Tuesday, July 5, 2011
Attorneys whose practice requires them to rely on the public records in the City of Charlottesville have been talking behind doors for years about the deficiencies of the Circuit Court Clerk's Office. Court records which are mis-indexed so that they cannot be discovered in due diligence , land records which were supposed to be accessed online years ago but still are not in a useful way , and customer service that requires weeks of advance notice and an appointment to probate a will after a family member's death.
Only once every eight (8) years do we have a chance to change this office, and it is this year. The job of Clerk of Court, held by Paul Garrett for over 30 years and yielding a salary of $112,000 plus all the perks of government employment, is up for election. Llezelle Dugger is the candidate who can bring respectability to this public office in the City of Charlottesville.
"There is no reason why the Charlottesville Circuit Court shouldn't be on the cutting edge of not only technology but how we treat the public," Dugger said when announcing her bid for office. Having won election to the Charlottesville School Board in 2007, she is a seasoned candidate who can run a good race for Clerk. (She and her husband Alan have two daughters who are in our public school system.) She also has the credentials for the office, having practiced law in town for over 15 years. Currently an attorney with the Public Defender's Office, she has plenty of opportunity to interact with the Clerk's Office and to know what the issues are as well as opportunities for improvement.
On Saturday, August 20th, the Democrats will vote in a firehouse primary at Burley Middle School from 9am - 7pm to nominate their candidate for this office. The incumbent and another challenger will all be on the ballot. With no other apparent candidate of any party nearly as well qualified by experience and character as she, I am throwing my support behind Dugger. I hope any Democrats in the City will take some time on that Saturday in August to affect a much-needed revolution for all citizens who care about the integrity of our public records and a well-run office.
Friday, May 6, 2011
Ash Lawn Opera Summer Festival is looking for hosts to house artists, musicians and production staff for Rossini's The Barber of Seville and Rodgers & Hammerstein's The King and I. All that is requested is a private bedroom and bathroom in your home with kitchen privileges. The stay is just six weeks. Hosts receive tickets to the opening night of the Barber or The King and a chance to say you hosted the next generation's Placido Domingo or Marie Callas!
I hosted the last two summers and I am honored to have met the young artists who stayed with me. Contact me firstname.lastname@example.org. for more information or to host.
Sunday, March 27, 2011
Thursday, October 7, 2010
Monday, August 2, 2010
Two years ago, the Planning Commission voted in favor of designating the Coca-Cola Building on Preston Avenue a historic property, despite initial objections from a representative of the owner. At the time, I was one of three Commissioners to vote against the designation (the vote included other properties). My reason: the City had never before imposed architectural controls with a historic overlay against the wishes of the property owner.
Last week Coca Cola Bottling announced that its offices in the City of Charlottesville would be closing, resulting in 42 jobs that would be lost or moved to Richmond. Michael Harvie, Executive Director of the Thomas Jefferson Partnership for Economic Development (TJPED) said he got no advance notice from Coca-Cola about the closing and layoffs.
What I find even more disappointing than the demise of another old-line business in the City is the loss of the business presence on Preston Avenue of this building. Preston is one of the only boulevard-looking roads in the City and is a designated Entrance Corridor, allowing for density and mixed use development. It serves as an important connection between the University neighborhood to the north of central Grounds, and Downtown. Yet we seen very little renewal or redevelopment on Preston.
Whether the historic designation was part of Coca-Cola's departure may never be determined. But it's time to start a discussion of whether City zoning regulations, which in some cases require two levels of review (Historic Design Review by the BAR and Entrance Corridor by the Planning Commission) are hindering the vitality and improvement of Preston, High Street, West Main, and other arteries in our City.
Tuesday, July 27, 2010
This rule pertains to any lender, any type of borrower, and any type of real estate. There is no defense that I know of for failure to release. The public policy reason for the law is so that land owners can quickly obtain clear title to their property. If the lender does not pay the $500, they will be liable for court costs and attorneys fees expended to pursue collection of the fee.
The release of a lien is most typically accomplished by the preparation and recording of a Certificate of Satisfaction, which is a one-page form that references the original deed of trust or memo of lien. Sounds pretty simple, but some lenders just don't get around to it.
