CHAPTER 1: ETHICAL CONSIDERATIONS1.1 INTRODUCTION
1.2 ACQUIRING CLIENTS
1.201 Communications
1.202 Explaining and Advertising Fees
1.203 “Specializing” in Real Estate
1.204 Referrals
1.205 Publicity
1.206 “Everybody’s Doing It” Rationale
1.207 Best Method for Long-Term Growth
1.3 OFFICE-SHARING
1.4 WHO IS THE “CLIENT”?
1.401 In General
1.402 Implied Attorney-Client Relationships
1.403 Nonclients and Third-Party Beneficiaries
1.5 FEES
1.501 Legal Fees
1.502 Nonlegal Fees
1.6 STANDARD OF CARE GENERALLY
1.601 Duties and Warranties
1.602 What “Everybody’s Doing”
1.603 Statutes of Limitations for Malpractice and
Disciplinary Complaints
1.7 FIDUCIARY STANDARD OF CARE
1.701 Undiluted-Loyalty Duties and Warranties
1.702 Disclosure Duties and Nondisclosures
1.703 Per Se Disqualifying Interests
1.704 Interests of Lawyer, Colleague, Relative, or Spouse
1.705 Interests of Other or Former Clients
1.706 Funds and Property of Clients
1.707 Funds and Property of Nonclients
1.708 Disbursement Standards
1.709 Trust Account: Bank’s Required Agreement with
Virginia State Bar
1.710 Interest on Funds in Trust
1.711 Limiting Liabilities, Duties, or Warranties
1.712 Powers of Attorney
1.713 Confidences and Secrets
1.8 LEGAL STANDARD OF CARE
1.801 In General
1.802 Implied Attorney-Client Relationship
1.803 Duties and Warranties to Nonclients
1.804 Limiting Liability, Duties, or Warranties
1.805 Negligence
1.9 COMMUNICATING WITH THE CLIENT
1.10 REAL ESTATE SALES CONTRACTS
1.1001 Advice and Counsel
1.1002 Non-Lawyer Preparing Contract or Furnishing Advice
1.11 LEGAL DOCUMENTS GENERALLY
1.12 TITLE SEARCH AND OPINION
1.1201 Implied Title Search Duties and Implied Title
Opinions
1.1202 Negligent Title Search
1.1203 Clerk’s Records, Abstracts, and Indexing Errors
1.1204 Limitations and Disclaimers
1.13 TITLE INSURANCE
1.1301 Title Opinions Versus Title Insurance
1.1302 Reliance on Abstracts and Files of Title Insurance
Companies
1.1303 Failure to Inform Client of Availability of Title
Insurance
1.1304 Failure to Obtain Title Insurance
1.1305 Unreasonable Delay in Disbursing Title Insurance
Premiums
1.1306 Lawyer as Agent of Title Insurance Company
1.1307 Proprietary Interest in Title Insurance Company
1.1308 Title Insurance Company Issuing Binder or Policy
Directly to Non-Lawyer
1.1309 Legal Opinion and Advice by Title Insurance
Company
1.1310 Insuring Closings by “Approved Attorneys”
1.1311 Approved Attorney’s Duties to Title Insurance
Company
1.1312 Title Insurance Premiums and Legal Fees
1.1313 Mechanics’ and Materialmen’s Lien Agent
1.1314 Legal Services Provided by Lawyer Employed by Title
Insurance Company
1.14 MECHANICS’ AND MATERIALMEN’S LIENS
1.15 FUNDS AND PROPERTY
1.16 ESCROW AGREEMENTS
1.17 CLOSINGS
1.1701 Who Is the Client: Lender, Borrower, or Seller?
1.1702 Deeds
1.1703 Deeds of Trust
1.1704 Recordation
1.1705 Disbursements
1.1706 Settlement
1.1707 Satisfaction and Release
1.18 REAL ESTATE AGENTS
1.1801 Referrals from Real Estate Agents
1.1802 Preparing Contracts
1.1803 Preparing Deeds and Deeds of Trust
1.1804 Giving Legal Advice
1.1805 Sales Commissions
1.1806 Purchaser’s Lawyer Representing Agent Against
Seller
1.1807 Interests of Lawyer, Spouse, or Law Firm in Real
Estate Agency
1.1808 Dual Practice as Real Estate Agent and Lawyer
1.19 PURCHASERS AND BORROWERS
1.1901 Referrals from Interested Parties
1.1902 Second Deeds of Trust by Borrowers
1.1903 Multiple Representation of Purchaser-Borrower,
Lender, or Seller
1.1904 Misindexed Prior Deeds of Trust
1.20 LENDERS
1.2001 Referrals from Lenders
1.2002 Counsel for Lender or Loan Officer as Trustee on Deed
of Trust
1.2003 Preparing Deeds and Deeds of Trust
1.2004 Giving Legal Advice
1.2005 Lawyer Representing Lender and Borrower or Seller
1.2006 Construction Loans
1.2007 Lenders’ Loan-Closing Instructions
1.21 SELLERS, CONTRACTORS, AND DEVELOPERS
1.2101 Referrals from Seller, Contractor, or Developer
1.2102 Counsel for Purchaser-Borrower as Trustee on Second
Deed of Trust
1.2103 Representing Developer-Seller and Purchaser
1.22 IRS FORM 1099-S
1.23 TRUSTEES
1.2301 Counsel to Only One Party Serving as Trustee
1.2302 Attorney Loan Officer Serving as Trustee
1.2303 Counsel to Multiple Parties Serving as Trustee
1.2304 Disqualification of Trustee
1.2305 Deed Preparation by Lay Trustee
1.2306 Residential Foreclosure Services by Lay Trustee
1.24 DEFAULT
1.2401 Purchase by Settlement Attorney upon Default by
Purchaser
1.2402 Representing One or More Parties in Dispute Arising
Before or After Settlement
1.2403 Specific Performance
1.25 UNAUTHORIZED PRACTICE OF LAW
1.2501 In General
1.2502 Matters Not Constituting Unauthorized Practice of
Law
1.2503 Out-of-State Settlement by Non-Virginia Lawyer
1.2504 Delegation to Legal Assistants and Paralegals
1.2505 Non-Lawyers
1.2506 Non-Lawyer Settlement Services
1.2507 Suspended or Disbarred Attorneys
1.26 ATTORNEYS AS SETTLEMENT AGENTS IN CONSUMER
TRANSACTIONS; VIRGINIA STATE BAR DISCIPLINARY
ACTIONS
1.2601 Registration as Settlement Agent
1.2602 Definition of Settlement Agent
1.2603 Transactions to Which Chapter 10 Applies
1.2604 Disclosure Requirements
1.2605 Disciplinary Actions Against Attorney Settlement
Agents
1.2606 Examples of Disciplinary Actions Against Lawyers
APPENDIX 1-1: DISCLAIMING REPRESENTATION OF LENDER
APPENDIX 1-2: DISCLAIMING REPRESENTATION OF
BORROWER-PURCHASER AND SELLER
APPENDIX 1-3: DISCLAIMING REPRESENTATION OF SELLER
APPENDIX 1-4: MULTIPLE CLIENTS DISCLOSURE CONSENT
CONFIRMATION
APPENDIX 1-5: ELIMINATING OR LIMITING TITLE-SEARCH
DUTIES AND OPINION
APPENDIX 1-6: DISCLOSURE OF LAWYER’S PROPRIETARY
INTEREST IN TITLE COMPANY AND CLIENTS’ CONSENT
CHAPTER 2: RESIDENTIAL REAL ESTATE CONTRACTS2.1 INTRODUCTION
