Real Estate Law

    • 30 Nov 2015

    Landlord Not Liable For Shooting Death At Rental Property

    Landlord Sued for Wrongful Death After Assailant Shoots Four Guests At House Party, Killing One A landlord’s worst nightmare is someone getting hurt, or worse, shot and killed on their rental property, and then getting sued for wrongful death. This was the situation facing a property owner in Dorchester in the recent case of Belizaire v. Furr , Appeals Court 13-P-1908, 36 N.E.3d 1261, [subscribers can access...
    • 25 Nov 2015

    Title Insurance Companies Balk At Insuring Foreclosed Properties

    Policy Changes Make It Harder To Insure Foreclosed/REO Properties In the aftermath of the Supreme Judicial Court’s ruling, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], in Pinti v. Emigrant Mortgage Company , which voided a foreclosure over a defective notice of default, two leading title insurance companies — First American Title and Fidelity/Chicago —...
    • 13 Nov 2015

    Transfer on Death Deeds Now Valid in Texas

    Texas property owners now have a new tool to avoid probate. Effective September 1, 2015, Texas Estate Code Section 114.151 allows for Transfer on Death Deeds, [subscribers can access an enhanced version of this legislation: lexis.com | Lexis Advance ]. Lawmakers believe this provision will provide a simplified process for the non-probate transfer of real estate. A Transfer on Death deed operates the same as any other...
    • 12 Nov 2015

    A Construction Stitch in Time

    It’s a cliche for a reason that “A Stitch in Time Saves Nine.” Why? Because it is almost always cheaper and more efficient in the long run to get something right the first time than to fix it later. This old adage is true in life, and particularly true in the world of construction. Whether it’s measuring twice before making your bid, checking with your subcontractors and suppliers to be sure...
    • 10 Nov 2015

    New Jersey Supreme Court Answers Burning Question: When is a Converted Garage a "Building" Under New Jersey's Anti-Eviction Act?

    When my wife and I lived in Hoboken, one of our favorite restaurants was Court Street . It is located on the corner of Sixth Avenue and Court Street. We went there at least once a week for most of the time we lived in Hoboken. (Great food, good atmosphere, a little off the beaten path. You should check it out.) Little did I know at the time that we were looking out from the restaurant onto a "building" that...
    • 10 Nov 2015

    The Cloud Dissipates (a bit)

    Remember HB 1265, [subscribers can access an enhanced version of this legislation: lexis.com | Lexis Advance ], that I discussed here at Musings back on February 6, 2012? Well, thanks to the efforts of the AGC of Virginia among other groups affected by the bill, it has been amended and a substitute proposed . My thoughts on the latest changes? It is a good start, but adds an extra, and unnecessary, notice requirement...
    • 9 Nov 2015

    Construction Law, the Cloud and Solo Practice

    It’s hard to believe, but I’m almost to the end of year 3 here at The Law Office of Christopher G. Hill, PC (not to mention having recently passed the 4 year mark at Construction Law Musings). In that three years, I have learned a lot about “the cloud.” The Cloud, as I see it, is the internet, both good an bad. When I entered solo practice on July 1, 2010 , I knew about web 2.0 and the cloud...
    • 6 Nov 2015

    Complex Commercial Tenancies Often Test the Limits of the Summary Eviction Process

    I recently co-authored an article, entitled " Commercial Tenancies, Complexities, And The Limits Of the Summary Eviction Process ," that discusses, as the title suggests, situations where commercial landlord-tenant matters may be too complicated for the normal, summary eviction process in New Jersey courts. Here are the first few paragraphs: New Jersey tenants who don't pay, including commercial tenants...
    • 6 Nov 2015

    ConsensusDOCS Updates its Forms

    As reported recently in ENR Magazine , among other publications, the ConsensusDOCS folks have updated their contract forms. Why is this news? First of all, it’s only been around three and a half years since these documents were officially released and this release is about 18 months sooner than anticipated (the original revision cycle was to be 5 years). Why the revision? According to my friend and counsel to...
    • 5 Nov 2015

    The Construction Lawyer as Problem Solver

    As a construction attorney here in Virginia I “wear many hats.” Counselor, mediator , adviser, risk manager, litigator, and others depending upon the situation. I take each and every one of these roles seriously and at times take on more than one depending on a client’s situation. One “role” that I try to keep in mind every day when I come to work is that of problem solver. In response...
    • 4 Nov 2015

    Old and New Business Strategies to Weather the Construction Recession

    The construction world has been hit with story after story of the hard times that have hit those in commercial and residential construction markets. Doom and gloom is everywhere. Capacity built up in the good years led to larger construction companies that now have to deal with bidding wars (and the potential liability from those bidding wars ) and layoffs. However, not all is lost. As the latest issue of ENR points...
    • 4 Nov 2015

    Real Estate Gazette: A Focus on the Hospitality and Leisure Sector In Some of the World’s Key Jurisdictions

    By Dr. Olaf Schmidt In this issue, we turn the spotlight on the hospitality and leisure sector in some of the world’s key jurisdictions, focusing on topics that are intricately linked with real estate. Also discussed in this issue are recent changes to the tax regime in Australia, which are particularly significant for international investors in Australian real estate. In our Japanese article, we examine the...
    • 3 Nov 2015

