Real Estate Transactions in Virginia

Content Highlights

“This book is important because it provides both experienced and inexperienced real estate attorneys with current law and practice pointers. It also serves as a convenient reference book for those basic points of Virginia real property law that we learned in law school and think we recall correctly, but are not certain. Forms also add to its usefulness.”

– Neil S. Kessler and Paul H. Melnick, co-editors

From the moment a client arrives seeking your advice and assistance to negotiate a purchase contract through the day the sale closes, this two-volume handbook presents a comprehensive treatment of the opportunities and challenges that must be considered to bring the transaction to a successful conclusion. It includes literally thousands of references to state and federal statutes, rules, regulations, and case law. Plus, checklists, practical expert advice, and suggestions or forms for almost any contingency.

This edition has been revised to conform to new Title 55.1 (Property and Conveyances), effective October 1, 2019. Its many updates include:

• Updated disclosures that are mandated for residential sales
• Commentary to the new Title that clarify changes to the law
• Cybersecurity concerns in real estate closings
• Changes to the federal law on I.R.C. § 1031 exchanges
• New guidance on preparing opinion letters in real estate finance transactions

Editors

Neil S. Kessler, Troutman Sanders LLP / Richmond

Neil S. Kessler, co-editor of the 2008, 2012, 2015, and 2019 editions of this book, is a partner in the Richmond office of Troutman Sanders LLP. He has represented clients in various types of commercial real estate transactions for more than 40 years, with an emphasis in property and casualty insurance, financing, leasing, development, and construction. Mr. Kessler is a former co-chair of the Committee on Design and Construction Contracts and the Property, Casualty and Other Non-Title Insurance Committee of the Section of Real Property, Probate and Trust Law of the American Bar Association. He is the author of the Virginia law section of the ABA publication entitled A State-By-State Guide to Construction and Design Law and a chapter on insurance for a publication of the International Council of Shopping Centers. Mr. Kessler is a past Chair of the Real Estate Section of the Virginia State Bar and is currently a member of its Board of Governors. He is a former member of the Board of Governors and is a current member of the Insurance Committee of the American College of Real Estate Lawyers. He is also a member of the Program Committee of the International Council of Shopping Centers Law Conference. Mr. Kessler has been elected as a member of the Virginia Commonwealth University Real Estate Circle of Excellence and as a Fellow of the Virginia Bar Foundation and the American Bar Foundation. He serves as a member of the Law School Professionalism Program faculty sponsored by the Virginia State Bar’s Standing Committee on Profes-sionalism and the Section on the Education of Lawyers. Mr. Kessler has been recognized as a Leader of the Law by Virginia Lawyers Weekly as one of the Best Lawyers in America and in the International Who’s Who in Real Estate Law. He received his undergraduate degree with honors from Washington & Lee University and his law degree with honors from The George Washington University. He is a frequent continuing legal education lecturer.

Paul H. Melnick, Pesner Altmiller Melnick & DeMers PLC / Tysons Corner

Paul H. Melnick, co-editor of this book and author of Chapters 8 and 9, is a principal of Pesner Altmiller Melnick & DeMers PLC, where he focuses his practice in the areas of real estate, estate planning, and estate/trust administration. Mr. Melnick earned a B.S. from James Madison University and a J.D. summa cum laude from the University of Dayton School of Law. He has been a member of the Virginia State Bar since 1990 and a member of its Real Property Section since 2005. He currently serves as an Area Representative of the Real Property Section, and has served as a member of the Board of Governors, an Area Representative, the Secretary-Treasurer, the Vice-Chair, and the Chair of the Section. He currently serves on the Arlington County Board of Zoning Appeals and is a frequent continuing legal education presenter and author.