2.2 PARTIES
2.201 In General
2.202 Status of Title
2.203 Capacity
2.3 PROPERTY DESCRIPTION
2.301 In General
2.302 Appurtenances and Improvements
2.4 PERSONAL PROPERTY
2.401 In General
2.402 Schedule of Personal Property
2.5 CONSIDERATION
2.501 In General
2.502 Note and Deed of Trust
2.503 Side Agreements
2.504 Assumption Clauses
2.6 CONTRACT CONDITIONS
2.601 Financing
2.602 Sale of Purchaser’s Home
2.603 Delivery Date of New Construction
2.604 Zoning and Development Issues
2.605 Mandatory Disclosures, Inspection Clauses, and New
Home Warranties
2.606 Conditions of Title
2.607 Mechanics’ Liens
2.608 Environmental Considerations
2.609 Implied Conditions of Good Faith
2.610 Option to Purchase
2.7 PRORATIONS
2.8 SETTLEMENT AND POSSESSION
2.9 RISK OF LOSS AND CONDITION OF PROPERTY
2.10 REAL ESTATE AGENT’S COMMISSION
2.11 ASSIGNMENT
2.12 REPRESENTATIONS AND WARRANTIES
2.1201 Residential Property Disclosure Act
2.1202 Seller’s Clauses
2.1203 Implied Warranties on New Homes
2.1204 Lead-Based Paint Disclosure
2.13 ARBITRATION
2.14 DEFAULT
2.15 MISCELLANEOUS PROVISIONS
2.1501 Choice of Law and Forum Selection
2.1502 Binding Effect
2.1503 Entire Agreement; Modification
2.1504 Execution
2.1505 Acceptance
2.1506 Material Breach, Time Is of the Essence, Specific
Performance, and the Interstate Land Sale Act
2.16 SIGNATURES, NOTARIALS, AND RECORDATION OF
CONTRACT
2.17 SPECIAL CONSIDERATIONS FOR PURCHASERS
2.1701 Right of First Refusal or Option to Purchase
2.1702 Real Estate Agent’s Role
2.1703 Virginia Property Owners’ Association Act
2.1704 Virginia Condominium Act
2.1705 Duties of Real Estate Brokers and Salespersons
2.1706 Statutory Settlement Protection
APPENDIX 2-1: RESIDENTIAL CONTRACT OF PURCHASE—VBA
FORM
APPENDIX 2-2: RESIDENTIAL SALES CONTRACT—NVAR FORM
APPENDIX 2-3: PROMISSORY NOTE
APPENDIX 2-4: DEED OF TRUST
APPENDIX 2-5: TERMS OF PAYMENT
APPENDIX 2-6: CONSTRUCTION TERMS
APPENDIX 2-7: RESIDENTIAL PROPERTY DISCLOSURE
STATEMENT ACKNOWLEDGMENT BY SELLER AND
PURCHASER
APPENDIX 2-8: LEASE AGREEMENT
APPENDIX 2-9: LEASE AGREEMENT
APPENDIX 2-10: LEAD-BASED PAINT DISCLOSURE
FORM—LESSOR
APPENDIX 2-11: LEAD-BASED PAINT DISCLOSURE
FORM—SELLER
APPENDIX 2-12: RESIDENTIAL PROPERTY DISCLOSURE
STATEMENT REQUIRED NOTICE FOR BUYER TO
EXERCISE NECESSARY DUE DILIGENCE
APPENDIX 2-13: DISCLOSURE REGARDING VALIDITY OF
SEPTIC SYSTEM OPERATING PERMIT
APPENDIX 2-14: DISCLOSURE STATEMENT FOR PROPERTIES
LOCATED IN A LOCALITY IN WHICH A MILITARY AIR
INSTALLATION IS LOCATED
APPENDIX 2-15: DEFECTIVE DRYWALL DISCLOSURE
STATEMENT
APPENDIX 2-16: DISCLOSURE STATEMENT FOR RESIDENTIAL
PROPERTY PREVIOUSLY USED TO MANUFACTURE
METHAMPHETAMINE
APPENDIX 2-17: DISCLOSURE STATEMENT FOR PENDING
BUILDING CODE OR ZONING ORDINANCE VIOLATIONS
CHAPTER 3: COMMERCIAL REAL ESTATE CONTRACTS3.1 IN GENERAL
3.2 THE CLOSING MEMORANDUM
3.3 OPTIONS TO PURCHASE
3.4 PREPARATION OF THE AGREEMENT
3.401 Recitals
3.402 Property Description
3.403 Purchase Price and Allocation
3.404 Financing
3.405 Conditions Precedent
3.406 Study Period
3.407 Inspections
3.408 Leases and Tenants
3.409 Deposit
3.410 Title
3.411 Possession; Payment of Taxes and Expenses
3.412 Delivery of Existing Information by the Seller
3.413 Seller’s Warranties and Representations
3.414 Condemnation
3.415 Notices
3.416 Closing
3.417 Survival of Claims
3.418 Risk of Loss
3.419 Commissions
3.420 Default and Remedies
3.421 Entire Agreement and Merger
3.422 Assignment
3.423 Counterparts and Signatures
3.424 Construction of Agreement
3.5 CONCLUSION
APPENDIX 3-1: CLOSING MEMORANDUM
APPENDIX 3-2: OPTION AND LAND PURCHASE AND SALE
AGREEMENT
APPENDIX 3-3: NOTICE OF EXERCISE OF OPTION
APPENDIX 3-4: BILL OF SALE
APPENDIX 3-5: ASSIGNMENT OF LICENSES, CONTRACTS,
PERMITS, OR OTHER INSTRUMENTS
APPENDIX 3-6: ASSIGNMENT OF RENTS AND LEASES
APPENDIX 3-7: TENANT ESTOPPEL CERTIFICATE
APPENDIX 3-8: ASSIGNMENT OF SERVICE, MAINTENANCE,
AND OTHER CONTRACTS
APPENDIX 3-9: FIRPTA AFFIDAVIT
APPENDIX 3-10: SELLER’S OFAC AFFIDAVIT
APPENDIX 3-11: PURCHASER’S OFAC AFFIDAVIT
APPENDIX 3-12: LAND PURCHASE AND SALE AGREEMENT
APPENDIX 3-13: BILL OF SALE
APPENDIX 3-14: ASSIGNMENT OF LICENSES, CONTRACTS,
PERMITS, OR OTHER INSTRUMENTS
APPENDIX 3-15: ASSIGNMENT OF RENTS AND LEASES
APPENDIX 3-16: TENANT ESTOPPEL CERTIFICATE
APPENDIX 3-17: ASSIGNMENT OF SERVICE, MAINTENANCE,
AND OTHER CONTRACTS
APPENDIX 3-18: FIRPTA AFFIDAVIT
APPENDIX 3-19: SELLER’S OFAC AFFIDAVIT
APPENDIX 3-20: PURCHASER’S OFAC AFFIDAVIT
CHAPTER 4: MECHANICS’ LIENS4.1 IN GENERAL
4.101 Statutory Creation
4.102 Statutory Construction
4.2 WHO MAY CLAIM THE LIEN
4.201 Identifying a Mechanic’s Lien Claimant
4.202 Corporate Claimant
4.203 Laborers and Suppliers
4.204 Architects, Engineers, and Surveyors
4.205 General Contractors and Subcontractors
4.206 2019 Change Regarding Memorandum of Mechanic’s
Lien and the Statutory Forms
4.3 PROPERTY SUBJECT TO THE LIEN
4.301 In General
4.302 Public Property
4.303 Multiple Contracts, Lots, Units, or Buildings
4.304 Utility and Paving Contractors
4.305 Leased Property
4.306 Condominiums
4.307 Time-Share Property
4.4 PERFECTING THE LIEN
4.401 The 90-Day Rule
4.402 “Completed or Otherwise Terminated”
4.403 Replacement Materials; Open Accounts
4.404 Certification of Mailing
4.405 Notices
4.5 MECHANICS’ LIEN AGENTS
4.501 In General
4.502 Designating the Mechanics’ Lien Agent
4.503 Posting the Building Permit
4.504 Sufficiency of the Building Permit
4.505 Notice Requirements
4.506 Evidence of Receipt
4.507 Inaccurate Description of the Property
4.508 Time Period for Notice
4.509 Notice After the 30-Day Period
4.510 Determining Whether a Proper Building Permit Has
Been Issued
4.511 Amendment of Building Permit