With interest rates at 50-year lows, many smart borrowers are choosing to refinance their mortgages to take advantage of lower payments. And are paying off old loans.
Just last week, I settled a client's claim against a lender whom I shall call Behemoth Bank. The Bank did not release the lien in the 90 days and refused to cough up the $500 when we sent them a demand letter for it. Even after we filed suit against them in General District Court and reiterated our demand, they proceeded to defend the claim all the way to the day before trial. They ended up paying my client the $500 and significant legal fees incurred to perpetuate their mistake. I have another two claims against Behometh Bank that I am handling for another client who refinanced and did not have their old liens released anywhere near the 90-day period.
If you are paying off a lien for any reason, mark your calendar for 90 days after the lender receives your funds. If there is no release, you can make an easy $500 from your lender. Now, how often does that happen?
UPDATED AUGUST 27, 2010: Today, I settled another two cases against Bank of America based on their failure to release liens against my client's property within the 90 day period after they refinanced.
Sunday, June 6, 2010
The increase will take effect July 1st for instruments recorded that day forward. Under the new RESPA Rules that went into effect this year, mortgage lenders are already permitted only a small margin of error in estimating closing costs for residential borrowers. For loans originated before July 1st, but recording after, this provides another red herring.
Settlement agents closing for first time homebuyers who close before the June 30th deadline for the tax credit (see post on this blog dated April 1, 2010) but who don't get to the court house to record by the end of June may be dinged for this additional $10 on July 1st.
Thursday, May 13, 2010
The new law applies not only to new powers of attorney granted after July 1st, but also those granted prior to July 1st, so it is retroactive and governs all existing powers.
Under the new law, all powers of attorney are deemed to be durable, which means they continue to be effective, unless they expire by date or upon an event specified in the power of attorney.
No longer do hard or original copies of powers of attorney need to be retained or produced; now, electronic and photo copies are deemed to have the same effect as an original. Powers of attorney also do not have to be delivered to the agent to become effective.
The new law permits a principal to grant powers to the agent in the power of attorney by simply incorporating by reference certain Sections of the Code of Virginia. For the first time ever in Virginia, where powers of attorney have been strictly construed, the powers of an agent will be deemed to include other incidental powers necessary to carry out general duties. Duties and standards of care are also now codified by the Act.
The law permits an agent to personally benefit from an act or transaction that he enters into on behalf of the principal. Agents are exonerated from liability for their actions unless they act dishonestly, with improper motive, or are recklessly indifferent to their powers. This means that the threshold for holding that an agent has breached their duties to the principal is set very high.
The General Assembly declined to include in the Act a statutory Power of Attorney form. However, there is a new Certification form whereby an agent can certify the validity of the power of attorney and their authority under it.
Monday, April 26, 2010
Monday, April 19, 2010
Last week, Governor McDonnell signed into law four (4) significant pieces of legislation affecting real property laws in Virginia:
Mechanics Lien laws (SB 105): Mechanics Lien Agents (MLA's) no longer need to consent to being designated as such. In addition, the law clarifies the requirements for the Notice required to be given to the MLA when a contractor or sub begins to perform labor or adds materials to the project. Notice now just needs to go to the MLA posted on the building permit when the contractor begins work, not, as the law previously required, the MLA noted when the building permit was originally issued. The law also allows building permits to be freely amended to add MLA's later on, bringing the law into conformity with the realities of construction work, where building permit are often pulled without an MLA named, or the MLA is changed at a later time.
Residential Landlord-Tenant Act (HB 407): Several new provisions are beneficial to landlords, but the two most important, in my view, are: 1) clarifying the ability of a landlord to place damage or renter's insurance and then bill the tenant for that premium as part of the rent cost; and 2) allowing the landlord to withhold returning the security deposit until the final utility bills are received, instead of being required to return the deposit or portion thereof to the tenant 45 days after the lease term ends, as the law currently requires.
