A Guide to Real Estate Law in Virginia

A Guide to Real Estate in Virginia
Publication Date: 2018
Electronic Forms: 27
Available Formats: Print (293 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 971

Information

Content Highlights:
  • Residential Real Estate Settlements
  • Residential Leases

This book is drawn from the 2018 edition of The Virginia Lawyer: A Deskbook for Practitioners.

When real estate matters are a complement to your regular practice, A Guide to Real Estate Law in Virginia covers the most common issues that clients encounter when buying, selling, or renting real property. Experts in the field provide a comprehensive overview of Virginia law, including practice pointers and a variety of electronic forms for simple transactions. The book is current through the 2018 legislative session.


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Table of Contents

CHAPTER 1: RESIDENTIAL REAL ESTATE SETTLEMENTS

1.1 LEGISLATION AFFECTING REAL ESTATE SETTLEMENTS
        1.101 Real Estate Settlement Agents
        1.102 Truth in Lending Act
        1.103 Federal Flood Insurance
        1.104 Real Estate Settlement Procedures Act
        1.105 Dodd-Frank Wall Street Reform and Consumer
        Protection Act
        1.106 Procedures Unchanged by New Regulations
        1.107 Virginia Real Estate Settlements
        1.108 Virginia Residential Property Disclosure Act
        1.109 Virginia Property Owners’ Association Act

1.2 REPRESENTING THE PURCHASER
        1.201 Contract Review
        1.202 Loan Commitment Review
        1.203 Coordination of Closing Requirements
        1.204 Scheduling
        1.205 Documents and Data
        1.206 Title Examination and Title Insurance
        1.207 Document Preparation

1.3 THE CLOSING
        1.301 In General
        1.302 Final Coordination and Review
        1.303 Conduct of the Closing
        1.304 Recording and Disbursement

1.4 POST-CLOSING

1.5 REPRESENTING THE SELLER
        1.501 Contract Review
        1.502 Document Preparation
        1.503 Inspections
        1.504 Lien Payoffs
        1.505 Clearing Title
        1.506 Settlement Statements
        1.507 Escrow Letters
        1.508 Seller’s Certifications
        1.509 Coordination of Closing
        1.510 Disbursement of Proceeds
        1.511 Returning Original Documents and Closing File

APPENDIX 1-1: DEPARTMENT OF PROFESSIONAL AND
OCCUPATIONAL REGULATION RESIDENTAL PROPERTY
DISCLOSURE STATEMENT

APPENDIX 1-2: PURCHASER’S REPRESENTATION
INFORMATION AND CHECKLIST

APPENDIX 1-3: VIRGINIA REALTORS® RESIDENTIAL
CONTRACT OF PURCHASE

APPENDIX 1-4: AFFIDAVIT THAT TRANSFEROR IS NOT
FOREIGN NONINDIVIDUAL FOR PURPOSE OF
WITHHOLDING OF TAX

APPENDIX 1-5: AFFIDAVIT THAT TRANSFEROR IS NOT
FOREIGN INDIVIDUAL FOR PURPOSE OF WITHHOLDING
OF TAX

APPENDIX 1-6: CERTIFICATE OF RESIDENCY

APPENDIX 1-7: SELLER’S REPRESENTATION INFORMATION
AND CHECKLIST

APPENDIX 1-8: SAMPLE OWNERS’ AFFIDAVIT AS TO
MECHANICS’ LIENS AND POSSESSION

APPENDIX 1-9: GENERAL WARRANTY DEED: VBA FORM

CHAPTER 2: RESIDENTIAL LEASES

2.1 COMMON LAW PRINCIPLES

2.2 EXCEPTIONS TO COMMON LAW PRINCIPLES
        2.201 In General
        2.202 Judicial Exceptions
        2.203 Legislative Exceptions

2.3 THE VIRGINIA RESIDENTIAL LANDLORD AND TENANT
ACT OR THE VIRGINIA RENTAL HOUSING ACT
        2.301 Introduction
        2.302 Applicability of the VRTLA and the Virginia Landlord
        Tenant Act (VLTA) Compared
        2.303 General Provisions of the VRLTA

2.4 RENTAL AGREEMENTS
        2.401 Terms and Conditions
        2.402 Prohibited Provisions
        2.403 Request for a Receipt or Written Statement
        2.404 Effect of Unsigned or Undelivered Rental Agreement
        2.405 Notice
        2.406 Attorney Fees
        2.407 Application Fees
        2.408 Confidentiality of Tenant Records
        2.409 Landlord-Provided Insurance
        2.410 Processing Fee for Bad Checks
    