    Mediation in the Zero Sum World of Construction

    Construction is a zero sum game. What do I mean by that? I mean that even where you, a construction professional with a great construction lawyer , have reviewed and edited a subcontract presented to you or provided a well drafted contract to the other party that contains an attorney fees provision , every dollar that you spend on litigation is a dollar less of profit. Couple the fact that no construction company can...
    • 26 Oct 2015

    Consumer Financial Protection Bureau and Department of Justice Announce Redlining Settlement

    Consistent with recent indications from CFPB and Department of Justice officials that more redlining cases would soon be coming, the CFPB and DOJ have announced a proposed consent order with Hudson City Savings Bank to settle allegations that the bank had engaged in a pattern or practice of redlining predominantly black and Hispanic neighborhoods in its residential mortgage lending. The joint complaint filed by the...
    • 15 Oct 2015

    Important Changes to the AAA Construction Industry Mediation and Arbitration Rules

    By W. Alexander Burnett , Partner, Williams Mullen Introduction The American Arbitration Association (“AAA”) is one of the primary providers of alternative dispute resolution, such as mediation and arbitration, in the United States. Many construction contracts call for disputes to be resolved through arbitration using AAA’s Construction Industry Arbitration Rules and Mediation Procedures (the “AAA...
    • 13 Oct 2015

    The Importance of Fences in Adverse Possession

    It is often said that tall fences make good neighbors. In the world of adverse possession, the presence of a fence can often be the difference between winning or losing. The vast majority of legal transfers of title occur through a transaction: buyer makes an offer to purchase real property from a seller, they enter into a purchase and sale agreement, and eventually they close. At the closing, the legal title shifts...
    • 9 Oct 2015

    Fixing the Location of a Floating Easement

    An express easement is the written form of a nonpossessory right to use another party’s real property. (This is unique compared to prescriptive, necessary, and implied easements which form by the contextual use of property or by the relative ownership positions of the property owners.) For express easements to be valid they typically must describe the portion of the burdened property with reasonable certainty. For...
    • 8 Oct 2015

    Legal Description Specificity and the Statute of Frauds

    So, you want to create a deed but you’re not sure what legal description to use? (Be sure to follow the statute of frauds requirements in your state.) The statute of fraud and deed rules work in concert. Typically, these laws mandate that certain deeds, leases, agreements, and other property transfers, be written and contain specific components. Statute of frauds issues most common touch upon real property transfers...
    • 28 Sep 2015

    Mediating is Eye Opening

    As anyone that reads this construction law blog on any sort of regular basis knows, I am a big advocate for mediation in most cases (construction or otherwise). I took this truly to heart about four years ago when I decided to go through the training and mentorship to become a certified mediator here in Virginia. This training led to many opportunities to act as a mediator in the General District Courts here in Virginia...
    • 23 Sep 2015

    Alert: AAA Construction Industry Rules Update

    The American Arbitration Association has made some needed updates to their Construction Industry Arbitration and Mediation Rules, effective July 1, 2015. Among the changes listed at their website are: • A mediation step for all cases with claims of $100,000 or more (subject to the ability of any party to opt out). • Consolidation and joinder time frames and filing requirements to streamline these increasingly...
    • 22 Sep 2015

    When Is Mandatory Arbitration Not Mandatory?

    I have discussed my views on mandatory mediation in construction contracts at other places here at Musings and also discussed how the contract is king here in Virginia . A recent Charlottesville, Virginia Circuit Court case, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], combined these two concepts to allow a subcontractor to proceed straight to litigation despite various ADR...
    • 17 Sep 2015

    Payment Bond Claim Notice Requires More than Mailing

    It’s been a while since I posted something new relating to Virginia’s “ Little Miller Act ” and its various notice requirements for a subcontractor to make a payment bond claim . I have posted on the basics of a Virginia payment bond claim previously here at Musings. One of these basics is the 90 day notice requirement for suppliers or second tier subcontractors with no direct contractual relationship...
    • 17 Sep 2015

    Neighborly or Trespassing? Equitable Easement and Portable Patio Furniture

    By Ronald L. Richman A landowner who uses a portion of his neighbor's property without permission is a trespasser. An exception to this general rule occurs when the trespasser's use of his neighbor's property meets the legal requirements of a prescriptive easement, or the legal right of a trespasser to use a portion of his neighbor's property. A prescriptive easement arises when a trespasser's...
    • 17 Sep 2015

    Second Circuit: Transfer of Mortgage Servicing Rights Triggers FDCPA Disclosure Requirement

    A federal appeals court, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], has ruled that a nonbank mortgage servicer’s notice of servicing rights transfer sent pursuant to RESPA constitutes debt collection and thus triggers mandatory FDCPA disclosures. The Second Circuit Court of Appeals’ ruling last month in Hart v. FCI Lender Services has important ramifications...
    • 15 Sep 2015

    Construction Law Musings – Reminder: Your Accounting and Other Records Matter

    Recently, I’ve posted on mechanic’s lien changes , mediation and other more “legal” topics here at Construction Law Musings . Today’s post is a practical one and one that will help your friendly neighborhood construction attorney greatly should a dispute arise. The tip for this week? Keep clean accounting and other records by construction job and in an organized fashion. This tip seems...