4.512 Exceptions to the Requirement to Notify the
Mechanics’ Lien Agent
4.6 AFFIDAVIT VERIFYING PAYMENT FOR LABOR AND
MATERIALS
4.601 Purchaser to Be Provided Affidavit or Statement at
Settlement
4.602 Penalty for Failure to Provide
4.7 THE 150-DAY RULE
4.701 Statutory Basis of Rule
4.702 Cases Construing the Rule
4.8 STATUTORY FORMS FOR THE MEMORANDUM OF LIEN
4.801 The Contractor’s Memorandum
4.802 The Subcontractor’s Memorandum
4.803 Statement Declaring Intention to Claim the Benefit of
a Lien Required
4.9 DEFENSES
4.901 Owner’s Priority
4.902 Limitation on the Amount Claimed by Subcontractors
and Sub-Subcontractors
4.903 Licensure of Claimant
4.10 PERSONAL LIABILITY OF OWNER OR GENERAL
CONTRACTOR
4.1001 Remedy Created by Section 43-11 of the Virginia Code
4.1002 Creation of Personal Liability of Owner and General
Contractor
4.1003 Priority of the Section 43-11 Claim
4.1004 Owner’s Right to Setoff for Work Not Completed by
General Contractor
4.1005 Limitations on Owner’s or General Contractor’s
Liability
4.11 ENFORCEMENT OF THE LIEN
4.1101 Complaint
4.1102 Intervening Petition by Other Lienholders
4.1103 Parties
4.1104 When the Suit Must Be Brought
4.1105 Automatic Stay in Bankruptcy
4.1106 Scope of Jurisdiction
4.1107 Sale of the Property
4.1108 Challenging the Validity of Lien
4.1109 Court-Ordered Release
4.1110 Diverting Funds
4.12 PRIORITY OF LIENS
4.1201 In General
4.1202 Priority over Deeds of Trust
4.1203 Priority over Security Interest in Accounts Receivable
4.1204 Priority Among Mechanics’ Liens
4.1205 Removal of Materials Affixed to the Structure
4.1206 Federal Liens
4.13 ALTERNATIVES TO MECHANICS’ LIENS
4.1301 Civil Suit
4.1302 Statutory Alternatives
4.1303 Threat of Filing
4.1304 Contract Provisions
4.14 MISCELLANEOUS CONSIDERATIONS
4.1401 Assignment
4.1402 Waiver
4.1403 Slander of Title
4.1404 Forfeiture
4.1405 Release or Discharge
4.1406 Attorney Fees
4.15 PRACTICAL EFFECTS OF FILING A LIEN
4.1501 Effect on the Owner
4.1502 Effect on the Claimant’s Business
4.1503 Effect on the General Contractor
4.1504 Effect on the Construction Lender
4.1505 Effect on the Title Agency
APPENDIX 4-1: MEMORANDUM FOR MECHANIC’S LIEN
CLAIMED BY GENERAL CONTRACTOR UNDER SECTION
43-4 OF THE VIRGINIA CODE
APPENDIX 4-2: MEMORANDUM FOR MECHANIC’S LIEN
CLAIMED BY SUBCONTRACTOR UNDER SECTION 43-7
OF THE VIRGINIA CODE
APPENDIX 4-3: MEMORANDUM FOR MECHANIC’S LIEN
CLAIMED BY SUB-SUBCONTRACTOR UNDER SECTION
43-9 OF THE VIRGINIA CODE
APPENDIX 4-4: COMPLAINT TO ASSERT CLAIM AGAINST BOND
ON STATE BUILDING OR PROJECT
APPENDIX 4-5: DISCLOSURE STATEMENT FOR SITE
DEVELOPMENT IMPROVEMENTS
APPENDIX 4-6: NOTICE TO MECHANICS’ LIEN AGENT
PURSUANT TO SECTION 43-4.01 OF THE VIRGINIA CODE
APPENDIX 4-7: OWNERS’ AFFIDAVIT AS TO MECHANICS’
LIENS AND POSSESSION (WITH “GAP” COVERAGE)
APPENDIX 4-8: COMPLAINT TO ENFORCE MECHANIC’S LIEN
APPENDIX 4-9: STATEMENT OF ACCOUNT
APPENDIX 4-10: PETITION TO BOND OFF LIEN UNDER
SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 4-11: BOND TO BOND OFF LIEN UNDER SECTION
43—71 OF THE VIRGINIA CODE
APPENDIX 4-12: DECREE TO BOND OFF LIEN UNDER SECTION
43-71 OF THE VIRGINIA CODE
APPENDIX 4-13: ATTORNEY CHECKLIST FOR MECHANIC’S
LIEN CASE
CHAPTER 5: TITLE EXAMINATIONS5.1 INTRODUCTION
5.2 TYPE OF TITLE EVIDENCE REQUIRED
5.3 USE OF BACK TITLE INFORMATION
5.4 LENGTH OF SEARCH
5.5 PRIOR TITLE EVIDENCE
5.6 PRELIMINARY INFORMATION
5.7 INITIAL SOURCE OR “STARTER”
5.8 CREATING THE CHAIN OF TITLE
5.801 Records to Be Examined
5.802 Chain of Title
5.803 Deeds
5.804 Decedents’ Estates—Wills and Intestate Succession
5.805 Chancery Suits
5.806 Foreclosure Sales
5.807 Tax Deeds
5.9 ADVERSING OWNERS IN THE CHAIN OF TITLE
5.901 Grantor Index
5.902 Judgments, Federal Liens, and Mechanics’ Liens
5.903 Liens for Taxes and Special Assessments
5.904 Financing Statements
5.905 Certification Date
5.906 Summary of Information
5.10 OBJECTIONS, EXCEPTIONS, AND DEFECTS IN TITLE
5.1001 Deeds of Trust and Vendor’s Liens
5.1002 Judgment Liens
5.1003 Federal Tax Liens
5.1004 Property Owners’ Association Liens
5.1005 Financing Statements
5.1006 Delinquent Real Estate Taxes and Special
Assessments
5.1007 Restrictions and Covenants
5.1008 Condominiums
5.1009 Easements
5.1010 Surveys
5.1011 Mechanics’ Liens
5.1012 Decedents’ Estates
5.1013 Subdivision Requirements
5.11 ZONING
5.12 PREPARING THE TITLE REPORT
5.13 INDEXING AND SAVING TITLE NOTES
5.14 REVIEWING THE TITLE INSURANCE COMMITMENT AND
DOCUMENTS
5.15 ABSTRACT OF TITLE
5.1501 Definition and Essential Elements
5.1502 As Used in Virginia
5.1503 Form and Content
5.1504 Hybrid or Special Purpose Abstracts
5.16 CERTIFICATE OF TITLE
5.1601 In General
5.1602 To Whom Certified
5.1603 Effective Date and Time
5.1604 Scope of the Examination
5.1605 Names of Current Owners
5.1606 Estate and Tenancy of Record Owners
5.1607 Property Description
5.1608 Exceptions or Other Matters Affecting Title
5.1609 Matters Not of Record
5.17 ATTORNEY LIABILITY FOR AN INACCURATE TITLE
REPORT
APPENDIX 5-1: SAMPLE BACK TITLE LETTER
APPENDIX 5-2: COMMITMENT TO ISSUE A TITLE INSURANCE
POLICY
APPENDIX 5-3: NOTICE OF AVAILABILITY OF OWNER’S TITLE
INSURANCE FORM
APPENDIX 5-4: ABSTRACTING CHAIN INSTRUMENTS
APPENDIX 5-5: ALTERNATIVE FORMAT TO ABSTRACTING THE
ENTIRE CHAIN
APPENDIX 5-6: ADVERSES FOR A CHAIN OF TITLE
APPENDIX 5-7: SELLER/OWNER AFFIDAVIT—RESIDENTIAL
APPENDIX 5-8: SELLER/OWNER AFFIDAVIT—COMMERCIAL
APPENDIX 5-9: MECHANICS’ LIEN WAIVER FORMS
APPENDIX 5-10: INDEMNITY AND ESCROW AGREEMENT FOR
TESTATE ESTATES IN THE COMMONWEALTH OF
VIRGINIA
APPENDIX 5-11: INDEMNITY AND ESCROW AGREEMENT FOR
INTESTATE ESTATES IN THE COMMONWEALTH OF
VIRGINIA
APPENDIX 5-12: BOND FORM—TESTATE
APPENDIX 5-13: BOND FORM—INTESTATE