2.5 LANDLORD OBLIGATIONS UNDER THE VRLTA
        2.501 Security Deposits
        2.502 Inspection of Premises
        2.503 Disclosures
        2.504 Warranty of Habitability and Warranty of Fitness for
        Intended Purpose
        2.505 Locks and Peepholes
        2.506 Cable, Satellite, and Television Facilities
        2.507 Limitation of Liability
        2.508 Disclosure of Mold
        2.509 Disclosure for Properties Located Adjacent to a
        Military Air Station
        2.510 Disclosures Concerning Insecticide or Pesticide
        Application
        2.511 Carbon Monoxide Alarms

2.6 TENANT OBLIGATIONS
        2.601 Duty to Maintain Premises
        2.602 Landlord’s Rules and Regulations
        2.603 Access
        2.604 Surrendering Possession of Premises

2.7 TENANT REMEDIES
        2.701 When VRLTA Is Inapplicable
        2.702 Remedies Under the VRLTA

2.8 LANDLORD REMEDIES
        2.801 Remedies Before the VRLTA
        2.802 Remedies Under the VRLTA

2.9 RETALIATORY ACTION
        2.901 Common Law Action
        2.902 Retaliation Under the VRLTA

2.10 MANUFACTURED HOME LOT RENTAL ACT
        2.1001 General Provisions
        2.1002 Landlord’s Obligations
        2.1003 Tenant’s Obligations
        2.1004 Rent; Liability of Secured Party Taking Possession of
        an Abandoned Manufactured Home
        2.1005 Restrictions on Landlord’s Activities
        2.1006 Termination of Tenancy
        2.1007 Sale or Lease of Manufactured Home by Owner
        2.1008 Retaliatory Conduct
        2.1009 Eviction of Tenant
        2.1010 Damages and Injunctive Relief

2.11 RESIDENTIAL LEAD-BASED PAINT REGULATIONS

APPENDIX 2-1: RESIDENTIAL LEASE AGREEMENT—VIRGINIA
REALTORS® FORM

CHAPTER 3: REAL PROPERTY FORECLOSURES


3.1 DEED OF TRUST
        3.101 Lien on the Collateral Securing a Loan
        3.102 Default
        3.103 Reinstatement
        3.104 Legal Versus Equitable Title
        3.105 Defects in the Deed of Trust
        3.106 Reformation Actions
    
3.2 TRUSTEE
        3.201 Impartiality
        3.202 Powers and Duties

3.3 HOW THE LIEN IS ESTABLISHED

3.4 PRIORITIES
        3.401 Purchase Money Deed of Trust
        3.402 Other Deeds of Trust

3.5 MORTGAGES

3.6 JUDICIAL FORECLOSURE

3.7 MISCELLANEOUS TERMS
        3.701 Individual and Bulk Offerings
        3.702 Environmental Disclaimer
        3.703 Management and Franchise Contracts
        3.704 License Agreements
        3.705 Next Highest Bidder

3.8 RIGHT OF REDEMPTION

3.9 THE DECISION TO FORECLOSE
        3.901 Requirement of Default
        3.902 Reinstatement Rights
        3.903 Prepayment Penalties upon Default
        3.904 Notice and Cure Periods
        3.905 Acceleration
        3.906 Servicemembers Civil Relief Act
        3.907 Purchase by Lender
        3.908 Purchase by Third Party
        3.909 Advertising the Sale
        3.910 Power of Sale
        3.911 Identity of the Trustee
        3.912 Priority of Lien
        3.913 Tenants
        3.914 Environmental Considerations
        3.915 Proffers
        3.916 Real Estate Taxes and Rollback Taxes
        3.917 Condominiums
        3.918 Personal Property
        3.919 Clouds on Title
    
3.10 GATHERING DOCUMENTATION
        3.1001 Original Note and Recorded Deed of Trust
        3.1002 Assignment
        3.1003 Statement of Account
        3.1004 Title Insurance Policy
        3.1005 Partial Releases
        3.1006 Request to Foreclose; Engagement Letter
        3.1007 Owner’s Address
        3.1008 Leases

3.11 NOTICE OF SALE
        3.1101 Contents
        3.1102 To Whom Given
        3.1103 By Whom Given
        3.1104 Method of Delivery and Timing
        3.1105 Fair Debt Collection Practices Act

3.12 SUBSTITUTE TRUSTEE
        3.1201 Eligibility
        3.1202 Trustees Affiliated with the Lender
        3.1203 Authority to Appoint
        3.1204 Timing of Appointment
        3.1205 Requirement for Written Appointment
        3.1206 Requirement of Written Request to Foreclose
        3.1207 Trustee as Purchaser

3.13 REVIEW OF LIENS AND OTHER MATTERS
        3.1301 Title Examination
        3.1302 Alternatives to Petitioning the Court
    