Authors

Jon W. Brodegard, Old Republic Title Company / Manassas/Hampton Roads

Jon W. Brodegard, co-author of Chapter 12, is counsel for Old Republic Title Company. He received his J.D. from the George Mason University School of Law, now George Mason University Antonin Scalia Law School, and a B.A. from Brigham Young University. Following graduation from law school, he completed a judicial clerkship in the Office of Hearings and Appeals for the U.S. Department of Housing and Urban Development. Subsequently, Mr. Brodegard has focused on real estate and title insurance matters, first in Northern Virginia, Maryland, and the District of Columbia. and then in the Hampton Roads area. He has been admitted to practice law in Virginia and Maryland, and is licensed as a title agent in Virginia, Maryland, and the District of Columbia.

Kay M. Creasman, Old Republic Title Company / Chesterfield

Kay Creasman, co-author of Chapter 12, Virginia Counsel and Assistant Vice President for Old Republic Title Company, 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 when she moved to Virginia, 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 non-attorney 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 and involved with multiple committees. She has been on the Board of Governors since 2013, and was Chair of the Board of Governors (2018-2019). She is a member of the Board of Governors of the Real Estate Section of the Virginia Bar Association.

Ms. Creasman was the recipient of the 2017 Traver Scholar Award presented by the Real Property Section of the Virginia State Bar and Virginia Continuing Legal Education 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 VLRA 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.

Douglass W. Dewing, Douglass W. Dewing Title Examination, LC / Richmond

Douglass W. Dewing, author of Chapters 5 and 6, retired as Commercial Underwriting Counsel for the Virginia National Commercial Services office, operating under the umbrella of the Fidelity National Title Group as an underwriting office for Chicago Title, Commonwealth Land Title and Fidelity Title. After earning an undergraduate degree from Washington and Lee University and a law degree from the Washington University School of Law in St. Louis, Mr. Dewing entered private practice in 1982. He entered the title insurance industry in 1987. He has authored A Virginia Title Examiner’s Manual (4th ed. 2017) and articles on many topics involving title to real property. Mr. Dewing has been a member of several continuing education panels on real estate title and title insurance topics for various groups including Virginia CLE. He is a former Chair of the Real Property Section of the Virginia State Bar. Mr. Dewing is also a member of the American Bar Association. In retirement, he consults as a free-lance title examiner.

John A. Dezio / Charlottesville

John A. Dezio, author of Chapter 10, received his undergraduate and law degrees from the University of Virginia. He is a former Commonwealth’s Attorney for the County of Albemarle and Assistant Commonwealth’s Attorney for the City of Charlottesville. He has served on the Mid-year Seminar Committee, the Seventh District Committee, the Fee Dispute Committee for the Sixteenth Circuit, and the Committee of Lawyer Discipline (COLD), ex officio. He has been a member of the Virginia State Bar Disciplinary Committee and has served as its Chairman.

Laura M. Farley, Virginia REALTORS^® / Glen Allen

Laura M. Farley, author of Chapter 17, is the general counsel for Virginia REALTORS®, the statewide trade association representing nearly 35,000 real estate licensees. Ms. Farley attended University of Maryland, College Park, where she earned a degree in Government & Politics. She earned her J.D. from George Mason University School of Law with a Regulatory Law Certificate. She then began her career in-house at the Northern Virginia Association of REALTORS®, a regional trade associate representing nearly 13,000 real estate licensees in the Northern Virginia area. While at NVAR, Ms. Farley taught legal classes, provided legal information to membership via a legal hotline, and served as staff liaison to the committee responsible for drafting standard forms. In 2014, Ms. Farley joined Virginia REALTORS®, where she continues teaching, assisting on a legal hotline, and working with a standard forms committee at the state level.

John W. Farrell, McCandlish Lillard, P.C. / Fairfax

John W. Farrell, primary author of Chapter 16, is a principal in the law firm of McCandlish Lillard, P.C. with over 45 years of experience before county supervisors, planning commissions, and boards of zoning appeals in matters of real estate development, land use, and environmental regulation, including rezoning, site plan and wetlands approvals. He has represented landowners and developers in innumerable land use and environmental cases and controversies including comprehensive planning, infrastructure financing and bonding and microbial, asbestos and lead contamination issues. Among those represented is the applicant in the largest rezoning ever filed in Northern Virginia which included 26 million square feet of nonresidential space and 2,266 dwelling units. He also represented two dozen plaintiff/landowners in both the Fairfax County C&I and the Loudoun downzoning litigation.

