provisions of the Right to Farm Act, alter the provisions of § 15.2-2288.3 (licensed farm wineries), or restrict the taxation authority of any locality. This bill is identical to House Bill 268. Patron - Richard H. Stuart. SB 237 - Optional provisions in subdivision ordinances; sidewalk improvements. Adds to the list of optional provisions in local subdivision ordinances a provision allowing any town in the Northern Virginia Transportation District to require the dedication of land for sidewalk improvements where the property being developed is designated for such improvements on the locality’s pedestrian plan. Patron – J. Chapman Petersen. SB 241 - Transfer of development rights. Provides that a locality may require that development comply with any prior locality-adopted neighborhood design standards identified in the comprehensive plan for the receiving area in which the development shall occur. Patron – Richard H. Stuart. SB 430 - Alcoholic beverage control; limited brewery license created; local regulation of certain activities. Creates a new limited brewery license for breweries that manufacture no more than 15,000 barrels of beer per calendar year, are located on a farm in the Commonwealth, and use agricultural products that are grown on the farm in the manufacture of their beer. The bill limits local regulation of limited brewery licensees and specifically prohibits the imposition of minimum parking, road access, or road upgrade requirements on any licensed limited brewery. Patron – John C. Watkins.
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SB 578 - Damages, attorney fees, and costs for unconstitutional grant or denial by locality of certain permits and approvals. Provides that an applicant aggrieved by the grant or denial by a locality of any approval or permit, where such grant included, or denial was based upon, an unconstitutional condition, shall be entitled to an award of compensatory damages and may be awarded reasonable attorney fees and costs. The bill also creates a presumption that a condition proven to be unconstitutional was a factor in the grant or denial of the permit, and it provides that the applicant shall be entitled to an order remanding the matter to the locality with a direction to grant or issue such permits or approvals without the unconstitutional condition. Any action brought pursuant to this bill shall be filed within the applicable time period, as set forth in the Code, after the grant or denial of the application, and the provisions of this bill shall only apply to approvals or permits that are granted or denied on or after July 1, 2014. This bill is identical to House Bill 1084. Patron – Mark D. Obenshain. SB 593 - Urban county executive form of government; Loudoun County; disclosure in land use proceedings. Alters disclosure provisions for land use proceedings in counties with the urban county executive form of government (Fairfax County) and Loudoun County. A reference to “business or financial interest” is replaced by a reference to “employee-employer, agent-principal, or attorney-client” relationship. Patron – David W. Marsden.
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32nd ANNUAL REAL ESTATE SEMINAR: VIRGINIA’S REAL ESTATE CASE LAW UPDATE by Otto Konrad and Hazel Wong* I. VIRGINIA SUPREME COURT CASES 1. Martin v. City of Alexandria, 286 Va. 61 (June 6, 2013) Facts: The Garners, owners of residential property located at 122 Prince Street, in the City of Alexandria, applied for side- and rear-yard variances from the City zoning ordinance requiring two five- foot side yards and a 16-foot rear yard. The City zoning staff recommended denial of the Garners’ application based on its opinion that the strict application of the zoning ordinance would not result in undue hardship to the property. According to the zoning staff analysis, “[t]he lot is level and there is no condition of the lot which restricts the reasonable use or development of a new single-family dwelling.” Further, the zoning staff noted, “[t]he lot is a large buildable lot that can be developed without the need of a variance. The lot's characteristics are similar to other lots within this section of Prince Street.” In addition, the zoning staff noted that granting the variance would be detrimental to an adjoining property owner, Martin, because Martin “will now view 44.3 feet of building wall.” Martin and the Garners were parties to a separate dispute initiated by the Garners to determine title to an alley (the “Alley”) between the properties, which dispute was decided by the Supreme Court on the same date as this case. At the Garners’ request, the City deferred action on the Garner’s variance request due to the separate case regarding the Alley. A couple years later, the Garners renewed their variance application and the zoning staff again recommended denial because there was no justification for hardship, as a new house could be constructed on the property in compliance with the setbacks, and a house nearby was built on a similar size lot in compliance with the setback requirements. After a BZA hearing, the Garners withdrew their application in order to obtain a determination from the zoning administrator about whether they could use a portion of the Alley to calculate their east side yard. Eventually, to avoid litigation, the City agreed that the zoning staff would support the Garners’ application for a three-foot side-yard variance, to be measured without regard to the Garners’ claim of ownership of the Alley. The Garners again submitted a variance application. The Garners’ property, as part of the Old and Historic Alexandria District, is subject to the Historic District Ordinance, which requires the issuance of a certificate of appropriateness from the Old and Historic Alexandria District Board of Architectural Review (the “BAR”) for new construction. The design for the proposed home was approved by the BAR, which issued a certificate of appropriateness. Lower Court Proceedings: The BZA granted the Garners’ request for side- and rear-yard variances. Martin appealed the BZA’s decision to the Circuit Court of the City of Alexandria, Virginia, which affirmed it. Martin sought further review. Holding: The Virginia Supreme Court reversed the judgment of the lower court and entered final judgment for Martin. Discussion: The Alexandria, Virginia, City Charter (the “Charter”) governs appeals from the BZA. It provides that the circuit court “may reverse or modify the decision reviewed . . . when it is satisfied that the decision of the board is contrary to law or that its decision is arbitrary and constitutes an abuse of discretion.” Charter § 9.21. Applying this standard, which is also contained in the Virginia Code, the Court previously stated: A proceeding before the trial court under Code § 15.1-497 [the predecessor to § 15.1- 2313] is not a trial de novo. There is a presumption that the Board's decision was correct
* From the Thirty-Second Annual Real Estate Practice Seminar, co-sponsored by the Real Property Section and Virginia CLE. Presenter Otto Konrad gratefully acknowledges and expresses his appreciation to Hazel Wong of Kaufman & Canoles for her assistance in preparing this outline.
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and the burden is on the appellant to overcome this presumption. The court may not disturb the decision of a board of zoning appeals unless the board has applied erroneous principles of law or, where the board's discretion is involved, unless the evidence proves to the satisfaction of the court that the decision is plainly wrong and in violation of the purpose and intent of the zoning ordinance. The Garners pointed to an amendment to the Virginia Code and the Charter, which removed a requirement that the BZA find proof of a “hardship approaching confiscation” and replaced it with a requirement for a “clearly demonstrable hardship,” and argued that this relaxation of the standard allows the BZA to authorize variances in instances that were not previously authorized. The Court found that, notwithstanding the amendment, the BZA must apply the standards of the Charter. The BZA must find: (1) “the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of property,” or “the granting of such variance will alleviate a clearly demonstrable hardship, as distinguished from a special privilege or convenience”; (2) “all variances [are] in harmony with the intended spirit and purpose of the ordinance”; (3) “the strict application of the ordinance would produce an undue hardship”; (4) the “hardship is not shared generally by other properties in the same zone and the same vicinity”; and (5) “the condition or situation of the property . . . is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance.” Charter § 9.18(b). The Garners presented three primary justifications for the variances: (1) Condition of Lot Being Vacant In a District Where Most Surrounding Properties Are Already Developed. The Garners first argued that they faced a unique hardship because they sought to build a new home on a vacant lot subject to both the City zoning ordinance and the Historic District Ordinance, where most of the surrounding properties are already developed. The Court noted that granting a variance because a property owner is erecting a new structure would render the zoning ordinance meaningless. Therefore, the decision of the BZA could not be upheld on this ground. (2) Condition of Lot Being Shallow and Wide. The Garners next argued that a variance was justified because their lot is exceptionally wide and shallow as compared to other lots on the 100 block of Prince Street. City zoning staff reported that, “[o]n the 100 block of Prince Street, two-thirds of the lots are deeper than the [Garners'] property.” The Garners’ argument is thus that they face a hardship because, when compared with other properties on the block, their relatively more shallow lot makes it difficult to build a home that satisfies the rear-yard requirement. The Court determined that this argument, if accepted, would justify variances for the one-third of the properties that are even more shallow than the Garners' property (which properties still conform to the zoning ordinance), resulting in the ultimate nullification of the zoning ordinance requiring a rear yard, and a conflict with the intended spirit and purpose of the ordinance. Because the Charter prohibited the BZA from issuing a variance not “in harmony with the intended spirit and purpose of the ordinance,” the BZA's decision could not be upheld on this ground. (3) Condition of the Property as Being Subject to Historic District Ordinance. Next, the Garners argued that their property is “undevelopable” because alternative designs would not comply with both the Historic District Ordinance and the zoning ordinance. The Garners complained that their property was adjacent to one of the City’s only remaining examples of late-eighteenth-century rough-sawn wood used as siding, and that this circumstance imposed a unique burden on the Garners. The Court considered, as the Garners admitted during the BZA hearing, that the Garners had the option of submitting to the BAR a conforming design that would not require variances but they did not do so. Consequently, the Court determined it to be mere speculation that the BAR would not approve this design or any other design that conforms to the zoning ordinance. Thus, there was no factual support for the Garners' claim that the circumstance of their property’s location next to the historic structure made it uniquely more difficult for them to build a structure that both satisfied the BAR and conformed to the zoning regulations. Accordingly, the BZA's decision could not be upheld on this ground. Without support for that
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the FEE SIMPLE fundamental premise, the Garners' argument was instead simply that, because it is difficult to both satisfy the BAR and comply with the zoning regulations, any design that the BAR approved should be granted the necessary variances. But all properties in the Old and Historic District are subject to both the zoning regulations and the Historic District Ordinance. Under the Charter, the BZA may grant a variance only if it finds “that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance.” Charter § 9.18(b). The Court held that the City's zoning ordinance applied to new buildings such as the one belonging to the Garners. That the Garners’ lot was relatively more shallow than neighboring lots was not a basis for granting the variances, because one-third of the properties in the neighborhood were even more shallow. That the Garners’ property was subject to both the City's general zoning ordinance and its Historic District Ordinance was not a unique hardship justifying the variances, because this situation was shared by every other property holder in the same zone. As none of the conditions asserted by the owners to justify their application for a variance satisfied the requirements of the Charter, the BZA's decision was contrary to law. 2. Martin v. Garner, 286 Va. 76 (June 6, 2013) Facts: The Garners sought a declaration that the eastern boundary line of their property is the centerline of an abutting eight-foot-wide private alley extending approximately 90 feet due south from Prince Street. Approximately 44 feet of the alley runs between the Garners’ property, 122 Prince St., and the property owned by Martin, 118 Prince St. Both parcels were at one time jointly owned by Markell. Markell conveyed 122 Prince St. to Miller by deed describing the property as running “east on Prince Street sixteen feet more or less to an alley… with the right of way over said alley in common with others entitled thereto.” Markell later conveyed 118 Prince Street by deeds describing the property as running “west on Prince Street . . . to an alley eight (8) feet wide . . . with right of way over said alley in common with others entitled thereto.” Miller subsequently conveyed 122 Prince Street by deed in which the description of the property placed the eastern boundary line at the centerline of the alley. This description has been used in the subsequent deeds contained in the chain of title. Lower Court Proceedings: The Circuit Court of the City of Alexandria, Virginia, ruled that the Garners own in fee simple up to the centerline of the 44 foot, four 4 inches of the alley and that Martin owns in fee simple up to the centerline of the same alley. Additionally, the court dismissed Martin’s claim seeking a determination as to ownership of the remaining length of the alley, ruling there was no justiciable controversy as to the abutting owners. Martin appealed. Holding: The Virginia Supreme Court affirmed the lower court’s judgment. Discussion: The rule in Virginia is that a conveyance of land bounded by or along a way (alley) carries title to the center of the way, unless a contrary intent is shown. The deed to Miller granted an easement over the four feet retained by the grantor, but did not show an intention by the grantor to retain ownership of the entire alley. As no contrary intent was shown through the deeds, the Garners own in fee simple up to the centerline of the alley. Martin secondarily argued that the circuit court erred in ruling there was no justiciable controversy with regard to his claim of ownership of the remaining length of the alley. A circuit court has the power to issue declaratory judgments under Va. Code §§ 8.01-184 to 191. Virginia courts have interpreted these provisions to allow circuit courts to make binding adjudications of right in cases of actual controversy when there is antagonistic assertion and denial of right. Thus, there must be a controversy in which there are specific adverse claims. Additionally, a controversy is justiciable only if the claim is based upon present—rather than future or speculative—facts that are ripe for judicial treatment. As no one else had asserted an ownership interest in the alley, except for the portion abutting 112 Prince Street, there was no justiciable controversy.
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3. Glasser & Glasser v. Jack Bays, Inc., 285 Va. 358; 741 S.E.2d 599; 2013 Va. LEXIS 29 (February 28, 2013) Facts: Jacks Bays, a general contractor, recorded a mechanics’ lien against New Life Anointed Ministries International (“New Life”) in connection with the construction of a church for New Life. The construction agreement was documented in part by a proposal for the site-work portion of the project signed by New Life (the “Agreement”). The Agreement provided that New Life would pay Jack Bays $4,209,532 for the initial work. Subsequently, a new agreement (the “New Agreement”) was entered into, providing for a payment to Jack Bays in the amount of $12,016,000, inclusive of the payment under the Agreement. The New Agreement was supplemented by change orders increasing the cost of the project to $17,874,732 by December 2006. New Life obtained financing from various sources—initially from BB&T, and later from a collaboration of bondholders, Citizens Business Bank, Celtic Bank, and Glasser & Glasser. Citizens Business Bank, Celtic Bank, and Glasser & Glasser were all listed as lenders on a Deed of Trust for the second financing. Stewart Title was listed as trustee. Glasser & Glasser was also designated as trustee for “First Mortgage Bondholders, 2006 Series.” The Deed of Trust incorporated a Trust Indenture “for the benefit of certain Bondholders” (“the Bondholders”), identifying Glasser & Glasser as trustee and Reliance Trust Company as the trust company and disbursement agent. New Life exhausted its financing and, in April 2007, stopped making payments to Jack Bays. In September 2007, Jack Bays notified its subcontractors that, due to New Life’s inability to obtain additional financing, Jack Bays would immediately stop work until all payments were current. In order to wrap up and address safety issues, however, Jack Bays and the subcontractors continued to work at the site through most of October. Jack Bays asked the subcontractors to consider waiting until November to file mechanics’ liens, so that title could remain clear and as such enable New Life to find financing. In May 2008, Jack Bays terminated the New Agreement; in June and July all subcontractors filed complaints against the lenders and Stewart Title. The Prince William County Commissioner filed a report finding that the subcontractors had first priority, Jack Bays second, the lenders third. Citizens Business Bank, Celtic Bank and Glasser & Glasser filed exceptions to the Commissioner’s report, arguing that certain necessary parties were not joined in the suit; disputing the validity of some of the subcontractor’s claims; and asserting that Jack Bays and the subcontractors failed to mitigate damages during their October work. Lower Court Proceedings: The Circuit Court rejected the lenders’ arguments in their entirety and ordered that the property be sold at public auction, with the proceeds to be applied in satisfaction of the liens in the order of priority established by the Commissioner. Holding: The Virginia Supreme Court affirmed the judgment of the Circuit Court of Prince William County in part, reversed it in part, and remanded. Discussion: The Court agreed with the lenders that both trustees and trust beneficiaries to a Deed of Trust are necessary parties to a mechanics’ lien suit, given the beneficiary’s substantial interest in having an opportunity to challenge the validity of the mechanics’ lien or otherwise litigate the elements of the lien. In this case, however, the Court found that this purpose was satisfied by the Deed of Trust beneficiaries; accordingly, the Bondholders, as the beneficiaries of the Trust Indenture, were not necessary parties. The Court additionally declined to place the burden of discovering the identities of the bondholders on a claimant. The lenders contended the mechanics’ liens were not timely filed. The Court, however, noted that each contractor had ninety days from the end of the last month in which it performed labor or furnished material to file a lien, unless work on the property was incomplete or otherwise terminated (Va. Code § 43-4). The lenders argued that, although the church was incomplete when all liens were filed, Jack Bays terminated work on the church through its September notice to the subcontractors. The Court found that, because work on the site did not stop immediately on the date of Jack Bays’ notice to the subcontractors, the ninety-day period did not begin on that date; the Court thus affirmed the Circuit Court’s finding that the liens were filed timely.
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The lenders assigned error to the lower court’s finding regarding the 150-day rule (Va. Code § 43-4), which holds that a claim may not include sums for labor or materials furnished more than 150 days prior to the last day on which labor was performed or material furnished to the job preceding the filing of such memorandum. The Court looked at the Commissioner’s conclusions, as approved by the Circuit Court, and determined the conclusions are supported by credible evidence. The Court determined that whether Jack Bays offered sufficient proof to conform to the 150 day rule is a factual inquiry for the Commissioner to decide. Jack Bays sufficiently demonstrated to the Commissioner and the Circuit Court that the last day it performed labor or furnished material to the job was September 28, 2007, that date became the end point for purposes of the 150-day rule. The lenders further contended that Jack Bays’ lien was invalid because it included sums for work performed prior to the beginning of the 150-day period. The Commissioner determined that the sums were derived from Jack Bays’ reasonable estimation of the value added to the project within the billing period. This factual finding was not clearly wrong and was therefore upheld. Jack Bays sufficiently proved to both the Commissioner and the Circuit Court that it included sums for labor provided and material furnished only during the appropriate times. Accordingly, the Court held that Jack Bays properly perfected its lien. With respect to the lender’s claim that Jack Bays failed to mitigate, the Court similarly found that the circuit court relied on sufficient factual evidence of the steps Jack Bays took to mitigate the damages, such that the circuit court’s failure to rule that Jack Bays was required to mitigate was not clearly wrong. The Commissioner’s prioritization of the liens also was not clearly wrong, and was therefore upheld. In response to the lenders’ challenge of the sale of the entire land to satisfy the mechanics’ liens, the Commission did not rely on any evidence shown in the record. Code § 43-3 states that the sale of the property to satisfy a mechanics’ lien may only extend to “so much of the land therewith as shall be necessary for the convenient use and enjoyment thereof.” The Court found that sale of the property may or may not be proper, and held that the circuit court erred in approving the sale of the entire parcel of land to satisfy the contractor’s liens. 4. Nejati v. Stageberg, 2013 Va. LEXIS 101 (September 12, 2013) Facts: In 2005, Angstadt acquired property in the City of Fredericksburg. The tax map indicated that the property consisted of a single lot, although the Commissioner of Revenue’s records indicated that in 1942 it had been listed as two separate tax parcels. In 2008 Angstadt hired a surveyor to prepare a survey of the property. The survey drew boundary lines that corresponded to the boundaries of the two tax parcels shown on the Commissioner’s records from 1942. The larger lot depicted on the survey was designated 901 Hanover Street (the “Hanover Property”) and the smaller lot was designated 802/804 Littlepage Street (the “Littlepage Property”). Angstadt recorded the survey but did not submit it to the City for subdivision approval. He subsequently transferred the lots to his real estate company, Property By Us, LLC (“PBU”) by two separate deeds. PBU converted a duplex on the Littlepage Property into a two story apartment building and left the Hanover Property undeveloped. It then conveyed the Littlepage Property to the Nejatis by a deed that referenced and incorporated the 2008 survey. PBU separately conveyed the Hanover Property to Stageberg by a deed that also referenced and incorporated the 2008 survey. PBU then contracted to build a house for Stageberg on the Hanover Property. When it applied for a zoning variance, the zoning administrator concluded that a house could not be built on the Hanover Property because it had not been subdivided and therefore did not exist as a separate lot. Lower Court Proceedings: Stageberg filed a quiet title action against the Nejatis in the circuit court, alleging that the legal effect of the deeds from PBU and himself and to the Nejatis was to create a tenancy in common of the undivided parcel, without regard to the boundaries shown on the survey. Stageberg claimed that, until the City approved the survey, the boundaries set forth in the survey would be subject to change. Therefore, he argued, the deeds were not sufficiently definite to create estates in severalty, with the result that the parties own the whole property as tenants in common. The circuit court held that the claimed estates in severalty were impermissible because such a result would circumvent the subdivision
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the FEE SIMPLE requirements. It thus agreed with Stageberg and held that Stageberg and the Nejatis were tenants in common of the whole property. Holding: The Virginia Supreme Court reversed and remanded the judgment of the Circuit Court of the City of Fredericksburg. Discussion: While transfers of property in violation of the subdivision laws are not free of consequence (including significant limitations on the use of the property), compliance with those laws is not a prerequisite to the ability to convey title. Virginia case law has held that a tenancy in common may be created when a deed fails to specify the property conveyed by a sufficient description because the possession of the estate necessarily is in common until a legal partition is made. However, this rule does not apply in the instant case because both Stageberg and the Nejatis knew with certainty the property they purchased. The deed descriptions were sufficiently clear to create estates in severalty. There were well- defined boundary lines, precise square footage, and a metes and bounds description for each parcel. 5. Friends of the Rappahannock v. Caroline County, 2013 Va. LEXIS 101 (June 6, 2013) Facts: In 2011, the Carolina County Board of Supervisors (the “Board”) issued a special exception permit (the “Permit”) approving the use of land adjacent to the Rappahannock River for a sand and gravel mining operation by businesses collectively referred to herein as Black Marsh. The County zoning ordinance specifically permits such an operation, but requires the issuance of a permit. The Friends of the Rappahannock (“Friends”) challenged the permit, alleging that Black Marsh’s use of the river for product transport will interfere with and harm Friends’ interests in water quality protection, preservation of the river’s scenic beauty, and public education and advocacy efforts regarding land use and resource conversation. Several individual complainants joined the suit, including a holder of a leasehold interest and right of first refusal in adjacent property (used for hunting, fishing and river access) and various neighbors who alleged that the scenic beauty of the area will be harmed by the industrial use allowed by the Permit. Lower Court Proceedings: The Board filed a demurrer and Black Marsh filed a motion to dismiss. The Board and Black Marsh argued that Friends and the individual complainants lacked standing to bring the suit because (1) they failed to show they were aggrieved parties; (2) their alleged injuries were based on speculative grievances; (3) the facts as pled were insufficient as a matter of law to grant standing; and (4) they were seeking to vindicate interests shared by the entire public. Friends and the individual complainants argued that, under Va. Code §§ 8.01-184 and 15.2-2285(F), they need not show that they are “aggrieved,” but merely that they have a “justiciable interest.” The circuit court dismissed the complaint for failure to allege a sufficient basis to demonstrate standing, applying a two-step test to determine standing: first, the court must consider the complainants’ proximity to the objectionable use; second, the court must determine whether the challenged use will deny rights or impose burdens different from those suffered by the general public. The court held that the claims alleged were not supported by sufficient facts, and that the allegations were conclusory and did not show a loss of some personal or property right “different from that suffered by the public generally.” Holding: The Virginia Supreme Court affirmed the judgment of the Circuit Court of Caroline County. Discussion: On appeal, Friends argued that the circuit court erred in applying the “aggrieved person” standard rather than the “justiciable interest” test, for standing. The Court disagreed, stating that any distinction between an “aggrieved party” and a “justiciable interest” is a distinction without a difference in declaratory judgment actions challenging land use decisions. As the individual complainants did not allege that sand and gravel extraction caused or would cause the loss of some personal or property right belonging to them that was different from the right of the public in general, and did not allege any facts to indicate that the conditions imposed by the Permit would be inadequate to protect their property rights, they did not plead facts sufficient to claim particularized harms and thus did not establish their standing to challenge the Board’s decision.
