RECENT DEVELOPMENTS (2007)
Ronald D. Wiley, Jr.
Senior Vice President
& Regional Counsel
Southern Title Insurance Corp.
12I. Recent Legislation Affecting Real Estate and Title Insurance Law from A to Z
A. Notary Public law. Senate Bill 826; House Bill 2058 (see Exhibit A.) 1. Provisions relating to electronic notarization of documents will become effective
July 1, 2008.
2. Notary seal—“a device for affixing on a paper document an image containing the
notary’s name and other information related to the notary’s commission” Va. Code
3. Notarial certificate—“the part of, or attachment to, a notarized document that is
completed by the notary public, bears the notary public’s signature, title, commission
expiration date, notary registration number, and other required information
concerning the date and place of the notarization and states the facts attested to or
certified by the notary public in a particular notarization.” Id., underlined italics
added. A notarial certificate is required. Va. Code ?47.1-16.B
4. “Near the notary’s official signature on the notarial certificate of a paper document,
the notary shall affix a sharp, legible, permanent, and photographically reproducible
image of the official seal.” Va. Code ?47.1-16, underlined italics added. (Although
failure to affix an official seal does not affect “the legality or efficacy of the paper
document.” Id. Does it otherwise affect the document? If a notary seal is required, is
the document properly notarized if it doesn’t contain a seal? If a document isn’t
properly notarized, should it be recordable?)
5. The notarial certificate must be on the same page as the signatures of the parties
whose actions are attested to or certified by the notary public. Va. Code ?47.1-15.
6. Provisions for requiring positive identification from the person whose signature is
notarized, physical presence of that person before the notary when the document is
signed, and authorizing a notary to refuse to notarize a document were added or
B. Deed recordation statute. House Bill 1909 (see Exhibit B.) 1. Recorded documents “shall be returned to the grantee unless otherwise indicated
clearly on the face of the writing including an appropriate current address to which
such writing shall be returned.” Va. Code ?17.1-223.A. (No provision for Clerk
requiring a self-addressed, stamped envelope.)
1 References are to bills passed by the 2007 Virginia General Assembly and signed by the Governor, unless
otherwise noted. 2 I gratefully acknowledge the excellent materials and presentation by my law school classmate and friend, Lucia thAnna (“Pia”) Trigiani and her law partner, David S. Mercer, of Troutman Sanders LLP, for the 25 Annual Real
Estate Practice Seminar by Virginia CLE, co-sponsored by the Virginia State Bar Real Property Section.
2. Attorney or party who prepares the writing for recordation is responsible for
a. compliance with applicable recordation standards under Va. Code ?17.1-223.A;
b. removal of a Social Security number from the document; and
c. “a deed conveying not more than four residential dwelling units states on the first
page . . . the name of the title insurance underwriter insuring such instrument
or . . . that the existence of title insurance is unknown to the preparer.” Va. Code
17.1-223.B. Note the statute no longer applies to deeds of trust and is now
C. Convicted felons and real estate.
1. House Bill 2647—until a committee is appointed, a convicted felon now shall
“continue to have the same capacity, rights, powers, and authority over his estate,
affairs, and property that he had prior to . . . conviction and sentencing.” Va. Code
2. Senate Bill 745—persons convicted of a felony cannot be registered as settlement
agents under CRESPA and persons convicted of a felony involving fraud, deceit or
misrepresentation are prohibited from working for a settlement agent in any capacity
involving receipt or disbursement of settlement funds. Va. Code ?6.1-2.21.
D. Church property. Va. Code ?57-15.B allows church trustees to transfer property to their
incorporated church without a court order authorizing the transfer. (2005 legislation)
E. Limited partnerships. House Bill 2142—limited partnership is prohibited from doing
business until registered; various other technical amendments to various code sections
were included as well.
F. Recordation tax exemption for a deed to a successor limited partnership or business trust.
House Bill 2292; Senate Bill 794. Va. Code ?58.1-811.