Mr. Farrell has extensive experience representing lenders and borrowers in transactions involving real estate acquisition, construction and development loans. These projects have included the acquisition, development, leasing, and sale of mixed-use communities, condominium and residential projects, and commercial and retail properties; the sale of REO; negotiation of workouts; and foreclosure of non-performing loans. Mr. Farrell’s environmental law and regulatory background includes matters involving lender liability, CERCLA, RCRA, Clean Air, asbestos, lead, underground storage tanks, wetlands regulation, and the Chesapeake Bay Preservation Act. He was selected by Virginia Business, based on a statewide survey of practicing attorneys, as one of the 300 best business attorneys in Virginia in the areas of Real Estate/Land Use and Environmental Law.

As the former General Counsel for the Fairfax County Democrats (“FCDC”), John has extensive expertise in Virginia election law, having represented FCDC during the 2013 Attorney General’s recount and in litigation versus the local and State Electoral Boards. During 2017 he represented one of the candidates in the House recounts and served as General Counsel to the successful Lieutenant Governor’s campaign.

Mr. Farrell is a lecturer and instructor in real estate, land use, and environmental law for the Virginia Law Foundation, the Northern Virginia Building Industry Association, and the National Business Institute. He is the former chairman of the Planning Board of the Town of Walpole, Massachusetts. He is also the past chairman of the Land Use, Environment and Transportation Committee of the Fairfax Chamber of Commerce. He has also served on the State Legislative Committee of the Home Builders Association of Virginia.

A 30-year resident of Reston, Virginia, Mr. Farrell is a past national Presi-dent of Candlelighters Childhood Cancer Foundation and a past President of the Fairfax County Girls Softball League. He served on the Building Committee of Christ the Redeemer Church of Sterling, Virginia. He is a graduate of Boston College and New England School of Law and is admitted to practice in Virginia and Massachusetts.

Leslie A. T. Haley, Park Haley LLP / Richmond

Leslie A.T. Haley, author of Chapter 1, is currently providing legal ethics and law office management advice and counsel to lawyers and law firms, as well as representing lawyers and judges in disciplinary and admissions actions. Ms. Haley is the former Senior Assistant Ethics Counsel for the Virginia State Bar, where she spent fourteen years advising Virginia lawyers on questions of ethics, lawyer advertising, and unauthorized practice of law. In addition, Ms. Haley has worked with the Office of Executive Secretary of the Supreme Court of Virginia for the past twelve years, advising and educating Guardians ad litem, Department of Social Services counsel, and parents’ counselor the unique roles and ethical dilemmas faced in their everyday practices. She is a frequent author and lecturer on various CLE topics both in Virginia and on a national level, has served as an adjunct professor teaching legal skills and professional responsibility at William and Mary School of Law, and serves as a guardian ad litem in central Virginia courts.

Ms. Haley is a past president of the Greater Richmond Bar Foundation board, a member of the Lewis F. Powell, Jr. American Inn of Court, a fellow of the Virginia Law Foundation, and a past president of the Metropolitan Richmond Women’s Bar Association. She was also a 2010 recipient of the Influential Women of Virginia Award and serves as the Midlothian District representative to the Chesterfield County Board of Supervisors.

Jack C. Hanssen, Moyes & Associates, PLLC / Leesburg

Jack C. Hanssen, co-author of Chapter 2, is an attorney at Moyes & Asso-ciates, PLLC, in Leesburg, Virginia, where a large part of his practice is devoted to real estate matters. His practice includes commercial and resi-dential real estate transactions and litigation, as well as business and trust and estate work. In addition to handling commercial lease transactions and routine landlord-tenant matters, he has assisted clients with complex real estate transactions. He has worked on a private placement offering to fund the construction of a physician-owned medical office building and a hospital ground lease. In recent years, he has assisted clients in donating conservation easements on thousands of acres across Loudoun County and Fauquier County and helped them with the Land Preservation Credit Application process.