3.14 FILED MECHANICS’ LIENS

3.15 UNFILED MECHANICS’ LIENS

3.16 TITLE COMPANY’S LIABILITY FOR TITLE REPORTS

3.17 FEDERAL TAX LIEN
        3.1701 Statute and Regulations
        3.1702 Right of Redemption
        3.1703 Place and Date of Filing
        3.1704 Effect of United States v. Craft
    
3.18 ADVERTISEMENT OF SALE
        3.1801 Minimum Statutory Requirements
        3.1802 Additional Advertising
        3.1803 Personal Property
        3.1804 Time-Share Property
        3.1805 Miscellaneous Provisions
    
3.19 CONDUCT OF SALE
        3.1901 Use of Auctioneers
        3.1902 Qualifying Bidders
        3.1903 Announcements
        3.1904 One-Price Bids
        3.1905 Contract of Sale
        3.1906 Adequacy of Price
        3.1907 Recess and Postponement
    
3.20 SETTLEMENT
        3.2001 In General
        3.2002 Postsale Issues
        3.2003 The Trustee’s Deed

3.21 ACCOUNT AND ACCOUNTING
        3.2101 Statutory Requirement
        3.2102 Effect of Failure to File Accounting
        3.2103 Documentation
        3.2104 Commissioners’ Fees
        3.2105 Trustee’s Compensation and Expenses
        3.2106 Real Estate Taxes
        3.2107 Exceptions to Accounts
        3.2108 Surcharge and Falsification
        3.2109 Collateral Attacks
        3.2110 Filing Deadline

3.22 DEED IN LIEU OF FORECLOSURE
        3.2201 In General
        3.2202 Advantages
        3.2203 Disadvantages
    
3.23 PREVENTING MORTGAGE FRAUD
        3.2301 In General
        3.2302 Predatory Practices by Mortgage Lenders or Brokers
        3.2303 Foreclosure Rescue Companies

3.24 FEDERAL FORECLOSURE CHANGES
        3.2401 New Mortgage Rules
        3.2402 Mortgage Loans Subject to the Rules
        3.2403 Exemptions from Requirements
        3.2404 Early Intervention Requirements
        3.2405 Loss Mitigation Procedures
        3.2406 Prohibition on Foreclosure
        3.2407 Effect of Partial Reinstatement
        3.2408 Amendments to the 2014 Mortgage Rules
    
APPENDIX 3-1: FORECLOSURE CHECKLIST

APPENDIX 3-2: SUBJECT-TO PROVISION (CONDOMINIUM)

APPENDIX 3-3: AS-IS DISCLAIMER

APPENDIX 3-4: FORFEITURE AND NEXT HIGHEST BIDDER
PROVISION

APPENDIX 3-5: ACCELERATION LETTER WITH 30-DAY FDCPA
(FIRST COMMUNICATION) LANGUAGE

APPENDIX 3-6: AFFIDAVIT OF NONMILITARY STATUS

APPENDIX 3-7: LOST NOTE AFFIDAVIT

APPENDIX 3-8: LOST NOTE LETTER

APPENDIX 3-9: ENGAGEMENT LETTER

APPENDIX 3-10: NOTICE OF SALE LETTER

APPENDIX 3-11: NOTICE TO CONDOMINIUM OWNERS’
ASSOCIATION

APPENDIX 3-12: TRUSTEES’ APPOINTMENT DEED

APPENDIX 3-13: PETITION FOR AID AND DIRECTION

APPENDIX 3-14: REQUEST FOR TITLE REPORT (AND
COMMITMENT)

APPENDIX 3-15: NOTICE TO INTERNAL REVENUE SERVICE

APPENDIX 3-16: INTERNAL REVENUE SERVICE RIGHT OF
REDEMPTION

APPENDIX 3-17: NOTICE OF TRUSTEES’ SALE—RESIDENTIAL

APPENDIX 3-18: CLOSING PROVISIONS

APPENDIX 3-19: MEMORANDUM OF SALE

APPENDIX 3-20: TRUSTEE’S DEED

APPENDIX 3-21: LETTER TO COMMISSIONER OF ACCOUNTS

TABLE OF AUTHORITIES

INDEX

Authors

William H. Casterline, Jr., Blankingship & Keith, PC / Fairfax (Expand/Collapse Bio)