G. Time-share developer liability. House Bill 2017—liability for injuries to persons using
time-share facilities may be limited by posting notice of such limited liability; applies to
time-share developer, time-share owners association, or managing agent. Va. Code
??55-362, -370, -370.01, and -374.
H. Disabled or elderly tenants in conversion condominiums. House Bill 2727; Senate Bill
968—tenants in a conversion condominium have exclusive rights to purchase their units;
disabled or elderly tenants can assign those rights to a government agency, housing
authority, or certified nonprofit housing corporation that will offer tenants affordable
rents, subject to certain limitations and conditions. Va. Code ?55-79.94.
I. Kelo fallout continues to fall. House Bill 2954; Senate Bills 781 and 1296—the
definition of public uses for which private property may be taken was limited; provision
is made for a former property owner, or his successors, to request to repurchase the taken
property upon the completion or abandonment of the stated public use. Va. Code ??1-
237.1, 15.2-1800, 15.2-1814 and 25.1-108; repeals Va. Code ?15.2-1900. (But, Norfolk
Recent Developments (2007)
Page 2 of 10
can adopt a new redevelopment or conservation plan to replace the one for the East
Oceanview Conservation and Redevelopment Project scheduled to expire July 1, 2007.
Senate Bill 1138. Va. Code ?36-27.2.)
J. Land conservation funding. House Bill 2825; Senate Bill 942—a plan for allocating
unrestricted funds in the Virginia Land Conservation Fund among the Open-Space Land
Preservation Trust (OSLPT), natural area protection, open spaces and parks, farmlands
and forest preservation, and historic area preservation, based on the total amount in the
land conservation fund. Va. Code ?10.1-1020.
K. Fort Monroe Federal Development Authority. House Bill 3180; Senate Bill 1392—the
Governor was authorized to convey Fort Monroe to the development authority created
by the City of Hampton. Va. Code ??15.2-6304 and -6304.1.
L. Affordable housing.
1. House Bill 2010; Senate Bill 955—authorizes establishment of housing trust funds
and allows localities to accept cash proffer in lieu of affordable units. Va. Code
2. House Bill 2446; Senate Bill 1387—counties with county executive form of local
government (Albemarle and Prince William) allowed to use funds other than state
funds for assistance to local government employees to afford to live in the county.
Va. Code ?15.2-542.
3. House Bill 2834 (incorporating House Bills 2841 and 3121)—increases the amount
localities may provide for home ownership grants to local government employees
from $5000 to $25,000. Va. Code ?15.2-958.2.
4. Senate Bill 1292—a separate ordinance is no longer required for each home
ownership grant. Id.
5. House Bill 3002—localities may take investment in affordable housing into account
when deciding where to do their banking. Va. Code ?2.2-4327.
M. Insurance agent license termination. House Bill 3016—the requirement for appointment
by at least one insurance company was repealed; but, note the prohibition against acting
as a settlement agent registered under CRESPA unless appointed by at least one title
insurance company was NOT repealed. Va. Code ?38.2-1825.
N. Remote access to land records. House Bill 2062; Senate Bill 824
1. Deadline for providing secure remote access to land records extended (again) to July
1, 2008. Va. Code ?17.1-279.D.3.
2. Social security numbers must not appear in land records remotely accessible,
effective July 1, 2010. Va. Code ?17.1-294.B.1.
3. Judgments may contain the last four digits of Social Security numbers for
identification. Va. Code ?8.01-449.