Mr. Hanssen received his undergraduate degree from The College of William and Mary and his law degree from Notre Dame Law School. During law school, he clerked for Federal Magistrate Judge John Facciola, U.S. District Court for the District of Columbia.

Edmund D. Harllee, Williams Mullen / Tysons Corner

Edmund D. Harllee, author of Chapter 13, is a shareholder in Williams Mullen’s Tysons Corner office. As a transactional attorney, Mr. Harllee represents a significant number of financial institutions in connection with a wide variety of lending transactions, including commercial real estate loans, U.S. Government receivables and other asset-based loans, construction loans, mezzanine financing, syndicated loans, and loan participations. When loans become troubled assets, he represents lenders in work-outs and restructurings, having represented financial institutions through several economic downturns. Mr. Harllee also serves as local counsel to other lenders throughout the U.S. in connection with such transactions. He is frequently called upon to draft “shelf” documentation for these services, and to review documentation for compliance with federal and local state law. A former in-house counsel for a large multi-jurisdictional regional Bank in the Washington, D.C. area, Mr. Harllee advises financial institutions in such areas as bank operations, payments systems, forgeries and other fraud, credit and debit cards, and stored-value cards, as well as a wide range of online banking and cash management products. He also counsels these clients on consumer and non-consumer regulatory compliance, both federal and state, for all types of banking services.

Mr. Harllee is a co-author of Williams Mullen’s Dodd-Frank alerts, as well as such publications as Real Estate Transactions in Virginia, published by the Virginia Law Foundation, and District of Columbia Commercial Lending Law, published by the American Bar Association. He is listed in the Best Lawyers in America under Banking and Finance Law.

Michael A. Inman, Inman & Strickler, P.L.C. / Virginia Beach

Michael A. Inman, author of Chapter 18, has lived in Virginia Beach and has been practicing law in the Hampton Roads area for over 40 years, primarily in the areas of real estate, business and community association law. He is a principal in the law firm of Inman & Strickler, P.L.C., located on Lynnhaven Parkway, which has 12 attorneys who practice in various areas of the law. He and his community association practice group represent over 250 community associations in Southeast Virginia, and he is a frequent speaker on community association topics. Mr. Inman is a member of the local chapter of the Community Associations Institute (CAI), which is a resource for all persons interested in the operations of condominiums and homeowners’ associations. Mr. Inman was a member of CAI’s Legislative Action Committee for the state of Virginia for over 20 years and was selected for membership in CAI’s College of Community Association Lawyers in 2008. He has prepared governing documents for developers of over 100 condominiums, homeowners’ associations, and planned unit developments. Mr. Inman is involved in community activities through his service as a member of the Virginia Beach Planning Commission, his membership in Virginia Beach Vision, a group of local business leaders, the Town Center Kiwanis Club, and also as former Chair-man of the Board of Seton Youth Shelters, a charitable organization which provides shelter and counseling to at risk youth.

Tina M. LePoer, Old Republic Title Company / Manassas

Tina M. LePoer, the author of Chapter 15, has served as Counsel and Vice President of Old Republic Exchange Company since June, 2019, and has 15 years of experience in the 1031 Tax Deferred Exchange industry.

Ms. LePoer received a Bachelor of Science from James Madison University followed by Juris Doctor from George Mason School of Law and Economics. After a private practice litigation career of ten years, Ms. LePoer made a lateral career move into the title insurance and settlement services industry, where she remained for over 15 years. It was in her position prior to joining Old Republic Exchange Company that she began working with 1031 Exchanges in addition to her work with title insurance and settlement services.