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6. Norfolk 102, LLC v. City of Norfolk, 285 Va. 340; 738 S.E.2d 895; 2013 Va. LEXIS 31 (February 28, 2013) Facts: Bar Norfolk and Have a Nice Day Café (collectively, the “Businesses”) opened in March 1999 as “Entertainment Establishments” under the City’s then-enacted zoning ordinance, which allowed eating establishments as a permitted use in the relevant zoning district, but required a special use permit for Entertainment Establishments serving alcoholic beverages. Each received a document signed by the zoning administrator titled “Cash Receipt” and bearing the inscriptions “Zoning Clearance Certificate” and “Zoning Clearance for Business License” as an “Eating Place.” Both of the Businesses obtained ABC licenses and sold alcoholic beverages for on-premises consumption. In May 1999, the City Council enacted a zoning ordinance (the “1999 Ordinance”) granting a blanket special exception for Entertainment Establishments with alcoholic beverages. However, the Businesses drew the attention of the City for multiple violations of state and local requirements, and were each cited for violations of their respective ABC licenses. In 2009, the City decided to seek repeal of the blanket special exception granted in the 1999 Ordinance and to instead require each ABC-licensed business located in the zoning district to obtain an individual special use exception; it notified both of the Businesses of such intention. The Businesses each submitted an application for an “Adult Use Special Exception.” The City planning commission recommended approval of the applications, but the City manager subsequently recommended that the City Council deny the applications based on the numerous violations. In its August 2009 meeting, the City Council considered the special exception applications, as well as Item R-19A, an ordinance to revoke the blanket special exception granted in the 1999 Ordinance. Consideration of the applications was scheduled on the published agenda, but Item R-19A was not. Due to the planning commission’s recommendation for approval, the Businesses were unprepared for the City Council meeting, and requested a delay “as a matter of fairness.” Their counsel also argued that the City Council could not consider item R-19A because it was not on the agenda. The City Council rejected both applications and enacted an ordinance revoking the blanket special use exception (the “2009 Ordinance”). Both Businesses opened the next day as usual. Lower Court Proceedings: In response to the Businesses operating in violation of the new 2009 Ordinance, the City filed a complaint in the circuit court requesting that the Businesses be permanently enjoined from selling or serving alcohol or providing entertainment in their businesses. The Businesses filed an answer and counterclaim as well as a separate complaint and petition for appeal against the City Council pursuant to Va. Code § 15.2-2285(F). They asserted that the City Council violated the Businesses’ due process rights by failing to give proper notice prior to revoking the blanket special exception; that the City Council’s revocation of the 1999 Ordinance and denial of the Businesses’ special exception applications were arbitrary and capricious, contrary to law and fact, and invalid; and that, because they opened their establishments before the enactment of the 1999 Ordinance, the Businesses’ had vested rights under Va. Code § 15.2-2307 that were unaffected by the revocation of the special exception contained in the 1999 Ordinance. The circuit court denied the relief requested by the Businesses. Regarding the Businesses claim to vested rights, the circuit court found that, pursuant to the ordinance in effect at the time the Businesses opened, the operation of an “Entertainment Establishment” required a special exception, and held that neither Business had a special exception when they opened. The circuit court further found that neither the zoning administrator nor any other City official had made a “specific pronouncement” regarding the Businesses’ land use that would create “an entitlement” under Va. Code § 15.2-2311(C). Various City officials’ acquiescence to the Businesses’ provision of alcoholic beverages for on-premises consumption did not satisfy the requirements of the statute. Holding: The Virginia Supreme Court affirmed the judgments of the Circuit Court of the City of Norfolk. Discussion: The Businesses had the burden of establishing the vesting of a right to a specific use of the properties. They did not meet this burden because they could not claim vested rights to a land use that
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the FEE SIMPLE was impermissible under the applicable zoning ordinance when they opened for business. The “Cash Receipt” was not a specific determination by any City official that either of these businesses could use their respective premises in a manner not otherwise allowed under the applicable zoning ordinance. Finally, the Court determined that each Business was notified of the City Council’s intention to review their applications two weeks in advance of the date of the City Council meeting. The Businesses’ counsel, employees and representatives were present at the meeting, and some addressed not only the special exception applications but also the proposed ordinance to revoke the 1999 Ordinance. Both Businesses had actual notice and actively participated in the City Council meeting, thus waiving any challenge to the amount of notice based on Va. Code § 15.2-2204(B). 7. Small v. Federal National Mortgage Association, 2013 Va. LEXIS 102 (September 12, 2013) Facts: Jeffrey S. Small (“Small”), in his official capacity as clerk of the Circuit Court of the City of Fredericksburg, filed a putative class action in the United States District Court for the Eastern District of Virginia against the Federal National Mortgage Association (“Fannie Mae”), and the Federal Home Loan Mortgage Corporation (“Freddie Mac”). Purporting to represent the class of all clerks of court in Virginia, Small alleged that Fannie Mae and Freddie Mac had failed to pay the taxes imposed by Va. Code §§ 58.1-801 to 802, which impose taxes on deeds admitted to record, unless otherwise exempt, and an additional tax, to be paid by the grantor, on instruments transferring real estate (collectively, the “Real Estate Transfer Taxes”). Small alleged that Fannie Mae and Freddie Mac improperly claim exemption from paying the taxes as governmental entities and sought a declaratory judgment holding that Fannie Mae and Freddie Mac are not exempt governmental entities and are therefore subject to the Real Estate Transfer Taxes when recording instruments. In their defense, Fannie Mae and Freddie Mac asserted that Small lacked the authority as clerk of court to bring the action. Lower Court Proceedings: The United States District Court for the Eastern District of Virginia certified two questions for the Virginia Supreme Court, pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40: (1) Under Virginia law, does a clerk of court possess statutory standing, in his official capacity, to initiate a lawsuit to enforce the Real Estate Transfer Taxes on the recording of instruments imposed by Va. Code §§ 58.1-801 to 802? (2) If a clerk of court does possess authority to bring suit in his official capacity as described in Certified Question 1, does Virginia law authorize him to do so as a class representative on behalf of all clerks of court throughout the Commonwealth? Holding: In response to the first certified question from the federal district court, the Virginia Supreme Court held that a clerk of court does not have standing, because the legislature designated the Real Estate Transfer Taxes as state taxes to be enforced by the Virginia Department of Taxation, and no statute authorizes the clerk of court to collect unpaid real estate transfer taxes by filing an enforcement action. Since the first question was answered in the negative, the second question was rendered moot. Discussion: A person or party has standing to bring suit when the legislature has conferred such standing. Small asserted that his authority to bring an action to enforce the collection of unpaid Real Estate Transfer Taxes derived from Va. Code §§ 58.1-801 to 802. However, the General Assembly granted exclusive authority to the Department of Taxation to collect the Real Estate Transfer Taxes if they remain unpaid for thirty days in Va. Code § 58.1-813: The Department may assess and collect any tax imposed by this chapter which has remained uncollected for thirty days. The Department, prior to collecting such tax, shall give notice to the clerk of court in whose office the tax was to be collected. The Department may then proceed to assess and collect the unpaid tax in the same manner and by the same methods used for the collection of any state tax administered by the Department.
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Clerks of court are not likewise not authorized to enforce local taxes. Va. Code §§ 58.1-3953 to 3954 permit counties, cities or towns to institute proceedings to collect unpaid local taxes:
§ 58.1-3953: The payment of any county, city or town taxes, may, in addition to the other remedies provided in this chapter, be enforced by action at law, suit in equity or by attachment in the same manner, to the same extent and with the same rights of appeal as now exist or may hereafter be provided by law for the enforcement of demands between individuals.
§ 58.1-3954: Such proceedings shall be instituted and conducted in the name of the county, city, or town in which such taxes are assessed, at the direction of the governing body of the county, city or town, by such attorney as the governing body may employ or retain for the purpose. 8. Falls Church v. Protestant Episcopal Church, 285 Va. 651; 740 S.E.2d 530; 2013 Va. LEXIS 48 (April 18, 2013) Facts: In 1836, the Falls Church (the “Church”) became part of the Diocese of Virginia (the “Diocese”), one of the geographical dioceses within the Protestant Episcopal Church in the United States of America, a hierarchical denomination (the “Denomination”). In 2006, after a long conflict within the Denomination, the congregation of the Church voted to disaffiliate from the Denomination and the Diocese, and with several other congregations (collectively the “Congregations”) filed petitions pursuant to Va. Code § 57-9(A), which provides: If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth. Lower Court Proceedings: The Denomination and the Diocese filed complaints asserting that all personal and real property held by the Congregations was actually held in trust for the Denomination and the Diocese, and requesting that the Congregations be ordered to submit an accounting; be enjoined from further use, occupancy or alienation of the disputed property; and be ordered to convey and transfer control of the property to the bishop. The Diocese further requested that the trial court enter judgment declaring improper trespass, conversion and alienation of real and personal property. The Congregations filed a counterclaim seeking a declaration that the Denomination and the Diocese had no interest in the disputed property occupied by the Congregations, and asserting claims for unjust enrichment and for imposition of a constructive trust. The Circuit Court of Fairfax County ruled that the Denomination and the Diocese had contractual and proprietary interests in the property at issue, and enjoined the Congregations from further use of the property. The lower court found that the adoption of Va. Code § 57-7.1 (below) did not change the long- standing rule in Virginia that church property may not be held by a trustee for the general church, and so did not address the applicability of Va. Code § 57-7.1. Every conveyance or transfer of real or personal property, whether inter vivos or by will, which is made to or for the benefit of any church, church diocese, religious congregation or religious society, whether by purchase or gift, shall be valid.
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Any such conveyance or transfer that fails to state a specific purpose shall be used for the religious and benevolent purposes of the church, church diocese, religious congregation or religious society as determined appropriate by the authorities which, under its rules or usages, have charge of the administration of the temporalities thereof. The lower court examined the deeds conveying the Church property, most of which referred to the Church as Episcopal, indicating to the lower court that the conveyances were to the Denomination. After examining the constitution and canons of the Church, as well as the course of dealings between the Church and the Denomination and the Diocese, the lower court concluded that the Denomination and the Diocese exercised pervasive dominion, management, control, supervision and authority over local church property, in a manner traditionally associated with ownership and possession. Holding: The Virginia Supreme Court reversed the judgment of the lower court with regard to the Va. Code § 57-7.1 analysis and as to the disposition of the personal property acquired after the congregation disaffiliated from the church. The Court imposed a constructive trust in favor of the Church on the remainder of the property. In all other respects, the judgment was affirmed. The case was remanded for further proceedings consistent with this holding. Discussion: The Court held that Va. Code § 57-7.1 broadened the scope of denominational trusts in Virginia. It validated transfers of real and personal property that were made to or for the benefit of any church, church diocese, religious congregation or religious society, including a hierarchical church. The relationship created by a local church’s decision to join a hierarchical church is analogous to a contractual relationship. The Church affirmatively assented to the canons when it joined the Denomination and the Diocese. A constructive trust was imposed as the relevant canons reflected the implicit trust relationship between the local parishes and dioceses. The congregation's attempt to withdraw from the Denomination and the Diocese and still maintain its property violated its fiduciary obligation to the Denomination and the Diocese. A constructive trust was imposed on the personal property of the congregation. The trial court erred in awarding the Denomination and the Diocese more property than they requested. 9. CNX Gas Company v. Rasnake, 2014 Va. LEXIS 3 (January 10, 2014) Facts: In 1887 the Fullers owned land in Russell County consisting of over 414 acres. By deed dated February 14, 1887, the Fullers conveyed “all the coal, in, upon, or underlying” the land, as well as the appurtenant timber interests and privileges, to Doran and Dick. By deed dated May 23, 1918, W. T. Fuller, as successor in interest to the Fullers, conveyed to Nuckles a 75-acre portion of the 414 acre tract. That deed provides, in relevant part: That in consideration of the sum of Eight Hundred and Forty-Six 58/100 Dollars, in hand paid, the receipt of which is hereby acknowledged, the said W. T. Fuller has sold and by these presents do grant unto the said parties of the second part, with General Warranty, all the following piece or parcel of land lying on the ridge between Lewis Creek and Swords Creek and contains about seventy-five acres be the same more or less [metes and bounds description follows]. This sale is not ment [sic] to convey any coals or minerals. The same being sold and deeded to other parties heretofore. CNX Gas Company (“CNX”) argues that the last 10 words do not constitute a sentence, but were intended to be a dependent clause modifying the preceding sentence, and claimed the mineral rights, excluding coal, in the 75 acre tract as lessee under the successors in interest to Nuckles, the grantee in the 1918 deed. Rasnake claimed the same rights as successors in interest to Fuller, the grantor in the 1918 deed. Lower Court Proceedings: The Circuit Court of Russell County held that the disputed language in the 1918 deed created an unambiguous exception of the coal and minerals located on the property and entered a final order declaring that the Rasnake owned the mineral estate. Holding: The Virginia Supreme Court reversed the judgment of the lower court.
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Discussion: The lower court erred in construing the disputed language in a deed to constitute an unambiguous exception of all coal and other minerals from the conveyance. As demonstrated by the suit, the deed’s disputed language was capable of being understood by reasonable persons in more than one way and was therefore ambiguous; it was thus appropriate to go outside the four corners of the deed to consider the existing circumstances. Where language in a deed is ambiguous, the language must be construed against the grantor and in favor of the grantee, because the grantor selects his own language. The Court held that the 1918 deed conveyed to Nuckles and her successors in interest all of the mineral interests in the land described therein that the grantors were capable of conveying at the time, excluding only the coal, which they no longer owned. 10. Board of Supervisors v. McQueen, 2014 Va. LEXIS 3 (January 10, 2014) Facts: The Board of Supervisors adopted a 2007 ordinance permitting the development of cluster subdivisions as a permitted use by right in the CLO Cluster Overlay District, so long as the standards in the 2007 ordinance were met. McQueen, the owner of a large piece of land in the County, initiated plans to develop his property as a cluster subdivision. In May 2008 he met with Thompson, the Interim Director of Planning, to review the requirements for such use, and subsequently submitted an application letter to Thompson generally describing the proposed development of approximately 250 clustered residential dwellings and requesting a formal meeting, as required by the 2007 ordinance. This application letter resulted in another meeting between McQueen and Thompson and then a formal submission of the preliminary plat, which was filed on July 1. In mid-June, McQueen received a “compliance letter” from Thompson, which recited the general standards set forth in the 2007 ordinance and indicated that McQueen’s property met those standards. The compliance letter additionally stated that McQueen would need to meet all other applicable provisions of federal, state and local codes; it also indicated that, once final approval of the proposed development was obtained through the 2007 ordinance, McQueen would need to obtain Site Plan Approval and a Land Disturbance Permit prior to beginning any work on the site. Several months after McQueen received this letter the 2007 ordinance was repealed. Lower Court Proceedings: McQueen filed a declaratory judgment action against the County and the Board of Supervisors, seeking a declaration that he obtained a vested right under Va. Code § 15.2-2307 to develop his property as a by-right cluster subdivision in accordance with the terms of the 2007 ordinance. McQueen asserted that Thompson’s compliance letter constituted a significant affirmative governmental act; that he relied in good faith on that act; and that he incurred extensive obligations and substantial expenses in diligent pursuit of developing his property as a cluster subdivision. The County and Board of Supervisors responded that Thompson’s compliance letter was not in the nature of a legislative act, and did not constitute an unambiguous approval of McQueen’s proposed development. The letter, they contended, was simply a courtesy to confirm that the property qualified for a cluster subdivision as a permissing use by-right under the 2007 ordinance’s general standards—and nothing more, certainly not a significant affirmative governmental act. The Circuit Court of Prince George County ruled in favor of McQueen, finding that McQueen established each of the three elements required under Va. Code § 15.2- 2307 for a land use right to become vested. Holding: The Virginia Supreme Court reversed the judgment of the lower court and entered final judgment for the County and Board of Supervisors. Discussion: The compliance letter did not affirmatively approve McQueen’s proposed development; nor did it make any commitment to McQueen regarding the project. It simply confirmed that McQueen’s proposed development met the general standards for a cluster subdivision. By definition, such confirmation was essentially limited under the 2007 ordinance to a determination of whether the proposal met the requirements for minimum tract size and maximum number of residential units per acre. The compliance letter was far short of the clear, express and unambiguous approval of, or commitment to, a specific plan of development by the landowner, as required for the creation of a vested development right. Because the zoning administrator's issuance of the confirmation letter was not a significant affirmative governmental act, the circuit court erred in holding that the landowner acquired a vested right under Va. Code § 15.2-2307 to develop his property as a cluster subdivision.
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11. Old Dominion Boat Club v. Alexandria City Council, 286 Va. 273; 749 S.E.2d 321; 2013 Va. LEXIS 138 (October 31, 2013) Facts: Old Dominion Boat Club (“ODBC”) filed suit seeking to enforce a purported private easement over a public street, Wales Alley, after the City granted a special use permit and license to Union Dublin, LLC and 106 Union Ireland, LLC (collectively, the “Union Parties”), for the construction of an outdoor dining deck on Wales Alley. ODBC alleged that the outdoor dining deck would encroach upon an easement over Wales Alley which ODBC had been deeded prior to Wales Alley becoming a public street, and sought a declaration of the existence of its vested easement and a permanent injunction against the City and the Union Parties prohibiting them from obstructing the easement. The easement in question arose out of a 1789 deed of partition, which provided for mutual “free use and passage of . . . one alley of twenty feet wide running from Water to Union Street, and one Street or Alley of thirty feet wide running from Union Street to the river.” The “Street or Alley of thirty feet wide” is Wales Alley. Lower Court Proceedings: The Circuit Court of the City of Alexandria found that the fee simple interest in Wales Alley was dedicated to the City and that the City held authority over it, pursuant to City Charter § 2.03(a). The City’s acceptance of the fee simple interest extinguished ODBC’s easement. Holding: The Virginia Supreme Court reversed the judgment of the lower court, held that ODBC had a vested easement over Wales Alley, and remanded the case to the lower court for entry of appropriate injunctive relief. Discussion: An easement is a property interest distinct from the fee and is an encumbrance upon it. The dedication and acceptance of the fee simple interest in an alley under City Charter § 2.03(a) only transferred that fee simple interest to the City subject to the owner of the dominant estate's pre-existing easement. There was no express dedication of the easement to the City. Neither the City nor the abutting landowners had interfered with the dominant estate’s use of the alley, and the dominant estate had not abandoned its easement by acquiescing in the public's concurrent use of the alley for pedestrian and vehicular passage. The continuing purpose of the easement was to provide easier communication with the public main streets; because changing the alley to a public street under § 2.03(a) did not result in a cessation of the purpose of the easement, the easement was not extinguished when the alley became a public street. II. FOURTH CIRCUIT COURT OF APPEALS CASES 1. Ennis v. Chesapeake Appalachia, 2013 U.S. App. LEXIS 20119 (October 2, 2013) Facts: The Ennises, owners of an 88 acre parcel in West Virginia, sought a declaration that they did not enter into a binding oil, gas and coalbed methane gas lease with defendant Range Resources-Appalachia, LLC (“Range”). The Ennises also alleged that they are entitled to compensatory and punitive damages for the loss of income and diminished property value that resulted from the defendants' illegal claim on the Ennises' oil and gas. The Ennises maintained that they made an offer to enter into a lease on August 1, 2006, when they signed a lease form that Range had provided to them in June reflecting a commencement date of “this ___ day of June, 2006.” Range later altered the lease form to reflect a commencement date of August 1, 2006 and assigned the lease. The Ennises claimed they believed they had entered into a binding lease until sometime in 2010, until they discovered Range’s alteration of the commencement date. The Ennises contended that the alteration of the commencement date constituted a counter-offer by Range which they never accepted, so that there was no meeting of the minds and no valid contract. Lower Court Proceedings: The United States District Court for the Northern District of West Virginia concluded that a fully enforceable lease exists between the Ennises and Range and dismissed the Ennises’ complaint. The district court agreed that the start date on the oil and gas lease was an essential term because it in turn affected the termination date of the five-year lease, but it then supplied that date in an effort to remove any uncertainty as to the rights and responsibilities of the parties. The district court deemed the day the lease was signed by the property owners to be the proper lease commencement date. In supplying a reasonable commencement date rather than deeming the lease wholly unenforceable, the
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the FEE SIMPLE district court observed that the choice of August 1, 2006, was harmless to the owners because approximately one year remained on the lease when development of the owners' oil and gas was attempted, regardless of whether the June, 2006 or August 1, 2006, date was used. Holding: The Court of Appeals for the Fourth Circuit affirmed the judgment of the lower court. Discussion: The Fourth Circuit agreed with the district court's analysis. 2. Seney v. Rent-A-Center, 2013 U.S. App. LEXIS 24615 (December 11, 2013) Facts: In March 2012, the Seneys entered into a Rental-Purchase Agreement (the “Agreement”) with Rent-A-Center, Inc. (“RAC”) for a wooden trundle bed and mattress. In the Agreement, the Seneys agreed to rent the bed for two weeks, with an option to renew the lease. If the Seneys leased the bed for an additional 6 months, RAC would transfer title to them. Alternatively, the Seneys could exercise an option to purchase the bed at any point. RAC retained the manufacturer’s warranty to the bed and provided, in the Agreement, its own warranty to repair, replace and service the bed during the lease term. Within a week of the bed’s delivery, the Seneys’ son was diagnosed with bedbug bites. RAC replaced the mattress, but left behind the infested bedframe, so the problem persisted. RAC eventually removed both the mattress and the frame, but not until after the Seneys’ entire house was infested with bedbugs. RAC paid for partial fumigations but refused to treat the entire house. Lower Court Proceedings: The Seneys filed suit, alleging breach of warranty in violation of the Magnuson-Moss Warranty Act (the “Act”). RAC filed a motion to compel arbitration. The Seneys argued that regulations promulgated by the Federal Trade Commission (the “FTC”) pursuant to its authority to interpret the Act provided that RAC could not require binding arbitration as part of a consumer warranty. The district court rejected the Seneys’ argument and granted RAC’s motion to compel arbitration. Holding: The United States Court of Appeals for the Fourth Circuit affirmed the judgment of the United States District Court for the District of Maryland, at Baltimore. Discussion: The district court erred in holding that the FTC regulations did not contain a ban on binding arbitration. However, the Court found that the FTC ban on binding arbitration did not apply to the Seneys' contract with RAC because the warranty on which the Seneys relied was contained in a lease agreement, as opposed to a sales agreement, and thus the Agreement fell outside the FTC regulation banning binding arbitration. RAC’s warranty to service the bed is not a warranty contemplated by the FTC regulation. Title to the bed remained with the company unless and until the consumers purchased the bed or renewed their lease for six months, which the consumers did not do. The binding arbitration clause was thus enforceable. III. DISTRICT COURT CASES 1. BP Products North America v. Southside Oil, 2013 U.S. Dist. LEXIS 176286 (Eastern District, Richmond Division; December 10, 2013) Facts: In 2005, BP sold various Virginia gas stations to Southside Oil. Southside Oil owned a number of BP gas stations and supplied gasoline to other BP gas stations. Southside Oil also owned non-BP gas stations and supplied gasoline to non-BP gas stations. Pursuant to agreements entered into in 2005 and 2010 (the “Agreements”), BP retained a right of first offer in the gas stations sold to Southside Oil, as well as a right of first refusal in Southside Oil’s entire petroleum business. The terms of both the right of first offer and right of first refusal required Southside Oil to give BP written notice of Southside Oil’s desire to sell. The Agreements expired on October 2, 2013. BP sent a notice of non-renewal to Southside Oil, to which Southside Oil responded with a letter agreeing that the Agreements would terminate October 2, 2013.