Exchange Facilitators (HB 417): The "Exchange Facilitators Act." I call this the "Post-LandAmerica Debacle Statute." For the first time, any person or entity who serves as a qualified intermediary in a Section 1031 Deferred Like Kind Exchange will be regulated. Exchange Facilitators will be required to maintain the escrowed funds in separately identified accounts or in a qualified escrow or qualified trust; they will be required to maintain errors and omissions insurance; amounts escrowed with them will be deemed to be held in trust and must be deposited in a financial institution, with interest accruing to the parties or otherwise invested per a written agreement; they will be required to have a cash deposit or letters of credit equal to at least $250,000; they must account for all moneys and property; and they shall not commingle escrowed funds with other accounts nor lend such monies out. Sadly, this law codifies the code of conduct that some of us thought was always expected of qualified intermediaries, but which was violated by LandAmerica Exchange Services which essentially embezzled from their own exchange customers prior to filing bankruptcy. (See prior post on this Blog dated May 15. 2009.)
Expanding "Vested Rights" in Virginia (HB 1250): Virginia's "Vested Rights" Statute establishes when a landowner can know for sure that a decision of government affecting their land will "vest" certain rights in the property which cannot be altered by a subsequent governmental action. This new law expands the definition of a "significant affirmative governmental act" by adding written orders, decisions or determinations of a zoning or other administrative officer to the list. Previously, only the decision of a governing body, such as the Boards of Supervisors, Board of Zoning Appeals, or Planning Commission, could be considered to "vest" rights. Because so many government decisions are delegated to staff such as zoning administrators and planning managers, landowners had not previously been able to rely on the guidance or decisions of these powerful local government officers, whose decisions carry a lot of weight. Now they can. Critics of this legislation say that it is now possible that emails and casual correspondence with landowners may be deemed to be a governmental action. In my opinion, this legislation is very good law.
Thursday, April 15, 2010
Thursday, April 1, 2010
The tax credit is equal to ten percent (10%) of the purchase price for the home, with a maximum of $8,000.00.A first time homebuyer is defined as someone who has not owned a home within the last three (3) years, so the definition is fairly liberal.
The program was extended before its initial sunset date last fall. When it was extended, Congress added an additional tax credit for current homeowners who “move up.” Owners who already own a residence and buy a new home within the same time constraints may be eligible for a $6,500 tax credit, provided that they owned their current home for five (5) consecutive years during the last eight (8) years.
The bonus factor on the tax deduction is that it is not a “standard” deduction, but a dollar-for-dollar credit. If the taxpayer cannot use the entire credit, it is refundable, which means the taxpayer will receive a refund from the IRS for the unused portion of the credit. Now, that’s a nice bonus to spend at Lowe’s. Or better yet, at your neighborhood hardware or landscaping supply store!
The tax credit applies fully to taxpayers who earn $125,000 and below per year. Taxpayers who earn more than that but below $145,000 are eligible for a partial credit. For joint filers, the tax credit applies fully to a couple who earn $225,000 in combined income, with a partial credit up to a maximum of $245,000 in joint earnings.
The maximum purchase price that this credit can be used towards is $800,000.
But April 30th is coming soon.
Thursday, March 11, 2010
Bishop Gets Rooked: Catholic Diocese May Have to Pay Real Estate Commission Even Without Written Contract
The Supreme Court reversed the trial court’s decision to throw out the real estate firm’s claim based on the Diocese’s argument that the claim was barred by the Statute of Frauds. The Statute of Frauds is a venerable common law principal which says that certain types of contracts must be reduced to writing to be enforceable. In its decision, the Court stated that the real estate contract which was entered into between the Diocese and VCU, naming the realtor from C. Porter Vaughan as the Bishop’s agent, was a sufficient written agreement to evidence the existence of an agreement to pay commissions.
CLewis N.B.: While it will never be good practice for realtors to fail to obtain their clients’ consent to a brokerage agreement, this case certainly signals the Court’s willingness to find an agreement through other writings and agreements, so that equity can be done where a realtor was clearly the “procuring cause.”
Monday, November 30, 2009
In Virginia, we have a very low threshold for appointing an individual as a notary public. No test, no certification, no coursework. As long as you have a pulse, no prior felonies, and can read and write English (no joke: it's one of the requirements), your commission will be returned by the Secretary of the Commonwealth in a few short weeks.