APPENDIX 5-14: CHECKLIST FOR A TITLE EXAMINATION
APPENDIX 5-15: AMERICAN LAND TITLE ASSOCIATION (ALTA)
APPLICATION FORM FOR RECORDED DOCUMENT
CERTIFICATE
APPENDIX 5-16: SAMPLE CERTIFICATE OF TITLE
APPENDIX 5-17: PRELIMINARY TITLE REPORT
APPENDIX 5-18: ATTORNEY’S FINAL CERTIFICATE
CHAPTER 6: TITLE INSURANCE6.1 DEFINITION
6.2 THE AMERICAN LAND TITLE ASSOCIATION TITLE
POLICY
6.201 In General
6.202 Parts of the ALTA Policy Form
6.3 THE INSURING PROVISIONS
6.301 In General
6.302 The Owner’s Policy
6.303 Covered Risks in the 2006 Owner’s Policy Form
6.304 The Loan Policy
6.305 Covered Risks in the 2006 Loan Policy Form
6.306 Defense Costs
6.4 EXCLUSIONS FROM COVERAGE
6.401 In General
6.402 Laws, Ordinances, Regulations, and Governmental
Police Powers
6.403 Rights of Eminent Domain
6.404 Matters Created, Suffered, Assumed, or Agreed to by
the Insured
6.405 Matters Not Known to the Insurer or Recorded in the
Public Records at the Date of the Policy but Known to
the Insured Claimant
6.406 Other Exclusions
6.407 Exclusions Appearing Only in Loan Policies
6.5 EXCLUSIONS IN THE 2006 POLICY FORMS
6.6 SCHEDULE A
6.7 SCHEDULE B
6.701 In General
6.702 Rights or Claims of Parties in Possession Not Shown
by the Public Records
6.703 Disclosure of Encroachments, Overlaps, Boundary
Line Disputes, and any Other Matters
6.704 Easements or Claims of Easements Not Shown by the
Public Records
6.705 Any Lien or Right to a Lien for Services, Labor, or
Material Furnished, Imposed by Law, and Not Shown
by the Public Records
6.706 Taxes or Special Assessments that Are Not Shown as
Existing Liens by the Public Records
6.707 Other Exceptions
6.708 Schedule B-2
6.709 Short Form Policies
6.8 CONDITIONS AND STIPULATIONS
6.801 In General
6.802 Definitions
6.803 Continuation of Coverage
6.804 Notice of Claim
6.805 Defense and Prosecution of Claims
6.806 Proof of Loss or Damage
6.807 Options to Pay or Settle
6.808 Determination; Extent of Liability; Coinsurance
6.809 Apportionment
6.810 Limitation of Liability
6.811 Liability Noncumulative
6.812 Subrogation upon Payment or Settlement
6.813 Arbitration
6.814 Approved Attorneys
6.9 CONDITIONS IN THE 2006 POLICY FORMS
6.10 ENDORSEMENTS
APPENDIX 6-1: ALTA OWNER’S POLICY (1992)
APPENDIX 6-2: LOAN POLICY OF TITLE INSURANCE (1992)
APPENDIX 6-3: HOMEOWNER’S POLICY OF TITLE INSURANCE
FOR ONE- TO FOUR-FAMILY RESIDENCES (2013)
APPENDIX 6-4: ALTA SHORT FORM RESIDENTIAL LOAN
POLICY (2012)
APPENDIX 6-5: ALTA EXPANDED COVERAGE RESIDENTIAL
LOAN POLICY (2013)
APPENDIX 6-6: ALTA SHORT FORM EXPANDED COVERAGE
RESIDENTIAL LOAN POLICY
APPENDIX 6-7: POLICY OF TITLE INSURANCE—UNITED
STATES FORM (2012)
APPENDIX 6-8: ADVANTAGE EXPRESS RESIDENTIAL OWNER’S
POLICY
APPENDIX 6-9: ALTA OWNER’S POLICY OF TITLE INSURANCE
(2006)
APPENDIX 6-10: ALTA LOAN POLICY OF TITLE INSURANCE
(2006)
APPENDIX 6-11: CLOSING PROTECTION LETTER
COMMENTS TO APPENDICES 6-12 THROUGH 6-56
APPENDIX 6-12: ENDORSEMENT FORM
APPENDIX 6-13: ALTA 1-06—STREET ASSESSMENTS (6-17-2006)
APPENDIX 6-14: ALTA 2-06—TRUTH IN LENDING (6-17-2006)
APPENDIX 6-15: ALTA 3—ZONING SERIES
APPENDIX 6-16: ALTA 4-06—CONDOMINIUM
APPENDIX 6-17: ALTA 5-06—PLANNED UNIT DEVELOPMENT
(PUD)
APPENDIX 6-18: THE ALTA 6—VARIABLE RATE SERIES
APPENDIX 6-19: THE ALTA 7 MANUFACTURED HOUSING
SERIES
APPENDIX 6-20: ALTA 8—ENVIRONMENTAL PROTECTION
LIEN SERIES
APPENDIX 6-21: ALTA 9—RESTRICTIONS, ENCROACHMENTS,
AND MINERALS SERIES
APPENDIX 6-22: ALTA 10-06—ASSIGNMENT SERIES
APPENDIX 6-23: ALTA 11-06—MORTGAGE MODIFICATION
SERIES
APPENDIX 6-24: ALTA 12-06—AGGREGATION (OR “TIE IN”)
APPENDIX 6-25: ALTA 13—LEASEHOLD SERIES
APPENDIX 6-26: ALTA 14—FUTURE ADVANCE SERIES
APPENDIX 6-27: ALTA 15—NONIMPUTATION SERIES
APPENDIX 6-28: ALTA 16-06—MEZZANINE FINANCING (6-17-
2006)
APPENDIX 6-29: ALTA 17 ACCESS SERIES
APPENDIX 6-30: ALTA 18 TAX PARCEL SERIES
APPENDIX 6-31: ALTA 19 CONTIGUITY SERIES
APPENDIX 6-32: ALTA 20-06—FIRST LOSS—MULTIPLE PARCEL
TRANSACTION (10-13-2011)
APPENDIX 6-33: ALTA 21-06—CREDITORS’ RIGHTS—
WITHDRAWN IN 2010
APPENDIX 6-34: ALTA 22—LOCATION SERIES
APPENDIX 6-35: ALTA 23-06—COINSURANCE
APPENDIX 6-36: ALTA 24-06—DOING BUSINESS (10-16-2008)............. 867
APPENDIX 6-37: ALTA 25—SAME AS SURVEY SERIES
APPENDIX 6-38: ALTA 26-06—SUBDIVISION (10-16-2008)
APPENDIX 6-39: ALTA 27-06—USURY (10-16-2008)
APPENDIX 6-40: ALTA 28—EASEMENT SERIES
APPENDIX 6-41: ALTA 29—INTEREST RATE SWAP SERIES
APPENDIX 6-42: ALTA 30—SHARED APPRECIATION
MORTGAGE
APPENDIX 6-43: ALTA 31-06—SEVERABLE IMPROVEMENTS (2-
3-2011)
APPENDIX 6-44: ALTA 32-06; 32.1-06; 32.2-06; 33-06—
CONSTRUCTION
APPENDIX 6-45: ALTA 34-06—IDENTIFIED RISK COVERAGE (8-
1-2011)
APPENDIX 6-46: ALTA 35—MINERALS SERIES
APPENDIX 6-47: ALTA 36—ENERGY PROJECTS SERIES
APPENDIX 6-48: ALTA 37-06—ASSIGNMENT OF RENTS (12-3-
2012)
APPENDIX 6-49: ALTA 38-06—MORTGAGE TAX (12-3-2012)
APPENDIX 6-50: ALTA 39-06—POLICY AUTHENTICATION(4-2-
2013)
APPENDIX 6-51: ALTA 40—TAX CREDIT SERIES
APPENDIX 6-52: ALTA 41—WATER RIGHTS SERIES
APPENDIX 6-53: ALTA 42-06—COMMERCIAL LENDER GROUP
(12-2-2013)
APPENDIX 6-54: ALTA 43-06—ANTI-TAINT (12-2-2013)
APPENDIX 6-55: ALTA 44-06—INSURED MORTGAGE
RECORDING (12-2-2013)
APPENDIX 6-56: ALTA 45-06—PARI PASSU MORTGAGE—LOAN
POLICY (12-1-2014)
APPENDIX 6-57: ALTA 46-06—OPTION (8-1-15)
COMMENTS TO APPENDICES 6-58 THROUGH 6-64
APPENDIX 6-58: (REPLACED BY ALTA 17 AND 17.1)
ACCESS TO PUBLIC STREET
APPENDIX 6-59: EASEMENT—FORECLOSURE SALE
ENDORSEMENT
APPENDIX 6-60: AFFIRMATIVE MECHANICS’ LIEN COVERAGE
ENDORSEMENT—VIRGINIA FORM
APPENDIX 6-61: ARBITRATION
APPENDIX 6-62: LAST DOLLAR ENDORSEMENT
APPENDIX 6-63: “FAIRWAY” ENDORSEMENT
APPENDIX 6-64: ADDITIONAL INSURED
APPENDIX 6-65: TENANTS AS TENANTS ONLY
CHAPTER 7: SURVEY BASICS7.1 WHAT IS A SURVEY?