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Southside Oil was owned by Mid-Atlantic Convenience Stores, which was itself owned by MACS Holdings. On October 4, 2013, an affiliate of Sunoco closed on the acquisition of MACS Holdings. BP filed suit October 22, 2013, alleging, in relevant part, that Southside Oil breached the provisions of the Agreements relating to BP’s rights of first offer and refusal, and seeking an injunction to prevent re- branding of Southside Oil’s gas stations from BP to Sunoco. Holding: BP’s motion for preliminary injunction was denied because BP failed to show that (1) it was likely to prevail on the merits; (2) denial of its motion would cause irreparable harm; (3) the equities favor granting an injunction; or (4) the public interest favors granting interim equitable relief. Discussion: A preliminary injunction is appropriate when the plaintiff has established that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in the plaintiff’s favor; and (4) an injunction is in the public interest. BP was not able to make the required clear showing as to each of these four elements. The Court found the evidence in the record did not clearly satisfy the elements required by Virginia contract law, rendering BP unlikely to succeed on the merits. The three elements of a breach of contract under Virginia law are: (1) a legally enforceable obligation; (2) the defendant’s material breach of that obligation; and (3) damage to the plaintiff caused by the breach of that obligation. The Court focused on the second element, whether Southside Oil had breached the Agreements. The sale of MACS Holdings did not occur until after the Agreements had expired. The Agreements did not specify when Southside Oil was obligated to offer BP the right of first refusal, and BP’s rights ended when the Agreements expired. BP also failed to show that the right of first offer was applicable to the facts of this case, since the right of first offer applies to the sale of some of the assets, not the entire business, the latter being the situation in this case, according to the Court. In addressing the remaining three factors, the Court found that the rebranding of the gas stations in question had already occurred, and did not approach the threshold of irreparable harm. Finally, the Court found that the balance of the equities and the public interest considerations were essentially even between the parties. 2. Columbia Gas Transmission v. Ott, 2013 U.S. Dist. LEXIS 385 (Eastern District, Norfolk Division; January 2, 2013) Facts: Columbia Gas Transmission (“Columbia”), a public utility, brought a declaratory judgment action seeking the removal of three structures—a fence, an above ground pool, and a shed, located on the property of Ott. The property is subject to right of way agreements which created a 70 foot easement. Columbia alleged that the structures inhibit its ability to safely maintain and operate two natural gas transmission pipelines located in the easement. Ott counterclaimed for inverse condemnation, contending that Columbia’s claim of right to exclude structures in the easement area constitutes a taking a private property rights for which Ott has not been compensated. Columbia filed a motion to dismiss Ott’s counterclaim, arguing that it is attempting to enforce the easement, not take Ott’s private property rights. Holding: Columbia’s motion to dismiss the counterclaim was denied. Discussion: Columbia’s characterization of its own actions as “not a taking” does not affect whether Ott has stated sufficient factual allegations to give rise to an entitlement to relief. Accordingly, Columbia’s arguments are premature, and the issue is inappropriate for resolution at this early juncture. NOTE: By Final Order filed October 23, 2013, the district court granted Columbia’s motion for summary judgment. 3. Adamson v. Columbia Gas Transmission, 2013 U.S. Dist. LEXIS 162479 (Eastern District, Richmond Division; November 13, 2013) Facts: Adamson owns property in Goochland County. In 1956, Columbia Gas Transmission’s (“Columbia”) predecessor in interest entered into a right-of-way agreement (the “Agreement”) with
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Adamson’s predecessor in interest. The Agreement granted Columbia the right to lay, maintain, operate and remove pipe line(s), and the right of ingress and egress to, from and through the pipe line(s), but it did not specify the dimensions of the easement area. The Agreement was recorded. Adamson acquired two contiguous parcels of property in 2005 and 2007 pursuant to deeds reflecting a 60 foot wide easement; however, Adamson maintains he believed the measurements recorded on these deeds were a scrivener’s error. In 2007, Columbia notified Adamson that it intended to remove trees and other encroachments from the easement to enable aerial surveillance for leakage and damage and to comply with federal regulations. Adamson refused to allow Columbia on his property, claiming that, historically, the cleared area was only 40 feet wide. Columbia nonetheless entered the property while Adamson was absent and cleared approximately 20 feet of mature trees and underbrush. This deprived Adamson of privacy and screening, which he maintains was critical to quiet enjoyment of his property. Adamson filed suit seeking compensation to restore the felled tree line. Holding: The United States District Court for the Eastern District of Virginia, Richmond Division, granted Columbia’s motion for summary judgment on its petition for declaratory relief and its motion to dismiss Adamson’s claim of trespass. The easement’s width was 60 feet and Columbia had the right to enter the property for the purpose of clearing the easement area. Discussion: Va. Code § 8.01-389(C) provides that “recitals of any fact in a deed . . . of record conveying any interest in real property shall be prima facie evidence of that fact.” The rights of the parties must be ascertained from the words of the deed, and the extent of the easement cannot be determined from any other source. Since the Agreement was silent as to the dimensions, the dimensions of the easement may be inferred to be such as are reasonably sufficient for the accomplishment of the stated objective. The only evidence of the actual intent of the parties, other than the Agreement, is the deed of conveyance from the easement grantor when he conveyed the property. The plat attached to such deed clearly depicts a 60 foot easement. 4. Aggarwal v. Sikka, 2013 U.S. Dist. LEXIS 160422 (Eastern District, Alexandria Division; November 7, 2013) Facts: The Counterclaim Defendants purchased a gas station business from the Sikkas and Auto Fuels (the “Sikka Defendants”), who had previously purchased the business from the Aggarwals and Energy Depot (the “Aggarwals”). The transaction also included an assignment by the Sikka Defendants of a lease of the real estate on which the gas station was located (the “Lease”), which the Counterclaim Plaintiffs owned. The Counterclaim Defendants filed their initial complaint against various defendants, including the Counterclaim Plaintiffs, alleging a breach of contract under the Lease. The Lease provides: Should either party institute any action or proceeding at law or in equity to enforce or to interpret any provision of the Lease for damages or other relief by reason of an alleged breach of any provision hereof, the prevailing party shall be entitled to receive, in addition to allowable court costs, such amount as the court may adjudge to be reasonable as attorney's fees for the services rendered to the prevailing party in such action or proceeding[.] Should either party without fault on its part, be made a party to any litigation instituted by or against the other party, the other party covenants to pay to the party against whom the action is instituted all costs and expenses, including reasonable attorney's fees, incurred by the party against whom the action is instituted or in connection with such litigation. The Lease was assigned to Counterclaim Defendants via two documents: (1) an Assignment and Assumption of Lease, pursuant to which the Assignee “accepte[d] and assume[d] all obligations undertaken by Tenant to be paid, performed or observed by Tenant under the Lease. . . .”; and (2) a Lease Assignment and Modification, which provides, “Assignee hereby unconditionally assumes observance and performance of all of the terms, covenants and conditions of the Lease on the Tenant's part to be performed and observed under the Lease, as modified herein.” The Lease Assignment and Modification contains no modifications to the attorneys' fees provision of the Lease Agreement.
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Holding: The United States District Court for the Eastern District of Virginia, Alexandria Division, granted summary judgment in favor of the Counterclaim Plaintiffs, and found that, as the Counterclaim Defendants initiated the litigation against the Counterclaim Plaintiffs, the Counterclaim Plaintiffs are entitled under the Lease to receive payment for their reasonable attorneys’ fees and costs. Discussion: The Court found that the Counterclaim Defendants assumed all obligations under the Lease Agreement, as modified by the Lease Assignment and Modification. To determine the reasonableness of attorneys’ fees, a plaintiff must establish the reasonableness of the requested rates. Then, the court must undertake the following analysis: (1) calculate the product of hours worked and hourly rate; (2) analyze the number of hours reasonably spent litigating the successful versus unsuccessful claims; and (3) subtract out those hours worked on unsuccessful claims that were unrelated to the successful claims. The Court noted that the degree of success obtained by the plaintiff is “the most critical factor” in determining the reasonableness of a fee award. 5. Morrison v. Wells Fargo Bank, 2014 U.S. Dist. LEXIS 5275 (Eastern District, Norfolk Division; January 15, 2014) Facts: In April 2007, the late Mrs. Morrison, Morrison’s mother, entered into a mortgage loan with Wells Fargo for her home in Virginia Beach. The loan was evidenced by a Note and secured by a Deed of Trust. Mrs. Morrison died intestate in 2009. Wells Fargo began foreclosure proceedings on the property and intended to foreclose in January 2011. Morrison notified Wells Fargo that he wished to assume the mortgage and to discuss an interest rate reduction, and claims that Wells Fargo’s employees told him he was approved for a loan modification. However, the foreclosure proceeded as planned. Morrison filed suit against Wells Fargo, claiming, among other arguments, that the Note and Deed of Trust contained an implied covenant of good faith and fair dealing that imposed obligations on the holder of the Note. Holding: The United States District Court for the Eastern District of Virginia, Norfolk Division, granted Wells Fargo’s motion to dismiss. Discussion: In Virginia, every contract contains an implied covenant of good faith and fair dealing. However, this covenant does not offer an independent cause of action for breach of a contract involving an interest in real property because the UCC does not apply to a transaction that involves creation or transfer of an interest in real property. Wells Fargo had an express contractual right to foreclose for nonpayment. As Morrison’s complaint does not allege that Wells Fargo proceeded on its contractual right in bad faith, the plaintiff has not stated a claim for the breach of the implied covenant, even if such a claim were possible. IV. BANKRUPTCY COURT CASES 1. In re Keith’s Tree Farm, 2013 Bankr. LEXIS 5182 (December 11, 2013) Facts: Keith’s Tree Farm (“Keith’s”), a Virginia general partnership comprised of of Curtis Keith, Larry Keith and Terry Keith, entered into a contract dated February 4, 2005 (the “Contract”) with Garnett W. Cox and Susan S. Cox, trustees of the Cox Living Trust (the “Trust”), providing for a ten-year lease of eighty acres of farmland in Wythe County, Virginia, owned by the Trust, for the purpose of growing and harvesting evergreen trees. The Contract was drafted by the trustees of the Trust. Under its provisions, Keith's agreed to pay in advance a minimum rental of $5,000 by April 30 of each year. Keith's also bore the responsibility for planting, fertilizing, maintaining and harvesting the trees located on the Cox property. In addition to the minimum annual rental of $5,000, Keith's also agreed to pay the Trust $1.50 for each cut and removed tree harvested during the term of the lease and $2.25 for each tree that was dug up and removed from the property. Keith’s made no payment of annual rent in 2012, and the trustees never requested any; Keith’s also did not make the April 2013 payment. The parties disagree about discussions they had regarding the 2013 payments. Keith’s received a letter dated August 2013 notifying him that the Contract had been terminated as a result of Keith’s breach. Keith’s filed a Chapter 12
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the FEE SIMPLE bankruptcy petition soon thereafter, as well as an adversary proceeding against Mr. Cox, individually and in his capacity as a trustee. Holding: The Court determined that the lease was not validly terminated prior to the filing of the debtor's Chapter 12 bankruptcy case. Discussion: The Court concluded that no demand for payment was ever made by the trustees against Keith’s for the amounts past due under the Contract and that such demand was necessary before the Trust could declare a forfeiture of the lease, irrespective of the provisions of the Contract which purported to “void” the contract for any failure of a payment obligation under the lease. It would be grossly inequitable to enforce a forfeiture declared without a prior demand where the debtor had made a major investment in the value of the lease by planting, and then fertilizing and maintaining, over 60,000 trees on the property for more than eight years before the lease was declared terminated. With respect to issues of amounts due, any uncertain contractual language was interpreted against lessor, as it was the lessor who drafted the contract. V. CIRCUIT COURT CASES 1. Miller v. Grinnan, 2013 Va. Cir. LEXIS 24 (Circuit Court of the City of Norfolk; May 6, 2013) Facts: Miller, a property owner, brought an action to declare a restrictive covenant on his lot null and void. He alleges that the sole purpose of the restrictive covenant was to establish a building set-back line on Edgewater Drive, which was closed and abandoned by the City of Norfolk. Miller argued that since the reason for the restrictive covenant no longer exists, the covenant should be declared null and void. Miller’s neighbors, the Grinnans, whose waterfront lots abut the former Edgewater Drive, argued that Miller has not shown the requisite changes for nullifying the covenant. The Grinnans contended that the covenant had several purposes other than a street set-back, including regulating the style and aesthetics of buildings on the waterfront lots; protecting the views and aesthetics of the party’s properties; ensuring uniformity in appearance; creating unobstructed air, light and vision benefits to the property owners; and helping to protect the privacy interests of the owners. The Grinnans also argued that vacation of the restriction would unjustly injure them and unjustly enrich Miller. They presented evidence of their reliance on the restriction as a factor in their decisions to buy their properties and as part of the consideration for the purchase price, in addition to expert testimony that vacation of the restriction would adversely affect the value of their properties as well as their privacy. The Court reviewed the land records, but did not find stated in any deed or plat the purposes the Grinnans alleged. The Court also reviewed the source deeds for all of the lots, finding in each the express condition that the grantee or assigns will not erect any buildings or porches on the land nearer to the avenue or street on which the said lot of land fronts and the building line established on the plat of said land for said buildings. Holding: The Court declared the building-line restriction to be null and void as to Miller’s property. Discussion: Covenants restricting free use of land are not favored and must be strictly construed; the burden being on the party seeking to enforce them to demonstrate that they are applicable to the acts of which he complains. Moreover, substantial doubt or ambiguity is resolved against the restrictions and in favor of the free use of property. In this case, the Court found it clear that the purpose of the restriction is to provide a set-back from the streets and avenues of both the waterfront and non-waterfront lots. The other purposes alleged by the Grinnans may be secondary effects of the restriction but they are not stated in the records and there is no parol evidence to suggest the restriction had the purposes the Grinnans allege. Addressing the Grinnans’ equitable claims, the Court found that since the reason for the covenant is gone, the effect on the value of property resulting from the nullification of the covenant would be slight, if any.
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2. City of Richmond v. Haas, 2013 Va. Cir. LEXIS 58 (Circuit Court of the City of Richmond; June 18, 2013) Facts: Haas sought dismissal of a condemnation proceeding on two grounds: (1) lack of bona fide offer required under Va. Code § 25.1-204 and (2) an erroneous description of the property to be taken in the caption of the petition. Va. Code § 25.1-204 provides, in relevant part: A. A condemnor shall not institute proceedings to condemn property until a bona fide but ineffectual effort to purchase from the owner the property sought to be condemned has been made. However, such effort shall not be required if the consent cannot be obtained because one or more of the owners (i) is a person under a disability or is otherwise unable to convey legal title to such property, (ii) is unknown, or (iii) cannot with reasonable diligence be found within this Commonwealth. B. Such bona fide effort shall include delivery of, or attempt to deliver, a written offer to acquire accompanied by a written statement to the owner that explains the factual basis for the condemnor's offer. The written statement shall include a description of the public use that provides the basis for the condemnor's acquisition and shall contain a certification that the acquisition has been reviewed by the condemnor for purposes of complying with § 1-219.1. Holding: (1) The Court will take evidence on issue of the lack of bona fide offer pretrial. (2) The Court found no basis for dismissal on the ground of the erroneous description in the caption. Discussion: (1) While the Virginia Code requires a bona fide offer, the Supreme Court has stated that this requirement is satisfied as ineffectual when negotiations have proceeded to the point where an agreement is impossible. (2) It is well known that the substantive meaning of any pleading is found only in the statements contained in the allegations that call for relief; in this case, the property was properly described therein. 3. Iwaschenko v. Kricorian, 2013 Va. Cir. LEXIS 22 (Circuit Court of the City of Richmond; March 27, 2013) Facts: The plaintiff owns an easement granted by a 2005 deed over an area of the defendant’s property, designated as a driveway. The driveway lies adjacent to defendant’s house. Except for allowing the plaintiff the right to ingress and egress to his own property, located behind the defendant’s, the easement is otherwise undefined in terms of duration or dimension; though it is identified as a “concrete alleyway.” Recently, the parties have been in conflict over the alleyway, and have resorted to blocking each other’s access to and use of the driveway. The plaintiff uses his building as a warehouse for material and supplies for his construction business. He recently repaved the driveway, which action was approved of or at least acquiesced to by the defendant. Holding: The Court granted both parties equitable relief through a mutual injunction against unreasonably interfering with the other party’s access to his or her respective property. Discussion: An easement does not grant ownership of the land, but only a right or privilege to use the land of another. The repaving was an assertion of ownership, but the defendant cannot complain because she allowed the improvement to the property. Neither party may unreasonably restrict the other’s access to his or her respective property. The defendant, as the owner of the fee interest, may construct improvements, such as a fence, so long as they do not unduly restrict the plaintiff’s ingress and egress. 4. FriendCo Restaurants v. Beckner, 2013 Va. Cir. LEXIS 15 (Circuit Court of Fairfax County; March 13, 2013) Facts: The Beckners owned certain property in Fairfax County, which they leased to Friendly’s starting in 1975. In 2004, Friendly’s assigned its right to FriendCo. After the Beckners’ deaths the property
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the FEE SIMPLE passed to a trust. In 2008, the sole trustee and beneficiary, in winding up the estate, executed a deed to retitle the property from the trust’s name to his own. FriendCo claimed that such action violated its right of first refusal. The right of first refusal in the lease states: Landlord agrees that, throughout the term of the lease, as it may be extended, it shall not sell, offer to sell, accept any offer to buy or convey (voluntarily or otherwise) all or any portion of the leased premises unless and until landlord shall have first offered tenant the opportunity to purchase the property by giving notice to tenant whereupon tenant shall have thirty days after actual receipt of such notice to elect to purchase said property upon the identical terms and conditions set forth in said notice. Holding: The Court granted the defendant’s motion for summary judgment. Discussion: The operative language in the right of first refusal is triggered when (1) the landlord sells; (2) offers to sell; or (3) accepts any offer to buy or convey. It is not triggered in the instant case because the landlord never received an offer, and the conveyance to the heir was not the sort of conveyance described in the lease. 5. Johnson Controls v. Norair Engineering, 2013 Va Cir. LEXIS 3 (Circuit Court of Fairfax County; January 10, 2013) Facts: On February 8, 2011, Johnson Controls (“JCI”) entered into a Purchase Order (“PO”) with Norair Engineering (“Norair”), pursuant to which JCI provided fan coil units and related equipment and materials to Norair, for use in a construction project for which Norair was a subcontractor. Norair failed to pay JCI and JCI filed a mechanic’s lien on November 1, 2011. On November 29, 2011, Norair petitioned the Court to substitute a bond, and a bond was issued with Norair as principal and Travelers Casualty and Surety Company of America (“Travelers”) as surety. JCI brought suit against Norair and Travelers alleging four causes of action, including a bond claim against Travelers. Travelers argued that the Court must dismiss the bond claim count because Norair is a necessary party to the claim and JCI is barred from now adding Norair as a party to that count. Holding: The Court granted the defendant’s motion to dismiss the bond claim count of the complaint for failure to name a necessary party. Discussion: When a mechanic’s lien is bonded out, both the bond principal and the surety become necessary parties to an action to enforce the lien; the property owners and the beneficiaries and trustees of the deed of trust are not necessary parties. The necessary parties rules are based on due process principles, under which a necessary party is entitled to notice and an opportunity to challenge. Because Norair is not a party to the bond claim, it has no right to defend JCI’s perfection of the lien, which JCI must prove in a bond action, and no right to present defenses to the bond claim generally. 6. McCarthy v. Fennessey, 2013 Va Cir. LEXIS 84 (Circuit Court of the City of Norfolk; October 2, 2013) Facts: McCarthy brought this suit as a unit owner and resident of Ocean Breeze Condominiums against the Ocean Breeze Condominium Association (the “Association”) and Fennessey, a unit owner, resident and the president of the Association. McCarthy alleged that Fennessey allowed her unleashed dogs out while McCarthy was walking her dog, resulting in an attack by Fennessey’s dogs on McCarthy’s dog, during which McCarthy fell and was injured. McCarthy claimed that Fennessey’s dogs had previously attacked other animals and that some of these attacks had been reported. She further alleged that Fennessey was both negligent in allowing her dogs to run free and strictly liable for the consequences of such negligence. McCarthy also claimed that the Association had a duty to protect her from the foreseeable negligence of third parties and that the Association is responsible for Fennessey’s negligence because Fennessey is its agent as president of the Association. Finally, McCarthy alleged that the Association had exclusive control over the common areas and had a duty to either exercise ordinary care in providing a safe premises, or at a minimum, to warn her of known hazards. The Association demurred
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the FEE SIMPLE to the complaint on the grounds that, first, the Association lacked exclusive control over the common areas as a matter of law and, second, even if the Association did have exclusive control over the common areas, it was under no duty to exercise even ordinary care to prevent the incident in question here. Holding: The Circuit Court of the City of Norfolk overruled the Association’s demurrers. Discussion: The pleadings were sufficient to support McCarthy’s claims that (1) the president was the Association's agent and that it might be liable for her actions under Va. Code § 55-79.80, which grants associations irrevocable power of attorney-in-fact regarding all common areas and (2) the Association was on notice that the dogs were dangerous and was bound by its own rules of conduct to prevent the president from allowing the dogs to run free in the common areas. Va. Code § 55-79.80 relates to an association’s control over the common elements and provides: A. Except to the extent prohibited by the condominium instruments, and subject to any restrictions and limitations specified therein, the unit owners' association shall have the power to: 1. Employ, dismiss, and replace agents and employees to exercise and discharge the powers and responsibilities of the said association arising under § 55-79.79. 2. Make or cause to be made additional improvements on and as a part of the common elements. 3. Grant or withhold approval of any action by one or more unit owners or other persons entitled to the occupancy of any unit which would change the exterior appearance of any unit or of any other portion of the condominium, or elect or provide for the appointment of an architectural control committee, the members of which must have the same qualifications as officers, to grant or withhold such approval. 4. Acquire, hold, convey, and encumber title to real property, including but not limited to condominium units, whether or not the association is incorporated. B. Except to the extent prohibited by the condominium instruments, and subject to any restrictions and limitations specified therein, the executive organ of the unit owners' association, if any, and if not, then the unit owners' association itself, shall have the irrevocable power as attorney-in-fact on behalf of all the unit owners and their successors in title with respect to the common elements, including without limitation the right, in the name of the unit owners' association, (i) to grant easements through the common elements and accept easements benefiting the condominium or any portion thereof, (ii) to assert, through litigation or otherwise, defend against, compromise, adjust, and settle any claims or actions related to common elements, other than claims against or actions involving the declarant during any period of declarant control reserved pursuant to subsection A of § 55-79.74, and (iii) to apply for any governmental approvals under state and local law. C. This section shall not be construed to prohibit the grant, by the condominium instruments, of other powers and responsibilities to the unit owners' association or its executive organ.
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VIRGINIA UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT (URPTODA) VIRGINIA CODE § 64.2-621 ET SEQ. (EFFECTIVE JULY 1, 2013) by Kay M. Creasman* The National Conference of Commissioners on Uniform State Laws succinctly summarizes the Uniform Real Property Transfer on Death Act (URPTODA) as follows: The Uniform Real Property Transfer on Death Act (URPTODA) enables an owner of real property to pass the property simply and directly to a beneficiary on the owner’s death without probate. The property passes by operation of law by means of a recorded transfer on death (TOD) deed.
