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RECENT DEVELOPMENTS (2007)

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RECENT DEVELOPMENTS (2007) ...

    RECENT DEVELOPMENTS (2007)

    Ronald D. Wiley, Jr.

    Senior Vice President

    & Regional Counsel

    Southern Title Insurance Corp.

    Charlottesville/Leesburg, Va.

     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

    ?47.1-2

    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

    strengthened.

    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

    ensuring

    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

    mandatory.

C. Convicted felons and real estate.

    1. House Bill 2647until 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

    ?53.1-221.

    2. Senate Bill 745persons 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 2142limited 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 2017liability 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

    968tenants 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 1296the

    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 942a 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 1392the

    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 955authorizes establishment of housing trust funds

    and allows localities to accept cash proffer in lieu of affordable units. Va. Code

    ?15.2-2305.

    2. House Bill 2446; Senate Bill 1387counties 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 1292a separate ordinance is no longer required for each home

    ownership grant. Id.

    5. House Bill 3002localities 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 3016the 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 2579the 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 -

    10.

    2. House Bill 2580the 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 2829abolished doctrine in Virginia. Va. Code

    ?55-14.1.

Q. Powers of attorney. House Bill 2864the 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 1235obligations 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 1384unreasonable 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 2064increased 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 2011six 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 1114pending zoning violations that have not been abated or remedied

    must be disclosed. Va. Code ?55-519.

U. Recordation taxes. House Bill 2059; Senate Bill 822tax rate applies to the greater of

    the consideration paid or the value of the interest conveyed. Va. Code ?58.1-802.

V. Trusts.

    1. House Bill 2395deeds 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 1968amends 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 2265subdivision 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

    ?15.2-2266.

    Z. Farm wineries. House Bill 2493; Senate Bill 1205local government regulation of farm

    winery operations is very limited. Va. Code ?15.2-2288.3. (see also House Bill 3120; Va.

    Code ?4.1-128.)

     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

    of trust

    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 problemswith Banc of

    America!!)

    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

    silage wrap.

    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

    the “fence.”

    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

    partition suit.

    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

    transactionit 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 ruleadmissible

    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

    Developments2006 outline)

    1. Riparian rights doctrineall 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

    practices.

    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

    to do.)

    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-

    227.1.

    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

    sheets.

    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

    original contract.)

    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 Debtorthe 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 AVirginia Acts of Assembly2007 Session, Chapter 269 (Notary public law)

    Exhibit BVirginia Acts of Assembly2007 Session, Chapter 451 (Deed recordation law)

    Recent Developments (2007)

    Page 10 of 10

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