4. Redaction of Social Security numbers remains an issue.
5. Use of Technology Trust Fund fees remains an issue.
6. Subscription fees and copy fees remain issues.
Recent Developments (2007)
Page 3 of 10
O. Memoranda of mechanics liens.
1. House Bill 2579—the statutory form (Va. Code ?43-5) for the memorandum of
mechanics lien claimed by a contractor has been amended to satisfy the statutory
requirements for a certification of mailing to the owner and statement of intention to
claim the benefit of a lien; statutory forms for subcontractors, etc., also have been
amended to state intention to claim the benefit of a lien. Va. Code ??43-5, -8, and -
2. House Bill 2580—the statute providing for mechanics liens has been clarified; notice
of mailing to owner is only required by general contractors, not subcontractors,
suppliers, etc. Va. Code ?43-4.
P. Doctrine of Worthier Title. House Bill 2829—abolished doctrine in Virginia. Va. Code
Q. Powers of attorney. House Bill 2864—the holder of a power of attorney has a fiduciary
relationship with the principal and may be held liable for breach of that duty; the
attorney-in-fact is accountable to the principal and to others on behalf of the principal for
at least five years. (see, also, Senate Bill 1235—obligations of holder of power continue
beyond death of the principal.) Va. Code ??11-9.1, 11-9.6, and 37.2-1018.
R. Interference with easement. Senate Bill 1384—unreasonable interference with the
enjoyment of an easement includes placing objects (other than fences, cattle guards, or
gates) immediately adjacent to the easement not reasonably consistent with the
contemplated use of the easement. Va. Code ?55-50.1.
S. Real estate salespersons and brokers CE. House Bill 2064—increased from 16 hours per
biennium to 24 hours, effective July 1, 2008; other standards were adopted. Va. Code
??54.1-2100, -2105, -2105.1, -2105.01, -2105-4, and -2344.
T. Residential Property Disclosure Act.
1. House Bill 2011—six minimum disclosures required; disclaimer provisions
eliminated from required statement. Va. Code ??54.1-2105.1, 55-517 through -522,
55-224, and 55-225.
2. House Bill 1114—pending zoning violations that have not been abated or remedied
must be disclosed. Va. Code ?55-519.
U. Recordation taxes. House Bill 2059; Senate Bill 822—tax rate applies to the greater of
the consideration paid or the value of the interest conveyed. Va. Code ?58.1-802.
1. House Bill 2395—deeds or other instruments that purport to convey or transfer
property to a trust instead of to the trustee shall be deemed to have conveyed and
transferred the property to the trustee. Va. Code ?55-548.10.
2. Uniform Trust Code (adopted in 2005) contains many helpful provisions to deal with
thorny trust property questions, including authority of the trustee to act. Va. Code
??55-541.1, et seq.
Recent Developments (2007)
Page 4 of 10
W. “Wills.” House Bill 3205—a new procedure for validating a document that does not
comply with the requirements of executing a will has been adopted. Va. Code 64.1-49.1.
X. Family subdivisions. House Bill 1968—amends the alternate procedure localities are
authorized to adopt regarding family subdivisions. Va. Code ?15.2-2244.1 (the alternate
procedure statute just was adopted in 2006.)
Y. Validation of old subdivision plats. House Bill 2265—subdivision plats recorded before
January 1, 1975, that did not comply with technical requirement for recordation are
validated; this curative statute previously validated plats recorded before 1953. Va. Code
Z. Farm wineries. House Bill 2493; Senate Bill 1205—local government regulation of farm
winery operations is very limited. Va. Code ?15.2-2288.3. (see also House Bill 3120; Va.
3 II. Selected Recent Real Estate Court Decisions
A. Prescriptive easement; breach of warranty of title. Johnson v. DeBusk Farm Inc., 272 Va.
726, 636 SE2d 388 (Nov. 3, 2006)
1. A farm road across the subject property led to a ford for crossing a river to the
historic DeBusk Mill; evidence presented at trial established that DeBusk Farm and
the DeBusk family, predecessors in title to the mill property, had made adverse, open,
obvious, exclusive, continuous, uninterrupted use of the farm road under a claim of
right, with the knowledge and acquiescence of the owners of the Johnson property
for at least 33 years, therefore establishing a prescriptive easement.
a. the fact that a prior owner of the Johnson tract was a part-owner of the DeBusk
Mill property did not make the use permissive
b. distinguish between “knowledge and acquiescence” and “permission.”