URPTODA is an alternative to expensive estate planning for simple estates. People with a high net worth or a complex estate often use trusts and gifting strategies to transfer wealth outside of probate, but those strategies are prohibitively expensive for smaller estates. Many lower income families can avoid probate for their personal property using simpler means, such as adding an heir’s name to a bank account as a “payable on death” (POD) beneficiary. However, in many states there is no such method available for real estate. URPTODA fills the gap by providing a way for families, with the aid of an advisor, to easily transfer real property outside of probate. URPTODA allows owners to retain control of their property. Some families attempt to pass real property to a family member by adding the recipient’s name to the title as a joint tenant with rights of survivorship. The property will pass to the recipient at the death of the joint owner, but there are also significant consequences during the owner’s life. Joint titling exposes the property to the joint tenant’s creditors, and gives the joint tenant the power to approve or disapprove a sale. Under URPTODA, the owner retains all rights in the property, including the right to change his or her mind and revoke the deed or sell the property. The TOD beneficiary has no interest until the owner’s death. URPTODA has been proven effective in other states. TOD titling for real estate is a relatively new concept; Missouri became the first state to allow TOD deeds in 1989. Since then, nineteen other states and the District of Columbia have enacted URPTODA or a substantially similar law. Despite some initial resistance in those states to the new procedure, over time the TOD titling process has been well received by recording officers, real estate attorneys, and the title insurance industry. TOD deeds are no longer novel and the citizens of the remaining states should also benefit from the opportunity to transfer real property outside of probate simply and effectively.1 The TOD concept for real estate emerged in 1989 in Missouri and has since been adopted in some form by nineteen states. As of March 2014, eight states plus the District of Columbia have adopted URPTODA, and four more states will consider doing so during their 2014 legislative session.
* Kay M. Creasman is Assistant Vice President and Counsel for Old Republic National Title Insurance Company. She has worked in real estate in Virginia since 1976, first as a title examiner, then as an attorney. She has worked in title insurance since 1992. Her email address is [email protected]. 1Why Your State Should Adopt URPTODA, UNIFORM LAW COMMISSION, http://www.uniformlaws.org/Narrative.aspx?title=Why%20Your%20State%20Should%20Adopt%20UR PTODA.
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I. Summary of TOD provisions in the Virginia Code2
1. The provisions apply to a TOD deed made by the transferor “on, before or after July 1, 2013,” when the transferor dies on or after July 1, 2013. (Va. Code § 64.2-622). 2. A TOD deed is revocable, even if it says it is not. (Va. Code § 64.2-625). 3. Although the TOD deed has no effect until the death of the transferor and the only mental capacity required in order to sign a TOD deed is the same as that required to make a will, the TOD deed is nontestamentary. (Va. Code §§ 64.2-626, -627). 4. The TOD document must meet all the requirements of a deed in order to be recorded, except that there need not be any notice, delivery or acceptance, nor any consideration. (Va. Code §§ 64.2-628, -629). 5. The TOD deed must be recorded prior to the transferor’s death. (Va. Code § 64.2- 628(3)). 6. If no consideration is paid, the TOD deed is exempt from recordation tax. (Va. Code § 64.2- 628(5)). 7. If property is held as tenants by the entirety or as joint tenants with a right of survivorship, all co-tenants must sign the TOD deed for it to be effective. This does not apply to property held by multiple parties as tenants in common. (Va. Code §§ 64.2-621, -628(6)). 8. Revocation of a TOD deed may occur, in whole or in part, through: a. An inter vivos transfer of the property (i.e., the transferor (grantor) sells it or gives it to someone else by deed recorded before he or she dies); b. A deed of revocation; c. A TOD naming a subsequent beneficiary (though any revocation document must be recorded prior to the death of the transferor). (Va. Code § 64.2-630(A)). 9. Where there are multiple transferors, revocation of a TOD deed is governed by a different rule: a. One transferor revoking an interest will not affect the TOD designation of a co-owner. If the current owners hold title as joint tenants and both are designated as TOD beneficiaries, both must sign the deed revoking the designation, or must convey during their lifetime. (Va. Code § 64.2-630(B)). 10. Revocation must be recorded prior to the death of the transferor(s) and is not effective if the original TOD deed, or a copy of the recorded TOD deed, is marked to indicate that the transferor changed her mind. (Va. Code § 64.2-630(C)). 11. Effect of the TOD deed during the transferor’s life: a. A TOD deed is only effective after the death of the transferor. b. A TOD deed has no effect on the right of the transferor to sell, gift or encumber the real estate (e.g., to have a deed of trust recorded). c. The fact that a third party has actual knowledge of the TOD deed does not affect the ownership interest of the transferor (i.e., he can do what he wants with the real estate) d. No interest is vested in the transferee during the life of the transferor. The transferee has no legal or equitable interest during the life of the transferor; his creditors cannot attach any interest in the real estate. (Va. Code § 64.2-631). 12. Effect of the transfer on death deed after the transferor’s death: a. Property interest conveys at the moment of death to the beneficiary in the most recent, recorded, unrevoked TOD deed. b. The beneficiary must survive the transferor. c. Multiple beneficiaries take title in equal undivided shares with no right of survivorship. However, if one of multiple beneficiaries fails to take title for any reason (predeceased transferor, disclaims, slayer statute applies, etc.) then surviving named beneficiaries take that beneficiary’s interest in proportional shares. d. Divorce or annulment revokes a TOD deed, unless the deed specifically says otherwise.
2 See VA. CODE § 64.2-622 et seq., available at http://leg1.state.va.us/cgi-bin/legp504.exe?000 +cod+TOC64020000006000000000000.
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e. Beneficiaries take title subject to “all conveyances, encumbrances, assignments, contacts, mortgages, liens, and other inters to which the property is subject at the transferor’s death.”3 f. A TOD deed “transfers property without covenant or warranty of title even if the deed contains a contrary provision.”4 (Va. Code § 64.2-632). 13. A beneficiary may disclaim all or part of his interest following disclaimer rules set out in Va. Code § 64.2-2600 et seq. (Va. Code § 64.2-633). 14. Property is subject to claims of creditors of the transferor, but a proceeding to enforce the liability must be “commenced not later than one year after the transferor’s death.” (Va. Code § 64.2-634). 15. A statutory form is provided in Va. Code § 64.2-635.
II. Potential Issues from a Real Estate Perspective The potential issues identified below are not listed in any particular order, nor do they comprise a comprehensive list of every question regarding URPTODA’s provisions. The practical solution in most cases is for all parties with any possible interest to sign the TOD deed, or for one or more of the parties to disclaim its interest. 1. Issue: Even if consideration is paid, the owner may revoke the TOD deed. A situation could arise where the estate is liable for breach of contract, but someone else ends up with the real estate. The real estate is still subject to claims of the estate. See Va. Code §§ 64.2-625, -628(5), -634, and Items 2, 6 and 14, noted in Part I, above. 2. Issue: If the owner has recorded a TOD deed, and later contracts to sell the property to a third party, but dies before the (contracted-for) deed can be recorded, Va. Code § 64.2-5235 may prevail, converting the asset to personalty. But Va. Code § 64.2-630(A) requires that any revocation document be recorded prior to the death of the transferor (see Item 8, above). Which statute prevails? What happens if settlement occurs, but the seller/record owner dies before the deed is recorded?
3 VA. CODE § 64.2-632(B), available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod +64.2-632. 4 VA. CODE § 64.2-632(D), available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod +64.2-632. 5 VA. CODE § 64.2-523 (“Personal representative may execute deed pursuant to written contract of decedent”) provides: When any decedent has executed and delivered a bona fide written contract of sale, purchase option, or other agreement binding such deceased person, his heirs, personal representatives, or assigns, to convey any real property or any interest therein, his personal representatives may execute a deed and do all things necessary to effect the transfer of title to such real property or any interest therein to the purchaser upon the purchaser's full compliance with the terms and conditions of such contract, option, or agreement. Such transfer shall be as effective as if it had been made by the decedent. The contract, option, or agreement shall be attached to any deed executed by a personal representative pursuant to this section and the clerk shall record such contract, option, or agreement in the deed book. Any personal representative duly qualified in any other state, upon taking an oath that the decedent owed no debts in the Commonwealth and posting bond upon such terms and in such amount as may be fixed by the clerk, but not less than the value of the decedent's interest to be conveyed, may convey real property or any interest therein under the provisions of this section without qualifying in the Commonwealth.
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3. Issue: Assume a situation where the transferor has signed the TOD deed and the deed is at the courthouse to be recorded, but is not recorded before the transferor’s actual time of death. Pursuant to the statutes, delivery of the deed is not sufficient; recordation is the key. What happens, then, if the Clerk’s office is backed up with recordation issues? (Perhaps the transferor should have a will to corroborate the TOD deed.) 4. Issue: What if inconsistent TOD deeds are notarized the same day? Normally, Virginia is a “race/notice” state, such that the earlier of recorded documents would prevail. However, with respect to TOD deeds, the latest/last deed recorded would prevail. Can you imagine years after the TOD deed is recorded trying to establish which document was notarized first? See Va. Code § 64.2-630(A) and Item 8(c), above. 5. Issue: No requirement to survive by 120 days exists in URPTODA, but such a requirement does exist under the statutes relating to wills. Transfer occurs at the moment of death. The statutes are silent as to whether the TOD deed may add conditions. See Va. Code § 64.2-632 and Item 12(b), above. 6. Issue: Imagine a TOD deed is recorded for no consideration. Are augmented estate interests of spouse triggered? Or does the transfer occur after death, such that only the spouse’s elective share might be triggered? Or neither? Does the five-year period for augmented estates run from the date of death of the transferor since the beneficiary has no interest in the property until the death? Was the gift made during the transferor’s lifetime? See Va. Code § 64.2-3026 et seq. 7. Issue: Since there is no notice, delivery or acceptance, what happens when: a. The Executor signs a contract and the title search discovers a TOD deed to another person? b. The new owner, unaware of the TOD deed, receives no notice of tax bills, and property is subsequently sold for unpaid real estate taxes? c. The Executor is aware of a TOD deed to someone not otherwise an heir? Does the Executor have a duty to tell the beneficiary of the TOD deed? As it is not part of the estate, does the Executor or Administrator have any obligation to inform anyone about a TOD deed? It will be interesting to see how TOD transfers evolve over the next few years.7
6 VA. CODE § 64.2-302 (“When and how elective share may be claimed by surviving spouse”) provides: A. A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent's will or (ii) the decedent dies intestate. B. The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent's augmented estate within six months from the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55. C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent's domicile at death. 7 The Real Property Section and this newsletter welcome comments/questions/court decisions/experiences with the law. –Ed.
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CFPB COMBINED DISCLOSURES: THE BASICS Kay M. Creasman* The stated purpose of the Dodd-Frank Wall Street Reform and Consumer Protection Act1 (Dodd- Frank Act) is “to promote the financial stability of the United States by improving accountability and transparency in the financial system, . . . and to protect consumers from abusive financial services practices.”2 As one step toward that end, the Dodd-Frank Act created the Consumer Financial Protection Bureau (CFPB) and charged it with examining the settlement service process regulated by the Real Estate Settlement Procedures Act of 1974 (RESPA), in conjunction with other financial statutes and regulations. The CFPB has, in turn, made changes to a number of forms and procedures pertaining to residential settlements. The most recent changes, published in November 2013 as part of the CFPB’s final, 1888- page rule,3 merge the Truth in Lending Act disclosure form (Regulation Z) with RESPA’s HUD-1 Settlement Statement (Regulation X). Briefly, the purposes of the statutory and regulatory changes are to: 1. Make the cost of a mortgage loan understandable to the consumer; 2. Protect the consumer’s nonpublic personal information (NPI); 3. Provide adequate, timely and meaningful disclosures as to both the cost of a particular mortgage loan and the extent to which NPI will be protected; and 4. Eliminate financing surprises at the settlement table. Settlement agents will need to be familiar with the new terminology and forms by August 1, 2015, the date on which the changes take effect. Much of the new terminology is consistent with terms used in existing mortgage financing regulations: Lender > Creditor Borrower > Consumer Closing/settlement4 > Consummation5 TIL & GFE > Loan Estimate
* Kay M. Creasman is Assistant Vice President and Counsel for Old Republic National Title Insurance Company. She has worked in real estate in Virginia since 1976, first as a title examiner, then as an attorney. She has worked in title insurance since 1992. Her email address is Kcreasman @oldrepublictitle.com. 1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010), available at http://www.gpo.gov/fdsys/pkg/PLAW-111publ203/html/PLAW-111publ203 .htm. 2 Dodd-Frank Wall Street Reform, FEDERAL REGISTER, https://www.federalregister.gov/dodd- frank-wall-steet-reform (last visited May 18, 2014). 3 Integrated Mortgage Disclosures under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z), 12 C.F.R. Parts 1024 and 1026, available at http:// files.consumerfinance.gov/f/201311_cfpb_final-rule_integrated-mortgage-disclosures.pdf. Amended the proposed rule issued July 9, 2013, available at http://files.consumerfinance.gov/f/201207_cfpb_proposed- rule_integrated-mortgage-disclosures.pdf. 4 Settlement is still defined in Regulation X, 12 C.F.R. § 1024.2(b), available at http://www .gpo.gov/fdsys/pkg/CFR-2013-title12-vol8/pdf/CFR-2013-title12-vol8-sec1024-2.pdf (“Settlement means the process of executing legally binding documents regarding a lien on property that is subject to a federally related mortgage loan.”). 5 Consummation is defined in 12 C.F.R. § 1026.2(a)(13), available at http://www.gpo.gov/ fdsys/pkg/CFR-2013-title12-vol8/pdf/CFR-2013-title12-vol8-sec1026-2.pdf (“Consummation means the time that a consumer becomes contractually obligated on a credit transaction.”).
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HUD-1/settlement statement & final TIL > Closing Disclosure The combined disclosure rules apply to most 1-4 family closed-end residential mortgages made for personal or family use.6 They do not apply to cash transactions; reverse mortgages; HELOCs; mobile homes or any moveable improvements; creditors that make five or fewer loans in a year; or any loan for commercial or agricultural purposes. A living trust for tax or estate tax purposes is considered an individual for inclusion so long as the loan is primarily for personal, family or household purposes. Loan Estimate (Appendix A) Under the new rule, a creditor must provide a Loan Estimate no later than three business days after receiving a written loan application, regardless of whether the creditor has received supporting information or whether the applicant has fully completed a questionnaire required to process the loan. A loan application consists of the following six pieces of information7: 1. Consumer’s name; 2. Consumer’s income; 3. Consumer’s social security number (used to obtain a credit report); 4. Address of the property; 5. Estimate of the value of the property (but cannot require a copy of the contract in a purchase transaction); and 6. Loan amount requested. An application submitted electronically is considered a written loan application. A written record of an oral application also qualifies. In order for the creditor to communicate with the consumer electronically, the consumer must agree to accept electronic communications prior to actually receiving any information from the creditor in that format. Financial privacy statutes8 require that creditors and service providers keep consumer NPI secure, and that specific steps be taken to ensure that electronic communications meet privacy requirements. Access to electronic communications may be protected by a log-in requirement similar to that currently used by lenders to provide settlement documents and instructions to settlement agents. Unless the creditor has confirmed a response from the consumer, the consumer is deemed to have received the communication three business days after the communication is sent, the same as if delivery was made via USPS “snail” mail. The term “business day” has multiple meanings for the purposes of these regulations.9 During the loan application stage, “business days” are those days on which the creditor is “regularly open to do business with the public.” Sundays and federal holidays are not considered business days but Saturdays are if the creditor is open on Saturdays. In any case, the creditor must mail the Loan Estimate “not later than the seventh business day before consummation.”10
6 12 C.F.R. § 1024.5(a). 7 § 1026.2(a)(3)(ii). According to lenders these six items of information have always defined the loan application. The new rules change the response time and limit fees that may be charged upfront. 8 Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801-6809 (1999), available at http://www.banking .senate.gov/conf/fintl5.pdf. 9 12 C.F.R. §§ 1026.2(6), 1026.19(e)(B)(iii). 10 § 1026.19(e)(iii)(B).
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The creditor may not charge any fee11 other than “a bona fide and reasonable fee for obtaining the consumer’s credit report”12 before the consumer receives the Loan Estimate and indicates an intent to proceed with the loan. Under current practice, lenders often charge a fee of about $450, at the time the application is submitted, for the credit report and appraisal; a check or credit charge is delivered to the lender and held, unprocessed, until the borrower agrees to proceed. The new rules prohibit this practice, and thereby allow the consumer to comparison-shop without having appraisal and credit report fees tied up at multiple lenders during the decision-making process. In effect, the chilling effect on consumer comparison shopping is mitigated by denying creditors the right to impose the charge upfront. Once the Loan Estimate is provided, the terms disclosed will bind both the consumer and the creditor unless a valid change in circumstances occurs.13 Currently, the loan amount, interest rate, and creditor fees are subject to a zero tolerance standard, which means that they cannot be changed unilaterally by the creditor;14 the new rule expands the category of fees subject to the zero tolerance standard to include affiliate fees of lender-required services and state and local property transfer taxes. Fees for services for which the consumer chooses a provider from a list supplied by the lender remain in the ten percent tolerance category, while fees for services for which the consumer alone chooses the service provider are not subject to any tolerance restriction. If the creditor does not have the actual fee when issuing the Loan Estimate, it may use “reasonably available” information, as long as the information is provided in good faith and the lender has used due diligence in obtaining the information. If an estimate is used it must be clearly identified as an estimate. The creditor must provide a list of settlement service providers if the creditor allows the consumer to shop for this service.15 The list may consist of just a single entity or person with whom the creditor has an affiliated business arrangement. The list must contain current, accurate contact information, and may not include entities that are out of business or unavailable in the area. It must also clearly state that the consumer may choose a different service provider if it so desires. Even though the creditor may “impose reasonable requirements regarding the qualifications of the provider,”16 it may also include a disclaimer stating that inclusion on the list is not a recommendation by the creditor and is not a guarantee of the service provider’s qualifications. When there are multiple consumers, the Loan Estimate may be provided to any one of them, unless the process is a refinance. In a refinance, every person with a right to rescind must receive a copy of the Loan Estimate. The cost of title insurance for the loan policy will be disclosed based on the full premium rate for a loan policy, basic coverage,17 unless enhanced coverage is specified in the purchase contract. Owner’s title insurance is deemed “optional.” Unless addressed in the purchase contract,18 no disclosure of the owner’s premium will appear in the initial Loan Estimate. The term “optional” is part of the preprinted form in the Loan Estimate and Closing Disclosure with the charge for owner’s title policy.19 The CFPB
11 § 1026.19(e)(2)(i)(A). 12 § 1026.19(e)(2)(i)(B). 13 § 1026.19(e)(1)(iv). 14 § 1026.19(e)(1)(vi). 15 § 1026.19(e)(1)(vi)(A). 16 Id. 17 §1026.27(f)(2) or (f)(3). 18 Consider the states in which sellers pay for the owner’s coverage. 19 12 C.F.R. § 1026.38(g)(4)(2).
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the FEE SIMPLE considers it the job of the title agent20 to provide purchasers with information on the benefits of purchasing an owner’s title insurance policy. Although a creditor will typically require a loan policy as a prudent business practice (to facilitate the sale of its loan on the secondary market), a purchaser may choose whether to purchase an owner’s policy. If the sales contract does not address it, the cost of owner’s coverage may not be disclosed in the Loan Estimate; when the owner’s policy premium is disclosed it will be in Section H (“Other”), as “Title–Owner’s Title Policy (optional).” It thus appears that the CFPB considers such disclosure to be a miscellaneous item. If owner’s title insurance is purchased, the cost of coverage must be disclosed to the consumer according to the procedure detailed in the regulations. Many settlement agents in Virginia currently disclose the fee pursuant to this procedure, despite the belief of the Virginia Bureau of Insurance that the procedure does not accurately reflect the way fees are actually charged. The CFPB has updated the procedure to more accurately reflect the true cost of owner’s title insurance21: Full owner’s title insurance premium for purchase price plus Simultaneous issue fee minus Full loan coverage title insurance premium Difference equals amount to be disclosed as premium for the owner’s coverage. Closing Disclosure (Appendix B) A major question in the Proposed Rule was, “who prepares and delivers the Closing Disclosure?” The Revised Rule has resolved this question. In effect, preparation and delivery will be conducted in a manner very similar to current procedures, coordinated between creditor and the settlement agent. Creditors may continue to rely on settlement agents for information. Creditors can designate how much responsibility they want the settlement agent to have, but the creditor ultimately remains liable. If the settlement agent prepares and delivers the Closing Disclosure, it becomes responsible for all relevant provisions, including corrections and re-disclosure. The creditor and settlement agent may not duplicate their efforts; that is, both entities may not send the Closing Disclosure to the consumer three days prior to consummation.22 The consumer must be provided with a copy of the Closing Disclosure at least three days prior to disclosure. The consumer is encouraged to compare this document with the Loan Estimate it received at the beginning of the mortgage process. The waiting period may be waived only for a bona fide personal financial emergency of the consumer, such as a refinance needed to prevent foreclosure. (With respect to a purchase, the fact that the seller’s house would be foreclosed and the purchaser would lose the benefit of his bargain does not appear to be considered an emergency that would allow waiver of the three-day requirement.) The consumer must apply for the waiver in his own words; the creditor cannot provide a
20 Throughout most of the United States, no distinction is made between title and settlement agents. Only in some of the original thirteen colonies (and Kentucky) are attorneys regularly used as settlement agents. West of the Mississippi River, attorneys rarely conduct residential settlements. In Virginia, only licensed title agents may sell title insurance. Attorneys may advise clients on the advisability of purchasing an owner’s policy, and may discuss standard versus enhanced coverage, but no settlement agent will be able to default to the enhanced premium and coverage unless the purchase contract specifically provides as much. 21 12 C.F.R. § 1026.37(g)(4)(2)(ii). 22 § 1026.19(f)(1)(v).
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the FEE SIMPLE standardized form for completion. Without a waiver, consummation may occur no earlier than seven business days after application is made.23 It is important to remember that, unless a document is delivered to the consumer by hand, it must be placed in the channel of communication at least three business days prior to the delivery date. For example, the Closing Disclosure would need to be mailed to the consumer a minimum of six business days prior to consummation, to allow for three days in transit and still provide the consumer three full days to review the document. Note that the three “business days” for the Closing Disclosure is not measured in same way as the three-day waiting period for a refinance transaction. Consummation may occur on the third business day, but the right of rescission does not end until midnight on the third day; accordingly, the fourth business day after settlement is the soonest that documents can be recorded and disbursed. If a preliminary disclosure needs to be revised, it must be done prior to delivery of the Closing Disclosure. The Loan Estimate must be received at least four business days prior to consummation. It is no longer acceptable for a revised Good Faith Estimate (GFE) to be signed at settlement. Creditors may still require a “final Loan Estimate” be signed at settlement, in keeping with their practice of having consumers sign documents already signed and delivered to the lender, so the lender can have a complete package of all signed documents in one place. With the new regulations the only matters that trigger re- disclosure with an additional three-day review period are (1) an inaccurate APR; (2) a change in the loan product; and/or (3) a prepayment penalty added.24 A credit from the seller due to a matter discovered at the walk-through will not require, in and of itself, an additional three-day waiting period. The Closing Disclosure must accurately show both the actual terms of the loan and the actual costs associated with the consummation process. If the settlement agent does not have full information, the Closing Disclosure must be completed with estimates that have been compiled with due diligence. The creditor and settlement agent are obligated to provide information to each other, but only one of them should provide the Closing Disclosure to the consumer. Specific charges shown on the second page of the Closing Disclosure are now to be listed in alphabetical order in each category, with no standard categories named. In a sale transaction, sellers may receive a copy of the Closing Disclosure provided to the purchaser, or a separate Closing Disclosure listing just the seller fees. The last page of the Closing Disclosure requires that contact information, including license numbers, be provided for the “lender”/creditor, mortgage broker (if applicable), real estate broker for both buyer and seller, and the settlement agent. Signature lines exist for the consumer to acknowledge receipt of the form. Post-closing corrections to the Closing Disclosure will be made by whomever prepared and delivered the Closing Disclosure to the consumer. Creditors have up to sixty days to make adjustments and refund overcharges. Conclusion Abuses in the mortgage services industry gave rise to the Dodd-Frank Act. Detailed, extensive analysis of the residential mortgage settlement service industry, a small part of the subject matter covered by the legislation, has given rise to a change in forms and procedures. The changes require that the consumer be provided with sufficient information, in an understandable format, and enough time to evaluate the information before making a decision. In addition, the statute and accompanying regulations
23 § 102619(e)(1)(iii)(B). 24 § 1026.19(f)(2)(ii).