The problem is that notaries perform really important tasks. They are empowered to administer oaths, and take acknowledgements, affidavits and depositions. But some just don’t really know the basics of this public office. Even though notaries must swear that they have read the Notary Handbook, many notaries are not familiar with Notary “rules of the road.” Or, they may notarize so infrequently that they have forgotten the finer points (like how to notarize someone who is signing under a power of attorney for someone else.)
In my practice, many a deal has been unnecessarily delayed due to notary error. This means one of two things: 1) the legal document can’t do what it needs to do, and 2) the legal document cannot be recorded in the courthouse because of the defect.
So, to borrow from American Idol’s Randy Jackson:
“Yo, All You Notary Dawgs: Listen up. Here are Four Quick Tips for You, Baby:”
1) Apply Your Notary Seal. (Yeah, that thing in the pouch.) If it’s an old, embossed (raised) seal and the document you are notarizing needs to be recorded, you must rub with ink or pencil over the seal so that it becomes “legible and reproducible.” That's been the law since 2008. Also, the seal needs to be applied near the notary's signature, not floating elsewhere on the page. (And if you are recording in the City of Charlottesville, that seal has to be upright, not sideways, or they won’t record it, and whammo, you’ll be voted off the show.)
2) Get ID. This has been required for many years now. You are required to ascertain the identity of the person whose signature you are acknowledging unless they were already personally known to you. Fraud and forgery happen when notaries are tricked.
3) Don’t Notarize Unless You Saw the Person Sign. Sounds basic. Some notaries think it’s ok for them to notarize something that has already been signed by someone they never meet. See above regarding fraud and forgery. You are the sentinel. Do your notary job.
4) Notarize For the Actual Place of Acknowledgement. This means you need to complete the second line in the notary block with the City or County in which you are taking the acknowledgement. Even if it is pre-printed incorrectly with something else! In my experience this is the single biggest notary mistake in notarizing instruments that concern real estate. Notaries want to insert the locale of the property instead of the place where the person is signing before the notary. A person can sign a deed in the City of Staunton conveying property in Henrico County! Be careful and take time to get this right. It’s important.
Tuesday, June 30, 2009
As of August, I will have served 8 years on the Commission (2 terms of 4 years each), which is the term limit for Planning Commissioners in the City. I feel fortunate that I have been able to serve and it has been one of the most rewarding ventures I've had. Two openings on the Commission need to be filled, as my friend and colleague Mike Farruggio has decided not to re-up for a second term.
As I told Sean Tubbs in a recent interview for Charlottesville Tomorrow, my advice to candidates is as follows:
"You must be prepared to work very hard, and to have sufficient time/availability in your professional and personal schedule to learn how to do this important job, especially in the first year. You must be prepared to leave your predispositions, prejudices, agendas and niche expertise at the door of City Hall, have a healthy respect for what you don't know about the job, and be truly willing to be a public servant. You must be willing to make sometimes unpopular decisions based on our ordinances and guidelines and on behalf of all of the citizens of our City. You should not enter the position with any allegiance to any constituency or audience. If you are applying to pad your professional or academic resume, you may want to reconsider because you will not be benefitting Council, your colleagues or the citizens of the City. "
Applicants must be City residents who are “qualified by knowledge and experience to make decisions of community growth and development.” The Commission serves as an advisory body to City Council and makes recommendations to Council on applications for rezonings, special use permits, and major site plans. The Commission oversees design review in the Entrance Corridors. Among other responsibilities, it is also charged with the capital improvement plan and with developing the City’s comprehensive plan, with the next cycle of the comp plan starting in 2010.
The Commission convenes one regular meeting per month and one work session, on the second and fourth Tuesdays respectively . Each member also takes on other committee assignments and serves on advisory bodies throughout City government and in the region. As the PC's delegate, I have had the privilege to serve on the Board of Zoning Appeals, the Board of Architectural Review, the UVa Master Planning Council, the Thomas Jefferson Planning District Commission (TJPDC), the Rt. 250 Interchange Steering Committee, and the Charlottesville Housing Advisory Committee.
Anyone wishing to apply should contact Jeanne Cox, Clerk of City Council, at 970-3113.