2. Johnson’s third-party claim against her grantors for breach of the general warranty of
title in their deed to her was dismissed because she had observed sufficient
indications of an existing road to put her on notice that an easement might exist
across the land.
a. Query: does notice of a possible breach of a warranty of title really negate the
warranty? Does this opinion confuse tort concepts with warranty/contract law?
b. What about any title insurance coverage Johnson might have purchased? Would
her “knowledge” of the possible easement exclude a claim?
B. Refinancing vs. amendment and restatement. Hancock Fabrics, Inc. v. Ruthglen
Associates, L.P., 2006 WL 2459222 (U.S.D.C., E.D.Va., Aug. 23, 2006) and 2007 WL
593573 (U.S.D.C., E.D.Va., Feb. 20, 2007)
3 I acknowledge the excellent summaries of some of these decisions in Virginia’s Real Estate Case Law Update by thDouglass W. Dewing, et al., for the 25 Annual Real Estate Practice Seminar; I also rely upon the weekly
summaries of opinions in Virginia Lawyers Weekly. Customers, agents and approved attorneys also are encouraged
to send interesting cases to me.
Recent Developments (2007)
Page 5 of 10
1. Issue ultimately was whether a foreclosure sale would extinguish a 1988 lease with
the predecessor of Hancock Fabrics.
a. 1984 industrial revenue bond financing with Va. Beach Development Authority
b. Lease recorded in 1989
c. 1995 industrial revenue bond financing paid off 1984 bondholders and new
bonds were issued by the Authority
d. 1995 deed of trust provided it “amends, restates, and supercedes” the 1984 deed
2. 2006 opinion dealt with preliminary injunction against foreclosure; Hancock Fibers
established necessary elements, including likelihood of success on the merits, and
was granted preliminary injunction
3. 2007 opinion granted summary judgment against Hancock Fibers; 1984 note (as
opposed to industrial revenue bonds issued by the Authority) was never paid and the
parties to the 1995 transaction did not intend to displace the existing lien.
4. Query: how would title insurance for the 1995 transaction have handled the 1988
lease recorded in 1989?
C. Tenancy by the entirety vs. judgment creditor. Banc of America Leasing & Capital LLC v. Havel, 2006 WL 28506455 (U.S.D.C., E.D.Va., Sept. 29, 2006)—proceeds of sale of
tenancy by the entirety property retain tenancy by the entirety characteristics and remain
exempt from the claim of a creditor of just one spouse; gift of husband’s interest in
proceeds to wife (and her subsequent purchase of other property solely) did not sever
tenancy by the entirety and default judgment creditor of husband cannot set aside gift.
(Wouldn’t it have been simpler just to purchase the other property as tenants by the
entirety? Perhaps the purchase money lender for the other property wouldn’t make the
loan if the husband were on the title, because of his credit problems—with Banc of
D. Bad fences and bad neighbors. Cline v. Berg, __Va. __, 639 SE2d 231 (Jan. 12, 2007) 1. Berg erected a tripod 11 feet high with motion sensors and floodlights that
illuminated the Clines’ property and house; Berg also installed surveillance cameras
that tracked some of their movements (the Clines could pick up the wireless
transmission from Berg’s surveillance cameras on their television!)
2. The Clines erected a “fence” (32′ high x 200′ long) using utility poles and plastic
3. Although the Augusta County Circuit Court found Berg was to blame for the
“intolerable situation,” it granted him injunctive relief requiring the Clines to remove
4. The Virginia Supreme Court reversed. (“He who asks equity must do equity, and he
who comes into equity must come with clean hands.”)