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the FEE SIMPLE focus on protecting NPI in the financial industry sector. The end result is that surprises at settlement of financing and in the terms of the loan will be eliminated. NOTE: The CFPB does not intend to issue FAQs for the Combined Disclosure Rule, but at the end of March 2014 the CFPB issued a compliance guide for small entities with regard to the TILA-RESPA Integrated Disclosure rule.25 Additionally, in mid-April 2014 the CFPB issued the “TILA-RESPA Integrated Disclosure Guide to the Loan Estimate and Closing Disclosure form.”26
25 See TILA-RESPA Integrated Disclosure rule: Small entity compliance guide, CONSUMER FINANCIAL PROTECTION BUREAU (2014), available at http://files.consumerfinance.gov/f/201403 _cfpb_tila-respa-integrated-disclosure-rule_compliance-guide.pdf. 26 See TILE-RESPA Integrated Disclosure: Guide to the Loan Estimate and Closing Disclosure form, CONSUMER FINANCIAL PROTECTION BUREAU, available at http://files.consumerfinance.gov/f/ 201404_cfpb_tila-respa-integrated-disclosure-form.pdf.
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APPENDIX A
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APPENDIX B
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COMPLIANCE WITH GRAMM-LEACH-BLILEY’S PRIVACY PROVISIONS IN CIVIL DISCOVERY AND LIEN PRIORITY LITIGATION by Thomas A. Hill* When representing a financial institution with a loan policy covered by title insurance, federal regulation understandably may not be foremost in the mind of the attorney retained specifically to defend or obtain lien priority. In such cases, the initial point of contact is often the foreclosing firm, not the servicer or note holder, and the underlying facts are frequently limited to loan documents and land records. Typically, the case will be decided on pretrial motion with little substantive communication between the attorney and the client, apart from periodic updates. Nevertheless, because the attorney represents an entity subject to broad federal regulation, and because the Consumer Financial Protection Bureau (“CFPB”) has been accorded increasingly broad enforcement, counsel must have basic knowledge of the regulations that may apply even within the limited scope of its representation. To that end, this article will discuss one area of such regulations—federal privacy law—in connection with civil discovery and lien priority litigation. I. THE GRAMM-LEACH-BLILEY ACT OF 1991 AND REGULATION P Enacted on November 12, 1999, the Gramm-Leach-Bliley Act1 (“GLBA”) repealed the Glass- Steagall Act of 1933, which prohibited commercial banks from affiliating with investment banks and insurance companies.2 GLBA allows financial institutions3 to consolidate or sell competing financial products and services.4 It also imposes restrictions on the disclosure of private financial information5 (referred to as “nonpublic personal information,” or “NPI”); these restrictions are enumerated in Title V of GLBA (“Title V”).6 NPI is defined as “personally identifiable financial information (i) provided by a consumer to a financial institution; (ii) resulting from any transaction with the consumer or any service performed for the consumer; or (iii) otherwise obtained by the financial institution.”7 Publicly available information, which GLBA does not define, is excluded from Title V regulation.8
* Thomas A. Hill is a senior associate at Cyron & Miller LLP in Alexandria, Virginia. His practice focuses on title insurance defense and commercial liability defense. He is a graduate of St. Olaf College and the University of Minnesota School of Law. He can be reached at [email protected]. 1 Financial Services Modernization (Gramm-Leach-Bliley) Act, Pub. L. No. 106-102, 113 Stat. 1338 (1999). 2 Id. at § 101. 3 15 U.S.C. § 6809 defines “financial institution” as “any institution the business of which is engaging in financial activities described in section 1843(k) of Title 12.” 12 U.S.C. § 1843(k)(4) broadly defines “activities that are financial in nature.” Included within its scope are “lending, exchanging, transferring, investing for others or safeguarding money or securities”; insuring, providing investment advice; and “engaging in any activity that the [Federal Reserve] Board determined, by order or regulation that is in effect on November 12, 1999, to be so closely related to banking or managing or controlling banks as to be a proper incident thereto.” 12 C.F.R. § 225.28, promulgated by the Board and in effect on November 12, 1999, covers a broad range of nonbanking activities such as brokering or servicing loans, performing appraisals of real or personal property, collection agency services, credit bureau services, and real estate settlement services. 4 Pub. L. 73-66, 48 Stat. 162 (1933). 5 Consideration of S.900: Financial Services Modernization Act of 1999, All Congressional Actions & Reports of S. 900, Congressional Record. 6 Pub. L. 106-102, Title V, § 501 et seq. 7 15 U.S.C. § 6809(4)(A). 8 15 U.S.C. § 6809(4)(B).
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Title V prohibits a financial institution from disclosing NPI to a non-affiliated third party unless the financial institution “clearly and conspicuously” discloses to customers its policy of doing so and allows customers to “opt out” (i.e., direct that such information not be disclosed).9 Exceptions relevant to the present discussion include disclosure of NPI necessary (1) “to effect, administer, or enforce a transaction requested or authorized by the consumer,” and (2) “to comply with federal, state, or local laws, rules, and other applicable legal requirements; . . . or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution.”10 Before enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd- Frank Act”), rulemaking and enforcement authority under GLBA was shared by eight federal agencies.11 Beginning July 21, 2011, with respect to most of the financial institutions described in § 504 of GLBA, Title X of the Dodd-Frank Act transferred rulemaking and enforcement under Title V of GLBA to the CFPB.12 Modeled after the Federal Reserve Board’s Regulation P, the CFPB published its own Regulation P,13 effective December 30, 2011, which consolidated the transferor agencies’ rules and made various non-substantive changes.14 The scope of the CFPB’s Regulation P is limited to “nonpublic personal information about individuals who obtain financial products or services primarily for personal, family, or household purposes.”15 Its language tracks the GLBA language prohibiting financial institutions from disclosing “any nonpublic personal information about a consumer to a nonaffiliated third party” absent proper disclosure and opportunity to opt-out.16 Regulation P also limits the third category of NPI identified in GLBA (information “otherwise obtained by the financial institution”) to financial information “otherwise obtained by the financial institution in connection with providing a financial product or service to that consumer.”17 “Publicly available information” outside the scope of GLBA is defined as information the financial institution has “a reasonable basis to believe is lawfully made available to the general public from: (i) Federal, state, or local governmental records; (ii) Widely distributed media; or (iii) Disclosures to the general public that are required to be made by federal, state or local law.”18 Information in filed or recorded security interests is considered “publicly available information.”19 Regulation P adopts verbatim the two exceptions, mentioned above, regarding disclosures of information necessary to effect, administer or enforce a transaction authorized by the customer, and disclosures necessary to comply with federal, state or local law or to respond to judicial process or government regulatory authorities.20
9 15 U.S.C. § 6802(a)-(b). 10 15 U.S.C. § 6802(e)(1) & (8). 11 The eight agencies were: the Board of Governors of the Federal Reserve System, the FDIC, NCAU, the OTC, the OCC, the FTC, the SEC, and the CFTC. See Privacy of Consumer Financial Information (Regulation P), 76 Fed. Reg. 245, 79025 (Dec. 21, 2011). 12 Id. at 79025-26. 13 12 C.F.R. Part 1016 (2011). 14 76 Fed. Reg. 245, 79025-26. 15 12 C.F.R. § 1016.1. 16 12 C.F.R. § 1016.10. 17 12 C.F.R § 1016.3(q)(1) (emphasis added). 18 12 C.F.R. § 1016.3(r)(1). 19 12 C.F.R. § 1016.3(r)(3). 20 12 C.F.R. § 1016.14(a); 12 C.F.R. § 1016.15(a)(7)(ii).
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II. DISCLOSURE OF NPI IN RESPONSE TO CIVIL DISCOVERY With one exception, courts have held that GLBA’s language allowing disclosure of NPI “to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution” permits disclosure of NPI to comply with a discovery request in a civil action. In Marks v. Global Mortgage Group,21 borrowers, in connection with the refinancing of their second mortgages, filed a class action against First Union Bank of Delaware (“First Union”) and a mortgage broker. They asserted, among other claims, fraud and violations of the Truth in Lending Act, the Equal Credit Opportunity Act, and the West Virginia Consumer Protection Act.22 The plaintiffs’ claims were predicated upon allegations that (a) the loan broker misrepresented the benefits of the refinancing loans over their original loans; (b) required disclosures were not made; and (c) the refinancing loans contained impermissible finance charges.23 In an effort to support their fraud claim, the plaintiffs propounded interrogatories to First Union seeking the names of all borrowers whose loans were brokered by the co- defendant and production requests seeking a number of documents in the loan file for each borrower, including the loan application.24 First Union (which had become Wachovia Mortgage Corporation) objected on the grounds that GLBA prevented the disclosure of the information sought and that the exceptions in § 6802 were inapplicable.25 The district court agreed that the magistrate judge mistakenly applied the exception for disclosures in compliance with “Federal, State, or local laws, rules, and other applicable legal requirements,” reasoning that the section referred to statues and rules regulating the financial industry, not the rules of civil procedure.26 Contrary to Wachovia’s suggestion, though, it ultimately held that, for the purposes of GLBA, the phrase “judicial process,” is not limited to that process which is issued by regulatory authorities.27 In Ex parte Mutual Savings Life Insurance Company,28 the Alabama Supreme Court was presented with the same question in the context of the sale of insurance. In that case, the plaintiff alleged that an agent of the defendant insurance company deliberately omitted information from her insurance application; in discovery, the plaintiff sought all applications processed by the agent.29 The Court found that while the “judicial process” exception might be construed to mean only that process issued by regulatory authorities, the interpretation in Marks was more reasonable.30 The rationale in Marks has likewise been cited with approval in Martino v. Barnett, 215 W. Va. 123, 130, 595 S.E.2d 65, 72 (2004); Alpha Funding Group v. Continental Funding, LLC, 17 Misc. 3d 959, 966-67, 848 N.Y.S.2d 825, 831-32 (Sup. Ct. 2007); and Ameriquest Mortgage Company v. State Attorney General, 148 Wash. App. 145, 164, 199 P.3d 468, 476 (2009). The only case in which civil discovery was prohibited on the ground that it violated GLBA’s privacy protections is Union Planters Bank, N.A. v. Gavel.31 In Union Planters, a bank successfully
21 218 F.R.D. 492 (S.D.W.Va. 2003). 22 Id. at 493. 23 Id. at 493-494. 24 Id. at 494. 25 Id. at 496. 26 Id. 27 The court nevertheless held that because Congress expressed a strong interest in preventing unnecessary dissemination of NPI, the court should enter a protective order appropriate for that purpose. Id. at 497. 28 899 So. 2d 986 (Ala. 2004). 29 Id. at 989. 30 Id. at 992-93. 31 CIV.A. 02-1224, 2003 WL 1193671 (E.D. La. Mar. 12, 2003).
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the FEE SIMPLE petitioned for an injunction prohibiting an employee of a company that provided insurance services to it from complying with a subpoena seeking financial information of its customers.32 The decision, however, is unreported and was vacated on other grounds. Moreover, it does not appear that the court considered the judicial process exception. III. DISCLOSURE OF NPI IN LIEN PRIORITY LITIGATION In many cases, the difficulty in complying with GLBA in lien priority litigation is that NPI is an essential element of a claim or defense of the financial institution. For example, where a defect in an insured lender’s deed of trust, or in its recording, results in intervening creditors obtaining priority, it is common for the insured lender to seek equitable subrogation to the priority of preexisting liens satisfied from its loan proceeds. Because subrogation is available only to the extent to which the balance is secured by the preexisting lien, however, the balance is the basis of the claim. It is therefore not uncommon for a plaintiff to not only produce the HUD-1 settlement statement for its loan transaction, but to also attach it as an exhibit to its complaint or pretrial pleadings. The problem, insofar as compliance is concerned, is that the settlement statement contains nonpublic financial information of the seller and the purchaser, or of the refinancing borrower. The HUD-1, among other things, indicates loan balances of the seller or refinancing borrower; cash paid by the purchaser at settlement; cash disbursed to the refinancing borrower; loan origination fees; loan discounts; and information concerning mortgage insurance. (Information also contained in the mortgage or deed of trust is not NPI.) Under Regulation P, NPI is limited to customer information, so the disclosure of financial information relating to the seller is not prohibited. The settlement statement and other documents in the loan file (such as the loan application) nevertheless contain NPI that may support, or form the basis of, the financial institution’s claim or defense. The attorney representing the financial institution will therefore want to ensure that the disclosure of NPI, when necessary, is done in such a way that it falls within an exception. “Judicial process” is broadly defined as “the proceedings in any action or prosecution,”33 Accordingly, disclosure of NPI in a complaint will likely not be considered to be in response to “judicial process,” as a complaint initiates a legal proceeding. Moreover, “process” is generally understood to be one of several means by which a litigant is compelled in some manner.34 The disclosure of NPI in a pleading or evidentiary hearing would likely not be considered compelled, its necessity for successful prosecution of (or defense against) a claim notwithstanding. Such disclosure, however, does appear to fall within the exception provided in § 1016.14(a) for disclosures “necessary to effect, administer, or enforce a transaction requested or authorized by the consumer.” The “transaction,” after all, is understood by the borrower and lender as one in which the lender is to be secured by a lien of a certain priority. Moreover, among the rights granted to the beneficiary of a deed of trust is the right to take action necessary to maintain the priority of the instrument. Accordingly, where disclosure is for the purpose of asserting a claim or defense, as opposed to responding to discovery, § 1016.14(a) is the relevant exception. Unlike the exception for disclosures responsive to judicial process, however, disclosures made for purpose of effecting or enforcing a loan transaction are permitted only insofar as they are “necessary.” Though the extent to which disclosure of NPI is necessary may vary from case to case, at minimum,
32 Id. at * 7-8. (“It is clear to this Court that federal law, the GLBA, specifically prohibits Mr. Gavel from disclosing the information sought by the subpoena issued, as modified by the state court, without the consent of the customers. 15 U.S.C. § 6802(b)(1).”). 33 PROCESS, BLACK’S LAW DICTIONARY (9th ed. 2009). 34 See id. (“Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands.”); Marks, 218 F.R.D. at 496 (“When a party must disclose information pursuant to a discovery request, the party is responding to judicial process.”).
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the FEE SIMPLE financial information irrelevant to the proceeding should be redacted in court filings or documents offered into evidence. Upon motion, documents containing NPI supporting the claims or defenses of the financial institution may be filed or admitted into evidence under seal. In Virginia, Rule 4:1(c) is the proper vehicle through which to seek a protective order in relation to discovery, though the circuit court also has inherent authority to seal portions of the record.35 In any event, the extent to which public access is ultimately limited by the circuit court is of less concern than the efforts of the financial institution, which alone are relevant in determining whether NPI was unnecessarily disclosed in the litigation. That is, to the extent that a motion to seal is denied, public disclosure is necessary to obtain or defend lien priority and does not contravene Regulation P. IV. CONCLUSION As a practical matter, Title V of GLBA, as enforced under the CFPB’s Regulation P, should not significantly increase the burden upon the financial institution or the complexity of litigation. Compliance in discovery requires only that disclosure of NPI be responsive. With respect to NPI that supports an institution’s claim or defense, steps routinely taken to prevent the unnecessary disclosure of confidential information will ensure that the disclosure of NPI is made only insofar as necessary, and that such disclosure falls within the exception for disclosures made in administering or enforcing loan transactions.
35 See Perreault v. Free Lance-Star, 276 Va. 375, 389, 666 S.E.2d 352, 359-60 (2008) (“When the sealing of a record or part thereof is not a duty imposed by law, the decision whether to seal the record rests within the sound discretion of the circuit court.”).
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PAYING OFF PRIVATE NOTEHOLDERS AND CREDIT LINE LOANS: UPDATED FOR 2014 by Susan M. Pesner* and Mark W. Graybeal**
In 1995, Lawrence Schonberger published an article in the FEE SIMPLE regarding the payment of private noteholders and credit line loans. While the world may have changed considerably in the nineteen years since, the concerns and issues surrounding paying off private noteholders and credit line loans have changed very little. A Settlement Agent encountering a payoff of a private noteholder or a credit line loan faces the same challenges in 2014 as he did in 1995. Paying off a private noteholder involves two major problems: verification and control. “Verification” means obtaining accurate payoff information. Too frequently, private noteholders will want to provide verbal information by telephone, or quote a payoff amount that is an “approximation” or an amount “that will do.” Occasionally, private noteholders will request that payoff funds be wired to other individuals or local banks with which the Settlement Agent may have little or no familiarity. By “control,” we mean obtaining the original promissory note marked “Paid” and the executed Certificate of Satisfaction in exchange for the payoff funds. When dealing with an institutional lender, there is a reasonable expectation that, once the Settlement Agent delivers the payoff funds, the lender will return the marked promissory note and executed Certificate of Satisfaction, either to the Settlement Agent or directly to the courthouse. Dealing with a private noteholder, by contrast, may require repeated follow-up in order to obtain the necessary documents; worse, the private noteholder may vanish and become unreachable entirely.1 We can address these problems by providing an instruction letter to the private noteholder giving that person two options: Either appear at the settlement office to exchange the promissory note marked “Paid” and the signed Certificate of Satisfaction for the payoff funds, or deliver the original note to a bank, credit union or attorney who will then become the noteholder and provide the marked note and the signed Certificate of Satisfaction in exchange for the payoff funds. Under the second example, the bank, credit union or attorney can coordinate delivery of the payoff funds to the original private noteholder. In both of these scenarios, the Settlement Agent remains in control of the transaction and pre-empts the private noteholder attempting to collect further money on the note. Paying off a credit line loan presents a different challenge: ensuring that the payoff quote remains accurate. As Mr. Schonberger stated, “Occasionally, borrowers will continue drawing on their credit line right up until the moment of settlement not realizing that the settlement attorney has already obtained a payoff figure from the credit line lender.”2
* Susan M. Pesner is the Principal of Pesner Kawamoto PLC in McLean, Virginia, and a past Chair of the Virginia State Bar Real Property Section. Her practice includes real estate law and estate planning. Her email is [email protected]. ** Mark W. Graybeal is an Associate with Pesner Kawamoto PLC in McLean, Virginia, and Chair of the Technology Committee of the Virginia State Bar Real Property Section. His practice includes real estate law and business formation. His email address is [email protected]. 1 Editor’s Note: §55-66.3, Code of Virginia, provides a procedure by which a settlement agent who has paid off a loan may execute and file a Certificate of Satisfaction if the lender fails to do so. 2 Lawrence M. Schonberger, Controlling the Payoff of Private Noteholders and Credit Line Loans, FEE SIMPLE, Spring 1995, at 55.
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This problem can be addressed with two documents.3 First, at or before settlement, the borrower should execute a letter to the credit line lender instructing that lender to “freeze” the account. This, in theory, should prevent the borrower from drawing additional funds. Accompanying that letter should be a signed affidavit from the borrower, by which the borrower 1) states, to the best of his knowledge, what the payoff is; 2) agrees to make no further draws on the account; and 3) authorizes the settlement agent to pay off and close the account. In his original article, Mr. Schonberger included three forms to use in addressing these problems. The forms, which have been updated, follow this article.
3 Editor’s Note: Some title insurance companies provide credit line payoff form letters for their agents to use. If so, use of the underwriter’s forms may protect the settlement agent from liability if and when there is a problem with the payoff of the credit line.
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PRIVATE NOTEHOLDER PAYOFF INSTRUCTION LETTER
DATE (Noteholder) (Address) Re: (Loan Payoff) Dear (Noteholder):
Pursuant to our earlier conversation of (date), settlement is scheduled for ______. Please provide us with a letter stating the amount necessary to pay off the note as of that date, plus the per diem interest accruing on the note as of that date. In order for this office to disburse the loan payoff funds, the following procedure must be followed:
1. The ORIGINAL NOTE must be delivered to this office in exchange for the payoff funds at which time you will mark the note as “Paid” and sign a Certificate of Satisfaction for the release of the deed of trust securing the Note; or 2. If you are unable to appear at our office, the ORIGINAL NOTE must be delivered to a bank, credit union, or attorney to be held in escrow until such time as it receives the payoff funds from our office. Endorse the Note to the bank, credit union, or attorney who can then mark the Note “Paid” and execute a Certificate of Satisfaction when the funds are received.
Please advise me of the procedure you desire to follow for loan payoff and if you select option number 2, please provide the name, address, phone number, email address, and name of person to contact at the bank, credit union, or name of attorney, as we require written confirmation of the payoff amount from the bank, credit union, or attorney and evidence that they are the Noteholder.
Should you have any questions, please call me. Sincerely,
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CREDIT LINE NOTEHOLDER LETTER
DATE
(Payoff Lender)
(Address)
Attention: Home Equity Line of Credit Payoff Department
RE: ______
Equity Line of Credit No. ______
Ladies and Gentlemen:
I/We are the borrower(s) on an Equity Line of Credit loan with your company secured by our property known as ______. You are hereby authorized and instructed to FREEZE the Equity Line of Credit as of this date and upon receipt of the payoff funds in the amount stated below, to close the credit line and send the original Note marked “Paid” and a Certificate of Satisfaction to ______in order to effect the release of the lien of your deed of trust.
Sincerely,
(Borrower’s Signature)
Acknowledged that the above referenced credit line is frozen as of ______with an outstanding balance of $______per diem interest on the outstanding principal balance as of this date is ______. LENDER
By:______(Authorized Officer – Name & Title)
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CREDIT LINE BORROWER AFFIDAVIT
STATE OF ______CITY/COUNTY OF ______, TO-WIT: We, the undersigned, having been first duly sworn, depose and state:
1. That as of ______our $______Equity Line of Credit with ______recorded in Deed Book ______at Page ______, ______City/County, Virginia land records has an outstanding balance of $______; and
2. That we have not made any draw requests nor will we as of, and after, the date hereof make any draw requests that would change the outstanding balance of the loan; and
3. (Name of Settlement Agent) is authorized to instruct (Payoff Lender) to close the Equity Line of Credit. GIVEN under our hands and seals this ______day of ______, 20__.
(SEAL)
(SEAL)
Acknowledged, subscribed and sworn to before me this ______day of ______, 20__.
Notary Public My commission expires:
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COMMUNITY ASSOCIATIONS MAY ADD INJUNCTIVE RELIEF IN GENERAL DISTRICT COURT TO THEIR LENGTHY LIST OF REMEDIES by Lawrence J. McClafferty* Community associations in the Commonwealth have many options when it comes to enforcing their rules and covenants and the owner’s obligation to pay assessments. A wide array of remedies— including self-help; liens; nonjudicial foreclosure; authority to bar residents from parking areas, community facilities and other common areas; and even the ability to impose fines1 and other charges—is available through the Virginia Code and properly drafted declarations and master deeds. As of 2011, community associations also have the rather novel right to pursue injunctive relief from a general district court. Circuit court has historically been the place to seek injunctive relief in Virginia; pursuant to both statutory2 and common law, injunctive relief is the prerogative of a court of equity, and equitable remedies were available on the chancery side of the circuit court.3 The legislature previously carved out an exception to this rule, through which it authorized general district courts to award injunctive relief in cases arising out of the Freedom of Information Act and Government Data Collection and Dissemination Practices Act.4 Since 2011, general district courts have also had limited jurisdiction to “try and decide any cases pursuant to § 55-79.80:2 of the Condominium Act or § 55-513 of the Property Owners Association Act.”5 Virginia Code § 55-513 and its condominium counterpart at § 55-79.80:2 grant an association the authority, to the extent its governing documents allow, to suspend an owner’s right to use facilities or services, and to assess charges for nonpayment of assessments or other violations of the governing documents.6 Both statutes require due process, including notice and a hearing, before sanctions are imposed; both statutes also prohibit additional charges from accruing after the association files a lawsuit in “the general district court or circuit court. . . to collect the charges, obtain injunctive relief and correct the violation.”7 These provisions go on to note, “if the court finds that the violation remains uncorrected, the court may order the unit owner to abate or remedy the violation.”