Ms. LePoer is a licensed attorney and a licensed title insurance agent, as well as an experienced qualified intermediary. In her role as counsel for Old Republic Exchange Company Ms. LePoer is responsible for advising the company and working with exchangers to ensure the success of their 1031 Exchanges.

Charles L. Menges, McGuireWoods LLP / Richmond

Charles L. Menges, co-author of Chapter 14, is a partner at McGuireWoods LLP. Resident in the Richmond office, he counsels clients on business transactions, primarily in the real estate industry and in the banking and finance sector. His practice ranges from locally based matters to multistate and national transactions to international projects.

In the real estate area, Mr. Menges handles commercial real estate trans-actions of all types including the sale, purchase, development, financing, leasing and management of both unimproved land and existing commercial projects. He also has extensive experience representing owners and developers of hotels and resorts, including negotiating purchase and sale agreements, management agreements and franchise agreements, as well as advising hotels, private resort clubs and other hospitality clients on meeting contracts, vendor relationships, membership issues, and other matters.

In the banking and finance area, Mr. Menges represents institutional lenders and corporate borrowers in a variety of financing transactions, whether real estate-based or otherwise, including asset-based loans, unsecured investment grade lending, syndicated credits of various types, synthetic lease transactions, M&A financings, conduit lending/securitization, sale of loan portfolios, loan workouts and restructuring, and portfolio mortgage loans.

Mr. Menges frequently lectures and writes articles on opinion practice. He co-chairs the McGuireWoods Opinion Committee, chairs the Legal Opinions Committee of the Virginia Bar Association, serves as vice chair of the Attorneys’ Opinion Committee of the American College of Real Estate Lawyers, is a member of the board of directors of the Working Group on Legal Opinions Foundation, and is a past chair of the Committee on Legal Opinions in Real Estate Transactions of the ABA Real Property Trust and Estate Law Section. Mr. Menges received his undergraduate degree from the College of William & Mary and his law degree from the University of Virginia.

T. Duggan O’Dea, Vandeventer Black LLP / Richmond

T. Duggan O’Dea, co-author of Chapter 19, is a business law attorney with Vandeventer Black LLP in Richmond, Virginia, where he regularly advises clients on a wide array of business and real estate matters. Before joining Vandeventer Black, he practiced at a large international law firm in the area of structured finance and securitization.

Mr. O’Dea received a B.A. from The College of William and Mary. After serving both as a military officer and in law enforcement, Mr. O’Dea received his J.D., magna cum laude, from the University of Richmond T.C. Williams School of Law and became a licensed Virginia attorney.

Kevin T. Pogoda, Old Republic Title Company / Chesterfield

Kevin T. Pogoda, author of Chapter 7, serves as First Vice President and Virginia State Manager, Northern Division. In his capacity as Virginia State Manager, he regularly speaks as an instructor before various groups, including attorneys, Realtors, and title/settlement agents. Mr. Pogoda is a past president of the Virginia Land Title Association (VLTA) and the recipient of VLTA’s Distinguished Service Award for 2017. He has also authored the 16-hour online Pre-Licensing Course for the VLTA, VLTA’s 16-hour online VCTSA Course for settlement agents, and MLTA’s 16-hour online Pre-Licensing Course.

In 1998, Mr. Pogoda began his career as a settlement agent at a prominent settlement company located in Annandale, Virginia. While in that position, he performed approximately 3,000 settlements and focused on 1031 Exchanges and resolving title issues. He joined Old Republic National Title Insurance Company in May 2006

Mr. Pogoda was born in Santa Monica, California, and grew up in Southern California. A graduate of the University of California at Berkeley with degrees in Rhetoric (honors) and Legal Studies (high honors), Kevin completed his law school education at the Santa Clara University School of Law in 1994. After law school, Mr. Pogoda worked in several firms located in New Jersey, Virginia, and the District of Columbia. While in private practice, his experience included SEC compliance, Indian gaming law, commercial litigation, labor and employment law, and not-for-profit litigation. He has been admitted to practice in California, New Jersey, Virginia, and Maryland.