E. Bad husband. 1924 Leonard Road LLC v. Van Roekel, 272 Va. 543, 636 SE2d 378 (Nov. 3, 2006)
1. Attempted partition by the LLC, successor in title to Francis Malcolm, against
Dorothy Van Roekel, successor in title to Herman Van Roekel
Recent Developments (2007)
Page 6 of 10
a. Francis Malcolm, a real estate broker and property manager, and Herman Van
Roekel held record title as tenants in common under a 1955-56 deed; Dorothy
claimed Malcolm was a grantee merely as an accommodation to the Van Roekels
and she was the owner by virtue of a resulting trust or by adverse possession.
b. Herman had deserted his family in 1961 and apparently ran off to Mexico;
Dorothy paid the mortgage payments and taxes.
c. Malcolm wrote to Herman (after Dorothy told Malcolm Herman had run off) and
offered to buy Herman’s interest for $500.
d. Herman (and another grantor identified as his wife) conveyed his interest to
Dorothy in a 1972 deed.
e. Malcolm corresponded with the lender regarding overpayment and the escrow
balance after Dorothy made the final mortgage payment.
e. Herman Van Roekel and Francis Malcolm both were dead by the time of the
2. Virginia Supreme Court opinion dealt with several evidence issues from the trial of
the partition suit
a. admissibility of Dorothy’s testimony as to her understanding of the 1955-56
transaction—it was inadmissible
b. admissibility of Malcolm’s file regarding the property
i. under the “Dead Man’s statute”—not applicable because Dorothy’s cross-bill
for a resulting trust was not an action against Malcolm’s estate
ii. under the business records exception to the hearsay rule—admissible
c. estoppel by deed precluding Dorothy from claiming a greater interest than she
was granted in the 1972 deed—estoppel by deed doesn’t apply to grantee.
3. Note Dorothy still may prevail at the new trial on remand; the trial court had been
convinced Malcolm merely accommodated the purchase in part because of his
correspondence with the seller in 1955-56 regarding that transaction and the LLC
seemed to have engaged in some discovery shenanigans in the partition suit.
F. Close family and undue influence.
1. Bailey v. Turnbow, __Va.__, 639 SE2d 291 (Jan. 12, 2007)—no presumption of
undue influence arises from mere close family relationship and a deed conveying
real property to a nephew cannot be set aside by the personal representative of the
grantor’s estate; a “confidential relationship” must exist. 2. Grubb v. Grubb, 272 Va. 45, 630 SE2d 746 (June 8, 2006)—an attorney-in-fact
(brother) does have a confidential relationship with the party granting the power and
a fiduciary duty is owed to that party; any transaction consummated to the benefit of
the attorney-in-fact are presumptively fraudulent.
G. Deed required to create life estate. Harris v. Finnerty, 2006 WL 3157556 (Fairfax Cir. Ct., Oct. 26, 2006)—a prior “agreement” did not create a life estate in favor of the
grantor in a later deed (without consideration) conveying title to valuable residential
property; Va. Code ?55-2 requires a deed or will to convey “an estate of inheritance or
freehold or for a term of more than five years” so the uncompensated asset transfer
resulted in the grantor being ineligible for certain long term care services.
Recent Developments (2007)
Page 7 of 10
H. Mechanic’s lien and certificate of mailing. Capstone Contracting Co. v. American
SelfStorage LLC, 21 VLW 1170 (Prince George Cir. Ct., No. CL06-327, Feb. 8, 2007)—
requirement for certificate of mailing notice to the owner does not apply to a
memorandum of mechanic’s lien claimed by a subcontractor; required certification only
applies to memoranda of liens claimed by general contractors. (see I.O.2, above)
I. Aboriginal riparian rights. Mattaponi Indian Tribe v. Commonwealth, 21 VLW 1234 (Norfolk Cir. Ct., No. 3001-RW/RC, Feb. 5, 2007)—rights under the 1677 Treaty at Middle Plantation between Charles II, King of England, and the Mattaponi (or their
predecessors) and rights allegedly reserved by the tribe were at issue. (see Recent
1. Riparian rights doctrine—all riparian owners share the water and each is responsible
to the others to use it reasonably; concern for a property owner’s corresponding
access to waters adjacent to property.