* Lawrence J. McClafferty is a principal with McCandlish & Lillard. He is a trial and appellate lawyer concentrating on civil litigation, particularly with respect to business torts, contract disputes, and issues arising out of commercial and real estate transactions. Of special note is his extensive experience with disputes involving homeowners associations and condominiums. 1 The legislature has authorized community associations to levy fines and other penalties, despite the Virginia Supreme Court’s insistence that “imposition of a fine is a governmental power” and its related caution with respect to “[t]he mischief that could be wrought if it were constitutionally permissible for a condominium association to levy fines on and exact penalties of unit owners….” Unit Owners Ass’n. v. Gillman, 223 Va. 752, 764-65 (1982). 2 VA. CODE § 8.01-620 (“Every circuit court shall have jurisdiction to award injunctions….”). 3 JOHN L. COSTELLO, VIRGINIA REMEDIES § 13.02[1] (4th ed. 2013) (citing LILE’S EQUITY PLEADING AND PRACTICE § 340 (3d ed. 1952)). 4 VA. CODE § 16.1-77(6). 5 VA. CODE § 16.1-77(9). 6 As used herein, “governing documents” refers to a master deed, declaration and the rules and regulations of an association, and not to its articles of incorporation or bylaws. 7 Charges also cannot accrue after an owner files a suit in general district court or circuit court “challenging any such charges.” By this language, owners too are given the right to seek injunctive relief in general district courts.
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The plain language of the statutes, then, does not vest a general district court with unfettered jurisdiction to award injunctive relief in every case involving condominiums or property owners associations. Rather, the statutes authorize injunctive relief in a suit by an association to “collect the charges, obtain injunctive relief and correct the violation,” or by an owner challenging such charges.8 In other words, the assessment of charges and a suit for their recovery seem to be necessary conditions for an award of injunctive relief in a general district court. Virginia Code § 55-513 contains an additional trap for the unwary or overreaching homeowners association. That Section expressly addresses “adoption and enforcement of rules” while “compliance with [the] declaration” is treated at § 55-515. An association’s rules are plainly different from the provisions of its declaration. Obligations in the nature of covenants running with the land are found in the declaration. The declaration must be recorded among the land records, and its amendment typically requires a super-majority vote of all owners within the association. By contrast, rules and regulations are not found in a declaration or among the land records; they are enacted by the homeowners association’s board of directors, and are subject to change by the board. Accordingly, it appears that Va. Code § 16.1- 77(9) only empowers a general district court to issue an injunction for a homeowners association rules violation, and not a violation of its declaration. Consider the following hypothetical: Putting Green HOA’s Declaration of Restrictive Covenants requires all lawns to be neatly maintained and prohibits owners from allowing grass to grow beyond six inches in height. The Declaration also prohibits parking of campers and other recreational vehicles on the common area. Mr. Smith is severely allergic to freshly cut grass but is not inclined to pay someone to cut his grass. He has his son mow while home on break from college every few months. Mr. Smith is also not inclined to park his 1971 Winnebago anywhere but horizontally across four common area parking spaces. Mr. Smith is therefore a repeat offender of these salutary covenants. The HOA’s Declaration permits the HOA to exercise self-help by mowing Mr. Smith’s lawn for him and then assessing Mr. Smith the cost of doing so. The HOA also could have the Winnebago towed, under its parking policy. Further, under its Declaration, and Va. Code § 55-513.B, the HOA can charge Mr. Smith $10 per day, for a maximum of ninety days, for each continuing violation of the Declaration. The HOA, however, wants to try out the new tool in its tool belt—it chooses to seek an injunction, along with its attorney’s fees, in general district court. Its counsel swiftly drafts a one-page Motion for Injunction, which cites to the Declaration, attaches it to a Summons for Hearing form (Form DC-430), and files it with the Court. Will the action succeed? It should not. Again, pursuant to Va. Code § 16.1-77(9), the general district court only has “[j]urisdiction to try and decide any cases pursuant to § 55-79.80:2 of the Condominium Act and § 55-513 of the Property Owners’ Association Act.” Putting Green HOA has clearly sued Mr. Smith for violation of its Declaration of Restrictive Covenants, not its rules. This action, then, is brought pursuant to § 55-515, and no statute permits the general district court to issue an injunction for violation of § 55-515. Moreover, even if the HOA had alleged a violation of some rule, and cited to § 55-513, its suit is still arguably defective. The language of § 55-513, intentionally or not, appears designed to give the general district court the power to award injunctive relief ancillary to an award of money damages for unpaid charges of $50 per violation or $10 per day for a continuing violation. The HOA never assessed charges and did not seek recovery of any charges. Some may argue that community associations do not need another weapon in their arsenal. However, allowing limited access to the general district court for injunctive relief permits an association to pursue, and the general district court to award, complete relief in cases where charges have been assessed for rule violations. It should also make litigation over these matters swifter and cheaper, assuming there is no appeal from the general district court order. Moreover, §§ 55-79.80:2 and 55-513 give an owner the right to challenge charges and fines in the general district court on his own initiative, rather than waiting to be sued or having the issue come up years later, in anticipation of the sale of his
8 VA. CODE §§ 55-79.80:2, 55-513 (emphasis added).
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the FEE SIMPLE unit or lot. However one views the matter, the judges of our general district courts must now be prepared to consider an award of injunctive relief much more frequently than in the past.
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PRACTICE TIP: BEWARE OF ADVERTISING MATERIALS OFFERING FREE DEED COPIES by Mark W. Graybeal* Over the past several years, a certain type of scam targeting new homeowners has been on the rise; occurrences have been reported in Mississippi, Florida, California, Pennsylvania, Massachusetts and Virginia. The home buyer receives a mailing containing a “Deed Processing Notice,” which appears official and mimics many of the formal notices sent out by local municipalities. (An example of one of these Notices, which was actually received by a client, follows this article.) The Notice attempts to persuade new homeowners to pay $86 to receive a copy of their recorded Deed—which Settlement Agents typically send to the new homeowners for free along with their Owner’s Title Policy. Buried beneath the rather insidious language and phrases (stating, for example, that there is a “Compliance Response Date” and that there will be an additional $35 charge if payment is made after that date), there is a small note at the bottom of the Notice, which does disclose that the company sending the Notice is not associated with any government agency. After receiving several inquiries from our clients about these Notices, we created a coversheet advising clients of this scam, which is printed on our firm letterhead and included in the package of documents delivered to the purchaser at settlement. A version of the coversheet follows this article, and is published with our permission for you to use it in advising your own settlement clients about this.
* Mark W. Graybeal is an Associate with Pesner Kawamoto PLC in McLean, Virginia, and Chair of the Technology Committee of the Virginia State Bar Real Property Section. His practice includes real estate law and business formation. His email address is [email protected].
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NOTICE TO PURCHASER
Due to your purchase of real property, it is likely that you will receive a letter in the mail similar to the one that is attached to this Notice. We highly encourage you to ignore that letter.
THE ATTACHED LETTER IS ADVERTISING MATERIAL AND IS NOT ASSOCIATED WITH OR ENDORSED BY ANY GOVERNMENT AGENCY OR COURT.
You will receive for FREE the original, recorded Deed from our office with the original of your Owner’s Title Insurance Policy (if you purchased one) several months after your closing. If you need a copy of the signed and/or recorded Deed sooner, please contact either NAME (email and/or phone number) or NAME (email and/or phone number) who will send you a copy of the signed and/or recorded Deed for FREE.
Thank your for choosing (YOUR FIRM NAME HERE) as your Settlement Agent!
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THE JOYS OF TITLE LAW by Jessica C. Tully* “I’m so glad I don’t do title.” These are the words I hear most often from those on the outside peering in through a peephole at my oil and gas title practice. As with all impressions formed from the narrow perspective of a peephole, this one is badly distorted. I interpret real estate documents, often hand-written, from the 18th, 19th, 20th, and 21st centuries in an effort to give my opinion on who has title to the oil, gas and minerals underlying a tract of land. My practice requires me to know and apply property law spanning four centuries. When I tell outsiders that I work with ancient property law, it affects them viscerally. Their faces transition from shock to dread to fear that I might ask them to join me in a discussion of Lorde Coke. Nothing clears a room quicker than casually uttering “Cuius est solum, eius est usque ad coelum et ad inferos.”1 There is a prevailing notion among these outsiders that oil and gas title is the undesirable gristle of the energy cash cow, necessary as a structural component of oil and gas development, but a bit tough and dry. They pity me the scraps. What they miss (and what any good cook knows) is that gristle, while difficult to digest, is really just concentrated flavor. I can think of no other career that would allow me to indulge so completely in my love of politics and history than my present career in energy law. My work day begins by reading industry news and e- mails about legislation, court decisions, and deals impacting my clients. Energy law is more political than most areas of law and is thus particularly vulnerable to the effects of elections and regulatory agency actions. My clients expect me to be aware of all that is happening locally, regionally and nationally that might affect their operations. Oil and gas law in the Appalachian Basin is largely undeveloped, so any one decision or piece of legislation could dramatically affect my day-to-day practice. As an example, those of us who practice in Pennsylvania were on pins and needles for some time as our Supreme Court was deciding whether unconventional shale gas and shale oil are considered “minerals” or whether the products of shale had to be separately identified as “oil and gas” in deeds and other instruments of conveyance. (Yes, we in the Keystone State were still trying to figure out what a mineral was in 2013.) Pennsylvania is unique in that, here, prevailing practice starts from a rebuttable presumption that oil and gas are not considered minerals, so a reservation or conveyance of “minerals” in a deed would not include oil and gas. Thankfully “the Supremes” saved the day by not turning centuries of property law on its head and ordered what many of us had suspected: that shale oil and shale gas are not minerals and are, in fact, oil and gas.2 After I confirm through reading the morning news that the way I practice law hasn’t been changed overnight, I then spend the rest of the day solving puzzles of history of the Appalachian Basin, as told through the transfer of land, one document at a time. I read donation land grants to veterans of the Revolutionary War. I see land owned by Civil War soldiers go up for tax sale, perhaps because those men never made it home. I read about freed slaves providing emancipation papers as proof of their ability to purchase land. I see single and widowed women labeled “lunatics”—and thus unfit to deal in property—assigned to the guardianship of a male relative. I put myself in their shoes, much like an historian, to determine how and why the parties are transacting in my chain of title so I know how best to
* Jessica C. Tully is an energy attorney at Steptoe & Johnson PLLC, whose practice centers on upstream issues related to the exploration and production of oil and natural gas. She is the co-owner of an oil and gas title abstracting company and has drafted and senior-reviewed title opinions on tens of thousands of acres in the Marcellus and Utica shales. Ms. Tully has recently been named one of the top 40 professionals under forty years old in the Shenango Valley. 1 “For whoever owns the soil, it is theirs all the way up to Heaven and down to Hell.” 2 See Butler v. Charles Powers Estate, No. 27-MAP-2012, 2013 WL 1749828 (Pa. Apr. 24, 2013).
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the FEE SIMPLE address certain title defects. I have no choice but to speculate on the motives of the dearly departed so I don’t spend too much time chasing ghosts. As you might think, taking a title back to pioneer days can often be very difficult. Some titles have small gaps that are easy fixes and others have gaping wounds. Oil and gas development tends to occur in areas we think of as rural today. Imagine what those areas were like 150 years ago. It’s understandable that someone receiving title to property might wait months, years, or decades to record their deed, as getting to the county recording office by a horse that travels roughly 14 miles in a day might not have been a farmer’s first priority. (By the way, most towns in the Appalachian Basin are roughly 7 miles apart so that a farmer could take his horse to the trading post and back in one day.) When I have a gap in my chain, my thought process is as follows: “I am missing a conveyance into a single woman that conveyed 1,200 acres in rural Pennsylvania in 1889. How did a single woman get title to that much acreage? At that time women worked mostly in the home and rarely owned property without a husband, so she probably inherited the property. I see from this deed that she’s from Philadelphia. I wonder if her parents died in Philadelphia and no one bothered to travel to Pittsburgh to record an estate file. Let’s see if we can find them online.” Other issues in oil and gas titles require the attorney to have a deep knowledge of historical industry practice. Why did this man reserve only “1/8 oil and gas royalty” underlying property in West Virginia in 1901 and then sign an oil and gas lease as though he had executive rights in 1911? Remembering that in 1901 oil and gas was a nascent industry is the first clue to this puzzle. Back then, the thinking was that there was no difference between “the thing itself and the value of the thing,” so there was no concept at that time of separating the royalty interest from the fee interest. Because there was no separation of royalty from fee, people spoke about fee in terms of money. Money is something that can be held, whereas oil and gas is something hidden under the ground. It was industry practice at that time (and is now codified as a required minimum) to provide a 1/8 royalty on oil and gas leases. We do not start to see other royalty interests in the area until after 1930. Therefore, when the man reserved “1/8 oil and gas royalty” he was really reserving all of the oil and gas in fee. Mystery solved. When these title puzzles are complete for the day, I work on articles and presentations promoting domestic energy production in our region. I network with industry insiders and fellow attorneys and try to absorb everything shared with me so that I can do better tomorrow. I go to bed knowing that the work I do is meaningful and that tomorrow I will learn something new. My practice may not be as sexy as a litigator’s, as juicy as a family law attorney’s, or as thrilling as a criminal lawyer’s, but for me, I cannot imagine a more fulfilling career.
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A HOUSE PET BY ANOTHER NAME? by Ronald D. Wiley, Jr.*
Recent media reports have discussed service dog owners’ concerns about “phony” service dogsand “imposters.”1 According to the reports, some pet lovers are trying to take advantage of laws and regulations intended to protect people with disabilities, in an attempt to bring their beloved pets with them anywhere they go.
This issue is relevant to real estate attorneys when property owners, managers, and owners associations consider policies that govern whether residents, customers and guests may have animals on the premises. In this context, at least three federal laws and their implementing regulations may apply to housing providers: the Fair Housing Act;2 Section 504 of the Rehabilitation Act of 1973 (“Section 504”);3 and the Americans with Disabilities Act (“ADA”).4 In general, these laws and their implementing regulations prohibit discrimination, including effective denial of service, against people with disabilities, and also require housing providers to take reasonable measures to accommodate people with disabilities. The provisions apply when an individual asserts that a disability affords him or her the right to have an assistance animal. Federal disabilities law and regulations recognize that assistance animals can help people with disabilities. Generally, an “assistance animal” for a person with a disability is “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional
* Ronald D. Wiley, Jr. became Of Counsel with MartinWren, P.C., in November 2010 after seventeen years as Senior Vice President and Regional Counsel for Southern Title Insurance Corporation, working from the company’s Charlottesville office. While with Southern Title, Ron managed the company's business in the western parts of Virginia, provided underwriting counsel and support for its Virginia offices and agencies, handled claims, and planned and taught its Virginia continuing education programs. Before joining Southern Title, he was in private practice with another Charlottesville law firm for over seven years. Ron concentrates on matters involving real estate, title insurance, and closing practices. With over years experience, he has been a frequent and popular teacher of continuing education courses for real estate attorneys and title insurance agents. Ron also is available to associate with other attorneys handling matters within his areas of concentration and to serve as an expert witness or commissioner in such cases. 1 See, e.g., Phony Service Dog Issue Out of Hand, Advocates Not Sure New Laws Will Even Help, HUFFINGTON POST (Oct. 10, 2013, 3:53 AM), http://www.huffingtonpost.com/2013/10/10/phony-service- dogs_n_4077106.html?ncid=edlinkusaolp00000003; Four-Legged Imposters Give Service Dog Owners Pause, NATIONAL PUBLIC RADIO (Sept. 11, 2013, 3:26 AM), http://www.npr.org/ 2013/09/11/ 221017467/ 2 Title VII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631. The Fair Housing Act covers most types of housing, including privately-owned housing and federally assisted housing, with limited exceptions. 3 Rehabilitation Act of 1973, 29 U.S.C. § 794. Section 504 covers housing providers that receive federal financial assistance from the U.S. Department of Housing and Urban Development (HUD.) 4 Title II of the ADA applies to public entities, including public entities that provide housing (e.g., public housing agencies) and state and local government-provided housing, including housing at public colleges, universities and other places of education. 42 U.S.C. §§ 12131-12165. Title III of the ADA applies to public accommodations, such as rental offices, shelters, some types of multi-family housing, assisted living facilities, and housing at places of public education. 42 U.S.C. §§ 12181-12189. See also DEP’T OF HOUS. & URBAN DEV., OFFICE OF FAIR HOUS. & EQUAL OPPORTUNITY, FHEO Notice 2013-01 (Apr. 25, 2013) 1, n.2 [hereinafter HUD FHEO Notice 2013-01].
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the FEE SIMPLE support that alleviates one or more identified symptoms or effects of a person’s disability.”5 “Assistance animals” include but are not limited to “service animals,” with which most people are familiar. Recent amendments to the U.S. Department of Justice’s regulations under Titles II and III of the ADA limit the definition of “service animal” to include only dogs specifically trained to do work or perform tasks for the benefit of an individual with a disability.6 The distinctive characteristics of a service animal, then (other than it being a dog), are that it has received training and does specific work or performs specific tasks for the person with a disability. By comparison, an assistance animal may not have received any specific training and may merely assist the person with a disability or provide emotional support that alleviates symptoms of the person’s disability. Undoubtedly, these “emotional support and assistance animals” are the ones raising concerns among service dog owners and others. In addressing their concerns, as well as those of other residents and owners, the starting point should perhaps be to remind the housing provider that an assistance animal is not a pet. Policies that permit assistance animals should not be regarded as permitting exceptions to a “no pets” policy. Instead, assistance animal policies must be understood as reasonable accommodations for people with disabilities to whom the assistance animals provide important help. Assistance animals can no more be prohibited than wheelchairs could be. That does not mean, however, that property owners, managers or owners associations that otherwise prohibit or restrict pets on their premises must accept that every resident, customer or guest asserting the right to have an animal is actually entitled to do so.7 HUD FHEO Notice 2013-01 provides helpful guidance with respect to the reasonable inquiry that can be made to reduce the risk of a “phony” or “imposter” assistance animal or service dog being allowed on a given premises. Under the ADA, an owner, resident or guest should be allowed to have a service animal if (1) it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability, or (2) the individual informs the property owner, manager or owners association that the animal is a service animal required because of a disability, and provides a description of the work or tasks the service animal has been trained to perform for the person with a disability. A service animal must be allowed unless (1) it is out of control and its handler does not take effective action to control it; (2) it is not trained so that (absent illness or accident) the animal controls its waste elimination; or (3) it poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices and procedures.8 No further inquiry or documentation is allowed or required when determining whether a service animal is permitted in ADA-covered housing contexts. In non-ADA housing contexts, an owner, resident or guest should be allowed to have an assistance animal, whether or not it is a service animal, as an accommodation if the individual submits documentation establishing, to the reasonable satisfaction of the property owner, manager or owners association, that the individual has a disability (i.e., a physical or mental impairment that substantially limits one or more major life activities) and that the individual has a disability-related need for an assistance animal (i.e., the assistance animal works, provides assistance, or performs tasks or services for
5 See HUD FHEO Notice 2013-01, supra note 4, at 2 (emphasis added). 6 Id. at 4. Apparently, there is a separate provision regarding trained miniature horses, see 28 C.F.R. § 35.136(i) and 28 C.F.R. § 36.302(c)(9), but for practical purposes in this context, a “service animal” is a specially-trained dog. 7 It is hard to imagine a property where animals are practically unrestricted but where someone would want to restrict assistance animals or service dogs. 8 HUD FHEO Notice 2013-01, supra note 4, at 4–5.
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the FEE SIMPLE the benefit of the person with a disability, or provides emotional support that alleviates one or more of the identified symptoms or effects of the person’s existing disability).9 Satisfactory documentation can include a written request from the individual with a disability along with supporting documentation of both the disability (unless it is readily apparent or already known by the property owner, manager or owners association) and the disability-related need for an assistance animal from a licensed physician; psychiatrist; clinical psychologist; social worker; physical, occupational, or other licensed therapist; or mental health professional who has treated or is treating the person with a disability. An assistance animal should be allowed unless (1) the specific assistance animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.10 A determination that a specific service animal or other assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct and not on speculation or fear about the types of harm or damage an animal may cause or evidence about harm or damage other animals have caused. An owner or resident with a disability whose service animal or other assistance animal causes actual damage can be held liable for the costs of repairs to the same extent that an owner or resident is otherwise liable for damage caused by the owner or resident under the applicable governing documents.11 Most people probably would not object to assistance animals, especially service dogs, being allowed in the buildings in which they live. However, the fact that an animal may make life better for someone does not mean that it is an assistance animal, and it certainly does not make that animal a service animal. Reasonable inquiry may allow the prohibition of a “phony” or “imposter” assistance animal, but it should be understand that a person with a disability who is actually assisted by the animal must, under the law, be accommodated in housing.
9 Id. at 2–3. 10 Id. at 3–4. 11 Id. at 3.
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REPORT OF THE COMMERCIAL REAL ESTATE COMMITTEE by Whitney Jackson Levin REPORT AND MINUTES OF A MEETING OF THE COMMERICIAL REAL ESTATE COMMITTEE OF THE VIRGINIA STATE BAR REAL PROPERTY SECTION HELD BY CONFERENCE CALL ON JANUARY 21, 2014 AT 3:00 P.M. by Whitney Jackson Levin, Chair Pursuant to e-mailed notice to members of the Commercial Real Estate Committee, a conference call meeting of the Committee was convened by Committee Chair, Whitney Jackson Levin (Miller Levin PC) on January 21, 2014 at 3:00 p.m. Also participating in the call were Paul Bellegarde (Paul Bellegarde) and Rick Chess (Chess Law Firm). Because of technical difficulties with the call-in number and inclement weather, the meeting was brief. Nonetheless, the meeting opened with a plea from the Chair for commercial real estate articles for the Spring 2014 issue of the FEE SIMPLE:
The Chair informed the group that she would follow up with Grice McMullen about the article he had proposed at the last meeting, regarding a recent fraudulent cashier's check scheme in Virginia in which a Virginia attorney and his client were harmed. This article would be submitted for publication in the Spring 2014 issue, if possible; if not, then the Fall 2014 issue.
The Chair will also follow up with Mark Williamson, who previously suggested that a colleague at his firm may be able to draft an article on the recent U.S. Supreme Court case, Koontz v. St. Johns River Water Management District, which held that a taking occurred when a landowner wanted to get a particular piece of property rezoned, and the government required that environmental work be done on another property owned by the landowner in order to get the rezoning. The meeting continued with a plea from the Chair for seminar topics for either the Advanced or Annual Real Estate Seminars:
Paul Bellegarde suggested that a seminar on real estate transactions involving same-sex unions would be appropriate given the U.S. Supreme Court's treatment of the same. The Chair reminded everyone that the next meeting of the Board of Governors and Area Representatives will be in Williamsburg on January 24, 2014. The next meeting of this Committee will be held in late spring on a date to be determined by the Chair. There being no other business to come before the Committee, the meeting was adjourned.