7.2 BENEFITS TO GETTING A SURVEY
7.3 TITLE INSURANCE COVERAGE FOR SURVEY-RELATED
MATTERS
7.301 ALTA Endorsements
7.4 MINIMUM SURVEY REQUIREMENTS
7.5 SURVEY FEATURES AND HOW TO REVIEW A SURVEY
7.501 Title Block
7.502 Legend for Symbols
7.503 Vicinity Map
7.504 Scale
7.505 Property Description
7.506 North Arrow
7.507 Land Area
7.508 Corner Monumentation
7.509 Surveyor’s Certificate
7.510 Surveyor’s Notes
7.511 Adjacent Property and Adjoining Streets
7.512 Survey Drawing
7.513 Flood Plains, Water, and Wetlands
7.514 Access
7.515 Easements
7.516 Title Exceptions
7.517 Encroachments
7.6 CONCLUSION
APPENDIX 7-1: STANDARD ALTA HOMEOWNER’S POLICY
APPENDIX 7-2: ENHANCED ALTA HOMEOWNER’S POLICY
APPENDIX 7-3: STANDARD ALTA LOAN POLICY
APPENDIX 7-4: ENHANCED ALTA LOAN POLICY
APPENDIX 7-5: ALTA CONDOMINIUM ENDORSEMENTS 4.1-06
AND 4-06
APPENDIX 7-6: ALTA ENDORSEMENT 9-06
APPENDIX 7-7: ALTA ENDORSEMENTS 17.1-06, 17.2-06,
AND 17-06
APPENDIX 7-8: ALTA ENDORSEMENTS 19.1-06, 19.2-06,
AND 19-06
APPENDIX 7-9: ALTA ENDORSEMENTS 22.1-06 AND 22-06
APPENDIX 7-10: ALTA ENDORSEMENTS 25.1-06 AND 25-06
APPENDIX 7-11: ALTA ENDORSEMENT 34-06
APPENDIX 7-12: MINIMUM STANDARD DETAIL
REQUIREMENTS FOR ALTA/NSPS LAND TITLE
SURVEYS 2016
CHAPTER 8: FORMS OF HOLDING TITLE8.1 INTRODUCTION
8.2 JOINT TENANCY
8.201 In General
8.202 Creation
8.203 Characteristics
8.3 TENANCY BY THE ENTIRETY
8.4 TENANCY IN COMMON
8.5 TENANCY IN COPARCENARY
8.6 ACTS BARRING PROPERTY RIGHTS
8.7 THE AUGMENTED ESTATE
APPENDIX 8-1: METHODS OF HOLDING TITLE
CHAPTER 9: THE DEED9.1 INTRODUCTION
9.2 HISTORICAL PERSPECTIVE
9.3 PARTIES TO THE DEED
9.301 Types of Parties
9.302 Married Grantors
9.303 Contract Purchasers
9.304 Third Parties
9.305 Misnomer of a Grantee
9.4 THE PREMISES
9.401 Names of the Parties
9.402 Factual Recitals
9.403 Recital of Consideration
9.5 GRANTING LANGUAGE
9.6 WARRANTIES
9.601 Types of Deeds
9.602 Extent of Warranty
9.603 Language of Warranties
9.7 ENGLISH COVENANTS OF TITLE
9.701 In General
9.702 The Individual English Covenants
9.703 How English Covenants Are Stated
9.704 Grantor’s Liability to Grantee’s Assignees
9.705 Damages for Breach
9.8 IMPLIED WARRANTIES ON NEW HOMES
9.9 CONVEYANCES TO JOINT OWNERS
9.901 In General
9.902 Joint Tenants
9.903 Tenants by the Entirety
9.904 Tenants in Common
9.10 SOLE AND SEPARATE EQUITABLE ESTATE
9.11 ESTATE GRANTED
9.12 PROPERTY DESCRIPTION
9.1201 In General
9.1202 Typical Property Description Forms
9.1203 Derivation Clause
9.1204 Correction Affidavit
9.13 LIMITATION LANGUAGE
9.14 EASEMENTS
9.15 DEED AND PLAT AS MUTUALLY DEPENDENT
9.16 WITNESS PROVISION
9.17 SIGNATURES AND SEALS
9.18 ACKNOWLEDGMENTS
9.19 GRANTEE’S ADDRESS
9.20 UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT
9.2001 In General
9.2002 Requirements for a Transfer on Death Deed
9.2003 Revocation
9.2004 Notice, Delivery, Acceptance, or Consideration Not
Required
9.2005 Effect of Deed During Transferor’s Life
9.2006 Effect of Deed After Transferor’s Death
9.2007 If Transferor Is a Joint Owner
9.2008 No Covenant or Warranty of Title
9.2009 Disclaimer
9.2010 Liability for Creditor Claims and Statutory
Allowances
9.2011 Federal Electronic Signatures in Global and National
Commerce Act
APPENDICES 9-1 THROUGH 9-4: GENERAL WARRANTY DEED
—VBA FORM
APPENDIX 9-5: GENERAL WARRANTY DEED FOR PROPERTY
IN THE NAME OF ONE SPOUSE—VBA FORM
APPENDIX 9-6: SPECIAL WARRANTY DEED—VBA FORM
APPENDIX 9-7: QUITCLAIM DEED—VBA FORM
APPENDICES 9-8 AND 9-9: DEED TO TRUSTEES UNDER A
VIRGINIA LAND TRUST—VBA FORM (SETTING OUT
TRUST USES AND PURPOSES)
APPENDIX 9-10: DEED OF SUBORDINATION—VBA FORM
APPENDICES 9-11 AND 9-12: DEED OF RELEASE AND PARTIAL
RELEASE—VBA FORM
APPENDIX 9-13: DEED WITHOUT WARRANTY
APPENDIX 9-14: DEED OF GIFT
APPENDIX 9-15: DEED FOR A CONDOMINIUM UNIT
APPENDIX 9-16: DEED OF ASSUMPTION
APPENDIX 9-17: EXAMPLES OF SIGNATURE BLOCKS
APPENDIX 9-18: CORRECTIVE AFFIDAVIT
APPENDIX 9-19: REVOCABLE TRANSFER ON DEATH DEED
APPENDIX 9-20: REVOCABLE TRANSFER ON DEATH DEED
TO TRUST
APPENDIX 9-21: REVOCATION OF TRANSFER ON DEATH DEED
CHAPTER 10: RESIDENTIAL FINANCING10.1 INTRODUCTION
10.101 Contract of Sale May Determine the Type of
Financing
10.102 The Loan Commitment and Loan Instructions
Determine the Terms of the Loan
10.2 INSTITUTIONAL FINANCING
10.201 Conventional Loans
10.202 Federal Housing Administration (FHA) Loans
10.203 Department of Veterans Affairs (VA) Loans
10.204 Credit Line Deeds of Trust
10.205 Private Mortgage Insurance
10.206 The Secondary Mortgage Market
10.207 Miscellaneous Statutory Provisions
10.3 ASSUMING VERSUS TAKING SUBJECT TO A DEED OF
TRUST
10.301 In General
10.302 Required Notice
10.303 “Assuming” and “Taking Subject To” Distinguished
10.304 Modification and Release
10.305 Obligations of the Purchaser
10.306 Assumption or Payoff Figures
10.4 PURCHASE MONEY FINANCING
10.401 In General
10.402 Lien Priority
10.403 As a Subordinate Deed of Trust
10.5 INSTALLMENT SALES CONTRACTS
10.501 In General
10.502 Pitfalls
10.503 Virginia Legislation
10.6 GROUND RENT
10.601 In General
10.602 Rights of the Parties
10.7 SECURITY AGREEMENTS AND FINANCING
STATEMENTS
10.8 USURY
10.801 Interest Versus Usury
10.802 Prepayment Penalties and Allowable Interest Rates
on First Deed of Trust Loans
10.803 Allowable Interest Rates on Residential Subordinate
Loans
10.804 Allowable Interest Rates Imposed or Collected by
Sellers
10.805 Borrowers Who May Not Plead Usury
10.806 Penalties
10.9 ALTERNATIVE FORMS OF FINANCING
10.901 In General
10.902 Renegotiable Rate Mortgage (RRM)
10.903 Reverse Annuity Mortgage (RAM)
10.904 Graduated Payment Mortgage (GPM)