2. Prior appropriation system of water rights—“first in time, first in right”; reserved
water rights doctrine applies in prior appropriation system states to preclude state
water rights laws from restricting federal action relating to federally-recognized
tribes, typically the establishment of an Indian reservation, and depends on the
necessity of the reserved water rights to the federal action or the tribe’s aboriginal
3. Reserved water rights doctrine also may apply to state-recognized tribes, but
necessity must be shown; necessity may be difficult to show in riparian states.
4. The Mattaponi may amend their pleadings to allege facts or claims to show necessity.
J. HUD-1 not a contract. Koschene v. Hutchinson, 21 VLW 1333 (Frederick Cir. Ct., No. CL06-476, March 16, 2007)—payoff of loan secured by Colorado property instead of
loan secured by Frederick County, Virginia, property (which was the property being
sold); HUD-1 is not a contract to disburse settlement funds, but just a statement of how
funds will be distributed, and borrower therefore can offer parol evidence as to
agreement with settlement agent (i.e., say what the settlement agent was told and agreed
1. Wet Settlement Act cause of action exists.
2. Private cause of action under CRESPA does not exist. (Which seems odd; it’s the
Consumer Real Estate Protection Act, after all!)
3. Cause of action for breach of a fiduciary duty exists.
4. Punitive damages claim dismissed.
5. Consumer Protection Act claim dismissed.
K. Joint tenancy with survivorship or mere life estate? Allin v. Morris, 21 VLW 1423 (Rockingham Cir. Ct., No. CL06-00955, April 3, 2007)—1952 conveyance to Emory C. Dean and Melvie M. Dean, husband and wife, “as joint tenants with a right of
survivorship, and to the survivor of them and to the heirs and assigns of such survivor
forever as at common law” (italics added)
1. Melvie survived Emory, then she died; does title to the property pass under her will
or to her heirs? (Remember, “heirs” are the people who would inherit the real estate
Recent Developments (2007)
Page 8 of 10
owned at death by someone who does not leave a will, not merely whoever takes title
upon the owner’s death.)
2. Court held that fee simple absolute was vested in Melvie Dean even if the 1952 deed
language only conveyed a joint life estate to the Deans because the ability to assign
the property would void any remainder. May v. Joynes, 61 Va. (29 Gratt.) 692 (1871)
and Va. Code ?55-7.
3. The Court also suggested the deed language granted a fee simple estate; the words
after “right of survivorship” being words of limitation and not words of purchase
defining who takes the estate. (I suggest it was just another case of redundant
legalese confusing something; does anyone actually wear both a belt and suspenders?)
L. Trust confusion. Rock River Trust Co. v. Board of Supervisors of Loudoun County, VLW
007-8-171 (Loudoun Cir. Ct., July 11, 2007), summarized in Virginia Lawyers Weekly,
Vol. 22, No. 8 (July 30, 2007, pp. 1 and 32)—an individual is not the “owner” of property, title to which is vested in the individual as trustee of a revocable trust, and the
property cannot be withdrawn from an agricultural and forestal district (in less than the
term the owner agreed for the property to remain in the district) under a provision for
withdrawal by any heir at law or devisee upon the death of the individual owner.
M. Boundary adjustments and uncooperative lenders. Keystone LLC v. Countrywide Home Loans Inc., 22 VLW 427 (Loudoun Cir. Ct., Law No. 40378, Aug. 30, 2007)—
Countrywide was not liable for refusing to sign documents relating to a boundary
adjustment between lots until the priority of its lien on the adjusted lot (including that
portion of the adjusted lot subject to a Washington Mutual Bank deed of trust on the
original adjoining property) was resolved.