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REPORT OF THE COMMON INTEREST COMMUNITY COMMITTEE by David C. Helscher MINUTES OF 1/15/14 MEETING OF COMMON INTEREST COMMUNITY COMMITTEE The Common Interest Community Committee of the Real Property Section for the VSB met by conference call on January 15, 2014. Present at the meeting were all members of the Committee: David C. Helscher (Chair), Mike Inman, Sue Tarley, Jeremy Moss, Marshall Jones and Harry Purkey. The Committee discussed the current legislative session and items which might come before the legislature that would be of interest to those who practice in the area of condominium law or homeowners association law. The Committee is fortunate to have three members who also serve on the Community Association Institute Legislative Action Committee for Virginia (CAI). CAI maintains a website that tracks bills of interest to community associations (http://www.cai-valac.org/). At the time of our meeting, the CAI Committee was still looking for a sponsor for a bill that would amend certain provisions of the internal complaint procedures recently enacted as a regulation by the Virginia Common Interest Community Board (CIC). The regulation requires all Virginia homeowners associations to adopt a complaint procedure by which individual owners may file written complaints to their Board of Directors. Since the regulation took effect this past year, certain shortcomings have been noted, and CAI is working to introduce legislation introduced that would correct these problems. There was also a discussion about the current market for financing both residential and commercial condominium projects, or lack of same. The Committee members agreed that banks throughout Virginia have made it clear that they do not favor lending if the form of ownership chosen by the developer is a condominium, regardless of whether it is residential or commercial. The Committee also discussed members’ experiences using foreclosure as a remedy for collecting on homeowners association or condominium liens. While the statutes governing both condominiums and homeowners associations permit such action as a non-judicial proceeding, foreclosure for this purpose has been seldom used by members of this Committee—or anyone else, it seems—in the various areas of the State. The consensus of the Committee was that there was little to recommend this as a method for community associations to collect on their liens so long as banks continue to enjoy their priority position for loans made on condominium property. Many states have what is known as a “super priority” lien for the collection of homeowners association dues after those dues are delinquent by a certain number of months. However, the Committee members concurred that there was little or no chance that the banking lobby would ever allow this to happen in Virginia. The Committee agreed to meet again by conference call sometime in the next six months, and to provide an article for the Spring 2014 issue of the FEE SIMPLE if the deadline can be met. Finally, there was a discussion about members’ experiences with complaints filed with the Ombudsman office of the CIC. There is an article in the current issue of COMMON GROUND discussing the role of the Ombudsman, and Heather Gillespie, the Virginia Ombudsman, is quoted in that article. The Committee agreed that Heather is well-qualified for the job; it also noted that she has a limited role in enforcing the Virginia statutes but not in dealing with perceived shortcomings in the association documents. It was agreed that educating clients about what the CIC complaint process can and cannot achieve is important to temper a client’s expectations of the process.
Respectfully submitted,
David C. Helscher
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REPORT OF THE CREDITORS’ RIGHTS AND BANKRUPTCY COMMITTEE by F. Lewis Biggs Creditors’ Rights and Bankruptcy Committee of the VSB Real Property Section JANUARY 21, 2014 COMMITTEE REPORT
Submitted by F. Lewis Biggs, Chairman The Creditors’ Rights and Bankruptcy Committee of the VSB Real Property Section held a meeting by telephone on January 21, 2014. In attendance were the following Committee members: F. Lewis Biggs, James Clarke, J. Philip Hart, John Maddock, Richard C. Maxwell, Lynn Tavenner and Stephen B. Wood.
The Committee discussed possible article topics for the Spring 2014 issue of the FEE SIMPLE. Mr. Wood reported that Robert Michael, an attorney with his firm, would submit an article on a lien- related topic. We do not yet know specifics. I asked Mr. Wood to have Mr. Michael copy me on the initial paragraph outlining the topic and on the subsequent submissions so that I can keep the Committee generally informed about the article. The Committee discussed upcoming seminars. Mr. Hart informed the Committee that he believes that the Advanced Seminar in March will include a breakout session for commercial real estate lending. We do not know whether the Section has decided on a joint seminar topic for the summer VSB meeting, but this Committee is willing to work on topic ideas and to otherwise contribute to that seminar if needed. Mr. Jones could not be in attendance due to a conflict, but I have contacted him to find out the status of his efforts to recruit a new member from the Tidewater area that we previously identified. The Committee lacks membership from the Tidewater area and seeks one or more members from that area. I await Mr. Jones’s response. Messrs. Hart and Maxwell discussed some potentially important cases now pending that could impact the power of bankruptcy judges to decide certain preference-oriented issues. Respectfully submitted, F. Lewis Biggs
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REPORT OF THE ETHICS COMMITTEE by Paul H. Melnick The Ethics Committee met via teleconference at 11:00 a.m. on January 14, 2014. In attendance were Paul Melnick (Chair), Susan Pesner, Christina Meier, Jim McCauley, Todd Condron, Eric Zimmerman and Page Williams. The Committee discussed bills recently introduced in the General Assembly having to do with same-sex couples and real estate, specifically, a same-sex couple’s ability to hold property as tenants by the entirety if the couple were legally married in another state. Meeting attendees discussed how they have handled instances in their practices in which same-sex couples wanted deeds prepared with tenants by the entirety. It was proposed that an article be written on this subject, but the Committee agreed to wait until the General Assembly session has concluded before deciding whether such an article should be written. The Section plans to submit an article on the ethics of fee agreements for the Spring 2014 issue of the FEE SIMPLE newsletter. Jim McCauley stated that he has a meeting on January 27, 2014 concerning attorney escrow accounts in real estate transactions. The meeting’s objective is to make recommendations about how to handle escrow funds so that the public is adequately protected. It was also mentioned that, nationally, real estate attorneys are getting stung by Internet scams, particularly those involving fraudulent cashier’s checks. The Committee discussed whether a best practice might be to request wire transfers in real estate transactions; however, because various preprinted realtor association contracts give purchasers the option of paying with cashier’s check, cash, or wire transfer, requiring a wire transfer in transactions could pose a problem. Susan Pesner said she would make requests that this issue be examined by committees handling the drafting of these form contracts. The Committee discussed ethics in short sale transactions. Todd Condron stated that it appears under the Pickus ruling that a settlement attorney owes a duty to the purchaser’s lender to follow the lender instructions; the question is whether such a duty is also owed to the seller’s lender. It was discussed that, as the seller’s lender is also a lender in the transaction, the duty could also be found with reference to the seller’s lender as well. Todd added that he will be giving a seminar on ethics in distressed sales in March 2014. The Committee also discussed an e-mail scam that occurred recently in Charlottesville, Virginia. As part of the scam, a hacker penetrated a builder’s e-mail account and studied how the builder sent and received e-mails. After determining that the builder periodically instructed his wife to wire money to a certain account, the hacker, posing as the builder, sent an e-mail to the wife and told her to wire an amount of money to the hacker’s account. Fortunately, the bank called the builder to inquire about the wire to the other account and the loss of the money was averted. This is a scam to watch out for. Jim McCauley stated that a couple of ethics rules change proposals are in progress. They concern lawyers’ duties to keep abreast of technology developments (Rule 1:1) and to protect technology against interception (Rule 1:6). It was confirmed that the next meeting of the Real Property Section will be on January 24, 2014 at 1:00 p.m., in the East Lounge at the Williamsburg Inn. The conference call was adjourned at 11:46 a.m. Respectfully submitted, Paul H. Melnick Ethics Committee Chair
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REPORT OF THE EMINENT DOMAIN COMMITTEE by Charles M. Lollar Report of Eminent Domain Committee of the Real Property Section The Eminent Domain Committee, formed in 2008, now has more than forty members who practice in Hampton Roads, the Richmond and northern Virginia metropolitan areas, southside Virginia, and other areas throughout the state. The Committee continues to seek members from southwest Virginia and the Shenandoah Valley in order to expand the geographic reach of its membership throughout the Commonwealth. The general goal of the Committee is to encourage members to work together to ensure that every landowner whose private property is taken or damaged for public use receives the just compensation contemplated and guaranteed by Article I, Section 11 of the Virginia Constitution. Since it was first organized, the Committee’s members have published two or more articles a year in the Real Property Section’s biannual newsletter, the FEE SIMPLE. Although these articles relate primarily to issues of eminent domain, condemnation and property rights law, they cover a wide range of topics that should be of interest to those who practice in other areas, as well. For example, an article to be published in the Spring 2014 issue is entitled Eminent Domain for Underwater Mortgages: Already on the Way to the Bottom of the Sea of Bad Ideas. Members of the Committee have also drafted a public education pamphlet, Understanding Condemnation: A Guide for Landowners. The purpose of the pamphlet is to provide the general public with basic information regarding eminent domain, the steps of condemnation proceedings, terminology, and a landowner’s options. The Committee aims to publish and distribute this pamphlet so that it is readily available to citizens throughout Virginia who are involved in the condemnation process. Distribution of the final pamphlet was delayed pending the outcome of a proposed amendment to Article 1, Section 11 of Virginia's Declaration of Rights; that amendment passed overwhelmingly, and its resulting changes have been incorporated into the pamphlet. In the coming year the Committee plans to study Titles 25.1, 33.1 and 15.2, along with General Provisions and other portions of the Virginia Code and the Rules of Court, with a view toward proposing amendments that would improve the eminent domain process and better serve the public. The Committee hopes to enlist the assistance of the Virginia Bar Association Real Property Section in lobbying for proposed legislative changes aimed at best serving the public and local and state government by improving statutory procedure. The Committee will continue to work toward improving communication between attorneys who represent condemning authorities and attorneys who represent private property owners. At meetings over the last six years, the Committee has discussed possible steps toward that goal, including creating more cooperative and effective pretrial discovery through early joint site meetings and use of pretrial orders tailored for eminent domain statutory proceedings; streamlining deposits of funds, draw downs and disbursements; and encouraging successful mediations and settlement conferences. The Committee endeavors to meet quarterly and attempts to coordinate its meetings with the summer meeting of the Virginia State Bar, the fall meeting of VSB Real Property Section, the winter meeting of the Virginia Bar Association, and the spring annual eminent domain CLE International Conference. Our next meeting will be held on Friday, May 2, 2014, in conjunction with the 8th Annual CLE International Eminent Domain at the Tide’s Inn, Irvington, Virginia. We encourage practitioners of eminent domain and condemnation law across the Commonwealth to join the Committee.
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Active members of the Virginia State Bar in good standing who are interested in joining the Committee should contact the undersigned. Respectfully submitted on March 6, 2014. Charles M. Lollar, Chair Partner, Waldo & Lyle, P.C. 301 W. Freemason Street Norfolk, Virginia 23510 (757) 622-9473 Office (757) 226-8948 Facsimile (757) 735-0777 Cellular Email: [email protected]
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REPORT OF THE LAND USE AND ENVIRONMENTAL COMMITTEE by Stephen R. Romine VSB Real Property Section (VSBRPS) Land Use and Environmental Committee (LUEC) February 28, 2014 Present: Stephen Romine (Chair), Diana Norris, Robert C. Barclay, IV, and Steven W. Blaine. The LUEC of the VSBRPS met by conference call on February 28, 2014 at 11:00 a.m. The LUEC currently has thirteen members. We discussed how we could grow membership and recruit other VSBRPS members to join the LUEC. This was the first meeting of the LUEC since last year. The majority of the time was devoted to discussing LUEC work, including possible articles for the FEE SIMPLE and various issues of current concern pending before the General Assembly. Going forward, the LUEC will also explore the possibility of participating in future VSBRPS seminars and presentations. We intend to hold quarterly conference calls, which will include substantive educational information. The next conference call will be scheduled for May. The meeting adjourned at 11:42 a.m. Respectfully submitted,
Stephen R. Romine
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REPORT OF THE MEMBERSHIP COMMITTEE by Philip Hart Virginia State Bar Real Property Section Membership Committee Report The Membership Committee (the “Committee”) of the Real Property Section held a meeting by telephone on Wednesday, January 22, 2014, beginning at 4:30 p.m. Philip Hart (Co-Chair) presided, and Randy Howard, Wayne Glass, Susan Siegfried, Lewis Biggs and Larry McElwain were in attendance. Philip Hart began by announcing that, as of January 6, 2014, Section membership was at 1798 members. Then two agenda items were discussed: the Board of Governors and Area Representative Handbook (the “Handbook”), and membership recruitment ideas. With regard to the Handbook, Philip referred the Committee to the updated 2013-2014 draft of the Handbook, which Co-Chair Larry McElwain revised initially and which Philip revised following discussion that took place during the Committee’s September 2013 meeting. There was discussion of a few more suggested revisions. Philip agreed to make those final revisions to the Handbook and to send it out to the Area Representatives. Philip said his cover email to the Area Representatives would remind them of their obligations and would ask them to inform him if they no longer wished to continue as an Area Representative. The Committee discussed the following membership recruitment ideas: Section participation in the Virginia State Bar’s annual “First Day of Practice” seminar; no Section dues for the first year of Section membership; Section seminar discounts; coordination of recruiting efforts with the Law School Liaison Committee; law student vouchers for attendance at the Section’s seminars; and focused recruitment efforts at the Section’s seminars. Susan Siegfried suggested that the Committee ask members of the Board of Governors and Area Representatives to publicize the Section at meetings of their local bar associations and also suggested that the Committee look into contacting former Section members to see if they might be willing to rejoin the Section. After discussion of each idea, Philip agreed to discuss these ideas with the Board of Governors. The meeting concluded at 5:00 p.m. The members of the Committee are: Lewis Biggs Wayne Glass Philip Hart (Co-Chair) Randy Howard Larry McElwain (Co-Chair) Harry Purkey Chip Royer Susan Siegfried
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REPORT OF THE RESIDENTIAL COMMITTEE by Eric V. Zimmerman The members of the Residential Committee were invited to participate in a telephone conference on Thursday, January 16, 2014. The call began at 11:00 a.m. and concluded at 11:30 a.m.
The FEE SIMPLE:
Eric Zimmerman reported that Lawrence McClafferty of McCandlish Lillard will write an article addressing last year’s legislative changes pertaining to homeowners’ associations. While none of the changes were major, they contain certain nuances of which Mr. McClafferty feels the members should be aware.
Paul Melnick will contact the Arlington Bar Association to see if someone in its Trusts and Estates group would be willing to contribute an article about “transfer on death” deeds, and possibly also provide sample documents. It was believed that the Arlington Bar Association recently hosted a seminar in which this topic was discussed. Topical Issues:
The Committee discussed proposed changes to the Real Estate Settlement Procedures Act (RESPA), including the Truth-in-Landing document. It was not known when any such changes would take effect but it is believed not to be until 2015. This Committee will monitor any developments.
A recurring issue concerns the implications for Virginia property law of same-sex marriages performed in other jurisdictions; specifically, whether married same-sex couples can hold title as tenants by the entirety with rights of survivorship. The Committee will continue to monitor activity in the General Assembly, though the members felt that nothing can be done, and nothing will change, until the Virginia Constitution is re-amended. There is still, however, the matter of how we practitioners respond to requests to prepare such Deeds.
The increasingly prevalent problem of fraudulent cashier’s checks was mentioned and should be discussed at the upcoming meeting.
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REPORT OF THE FEE SIMPLE COMMITTEE by Stephen C. Gregory
The Fall 2013 issue of the FEE SIMPLE went to press in December and was distributed to members. It is also posted on our website. We are now in the “winter doldrums,” awaiting submissions for publication in the Spring 2014 issue. The deadline for articles and reports is April 11. In the month since publication, we have received a number of responses to the round table question we posed to our readers regarding filed rates. Unfortunately, that number is zero. We have invited comments in past issues, and met a similar lack of response. Perhaps it’s time to abandon these invitations. The student editorial assistant program has succeeded beyond expectations. Last year’s student assistant, Cari LaSala, set a high bar for her successors, but Caitlin Cater cleared that bar easily in her first issue, Fall 2013. Caitlin will be our guest at the Board of Governors dinner on March 7. (Cari passed the July Texas bar exam and is practicing in her home state. Our loss.) Anyone with an idea for an article, please contact me, [email protected]. To quote the late, great, scion of Steubenville, Ohio, “Keep those cards and letters coming in.” (And yes, I am aware of Ernest Tubb and Loretta Lynn, but they were after Dino.)
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REPORT OF THE TITLE INSURANCE COMMITTEE REPORT by Kay M. Creasman Title Insurance Committee Of the VSB Real Property Section January 15, 2014 Committee Report Submitted by Kay M. Creasman, Chairman The Title Insurance Committee of the VSB Real Property Section held a meeting via e-mail January 14-15, 2014. The following members were contacted: Michael E. Barney, Paula Caplinger, Kenneth L. Dickinson, Rosalie K. Doggett, Brian O. Dolan, Stephen C. Gregory, Randy C. Howard, Cynthia A. Nahorney, Ed Waugaman and Ronald D. Wiley, Jr. Responses were received from Ms. Caplinger, Mr. Howard and Mr. Wiley. No one raised any issues for discussion.