Wilson R. Trice, ThompsonMcMullan, P.C. / Richmond

Wilson R. Trice, co-author of Chapter 11, is a member of the firm of ThompsonMcMullan in Richmond. His practice focuses on commercial and real estate lending, banking and consumer financial services. He is listed in Virginia Business magazine’s list of “Legal Elite”. Mr. Trice received a B.A. from the University of Virginia and graduated from the University of Richmond Law School, where he was on the staff of the University of Richmond Law Review and chaired its Honor Court. He is the Virginia reporter for the ABA publications Commercial Lending Law and The Law of Guaranties.

Sarah B. Warner, ThompsonMcMullan, P.C. / Richmond

Sarah B. Warner, co-author of Chapter 11, is a member of the firm of ThompsonMcMullan in Richmond. Her practice centers on commercial and real estate lending and banking, particularly focused on government guaranteed lending with the U.S. Small Business Administration. She is listed in Virginia Business magazine’s list of “Legal Elite.” Ms. Warner received a B.A. from Auburn University and graduated from the University of Richmond Law School.

James L. Windsor, Kaufman & Canoles, P.C. / Virginia Beach

James L. Windsor, author of Chapter 4, is the Managing Director of the Virginia Beach office of Kaufman & Canoles, P.C. and is the Chairman of the firm’s Real Estate Claims, Title Insurance and Mortgage Default Solutions Group. Mr. Windsor is an AV Preeminent-rated lawyer with over 30 years of experience and expertise in counseling and litigation involving title insurance, real property, construction, mechanics’ liens, bond claims, mortgage lending, creditors’ rights, and commercial and banking law. He earned a B.S. degree, cum laude, from James Madison University and a J.D. from the T.C. Williams School of Law at the University of Richmond. Mr. Windsor is a member of the Virginia State Bar, the American Bar Association, the Virginia Beach Bar Association, and the Virginia Land Title Association. Mr. Windsor lectures frequently before construction and real estate professionals, lenders, lawyers, and others involved in construction and real estate law. He has written a book, a law review article, and other articles on topics of interest to the construction and real estate industry. Mr. Windsor was selected by peers and recognized by Virginia Business Magazine as a member of “Virginia’s Legal Elite” in 2003, 2004, 2007-2014 in the area of Construction Law. He was also listed in Virginia Super Lawyers for 2006, 2010-2013, and 2015 in the area of Real Estate.

Clark H. Worthy, Gentry Locke Attorneys / Roanoke

Clark H. Worthy, author of Chapter 3, is a partner in the commercial practice section of Gentry Locke Attorneys. Mr. Worthy advises clients regarding commercial real estate matters including purchases, sales, leases, tax free exchanges and financings. He also handles matters involving gift and estate planning techniques and represents fiduciaries in the administration of trusts and estates trust, and matters involving sales, mergers, acquisitions, and financing of businesses. Mr. Worthy received his J.D. in 1993 from Washington and Lee University School of Law and a B.S. in Finance in 1986 from the University of Virginia, McIntire School of Commerce.

Eric V. Zimmerman, Rogan Miller Zimmerman, PLLC / Leesburg

Eric V. Zimmerman, co-author of Chapter 2, is a principal of Rogan Miller Zimmerman, PLLC located in Leesburg, Virginia. He was admitted to the Virginia Bar in 1975 and currently focuses is practice in the areas of real estate, estate planning and providing general counsel to his clients. He graduated from University of Virginia with a degree in Russian Area Studies and the New England School of Law in Boston. Mr. Zimmerman has authored several articles and participated as a presenter and moderator for CLE events. He has been a member of the Real Property Section of the Virginia State Bar for over two decades, serving two terms on the Board of Governors. In 1999 he received the Tradition of Excellence Award from the Virginia State Bar in recognition of his efforts with his community, including serving as Mayor of his hometown of Purcellville.