10.905 Shared Appreciation Mortgage (SAM)
10.906 Asset Integrated Mortgage (AIM)
10.907 Growing Equity Mortgage (Rapid Payoff Mortgage)
10.908 Level Payment Mortgage
10.909 Fixed Schedule Mortgage
CHAPTER 11: COMMERCIAL LOAN DOCUMENTATION11.1 INTRODUCTION
11.101 In General
11.102 Scope of Chapter
11.103 Related Documents
11.2 COMMITMENT LETTERS
11.201 In General
11.202 Parties
11.203 Loan Amount
11.204 Purpose of the Loan; Sums to Be Withheld
11.205 Collateral
11.206 Term
11.207 Interest
11.208 Loan Commitment Fee
11.209 Repayment
11.210 Prepayment
11.211 Late Charges
11.212 Guaranties
11.213 Equity
11.214 Conditions to Closing
11.215 Permanent Take-Out Loan
11.216 Loan Conversion
11.217 Assignment
11.218 Deadline for Acceptance of the Commitment
11.219 Expiration of the Commitment
11.220 Termination of the Commitment
11.221 Special Provisions
11.3 PROMISSORY NOTES
11.301 In General
11.302 Interest Rate, Negotiability, and Enforceability
11.303 Repayment Terms
11.304 Application of Payments
11.305 Prepayment
11.306 Late Charges
11.307 Events of Default
11.308 Default Interest Rate
11.309 Limitations of Liability and Recourse
11.310 Usury Savings Clause
11.311 Confession of Judgment
11.312 Waiver of Jury Trial
11.313 Governing Law and Venue
11.314 Seal
11.4 CREDIT ENHANCEMENTS
11.5 LOAN AGREEMENTS
11.6 DEEDS OF TRUST
11.7 ENVIRONMENTAL INDEMNITY AGREEMENTS
11.8 LENDERS’ TITLE INSURANCE COMMITMENTS
11.801 In General
11.802 Schedule A
11.803 Schedule B, Section I
11.804 Schedule B, Section II
11.805 Uniform Commercial Code; Tax Liens; Litigation
Searches
11.9 RELEASE DOCUMENTS
11.901 In General
11.902 Conventional Release
11.903 Electronic Release
11.10 SECURITY AGREEMENTS AND FINANCING
STATEMENTS
11.1001 Introduction
11.1002 The Concept of Fixtures in Article 9
11.1003 Definitions
11.1004 Requirements for Attachment by a Security
Agreement
11.1005 Perfection by Filing a Financing Statement
11.1006 Requirements for Filing a Financing Statement
11.1007 Where to File the Financing Statement
11.1008 When to File the Financing Statement
11.11 ASSIGNMENTS OF LEASES, RENTS, AND PROFITS
11.12 ASSIGNMENT OF ARCHITECTS’ AND CONTRACTORS’
CONTRACTS TO THE LENDER
11.13 BUILDER’S RISK AND OTHER TYPES OF INSURANCE
REQUIRED BY THE LENDER
11.14 CERTIFICATES OF GOOD STANDING; OTHER EVIDENCE
OF ENTITY EXISTENCE AND AUTHORITY; BORROWING
RESOLUTIONS
11.15 TENANTS’ ESTOPPEL AGREEMENTS
11.16 SUBORDINATION, ATTORNMENT, AND NONDISTURBANCE
AGREEMENTS
11.17 ATTORNEY OPINION LETTERS
11.18 PERFORMANCE AND PAYMENT BONDS; AIA
DOCUMENTATION
11.19 CHECKLIST OF FINAL DOCUMENTATION
APPENDIX 11-1: CLOSING REQUIREMENTS AND CHECKLIST
CHAPTER 12: RESIDENTIAL CLOSINGS12.1 INTRODUCTION
12.2 LEGISLATION AFFECTING CLOSINGS
12.201 Virginia Statutes
12.202 Federal Statutes and Regulations
12.3 THE TRANSACTION
12.301 Representation Issues
12.302 Contract Review
12.303 Loan Commitment Review
12.304 Coordination of Closing Requirements
12.305 Necessary Documents and Data
12.306 Document Preparation
12.307 The Settlement Conference
12.4 POST-CLOSING MATTERS
APPENDIX 12-1: SETTLEMENT STATEMENT—HUD-1
APPENDIX 12-2: PURCHASER’S REPRESENTATION
APPENDIX 12-3: SELLER’S REPRESENTATION
APPENDIX 12-4: AFFIDAVIT THAT TRANSFEROR IS NOT A
FOREIGN NONINDIVIDUAL FOR PURPOSE OF
WITHHOLDING OF TAX
APPENDIX 12-5: AFFIDAVIT THAT TRANSFEROR IS NOT A
FOREIGN INDIVIDUAL FOR PURPOSE OF WITHHOLDING
OF TAX
APPENDIX 12-6: FORMS R-5 AND R-5P
APPENDIX 12-7: FORM R-5E
APPENDIX 12-8: CERTIFICATE OF RESIDENCY
APPENDIX 12-9: SPECIAL POWER OF ATTORNEY FORM
APPENDIX 12-10: CERTIFICATE OF SATISFACTION
APPENDIX 12-11: SAMPLE IRS FORM 1099-S
APPENDIX 12-12: SUBSTITUTE IRS FORM 1099-S
APPENDIX 12-13: INFORMATION FOR REAL ESTATE 1099-S
REPORT FILING
APPENDIX 12-14: VIRGINIA NONFOREIGN AFFIDAVIT FOR
1099-S
APPENDIX 12-15: IRS FORM 1099-S CERTIFICATION
EXEMPTION FORM
APPENDIX 12-16: CYBERCRIME AND REAL ESTATE
SETTLEMENTS
CHAPTER 13: THE UNIFORM COMMERCIAL CODE13.1 INTRODUCTION
13.101 In General
13.102 Applicable UCC Provisions
13.2 COMMERCIAL REAL ESTATE TRANSACTIONS TO WHICH
THE UCC APPLIES
13.201 Sales Transactions: Things Attached to Realty
13.202 Lease Transactions: Fixtures
13.203 Financing Transactions
13.3 COMPLIANCE
13.301 Sales Transactions
13.302 Lease Transactions
13.303 Financing Transactions
APPENDIX 13-1: U.C.C. FINANCING STATEMENT
CHAPTER 14: OPINION LETTERS IN REAL ESTATE
FINANCE TRANSACTIONS14.1 HISTORICAL BACKGROUND
14.101 Dawn of Opinion Literature
14.102 An Easier Path: The TriBar Opinion Committee
14.103 The ABA Accord
14.104 The Second Generation of Opinion Letter Literature
14.2 REAL ESTATE OPINION REPORTS
14.201 Real Estate Opinion Letters
14.202 Real Estate Finance Opinion Report of 2012
14.203 Local Counsel Report of 2016
14.204 Report on UCC Opinions in Real Estate Finance
Transactions
14.3 VIRGINIA BAR ASSOCIATION REPORT ON OPINION
LETTERS
14.4 STANDARD OF CARE APPLIED TO THIRD-PARTY
OPINION LETTERS
14.401 Exercise of “Professional Judgment”
14.402 Customary Practice
14.403 Customary Diligence
14.404 Misleading
14.405 To Whom Duty Is Owed
14.406 Scope of Duty
14.5 CAUSES OF ACTION FOR BREACH OF STANDARD OF
CARE
14.501 Malpractice
14.502 Negligent Misrepresentation
14.503 Fraudulent Misrepresentation
14.504 Breach of Contract
14.505 Violation of Statutes
14.6 ETHICAL RULES APPLICABLE TO THIRD-PARTY
OPINION PRACTICE
14.601 Opinions Subject to Ethical Rules
14.602 Client Confidentiality
14.603 Evidence of Breach of Duty
14.7 LAW FIRM POLICIES AND PROCEDURES
14.701 Opinion Committees
14.702 Other Policies and Procedures for Issuing Opinion
Letters