1. Possible FEE SIMPLE topic: TILA—RESPA Combined Disclosures
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BOARD OF GOVERNORS REAL PROPERTY SECTION VIRGINIA STATE BAR (2013-2014)
Officers
Chair Vice-Chair William L. Nusbaum, Esquire Charles Cooper Youell, IV, Esquire Williams Mullen Whitlow & Youell, P.L.C. Dominion Tower 28A West Kirk Avenue 999 Waterside Drive Roanoke, VA 24011 Suite 1700 (540) 904-7836 (540) 684-7836 (fax) Norfolk, VA 23510-3303 email: [email protected] (757) 629-0612 (757) 629-0660 (fax) Term Expires: 2015 (3) email: [email protected] Term Expires: 2015 (3)
Secretary/Treasurer
Susan Stringfellow Walker, Esquire Jones & Walker, P.C. 128 S. Lynnhaven Road Suite 100 Virginia Beach, VA 23452 (757) 486-0333 (757) 340-8583 (fax) email: [email protected] Term Expires: 2014 (2)
Board Members
*Paul A. Bellegarde, Esquire F. Lewis Biggs, Esquire 8284 Spring Leaf Court Kepley Broscious & Biggs, PLC Vienna, VA 22182 2211 Pump Road (301) 537-0627 (cell) (703) 749-8306 (fax) Richmond, VA 23233 email: [email protected] (804) 741-0400 (804) 741-6175 (fax) Term Expires: 2014 (3) email: [email protected] Term Expires: 2014 (1)
Kay M. Creasman, Esquire Kenneth L. Dickinson, Esquire Assistant Vice President and Counsel Stewart Title Old Republic National Title Insurance Company 1802 Bayberry Court 1245 Mall Drive Suite 305 Richmond, VA 23235 Richmond, VA 23226 (804) 897-5499 (804) 475-1765 (cell) (804) 897-0000 (804) 897-0001 (fax) (804) 897-9679 (fax) email: [email protected] email: [email protected] Term Expires: 2014 (2) Term Expires: 2016 (1)
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Stephen C. Gregory, Esquire *J. Philip Hart, Esquire Steptoe & Johnson, P.L.L.C. Vice President & Investment Counsel 707 Virginia Street, East Legal Department 8th Floor Genworth Financial, Inc. Charleston, WV 25301 6620 West Broad Street (304) 353-8185 (office) (703) 850-1945 (cell) Building #1 email: [email protected] Richmond, VA 23230 Term Expires: 2016 (1) (804) 922-5161 (804) 662-2596 (fax) email: [email protected] Term Expires: 2014 (2)
*Randy C. Howard, Esquire Whitney Jackson Levin, Esquire 11437 Barrington Bridge Ct. Philip H. Miller, PC Richmond, VA 23233 11 Terry Court (804) 337-1878 (cell) Staunton, VA 24401 email: [email protected] (540) 885-8146 (540) 886-8913 (fax) Term Expires: 2014 (3) email: [email protected] Term Expires: 2015 (1)
*Paul H. Melnick, Esquire William L. Nusbaum, Esquire Melnick & Melnick, P.L.C. Williams Mullen 711 Park Avenue 1700 Dominion Tower Falls Church, VA 22046 999 Waterside Drive (703) 276-1000 (703) 536-8880 (fax) Norfolk, VA 23510-3303 email: [email protected] (757) 629-0612 (757) 629-0660 (fax) Term Expires: 2016 (3) email: [email protected] Term Expires: 2015 (3)
Susan Stringfellow Walker, Esquire Charles Cooper Youell, IV, Esquire Jones & Walker, P.C. Whitlow & Youell, P.L.C. 128 S. Lynnhaven Road 28A West Kirk Avenue Suite 100 Roanoke, VA 24011 Virginia Beach, VA 23452 (540) 904-7836 (540) 684-7836 (fax) (757) 486-0333 (757) 340-8583 (fax) email: [email protected] email: [email protected] Term Expires: 2015 (3) Term Expires: 2014 (2)
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Ex Officio
Academic Liaison Immediate Past Chair *Lynda L. Butler, Esquire *J. Philip Hart, Esquire Chancellor Professor of Law Vice President & Investment Counsel Marshall-Wythe School of Law Legal Department College of William and Mary Genworth Financial, Inc. 613 South Henry Street 6620 West Broad Street Williamsburg, VA 23185 Building #1 or Richmond, VA 23230 P.O. Box 8795 (804) 922-5161 (804) 662-2596 (fax) Williamsburg, VA 23187-8795 email: [email protected] (757) 221-3843 (757) 221-3261 (fax) email: [email protected]
VSB Executive Director VBA Real Estate Council Chair Karen A. Gould, Esquire Katja H. Hill, Esquire Virginia State Bar LeClairRyan, P.C. 1111 East Main Street Riverfront Plaza, East Tower Suite 700 951 East Byrd Street, Eighth Floor Richmond, Virginia 23219-3565 Richmond, VA 23219 (804) 775-0550 (804) 775-0501 (fax) (804) 783-7543 (804) 783-7669 (fax) email: [email protected] email: [email protected]
Judicial Liaison The Honorable Rodham Tulloss Delk, Jr. Suffolk Circuit Court P.O. Box 1814 Suffolk, VA 23439-1814 (757) 514-4804 (757) 514-4815 (fax) email: [email protected]
Other Liaisons
Virginia CLE Liaison VSB Liaison Nancy Kern, Esquire Dolly C. Shaffner Virginia C.L.E. Special Projects Administrative Assistant 105 Whitewood Road Virginia State Bar Charlottesville, VA 22901 1111 East Main Street (800) 223-2167 ext. 145 (434) 984-0311 (fax) Suite 700 email: [email protected] Richmond, Virginia 23219-3565 (804) 775-0518 (804) 775-0501 (fax) email: [email protected]
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AREA REPRESENTATIVES
Central Region
Steven W. Blaine, Esquire Richard B. "Rick" Chess, Esquire LeClairRyan, P.C. Chess Law Firm P.O. Box 2017 9211 Forest Hill Ave. 123 Main Street Suite 201 8th Floor Richmond, VA 23235 Charlottesville, VA 22902-2017 (804) 241-9999 (cell) (866) 596-9908 (fax) (434) 971-7771 (434) 296-0905 (fax) email: [email protected] email: [email protected]
*Douglass W. Dewing, Esquire Barbara Wright Goshorn, Esquire Fidelity National Title Group Barbara Wright Goshorn, P.C. Virginia National Business Unit 203 Main Street Vista II - Suite 200 P.O. Box 177 5516 Falmouth Avenue Palmyra, VA 22963 Richmond, VA 23230-1819 (434) 589-2694 (434) 589-6262 (fax) (804) 643-5404 (office) (804) 521-5743 (direct) email: [email protected] (804) 521-5756 (fax) (800) 552-2442 ext. 743 (toll free) email: [email protected]
*Neil S. Kessler, Esquire *Larry J. McElwain, Esquire Troutman Sanders, LLP Parker, McElwain & Jacobs, P.C. P.O. Box 1122 2340 Commonwealth Drive Richmond, VA 23218-1122 Charlottesville, VA 22901 (804) 697-1450 (804) 698-6002 (fax) (434) 973-3331 (434) 973-9393 (fax) email: [email protected] email: [email protected]
*C. Grice McMullan, Jr., Esquire Louis J. Rogers, Esquire Thompson & McMullan, P.C. Louis J. Rogers & Associates, PC 100 Shockhoe Slip 10900 Nuckols Road 3rd Floor Suite 200 Richmond, VA 23219-4140 Glen Allen, VA 23060 (804) 698-6203 (804) 780-1813 (fax) (804) 290-7900 (804) 290-0086 (fax) email: [email protected] email: [email protected]; [email protected]
Collison F. Royer, Esquire *Susan H. Siegfried, Esquire Royer Caramanis & McDonough 5701 Sandstone Ridge Terrace 200-C Garrett Street Midlothian, VA 23112 Charlottesville, VA 22902 (804) 739-8853 (434) 260-8767 (434) 710-4061 (fax) email: [email protected] email: [email protected]
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John W. Steele, Esquire Ronald D. Wiley, Jr., Esquire Hirschler & Fleischer Of Counsel Federal Reserve Bank Building MartinWren, P.C. 701 East Byrd Street 1228 Cedars Court Richmond, VA 23219 Charlottesville, VA 22903 or (434) 817-3100 (434) 817-3110 (fax) P. O. Box 500 email: [email protected] Richmond, VA 23218-0500 (804) 771-9565 (804) 644-0957 (fax) email: [email protected]
J. Page Williams, Esquire Stephen B. Wood, Esquire Feil, Pettit & Williams, P.L.C. Bierman, Geesing & Ward, L.L.C. P.O. Box 2057 81200 Three Chopt Road 530 East Main Street Room 240 Charlottesville, VA 22902-2057 Richmond, VA 23229-4833 (434) 979-1400 (434) 977-5109 (fax) (804) 282-0463 (804) 282-0541 (fax) email: [email protected] email: [email protected]
Northern Region
Dianne Boyle, Esquire Todd E. Condron, Esquire Chicago Title Insurance Company Ekko Title 2000 M Street, NW 410 Pine Street, SE Suite 610 Suite 220 Washington, DC 20036 Vienna, VA 22180 (202) 263-4745 (202) 955-5769 (fax) (703) 537-0800 (888) 448-3556 (fax) email: [email protected] email: [email protected]
Lawrence A. Daughtrey, Esquire *John David Epperly, Esquire Kelly & Daughtrey Fidelity National Title Insurance Company 10605 Judicial Drive 5875 Trinity Parkway Suite A-3 Suite 210 Fairfax, VA 22030 Centreville, VA 22120-1971 (703) 273-1950 (703) 359-5198 (fax) (703) 279-1701 (888) 465-0406 ext. 701 email: [email protected] (703) 691-2258 (fax) email: [email protected]
Pamela B. Fairchild, Esquire Mark W. Graybeal, Esquire Attorney at Law Pesner Kawamoto, P.L.C. Fairchild Law 7926 Jones Branch Drive 9501 Ferry Harbour Court Suite 930 Alexandria, VA 22309 McLean, VA 22102-3303 (703) 623-9395 (cell) (703) 506-9440 (703) 506-0929 (fax) email: [email protected] email: [email protected]
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Jack C. Hanssen, Esquire *Susan M. Pesner, Esquire Moyes & Associates, P.L.L.C. Pesner Kawamoto, P.L.C. 21 North King Street 7926 Jones Branch Drive Leesburg, VA 20176-2819 Suite 930 (703) 777-6800 (703) 777-9886 (fax) McLean, VA 22102-3303 email: [email protected] (703) 506-9440 (703) 506-0929 (fax) email: [email protected]
Jordan M. Samuel, Esquire *Lawrence M. Schonberger, Esquire Asmar, Schor & McKenna, P.L.L.C. Sevila, Saunders, Huddleston & White, P.C. 5335 Wisconsin Avenue, N.W. 30 North King Street Suite 400 Leesburg, VA 20176 Washington, DC 20015 (703) 777-5700 (703) 771-4161 (fax) (202) 244-4264 (202) 686-3567 (fax) email: [email protected] email: [email protected]
David W. Stroh, Esquire Lucia Anna Trigiani, Esquire 2204 Golf Course Drive MercerTrigiani Reston, VA 20191 112 South Alfred Street (703) 716-4573 Alexandria, VA 22314 email: [email protected] (703) 837-5000 (703) 837-5008 (direct) (703) 837-5001 (fax) (703) 835-5018 (direct fax) email: [email protected]
Eric V. Zimmerman, Esquire Miller Zimmerman, P.L.C. 50 Catoctin Circle, NE Suite 201 Leesburg, VA 20176 (703) 777-8850 (703) 777-8854 (fax) email: [email protected]
Tidewater Region
Robert C. Barclay, IV, Esquire *Michael E. Barney, Esquire Cooper, Spong & Davis, P.C. Kaufman & Canoles, P.C P.O. Box 1475 P.O. Box 626 Portsmouth, VA 23705 Virginia Beach, VA 23451-0626 (757) 397-3481 (757) 391-3159 (fax) (757) 491-4040 (757) 491-4020 (fax) email: [email protected] email: [email protected]
Kathryn Byler, Esquire *Paula S. Caplinger, Esquire Pender & Coward, P.C. Vice President, Manager & Counsel 222 Central Park Avenue Chicago Title Insurance Company Suite 400 The Atrium Building Virginia Beach, VA 23462-3062 11832 Rock Landing Drive (757) 490-6292 (757) 497-1914 (fax) Suite 204 email: [email protected] Newport News, VA 23606 (757) 873-0499 ext. 305 (757) 873-3740 (fax) email: [email protected]
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Rosalie K. Doggett, Esquire Brian O. Dolan, Esquire 410 North Center Drive Kaufman & Canoles, P.C. Suite 200 11815 Fountain Way Norfolk, VA 23502 Suite 400 (757) 217-3702 (757) 490-7403 (fax) Newport News, VA 23606 Email: [email protected] (757) 873-6311 (757) 873-6359 (fax) email: [email protected]
*Howard E. Gordon, Esquire Naveed Kalantar, Equire Williams Mullen Pender & Coward, P.C. 999 Waterside Drive 117 Market Street Suite 1700 Suffolk, VA 23434 Norfolk, VA 23510 (757) 490-6251 (757) 502-7389 (fax) (757) 629-0607 (757) 629-0660 (fax) email: [email protected] email: [email protected]
Ray W. King, Esquire *Charles (Chip) E. Land, Esquire LeClairRyan, P.C. Kaufman & Canoles, P.C. 999 Waterside Drive P.O. Box 3037 Suite 2100 Norfolk, VA 23514-3037 Norfolk, VA 23510 (757) 624-3131 (757) 624-3169 (fax) (757) 624-1454 (main) (757) 441-8929 (direct) email: [email protected] (757) 624-3773 (fax) email: [email protected]
*Charles M. Lollar, Esquire Christina E. Meier, Esquire Waldo & Lyle, P.C. Christina E. Meier, P.C. 301 West Freemason Street 4768 Euclid Road Norfolk, VA 23510 Suite 102 (757) 622-5812 (757) 622-5815 (fax) Virginia Beach, VA 23462 email: [email protected] (757) 313-1161 (757) 313-1162 (fax) email: [email protected]
*Jean D. Mumm, Esquire Cynthia A. Nahorney, Esquire LeClairRyan, P.C. Fidelity National Title Insurance Corporation 999 Waterside Drive Commonwealth Land Title Insurance Company Suite 2100 150 West Main Street Norfolk, VA 23510 Suite 1615 (757) 441-8916 (direct) (757) 681-5302 (cell) Norfolk, VA 23510 (757) 441-8976 (fax) (757) 628-5902 ext. 11 (757) 625-0293 (fax) email: [email protected] email: [email protected]
Harry R. Purkey, Jr., Esquire *Stephen R. Romine, Esquire 303 34th Street LeClairRyan, P.C. Suite 5 999 Waterside Drive Virginia Beach, VA 23451 Suite 2100 (757) 428-6443 (757) 428-3338 (fax) Norfolk, VA 23510 email: [email protected] (757) 624-1454 (main) (757) 441-8921 (direct) (757) 441-8971 (fax) email: [email protected]
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William W. Sleeth, III, Esquire Amanda A. Smith, Esquire LeClairRyan, P.C. Smith and Peters 5388 Discovery Park Boulevard 780 Pilot House Drive 3rd Floor Suite 200-A Williamsburg, VA 23188 Newport News, VA 23606 (757) 941-2821 (757) 941-2879 (fax) (757) 595-5500 (757) 595-4999 (fax) email: [email protected] email: [email protected]
Allen C. Tanner, Jr., Esquire Andrae J. Via, Esquire 701 Town Center Drive Senior Corporate Counsel Suite 800 Ferguson Enterprises, Inc. Newport News, VA 23606 12500 Jefferson Avenue (757) 595-9000 (757) 873-8103 (fax) Newport News VA 23602 email: [email protected] (757) 969-4170 (757) 989-2613 (fax) email: [email protected]
Edward R. Waugaman, Esquire Mark D. Williamson, Esquire 1114 Patrick Lane McGuire Woods, L.L.P. Newport News, VA 23608 World Trade Center (757) 897-6581 Suite 9000 email: [email protected] 101 W. Main Street Norfolk, VA 23510 (757) 640-3713 (757) 640-3973 (757) 640-3701 (fax) email: [email protected]
Valley Region
K. Wayne Glass, Esquire Paul J. Neal, Esquire Vellines, Cobbs, Goodwin & Glass 122 West High Street P.O. Box 235 Woodstock, VA 22664 Staunton, VA 24402-0235 (540) 459-4041 (540) 459-3398 (fax) (540) 885-1205 (540) 885-7599 (fax) email: [email protected] email: [email protected]
Mark N. Reed, Esquire Reed & Reed, P.C. 16 S. Court Street P.O. Box 766 Luray, VA 22835 (540) 743-5119 (540) 743-4806 (fax) email: [email protected]
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Western Region
*David C. Helscher, Esquire Osterhoudt, Prillaman, Natt, Helscher, Yost, Maxwell & Ferguson, P.L.C. 3140 Chaparral Drive Suite 200 C Roanoke, VA 24018 (540) 725-8182 (540) 772-0126 (fax) email: [email protected]
Honorary Area Representatives (Inactive)
*Joseph M. Cochran, Esquire *Robert E. Hawthorne, Esquire 177 Oak Hill Circle Hawthorne & Hawthorne Sewanee, TN 37375 P.O. Box 603 Kenbridge, VA 23944 (434) 676-3275 (434) 676-2286 (fax) (Kenbridge Office) (434) 696-2139 (434) 696-2537 (fax) (Victoria Office) email: [email protected]
*Edward B. Kidd, Esquire *James B. (J.B.) Lonergan, Esquire Troutman Sanders Building Pender & Coward, P.C. 1001 Haxall Point 222 Central Park Avenue Richmond, VA 23219 Virginia Beach, VA 23462 (804) 697-1445 (804) 697-1339 (fax) (757) 490-6281 (757) 497-1914 (fax) email: [email protected] email: [email protected]
*Michael M. Mannix, Esquire *R. Hunter Manson, Esquire Holland & Knight, LLP P.O. Box 539 Suite 700 Reedville, VA 22539 1600 Tysons Boulevard (804) 453-5600 McLean, VA 22102 (703) 720-8024 email: [email protected]
*G. Michael Pace, Jr., Esquire *Joseph W. “Rick” Richmond, Jr., Esquire General Counsel Richmond & Fishburne Roanoke College 214 East High Street Office of the President Charlottesville, VA 22902 221 College Lane (434) 977-8590 (434) 296-9861 (fax) Salem, VA 24153 email: [email protected] (540) 375-2047 (540) 375-2085 (fax) email: [email protected]
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*Michael K. Smeltzer, Esquire Woods, Rogers & Hazlegrove, L.C. P.O. Box 14125 Roanoke, VA 24038 (540) 983-7652 (540) 983-7711 (fax) email: [email protected]
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COMMITTEE CHAIRPERSONS AND OTHER SECTION CONTACTS COMMITTEE CHAIRPERSONS
Standing Committees
FEE SIMPLE Membership Chair Co-Chairs Stephen C. Gregory, Esquire J. Philip Hart, Esquire Steptoe & Johnson, P.L.L.C. Vice President & Investment Counsel 707 Virginia Street, East Legal Department 8th Floor Genworth Financial, Inc. Charleston, WV 25301 6620 West Broad Street (304) 353-8185 (office) (703) 850-1945 (cell) Building #1 (304) 353-8180 (fax) Richmond, VA 23230 email: [email protected] (804) 922-5161 (804) 662-2596 (fax) email: [email protected] Publication Committee members *Douglass W. Dewing, Esquire Michael P. Lovell, Esquire * Trevor B. Reid, Esquire Larry J. McElwain, Esquire *Lawrence M. Schonberger, Esquire Parker, McElwain & Jacobs, P.C. Jessica D. Selway, Esquire Lucia Anna Trigiani, Esquire 2340 Commonwealth Drive Charlottesville, VA 22901 (434) 973-3331 (434) 973-9393 (fax) email: [email protected]
Committee members: K. Wayne Glass, Esquire *Randy C. Howard, Esquire Harry R. Purkey, Jr., Esquire Collison F. Royer, Esquire *Susan H. Siegfried, Esquire
Programs Technology Co-Chairs Chair *Paul A. Bellegarde, Esquire Mark W. Graybeal, Esquire 8284 Spring Leaf Court Pesner Kawamoto, P.L.C. Vienna, VA 22182 7926 Jones Branch Drive (301) 537-0627 (cell) (703) 749-8306 (fax) Suite 930 email: [email protected] McLean, VA 22102-3303 Term Expires: 2014 (3) (703) 506-9440 (703) 506-0929 (fax) email: [email protected] *Larry J. McElwain, Esquire Committee members: *John David Epperly, Esquire Parker, McElwain & Jacobs, P.C. Ray W. King, Esquire 2340 Commonwealth Drive James M. McCauley, Esquire
Charlottesville, VA 22901 (434) 973-3331 (434) 973-9393 (fax) email: [email protected]
Committee members: *Paul A. Bellegarde, Esquire (Advanced CLE) Kay M. Creasman, Esquire *Howard E. Gordon, Esquire Mark W. Graybeal, Esquire *Neil S. Kessler, Esquire Louis J. Rogers, Esquire *Paul H. Melnick, Esquire (Annual CLE) John W. Steele, Esquire Edward R. Waugaman, Esquire C. Cooper Youell, IV, Esquire
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Substantive Committees
Commercial Real Estate Common Interest Community Chair Chair * Whitney Jackson Levin, Esquire David C. Helscher, Esquire Philip H. Miller, PC Osterhoudt, Prillaman, Natt, Helscher, Yost, 11 Terry Court Maxwell & Ferguson, P.L.C. Staunton, VA 24401 3140 Chaparral Drive (540) 885-8146 (540) 886-8913 (fax) Suite 200 C Roanoke, VA 24018 email: [email protected] (540) 725-8182 (540) 774-0961 (fax) Committee members: *Michael E. Barney, Esquire email: [email protected] *Paul A. Bellegarde, Esquire Dianne Boyle, Esquire Committee members: Michael A. Inman, Esquire Richard B. Chess, Esquire Marshall L. Jones, Esquire Lucy G. Davis, Esquire Jeremy R. Moss, Esquire Roberto P. Garcia, Esquire Harry R. Purkey, Esquire K. Wayne Glass, Esquire * Susan B. Tarley, Esquire Howard E. Gordon, Esquire Jack C. Hanssen, Esquire *Randy C. Howard, Esquire Ray W. King, Esquire *C. Grice McMullan, Jr., Esquire *Jean D. Mumm, Esquire William L. Nusbaum, Esquire Jordon M. Samuel, Esquire John W. Steele, Esquire David W. Stroh, Esquire J. Page Williams, Esquire Mark D. Williamson, Esquire C. Cooper Youell, IV, Esquire
Creditors’ Rights and Bankruptcy Eminent Domain Chair Chair F. Lewis Biggs, Esquire *Charles M. Lollar, Esquire Kepley Broscious & Biggs, P.L.C. Waldo & Lyle, P.C. 2211 Pump Road 301 West Freemason Street Richmond, VA 23233 Norfolk, VA 23510 (804) 741-0400 ext. 203 (804) 740-6175 (fax) (757) 622-5812 (757) 622-5815 (fax) email: [email protected] email: [email protected]
Committee members: Paula S. Beran, Esquire Committee members: Edmund M. Amorosi, Esquire James E. Clarke, Esquire David L. Arnold, Esquire J. Philip Hart, Esquire Nancy C. Auth, Esquire Christopher A. Jones, Esquire Josh E. Baker, Esquire John H. Maddock, III, Esquire James E. Barnett, Esquire Richard C. Maxwell, Esquire Stanley G. Barr, Esquire Lynn L. Tavenner, Esquire Douglas K. Baumgardner, Esquire Stephen B. Wood, Esquire Robert J. Beagan, Esquire James C. Breeden, Esquire Barbara H. Breeden, Esquire *Lynda L. Butler, Esquire Christi A. Cassel, Esquire Michael S. J. Chernau, Esquire Francis A. Cherry, Jr., Esquire Stephen J. Clarke, Esquire Charles R. Cranwell, Esquire Christianna Dougherty-Cunningham, Esquire Joseph M. DuRant, Esquire Lawrence S. Emmert, Esquire Jerry K. Emrich, Esquire Matthew D. Fender, Esquire Gifford R. Hampshire, Esquire Jeremy Hopkins, Esquire Henry E. Howell, Esquire Hon. Philip J. Infantino, III, Esquire Thomas M. Jackson, Jr., Esquire James W. Jones, Esquire James J. Knicely, Esquire Brian G. Kunze, Esquire Steven L. Micas, Esquire Michael E. Ornoff, Esquire
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Committee members (cont’d): Sharon E. Pandak, Esquire Rebecca B. Randolph, Esquire Kelly L. Daniels Sheeran, Esquire Mark A. Short, Esquire Bruce R. Smith, Esquire Rhysa G. South, Esquire Paul B. Terpak, Esquire Joseph T. Waldo, Esquire Scott Alan Weible, Esquire
Ethics Land Use and Environmental Chair Chair *Paul H. Melnick, Esquire *Stephen R. Romine, Esquire Melnick & Melnick, P.L.C. LeClairRyan, P.C. 711 Park Avenue 999 Waterside Drive Falls Church, VA 22046 Suite 2100 (703) 276-1000 (703) 536-8880 (fax) Norfolk, VA 23510 email: [email protected] (757) 624-1454 (main) (757) 441-8971 (direct)
Committee members: David B. Bullington, Esquire (757) 624-3773 (fax) Todd E. Condron, Esquire email: [email protected] Kay M. Creasman, Esquire James M. McCauley, Esquire Committee members: Alan D. Albert, Esquire Christina E. Meier, Esquire Robert C. Barclay, IV, Esquire *Susan M. Pesner, Esquire * * Michael E. Barney, Esquire Lawrence M. Schonberger, Esquire Steven W. Blaine, Esquire Amanda A. Smith, Esquire Andrew W. Carrington, Esquire J. Page Williams, Esquire John M. Mercer, Esquire Edward R. Waugaman, Esquire Lisa M. Murphy, Esquire Eric V. Zimmerman, Esquire Diana Norris, Esquire R. J. Nutter, II, Esquire William W. Sleeth, III, Esquire Jonathan Stone, Esquire David W. Stroh, Esquire
Residential Real Estate Title Insurance Co-Chairs Chair Christina E. Meier, Esquire Kay M. Creasman, Esquire Christina E. Meier, P.C. Assistant Vice President and Counsel 4768 Euclid Road Old Republic National Title Insurance Company Suite 102 1245 Mall Drive Virginia Beach, VA 23462 Richmond, VA 23235 (757) 313-1161 (757) 313-1162 (fax) (804) 897-5499 (804) 475-1765 (cell) email: [email protected] (804) 897-9679 (fax) email: [email protected] Eric V. Zimmerman, Esquire Miller Zimmerman, P.L.C. Committee members: *Paula S. Caplinger, Esquire *Michael E. Barney, Esquire 50 Catoctin Circle, NE Dianne Boyle, Esquire Suite 201 Kenneth L. Dickinson, Esquire Rosalie K. Doggett, Esquire Leesburg, VA 20176 Russell S. Drazin, Esquire (703) 777-8850 (703) 777-8854 (fax) *John David Epperly, Esquire Stephen C. Gregory, Esquire email: [email protected] *Randy C. Howard, Esquire Cynthia A. Nahorney, Esquire Committee members: Richard F. Bozard, Esquire Allen C. Tanner, Jr., Esquire David B. Bullington, Esquire Edward R. Waugaman, Esquire Todd E. Condron, Esquire Ronald D. Wiley, Jr., Esquire K. Wayne Glass, Esquire Jessica D. Selway, Esquire Mark W. Graybeal, Esquire *David C. Helscher, Esquire *Paul H. Melnick, Esquire Mark N. Reed, Esquire Trevor B. Reid, Esquire Dan L. Robinson, Esquire Collison F. Royer, Esquire Allen C. Tanner, Jr., Esquire Jordon M. Samuel, Esquire Susan Stringfellow Walker, Esquire David W. Stroh, Esquire Ronald D. Wiley, Jr., Esquire Vol. XXXV, No. 1 138 Spring 2014
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Law School Liaison Chair *Paul A. Bellegarde, Esquire 8284 Spring Leaf Court Vienna, VA 22182 (301) 537-0627 (cell) (703) 749-8306 (fax) email: [email protected]
Committee members: Kay M. Creasman, Esquire Kenneth L. Dickenson, Esquire Mark W. Graybeal, Esquire Charles M. Lollar, Esquire *Larry J. McElwain, Esquire J. Page Williams, Esquire Mark Williamson, Esquire Charles Cooper Youell, IV, Esquire Eric V. Zimmerman, Esquire
Section Contacts
Liaison to Bar Counsel Ray W. King, Esquire LeClairRyan, P.C. 999 Waterside Drive Suite 2100 Norfolk, VA 23510 (757) 624-1454 (757) 441-8929 (direct) (757) 624-3773 (fax) email: [email protected]
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Virginia State Bar Real Property Section Membership Application
1. Contact Information Please provide contact information where you wish to receive the section’s newsletter and notices of section events.
Name:
VSB Member Number:
Firm Name/Employer:
Official Address of Record:
Telephone Number:
Fax Number:
E-mail Address:
2. Dues Please make check payable to the Virginia State Bar. Your membership will be effective until June 30 of next year. p $25.00 enclosed
3. Subcommittee Selection Please indicate any subcommittee on which you would like to serve. Standing Committees Substantive Committees p Fee Simple Newsletter p Commercial Real Estate p Programs p Creditors Rights and Bankruptcy p Membership p Residential Real Estate p Technology p Land Use and Environmental p Ethics p Title Insurance p Eminent Domain p Common Interest Community p Law School Liasion 4. Print and return this application with dues to Dolly C. Shaffner, Section Liaison Real Property Section Virginia State Bar 1111 East Main Street, Suite 700 Richmond, VA 23219-3565
Virginia State Bar 1111 East Main Street Suite 700 Richmond, VA 23219--