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 October 2010.
October 29, 2010
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An earlier blog post focused on important issues relating to the Letter of Intent. Assuming now that you have gotten past the letter of intent stage and are moving forward to a binding lease agreement, we will now focus on common legal issues reviewed from the tenant’s perspective. If your current lease is up for renewal or you are in the market for new space, the following is a list of important but basic issues to address with your attorney in connection with any successful lease negotiation with your landlord. 

This Part I will focus on basic provisions such as assignment/subletting, use restrictions and the commencement date, and Part II will address other issues including insurance, mutual waivers and defaults.


October 28, 2010
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For those of you out there who own and/or operate affordable housing subsidized by HUD, you should take note that the protections extended by the Violence Against Women Act (VAWA) have been permanently extended to HUD Section 8 properties.  The final rules published yesterday in the Federal Register now make the prior 2008 interim rules permanent with some alterations and clarifications.  If you did not know that VAWA protections extended to your HUD tenants, take note.   VAWA, when enacted in 1994, was supposed to be self-implementing; however, regulations were needed to explain how these self-implementing provisions would be implemented and incorporated under existing federal regulations. 

Well, now that I've had the chance to really focus on and review Arlington County's Community Energy Plan Summary of Preliminary Recommendations and its Addendum, published on October 13th, it looks like the County has taken its first step toward its goal for a Community Energy Plan.  As with prior explanations about the Community Energy Plan, there are quite a lot of facts and statistics, and there is a lot of information presented, which really doesn't answer the basic question that everybody is asking, which is: "How will this plan impact me?"  For this reason, without commenting on the policies or goals behind the plan, I thought it might be time for a fact sheet that distills out the implications of the preliminary plan.  As with most policy documents, the plan will change and evolve over time once it is adopted.  So here's the tip of the iceberg:

Stretch ArmstrongThose wishing to stretch indemnity clauses to the limit may want to read the recent Supreme Court of Virginia case, Uniwest Construction v. Amtech Elevator Services.  This case, in addition to a recent indemnification case from the 4th Circuit, demonstrate that there are some real risks to demanding excessive indemnity obligations in a contract.  You may actually wind up with nothing if you go too far.

October 21, 2010
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Yes, it's getting to be that wonderful time of year again, and with all the 2011 pre-legislative session jockeying already well under way in Virginia, one of the 600 pound gorillas in the room this year is how the statutorily mandated redistricting process will play out.  With control over the house and senate split, and no state legislative elections until after the 2011 session, neither party will have control over the process (as was the case after the last two censuses).  With the volume of proposed legislation the Virginia Legislature handles every session, and the difficulties split control over the Senate and House of Delegates pose on proposed legislation even under normal circumstances, it is going to be even more complicated this year when redistricting gets tossed into the bartering process.  Already, people are questioning whether Richmond can get the job done before the November 2011 elections.  Not only are state legislative district lines on the table, but so are federal congressional districts.

How many times have you land use and zoning folks gone through your locality's zoning ordinance, read some random sentence that is a surviving remnant from like the 1938 ordinance, and thought: "What the heck does 'draying' mean?  And what does this have to do with our twenty story office building?"  Or, "Can my neighbor really keep goats in his front yard?"  Well, if you do work in Arlington County, you may not have to deal with these indignities for too much longer.

October 18, 2010
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Topics Green

GSA logoLance Davis, director of the sustainability office for the General Services Administration, announced that moving forward, GSA will require all projects to achieve a LEED Gold certification level from through the Leadership in Energy and Environmental Design (LEED) certification system of the U.S. Green Building Council.

The announcement occurred at the Green Legal Matters conference in New Orleans on Oct. 15.

Although obviously based upon sound legal principles, it was still surprising to find out that the Supreme Court held in Ligon v. County of Goochland that whistleblower protections for county employees against retaliatory firings under the Virginia Fraud Against Taxpayers Act ("VFATA") were barred by the doctrine of sovereign immunity.  As many of our readers know, the doctrine of sovereign immunity gives immunity to the Commonwealth, as well as localities as political subdivisions of the Commonwealth, from liability for damages and from suits to restrain governmental action or to compel such actions (such as tort liability for actions or omissions of a county's agents and employees).  However, while the VFATA was likely intended to create protection for the Commonwealth's employees from retaliatory discharge for reporting corruption and fraudulent behavior, the Supreme Court found that the plain language of the statute failed to explicitly include retaliatory discharge necessary for it to waive its sovereign immunity.  So basically, a corrupt county employee can fire a whistleblower, and the whistleblower can't sue the county to get his job back or for damages.

According to the Chesterfield Observer, Chesterfield and Hanover Counties intend to ignore the Attorney General's recent opinion (click here for our previous analysis when the opinion was issued) about the applicability of Code of Virginia Section 15.2-2303.1:1 and will continue to deman cash proferred prior to 15.2-2303.1:1's July 1, 2010 effective date.  The purpose of Section 15.2-2303.1:1 was to postpone the payment of cash proffers for residential developments from issuance of the building permit to issuance of the certificate of occupancy in order to give residential builders and developers some financial relief until 2014.

PodiumI wanted to share the materials I have available thus far from our October 1 seminar, Benefits, Costs and Risks of Green Building that we put on for the American Institute of Architects Northern Virginia Chapter.  A quick but very hearty thank you is due to Debbie Burns of the AIA who did a tremendous job organizing the seminar.


October 8, 2010
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A Letter of Intent is a document that outlines the general terms and conditions of an agreement between parties before the agreement is finalized.  In real estate deals, a Letter of Intent are typical before entering large leases or an agreement to buy or sell commercial real estate. Letters of Intent are typically not binding on the parties, but can be if the parties so desire. Other times, just certain provisions of the Letter of Intent will be binding and enforceable, such as confidentiality provisions, covenants to negotiate in good faith or covenants providing for the exclusive right to negotiate. We can save a discussion of what makes a Letter of Intent binding or non-binding for a later blog post. But suffice to say that Letters of Intent have been a common source of litigation, and that there is a wide spectrum between binding and non-binding Letters of Intent that depends on the language in the document.

shhThe GBCI has quietly changed the rules associated with the LEED challenge process.  Few people were even aware of the challenge process and its implications until the Northland Pines High School challenge became a topic of discussion and even controversy.  The original LEED challenge process permitted literally anyone to bring a challenge to a LEED certification at any time.  Chris Cheatham covered the Northland Pines challenge and its aftermath in a series of great posts.

Judge Gill of the Chesterfield County Circuit Court recently had the chance to review whether a homeowner was bound by a restrictive covenant obliging him to pay for his homeowner’s association’s common area maintenance and other fees.

October 5, 2010
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Back in August, I posted about Judge Williams’ decision in Kersey v. PHH Mortgage Corp. to kick a foreclosure case back to state court due to lack of subject matter jurisdiction. If you recall, the home owner in that case argued that PHH could not foreclose because they failed to provide a face-to-face meeting as required by the deed of trust.  Judge Williams refused to allow the lender to hang its hat on HUD or FHA regulations to invoke federal question jurisdiction. And faced with a $71,397 mortgage, Judge Williams refused to find the requisite $75,000 amount in controversy to allow diversity jurisdiction.

October 1, 2010
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After just a brief stay as the County Manager of Arlington County, Michael Brown has left the position, and Barbara Donnellan, who was acting County Manager prior to Michael Brown being hired, has now been appointed as the new permanent County Manager of Arlington County.

No reason for the change-up has yet been given, except that former County Manager Brown left for personal reasons.