14.8 ILLUSTRATIVE OPINIONS IN COMMERCIAL REAL
ESTATE LOAN TRANSACTIONS
14.801 Introductory Paragraph
14.802 Reviewed Documents
14.803 Assumptions
14.804 Opinions
14.805 Exclusions
14.806 Qualifications
14.807 Reliance
APPENDIX 14-1: BIBLIOGRAPHY
APPENDIX 14-2: SELECTED CASES ON OPINION LETTERS
APPENDIX 14-3: FORM OF REAL ESTATE OPINION LETTER
APPENDIX 14-4: STATUTORY REQUIREMENTS FOR DEEDS OF
TRUST
APPENDIX 14-5: STATEMENT OF OPINION PRACTICES
CHAPTER 15: LIKE-KIND EXCHANGES UNDER I.R.C. § 103115.1 INTRODUCTION AND HISTORY
15.2 THE TAX-DEFERRED EXCHANGE
15.201 A Simple Exchange
15.202 An Exchange with Boot
15.3 REQUIREMENTS FOR A LIKE-KIND EXCHANGE
15.301 Qualified Property
15.302 The Holding Requirement
15.303 The Like-Kind Requirement
15.304 The Holding Period
15.305 The Exchange Requirement
15.306 Time Limits/Deadlines for Deferred Exchanges
15.307 Adequate Identification of Replacement Property
15.308 Reverse and Improvement Exchanges
15.309 1031 Exchange “Programs”
15.4 1031 EXCHANGES IN A NUTSHELL
CHAPTER 16: PLANNING AND ZONING16.1 INTRODUCTION
16.101 Purpose of Chapter
16.102 Role of Courts
16.2 ENABLING LEGISLATION
16.201 General Nature of Zoning
16.202 Purposes of Zoning
16.203 Constitutional Limitations
16.204 Limitations on Local Authority
16.205 Legislative and Nondelegable Nature of Zoning
16.3 CONDITIONAL ZONING
16.301 In General
16.302 Proffers
16.303 Types of Conditional Zoning
16.304 Strengths and Weaknesses of Conditional Zoning
16.305 Amendments to Approved Conditional Rezonings
16.4 IMPACT FEES
16.401 In General
16.402 Requirements
16.403 Tidewater Ass’n of Homebuilders, Inc. v. City of
Virginia Beach
16.404 2007 Amendments to Section 15.2-2317 et seq
16.5 HISTORIC DISTRICTS
16.6 COMPREHENSIVE PLANNING
16.601 In General
16.602 Nature of the Plan and Its Implementation
16.603 Urban Development Areas
16.604 Limitations on the Usefulness of the Plan
16.605 Section 15.2-2232 Review
16.7 UPZONINGS
16.701 In General
16.702 Presumption of Validity
16.703 Judicial Treatment of Upzoning Denials
16.704 “Spot Zoning”
16.705 Board of Supervisors v. Lerner
16.706 Board of Supervisors v. Jackson and Board of
Supervisors v. International Funeral Services, Inc.
16.707 Demurrer of Claim That Rezoning Decision Was
Arbitrary, Capricious, or Unreasonable
16.708 Remand to Governing Body
16.8 DOWNZONINGS
16.801 In General
16.802 Piecemeal Versus Comprehensive Downzoning
16.803 Sustaining Piecemeal Downzoning
16.804 Downzoning Legislation
16.9 SPECIAL USE PERMITS
16.901 Nature of Special Use Permit
16.902 Standards for Issuing Special Use Permit
16.903 Conditions on Grant of Special Use Permit
16.904 Standard of Review on Appeal
16.905 Limitation on Requirement of Special Use Permits
16.10 SITE PLANS
16.11 PROCEDURAL ISSUES
16.1101 In General
16.1102 Notice by Applicant; Applicant Who Is Not Owner
of Subject Property
16.1103 Notice for Additional Matters
16.1104 Notice of Imposition of Fees and Levies
16.1105 Requirement to Pay Past-Due Taxes
16.1106 Procedural Due Process Requirements
16.1107 Mandatory Nature of Hearings; Controlling Nature
of the Enabling Legislation
16.1108 Sufficiency of Resolution by Which Zoning Ordinance
Amendment Is Initiated
16.1109 Form and Codification of Ordinances
16.1110 Importance of Procedural Correctness
16.1111 Limitations of Actions
16.1112 Exhaustion of Remedies
16.1113 Necessary Parties
16.1114 Standing
16.1115 Federal Land Use Proceedings
16.12 VARIANCES
16.1201 In General
16.1202 Unreasonable Restriction of Use
16.13 NONCONFORMING USES
16.1301 In General
16.1302 Expansion or Alteration of Use
16.1303 Termination of Use
16.14 VESTED RIGHTS
16.1401 In General
16.1402 Continuum of Vested Rights
16.1403 Nature of Vested Rights
16.1404 Statutory Vesting Generally
16.1405 Statutory Vesting of Subdivision and Site Plans
16.1406 Forfeiture of Vested Rights
16.1407 Who Makes Vested Rights Determinations
16.1408 Void Permits
16.1409 Vesting and Grandfathering Distinguished
16.15 ADMINISTRATION AND ENFORCEMENT
16.1501 The Zoning Administrator
16.1502 Zoning District Boundary Disputes
16.1503 Variances
16.1504 Finality of Zoning Administrator’s Determinations
16.1505 Limitations on Zoning Administrator’s Authority
16.1506 Appeal of Zoning Administrator’s Determinations
Generally
16.1507 Appeal of Zoning Administrator’s Rulings on Proffers
16.1508 Criminal and Civil Penalties
16.1509 Challenges to Building Permits
16.16 REGULATORY TAKINGS
16.1601 In General
16.1602 When the Taking Occurs
16.1603 Ripeness
16.1604 Forum for Regulatory Taking Case
16.1605 Temporary Taking Versus Normal Administrative
Delay
16.1606 Damages
16.1607 Exactions by Special Use Permits, Site Plans,
Subdivisions, Impact Fees, and Proffers
16.1608 Virginia Regulatory Takings Cases
CHAPTER 17: REAL ESTATE BROKERAGE LAW17.1 INTRODUCTION
17.2 DEFINITIONS AND LICENSING REQUIREMENTS
17.201 Statutory Definitions
17.202 Marketplace Definitions
17.203 Licensing Requirements
17.3 THE REAL ESTATE BOARD
17.301 Structure
17.302 Powers and Duties of the Board
17.303 The Real Estate Transaction Recovery Act
17.4 DUTIES OF BROKERS AND SALESPERSONS
17.401 Relationship with the Principal (Client)
17.402 Relationship with Nonclient Parties
17.403 Duties to All Parties, Whether Principal or
Non-Principal
17.404 Designated Agency
17.405 Other Important Standards of Conduct
17.406 Consequences for Breaching Duties
17.5 HOW BROKERS ARE ENGAGED
17.501 General Rules
17.502 “General” and “Special” Brokerage Contracts
17.503 Express Contracts
17.504 Implied-In-Fact Contracts
17.505 “Procuring Cause”—What Is It and When Is It
Required?