William H. Casterline, Jr., co-author of Chapter 9, is a principal with Blankingship & Keith, P.C. His practice focuses on commercial real estate and creditors’ rights. He represents buyers and sellers of commercial properties, including land, office buildings, and hotels. He also represents lenders in the preparation of loan documents for large commercial loans and in closings. He has handled thousands of residential foreclosures and related bankruptcies and over 500 commercial foreclosures. Mr. Casterline is the editor of Virginia Foreclosure Practice, and he frequently lectures on foreclosures and creditors’ rights in bankruptcies. His creditors’ rights practice includes receiverships, unlawful detainers, suits to enforce judgments, and deficiency lawsuits. He represents only creditors in bankruptcy cases, including relief from stay motions, objections to plans, claims disputes, and preference defenses. He also represents commercial landlords in tenant bankruptcies. He has been retained in dozens of cases as an expert witness on foreclosures and trustee duties. Mr. Casterline received his B.A. from the University of Richmond in 1973 and his J.D. from the Marshall-Wythe School of Law in 1976, where he served on the William & Mary Law Review. After law school, he served four years as a captain in the United States Army Judge Advocate General’s Corps. He is a fellow in both the American College of Real Estate Lawyers and the American College of Mortgage Lawyers.

Kay M. Creasman, Old Republic Title Company / Richmond (Expand/Collapse Bio)

Kay M. Creasman, co-author of Chapter 11, is Virginia Counsel and Assistant Vice President for Old Republic National Title Insurance Company. She has been with Old Republic since March 2008, solving problems with practical solutions for title and settlement agents throughout Virginia.

Ms. Creasman received a J.D. from the University of Richmond, an M.Ed. from Tulane University, and a B.S. from Athens College. Since 1976, she has, at various times, maintained a private law practice in the Richmond area focusing on real estate, small business matters, and wills; owned and operated a high-volume title insurance and nonattorney settlement agency; been employed by national underwriters as counsel in Virginia and West Virginia; searched title in the record rooms; and taught both undergraduate and graduate students in the business schools at Virginia Commonwealth University and the University of Richmond. Ms. Creasman is a frequent speaker for Virginia CLE, Virginia Land Title Association, Old Republic National Title Insurance Company and others on real estate and title insurance matters.

Ms. Creasman has been active as an Area Representative for the Real Property Section of the Virginia State Bar since 2010 involved with multiple committees, has been on the Board of Governors since 2013, and currently (2017-2018) serves as the Vice Chair of the Board of Governors. She is a member of the Real Estate Section of the Virginia Bar Association. She is the recipient of the 2017 Traver Scholar Award presented by the Real Property Section of the Virginia State Bar and Virginia CLE to honor men and women who embody the highest ideals and expertise in the practice of real estate law. Traver Scholars are Real Property Section members who have made significant contributions to the practice of real property law generally and the section specifically, and have generously shared their knowledge with others.

Ms. Creasman is an active member and a past president (2003-2004) of the Virginia Land Title Association (VLTA) and the 2010 recipient of the VLTA Distinguished Service Award, which honors individual members of VLTA who have made significant contributions to, and an impact on, the success of the association. Within VLTA she focuses on legislative matters affecting real estate in Virginia and continuing education of title and settlement agents.

Elizabeth Godwin-Jones, Godwin-Jones & Price, P.C. / Richmond (Expand/Collapse Bio)

Elizabeth Godwin-Jones, co-author of Chapter 11, is a partner with the law firm of Godwin-Jones & Price, P.C. She graduated with honors from Iowa State University with a B.A. in German. While at Iowa State she was inducted into Phi Beta Kappa. She received a J.D. from Georgetown University. Ms. Godwin-Jones received a master’s degree in German linguistics from the University of Illinois and studied Low German dialects for one year as a Fulbright scholar at the University of Münster, Germany. She studied law for one year at the Université de Pau in France and received a licence en droit degree avec mention. Ms. Godwin-Jones is a member of the Virginia State Bar, Virginia Creditors’ Bar Association, Virginia Apartment Association, and the Richmond Apartment Owners Association. She serves on the Legislation Committee of the Virginia Apartment Association and is a past president of the Virginia Creditors’ Bar Association. Ms. Godwin-Jones has lectured for the National Business Institute, the Central Virginia Apartment Association, and the Richmond Association of Realtors.

Jeremy B. Root, Blankingship & Keith, P.C. / Fairfax (Expand/Collapse Bio)

Jeremy B. Root, co-author of Chapter 9, is a principal with Blankingship & Keith, P.C. His practice combines the transactional aspects of commercial real estate, such as commercial lending, acquisition, development, and leasing, with the enforcement of real estate liens through foreclosures and receiverships. He frequently represents creditors in bankruptcy matters, including claim objections, preference defenses, and relief from the automatic stay. Over the past 14 years, Mr. Root has conducted hundreds of foreclosures, including those involving multiple complex commercial matters. Mr. Root received his B.A. from Wheaton College (Illinois) in 1997 and his J.D. from George Mason University School of Law in 2003, where he served on the George Mason Law Review. Since 2012, he has served as a member of the Real Estate Section Council of the Virginia Bar Association and is currently serving as president of the Northern Virginia Bankruptcy Bar Association.

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