Wednesday, June 3, 2009
Land Use is authorized by Virginia law and provides owners of property in Albemarle and other counties in Virginia with a significant reduction in their annual real estate taxes. Property used for agricultural, horticultural, viticultural, forestry, and open space purposes can be placed under the Program and taxes are abated for that portion of the property on which the use occurs. The downside of Land Use is what happens when the County takes away the status: "Roll Back" taxes, meaning those taxes which were abated while the property had the special status, become due for the previous five (5) years plus interest at 10% a year.
The reason for the County making this change in policy is obvious: under their current revenue strains, they are looking everywhere they can for additional revenue and figure they'll determine that some have been taking advantage of the system. But why has Albemarle decided at this time to breathe down the neck of Farmer Joe, who's just as strained?
Albemarle County has provided some Frequently Asked Questions about the revalidation process and is holding some information sessions at extended hours for public discussion beginning next week.
Friday, May 15, 2009
This opinion has sent widespread shock throughout the bar because of its far reaching implications. Not only have these claimants/exchangors lost their escrowed profits from their "first leg" transaction, but they now have to pay capital gains on those profits, and may be contractually liable to complete the "second leg" transaction without their monies.
In speaking with one attorney representing 20 claimants (and counting) who will probably be filing appeals of the decision, I learned that LandAmerica began to invest the escrowed funds in securities, not conservative, liquid accounts. When the market went south, the escrowed funds were at risk and then began to lose value. It is my understanding that, as the losses mounted, LandAmerica began to utilize new escrows to fund escrows that were being called upon for the "second leg" transactions, a la a Ponzi scheme. It has been established that LandAmerica took on new 1031 escrows mere days before filing bankruptcy, so it is likely that principals there knew that the house of cards would fall as there would be no more new escrows accepted to provide funding for these "last in" transactions.
Because of this federal judge's far-reaching ruling, real estate practitioners are wondering how funds escrowed for 1031 exchanges can ever be deemed safe and separate from the assets of the QI. I know many of our local title agents and branch offices for title underwriters are preparing various responses and guidance for us, as they all act as QI's for 1031 exchanges.
[In full disclosure, I should mention that I sold my former company, The Closing Company, to LandAmerica in 2004, and was employed there as an Area Manager overseeing the operations I formerly owned. I left one year later in 2005. I was not employed in the Exchange Services division, although I did recommend their services to clients of mine while I was at LandAmerica and on occasion afterwards. Fortunately, I have not done so since ~2006. - Cheri Lewis]
Tuesday, May 12, 2009
This month I am presenting a seminar to real estate colleagues in the bar across Virginia. To introduce one of my case studies, I am using this image. It is one of my favorites and highlights the risks of construction law practice. N.B: The small dinghy in front of the larger boat is named "Original Contract."
Thursday, April 30, 2009
My idea, as expressed in our April Planning Commission meeting and to Rachana Dixit of the Daily Progress who interviewed me on the subject, is that the City should consider metered parking. If people have to pay to park in the Market Street and Water Street Garages, why is the desirable parking on our downtown streets free? Either make it all free, as Staunton does, or monetize the desirable spaces. My colleague Mike Osteen agrees with me and he's seen it work well with electronic flash passes.
In a great article published March of 2008 in The Hook covering the parking garage issue in our City, Dave McNair quotes George Costanza from Seinfeld on the issue of paying for parking: "My father never paid for parking, my mother, my brother, nobody," George says in one of his characteristic rants. "It's like going to a prostitute. Why should I pay when, if I apply myself, maybe I could get it for free?"
My public admission at our April meeting: I'm a two-hour shuffler. Like George, as long as I can get it for free for a little effort, I will keep shuffling.
It's up to good planning in our City to change the behavior of those like me and George.
What do you think?
Friday, February 20, 2009
Thursday, January 15, 2009
The Act made sweeping changes to Virginia laws governing property owners associations, condominiums, and cooperatives. A new state-wide Common Interest Community Board to regulate these associations was created as well as a consumer Ombudsman. Another major initiative of the Act is to create licensing and regulatory requirements for any professional manager of community associations.