17.506 Implied-In-Law or Quasi-Contract (Unjust
Enrichment)
17.507 Liability of Subsequent Grantees for Payment of
Original Grantor’s Brokerage Obligations
17.6 COMMERCIAL REAL ESTATE BROKER’S LIEN ACT
17.601 Lien Applies Only to “Commercial Real Estate”
17.602 Lien Applies Only to Leasing Activity
17.603 Lien Requires a Writing Signed by Owner
17.604 Services Rendered Must “Result in the Procuring of
a Tenant”
17.605 Purchaser’s Liability for Brokerage Fees
17.606 Amount of Lien
17.607 What Is Being Liened
17.608 Procedure and Effect
17.609 Contents of Memorandum of Lien
17.610 Recommended Procedure for Enforcing Lien Claims
CHAPTER 18: CONDOMINIUMS AND PROPERTY
OWNERS’ ASSOCIATIONS18.1 INTRODUCTION TO CONDOMINIUMS
18.101 In General
18.102 Subdivision
18.103 Cost-Sharing and Enforcement Mechanisms
18.104 Architectural Control
18.105 Parking Flexibility
18.2 INTRODUCTION TO PROPERTY OWNERS’ ASSOCIATIONS
18.3 TYPES OF CONDOMINIUMS AND PROPERTY OWNERS’
ASSOCIATIONS
18.301 Land Condominiums
18.302 Flex-Industrial Condominiums
18.303 Office Condominiums
18.304 Mixed-Use Condominiums
18.305 Residential Property Owners’ Associations
18.306 Commercial Property Owners’ Associations
18.4 ALLOCATIONS IN CONDOMINIUMS
18.5 CONDOMINIUM INSTRUMENTS
18.501 In General
18.502 The Declaration
18.503 The Bylaws
18.504 Maintenance Responsibilities Chart
18.505 Plats and Plans
18.506 Amendments
18.6 GOVERNANCE OF ASSOCIATIONS
18.601 Board of Directors
18.602 Officers
18.603 Committees
18.604 Management
18.7 MAINTENANCE RESPONSIBILITIES OF ASSOCIATION
AND OWNERS
18.701 Condominiums
18.702 Property Owners’ Associations
18.8 RESTRICTIONS ON USE IN PROPERTY OWNERS’
ASSOCIATIONS
18.801 Restrictive Covenants
18.802 Typical Use Restrictions
18.9 MEETINGS
18.901 In General
18.902 Association Meetings
18.903 Board Meetings
18.904 Electronic Communication
18.10 CONTRACT PROVISIONS CONCERNING LOTS IN
PROPERTY OWNERS’ ASSOCIATIONS
18.1001 Virginia Property Owners’ Association Act Disclosure
Statement and Disclosure Packet
18.1002 Supplemental Information
18.1003 Rights of First Refusal
18.1004 Architectural Review and Design Guidelines
18.1005 Title Disclosure
18.1006 Districts, Villages, Neighborhoods, and Voting Groups
18.1007 Assessments and Prorations
18.1008 Special Assessments
18.1009 Working Capital Contributions
18.1010 Board and Association Meeting Minutes and Records
18.1011 Compliance and Notices from the Association
18.1012 Notice to Association of Transfer of Title
18.1013 Construction Deposits
18.1014 Due Diligence Period
18.1015 Common Area Warranties
18.11 CONTRACT PROVISIONS CONCERNING CONDOMINIUM
UNITS
18.1101 Initial Sale of Residential Units
18.1102 Resale of Units
18.1103 Notice to Association of Transfer of Title
18.1104 Rights of First Refusal
18.1105 Architectural Review and Design Guidelines
18.1106 Title Disclosure
18.1107 Due Diligence Period
18.1108 Deposits
18.1109 Assessments and Prorations
18.1110 Special Assessments
18.1111 Working Capital Contributions
18.1112 Executive Board and Association Meeting Minutes
and Records
18.1113 Compliance and Notices from the Association
18.1114 Construction Deposits
18.1115 Warranties
18.12 DUE DILIGENCE CHECKLIST AFTER CONTRACT IS
SIGNED
18.1201 Review of Association Documents
18.1202 Insurance Policies
18.1203 Maintenance Responsibilities of Association and
Owner
18.1204 Quality of Management
18.1205 Status of Warranty Claims in Condominiums
18.1206 Voting Rights
18.1207 Financial Matters
18.1208 Parking; Pets
18.1209 Review of Title Report or Title Binder
18.1210 Occupancy Limits
18.1211 Age Restrictions
18.1212 Master Associations
18.1213 Architectural Violations
18.1214 Review of Resale Disclosure Packet
18.1215 Leasing Restrictions and Rules
18.13 CONCLUSION
APPENDIX 18-1: HOMEOWNERS’ ASSOCIATION RESALE
DISCLOSURE PACKET AND NOTICE
APPENDIX 18-2: PROPERTY OWNERS’ ASSOCIATION RESALE
DISCLOSURE PACKAGE NOTICE
APPENDIX 18-3: RELEASE OF ARCHITECTURAL APPROVAL
AUTHORITIES FROM LIABILITY
APPENDIX 18-4: HOMEOWNERS ASSOCIATION RESALE
CERTIFICATE
CHAPTER 19: FOREIGN OWNERS OF REAL ESTATE
IN VIRGINIA19.1 INTRODUCTION
19.2 FEDERAL REPORTING REQUIREMENTS
19.201 International Investment and Trade in Services
Survey Act
19.202 Agricultural Foreign Investment Disclosure Act
19.203 USA PATRIOT Act
19.3 FEDERAL TAX CONSIDERATIONS
19.301 Income Tax
19.302 Estate Tax
19.303 Gift Tax
19.4 VIRGINIA REQUIREMENTS
19.401 Registration
19.402 Nonresident Individuals, Trusts, and Estates
19.403 C Corporations
19.404 Pass-Through Entities (Partnerships, LLCs,
S Corporations)
TABLE OF AUTHORITIES
INDEX