This blog focuses on real estate, land use and construction-related topics affecting Virginia and the Washington, D.C. metro area. With topics ranging from contract drafting and negotiation to local and regional land use project updates, the attorneys at Bean, Kinney & Korman provide timely insight and commentary on the issues affecting owners, builders, developers, contractors, subcontractors and other players in the industry. If you are interested in having us cover a specific topic, please let us know.

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Posts from June 2010.



Part I – Builders Review of Purchase Agreement


           Virginia has experienced several years now of a declining residential real estate market, marked by periods of low sales, high inventory and declining prices. Note that recently the prices and inventory have stabilized, but certainly activity has slowed again now that the federal tax credits for homebuyers has expired. Given the current state of the residential real estate market, many buyers experience remorse and attempt to terminate their purchase agreements and receive a full refund of their deposit from the seller.

As we originally posted on April 30, EPA has issued notice that its recent lead paint regulations may be changing.  Specifically, EPA published a proposed rule on May 6 providing for clarifications and changes in clearance testing.  For commercial contractors thinking they were spared from worrying about lead paint regulation, EPA also issued an advance notice of proposed rule making on May 6 discussing extension of lead paint regulations into commercial and public buildings.

Those interested in commenting on the regulations should step up and do so rapidly.  In the case of the extension into commercial buildings, there is no specific rule proposed at this point so this process will likely take some time.  Nevertheless, the best chance to participate in shaping this discussion is to engage from the start.  Our friend Sean Lintow at SLS Construction continues to provide detailed commentary and has developed an extensive set of comments that may be of interest to contractors following the discussion,

June 24, 2010
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Topics Green

LEED PlatinumThe blogs have been crackling for several weeks with reports and analysis of the LEED "challenge" process.  Chris Cheatham devoted a multiple part series to analyzing the challenge filed and ultimately rejected to the LEED Gold certification awarded to the Northland Pines High School in Wisconsin.  Shari Shapiro has discussed the same and included an interesting interview with the challengers discussing their reasoning for the protest.

The area considered to be inclusive of Fort Myer Heights is basically the down-hill slope from Arlington's Courthouse Sector on the hill above of Route 50 north of Fort Myer, bounded to the north by Clarendon Boulevard and to the south by Route 50, Courthouse Road to the west and Pierce Street to the east.  What makes this area interesting, however, is the plan adopted by Arlington County to try and preserve the area's dwindling stock of aging garden-style apartments, which many find valuable from a historical perspective and others find valuable because of the affordability of these units (whether committed affordable units or as market affordable units).  The County has been unable to prevent the redevelopment of a number of sites in this area because planned densities are not sufficient to induce developers from entering special exception processes, and have instead chosen to move forward with by-right townhouse and condominium projects, effectively omitting the County from the redevelopment process.

Newspaper and teaThere is big news in the world of Chinese drywall litigation.  First, various news sources including the Miami Herald reported a $2.5 million jury verdict on behalf of a homeowner couple against Banner Supply, the supplier of the drywall.  The verdict is reported to include not just loss of use of the home and repair costs, but also stigma damages for loss of value to the property.  The jury may have become inflamed by the supply company's actions after having been informed of complaints.  According to CBS4 in Miami:

According to documents entered into evidence, when Banner Supply notified its Chinese supplier about the complaints, the supplier replaced the distributor's inventory of Chinese-made drywall with American-made drywall. In return, Banner Supply allegedly signed a confidentiality agreement not to say anything about it to the government or its customers.

Back in December, I discussed the Florida Supreme Court’s decision in Stop the Beach Renourishment, and guessed that the United States Supreme Court would affirm the Florida court’s decision, but duck the novel constitutional question of whether there could be a “judicial taking.” I ended up being a little more than half right. The United States Supreme Court did affirm 8-0, but were hardly unanimous about what to do with the concept of a “judicial taking.”

June 17, 2010
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Topics Litigation

spider sense tinglingWhile I LOVE trying cases, my clients usually detest court cases and do their best to avoid litigation.  Forming appropriate entities, drafting tight contracts, and ensuring proper documentation are all critical risk management strategies ... but I would say they all come a distant second.  The number one way to avoid problems is to avoid problem projects and problem customers.

What am I talking about?  You have had that moment of your "spider sense tingling" during your initial project meeting with an owner, that fleeting precognition that this owner will be a problem.  We have all had the sense that someone is unreasonable, has wildly unreasonable expectations, is highly combative, or cannot make up their minds.  These personality traits can doom your project success before it begins.  Listen to that little voice and avoid those situations.

Winding down our update of the first round of Case Watch opinions, the Virginia Supreme Court has finally released its long awaited decision in Tir Conaill Properties, L.C. v. 2401 Wilson, LLC, Record Number 090855. Although the opinion is quite short at only three pages, it is chock full of warnings to the unwary litigator.

This case involved a commercial lease dispute between Tir Conaill Properties, L.C., the tenant, and 2401 Wilson, LLC, the landlord. The day before trial, 2401 Wilson filed a pre-trial memorandum, arguing for the first time that Tir Conaill’s complaint should be dismissed because it failed to file a certificate for transacting business under an assumed name as required by Virginia Code Section 59.1-69 (A).

Holding the BagA recent decision from the US Court of Appeals for the Fourth Circuit should be sending cold chills up and down developers' spines regarding complaints under the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA).  The case, Equal Rights Center and Archstone v. Niles Bolton Associates, basically ruled that a developer was not entitled to recover its claims against the architect for a failure of a multi-family project to meet ADA and FHA requirements.

East Falls Church renderingWe are very pleased to have another colleague writing for us today.  Jon Kinney is a highly regarded land use and real estate law expert with our firm.  Jon brings us commentary on changes coming to Arlington County's planning for the East Falls Church area in Northern Virginia.

In anticipation of the opening of Metro’s Silver Line, the Arlington County Board established the East Falls Church Planning Task Force to consider key planning issues in East Falls Church, including height and density, land uses, urban design, affordable housing, transportation improvements, open space and environmental sustainability in the East Falls Church area.  The East Falls Church Planning Task Force completed its comprehensive review of the East Falls Church study area this week and forwarded its recommendations to the Arlington County Planning Commission and the Arlington County Board which are both scheduled to take up the issue in a few weeks.

Deepwater HorizonFor the first time since we started the blog, I have gotten stuck in place unable to write.  Like everyone, I have watched the oil spewing into the gulf with horror, frustration and a sense of the inevitability of this type of disaster when dealing with extraction and transportation of oil.

In this Part II, we continue the discussion of Subordination, Non-Disturbance and Attornment Agreements, and suggest ways tenants can protect themselves in the current marketplace.