N. Cover sheet doesn’t cover the Clerk. Mega International Commerce Bank v. MCAP Capital LLC, 22 VLW 456 (Norfolk Cir. Ct., No. CL07-1319, Sept. 6, 2007)—Norfolk
Circuit Court Clerk may be held liable for misindexing a deed of trust, even though the
error was caused by an error in the cover sheet prepared by an attorney who submitted
the deed of trust for recording.
1. Error was in the spelling of the grantor’s last name on the cover sheet; it was spelled
correctly on the recorded deed of trust. (“Tsen” instead of “Tseng”; query: would a
careful title examiner have discovered the recorded deed of trust anyway?)
2. Purchaser paid off two Wachovia loans secured by deeds of trust on the property, but
not the Mega International loan. (Is that name for real?)
3. Court held the statute allowing Clerks to require cover sheets does not absolve the
Clerk from responsibility to index recorded documents correctly. Va. Code ?17.1-
4. The Circuit Court Clerks Association already indicated it will seek legislative
protection for indexing errors, at least those caused by erroneous cover sheets; in the
meantime, expect recordings (or indexing, at least) to be slowed while Clerks
carefully compare cover sheets to the documents being recorded under those cover
Recent Developments (2007)
Page 9 of 10
O. Non-refundable deposit actually may be non-refundable. Boots Inc. v. Singh, 22 VLW
484 (Va. Supreme Court, No. 062430, Sept. 14, 2007)—$50,000 deposit became non-
refundable after 40 day financing contingency period expired and was not an
impermissible penalty or forfeiture under a commercial real estate sales contract because
the actual damages contemplated at the time of the agreement were uncertain and the
amount is not out of proportion to the actual damages. (In fact, the seller resold the
property for a purchase price that was $200,000 less than the purchase price under the
P. Encroaching roots can be a problem. Fancher v. Fagella, 22 VLW 490 (Va. Supreme
Court, No. 062339, Sept. 14, 2007)—overruling 1939 precedent, living trees and plants
can be nuisances when they cause actual harm or pose an imminent danger of actual
harm to adjoining property; issue of what to do about the nuisance remains.
Q. Owners association rules. South Run Regency v. Crosby, 22 VLW 498 (Fairfax Cir. Ct.,
No. 2006-015829, Aug. 22, 2007)—failure of owners association to disapprove
application for fence or return application to property owner for additional information
within 45 days specified in owners association governing documents precluded the
association from disapproving the fence and requesting owner to remove it. (Disapproval
by owners association was one day late.)
III. Draft Virginia State Bar Committee Opinions (comment periods closed Sept. 24, 2007)
A. Proposed UPL 212, Whether a Non-Attorney Settlement Agent Can Negotiate a Debt on
Behalf of a Debtor—the Virginia State Bar Committee on the Unauthorized Practice of
Law proposes to issue an opinion that “negotiation” alone is not the unauthorized
practice of law, unless there is an exercise of legal judgment within the context of the
negotiation, offering of legal advice, making a legal argument on the debtor’s behalf to
the creditor, representation before a tribunal, or holding out as qualified to practice law
by the non-attorney. (“Numbers” are OK; legal representation isn’t.)
B. Proposed Legal Ethics Opinion 1840, Can a Lawyer Representing a Settlement
Company Facilitate that Company’s Practice of Re-deeding Property Through a
Relocation Intermediary Without Proper Recordation?—the Virginia State Bar
Committee on Legal Ethics proposes to issue an opinion that the practice of substituting
the first page of a deed to change the grantee from the original owner’s relocation
company to the ultimate purchaser is fraudulent. (The Clerks apparently need the double
recordation taxes to pay for the extra help to check those cover sheets.)
Exhibit A—Virginia Acts of Assembly—2007 Session, Chapter 269 (Notary public law)
Exhibit B—Virginia Acts of Assembly—2007 Session, Chapter 451 (Deed recordation law)
Recent Developments (2007)
Page 10 of 10