Articles

•	Why You Need A Will
•	When Homeowners and Homeowners' Associations Clash
•	Compensation in Personal Injury Cases
•	Getting Charged, Traffic Convictions Can Cause “Ripple Effect”
•	Subrogating A Heavy Machinery Fire Loss
•	Buying A Home. Do You Need A Home Inspection?
•	Is Your Automobile Liability Insurance Adequate?
•	A Primer on Stepparent Adoption.

Why You Need A Will
By Timothy D. Freshly, Esq.

            Did you know that if you die without a will, Virginia law directs how your property will be distributed? Virginia Code Section 64.1-1 generally provides that the first beneficiary is your spouse. If you do not have a spouse or your spouse has died before you, then your property goes to your children (or grandchildren), if any. Next in line are your parents and then your siblings. The law continues naming beneficiaries until all your property is disbursed. Because the law distributes property in the same order as many people would want anyway, it is often assumed that a will is unnecessary. A will, however, affects and controls many issues beyond just the basic distribution of property.

            A will provides for the appointment of an executor, or fiduciary, who will ensure that your property actually goes to the people who are supposed to get it. Without a will, a court will decide who is responsible for distributing your property to your beneficiaries.

            If you die and leave minor children (under the age of eighteen) in your will, you can nominate a guardian to take care of your children until they reach adulthood. Without a will, the court will not know your preferences for guardianship and may assume you had none. The court will then decide who will be responsible for raising your children.

If a child who is not an adult inherits property, the law does not allow the child to claim their inheritance outright until he or she is an adult (18 years of age). Until then, someone else has to look after the inherited property on behalf of the minor child. In your will, you can appoint a person, called a trustee, to manage your children’s property until they become adults.   Furthermore, if you would prefer that your children are older than eighteen before they can claim their inheritance outright, you may specify the age at which they will inherit the property outright.

            If you do want to give away your property in a different manner than provided for in the law, a will allows you to do so. Without a will, your property will be distributed according to Virginia law without regard to what you may or may not have wanted.

            Your will could be the last legal declaration of your intentions and wishes with regards to the distribution of your property and other important matters. This article has presented just some of the reasons why it is beneficial to have a will. Please feel free to call any of the attorneys at Shaheen & Shaheen, P.C. to discuss preparation of your will.
            Timothy D. Freshly is a senior associate at the Shaheen Law Firm and focuses his practice in real estate transactional work; he also drafts simple wills. He can be reached at 804-474-9413 (direct dial) or by email at timfreshly@shaheenlaw.com.

When Homeowners and Homeowners' Associations Clash

(This Article, authored by Victor A. Shaheen and originally published in the July 2002 Issue of Mobility Magazine, is re-printed, in an abridged format, with the Permission of the Publisher)

By: Victor A. Shaheen, J. D., CRP

Purchasers of real estate regulated by a homeowners' association (HOA) often will underestimate the way those associations can affect their lives. A local case, The Wyndham Foundation v. Richard J. Oulton, Et. Al., illustrates why purchasers should take the time to read and understand their HOA regulations before they consummate the purchase of a home in a planned community.

Richard Oulton, a former U. S. Navy corpsman who served with the Marines in Vietnam, and his wife, Ava, challenged their HOA's decision requiring them to remove a freestanding flagpole they erected to display the U.S. flag in the middle of the front yard of their suburban Richmond neighborhood. After months of legal wrangling, a local Circuit Court judge ruled against the Oultons, ordering them to remove the flagpole and to pay more than $82,000 in attorneys' fees and costs to the HOA, the Wyndham Foundation.

Studies cited in the Real Estate Law Journal (Vol. 29:322 2001) show that the Oultons are among an estimated 42 million Americans who live in areas controlled by HOAs. According to the Journal, "in the early 1960s, there were fewer than 500 homeowner associations. By 1970 the number had grown to 10,000, to 55,000 by 1980, and to 130,000 by 1990. Since 1990 there has been approximately a 60 percent growth in new homeowner associations."
A HOA essentially is a set of regulations, primarily embodied in recorded covenants and restrictions, pertaining to the use of private property and providing various services such as roads, common area maintenance, swimming pools, and utilities, which are financed through assessments and/or monthly dues. HOAs usually have the effect of protecting property values by prohibiting certain "offensive" activities and requiring standards applicable to construction and aesthetics. Having their historical roots in the late 19th century, HOAs were primarily the tool of the aristocracy in larger northeastern U.S. cities to care and preserve private parks and lakes in their neighborhoods, according to the Journal.

Given their growing popularity, HOAs appear to be favored by the majority who live in the planned communities they regulate. However, to those who disfavor them, HOAs are private governments that unnecessarily meddle in private affairs, stifle self-expression, and levy taxes.

Sidebar: Under Virginia's Property Owner's Association Act, purchasers of residential real estate have the right to receive and review, before contract settlement, a disclosure package containing all of the relevant covenants, rules, regulations, and other information. At the purchasers' option within a limited time frame, the contract may be cancelled.

Oulton, who is a lawyer, did not believe that his flagpole was a "structure" as defined in the covenants. He felt his flagpole was constitutionally protected free speech and that he did not need permission from the applicable HOA board of directors before erecting it. The board of directors, which believed that its consent was necessary, did not question Oulton's right to mount a pole connected to his house, but objected to the permanent, freestanding pole as a "visual nuisance" that would open the floodgates of others seeking to express themselves in other, perhaps less patriotic and more unseemly, ways.

The approximately 15 states that have enacted versions of the Uniform Common Interest Ownership Act have laws providing consumer protection rights to homeowners. Virginia, which is among the most consumer-oriented states in the nation in this regard, has adopted the Property Owners' Association Act, which requires, among other things, that associations:

• keep detailed financial, legal, and other records;

• conduct regular meetings with advance notice to all members;

• have open board of directors meetings; and

• allow members the right to voice their opinions on any matter relating to the association.

Procedures for the approval of structures and variances will vary from association to association. In the Wyndham case, the Oultons first made an application to the "Modifications Committee," which rejected their application. The Oultons could have appealed to the board of directors, but they elected not to do so.

The Wyndham Community, consisting of 1,500 homes, is upscale, with a golf course and community center. The Oultons, whose 10,000 square foot house sits on a 1.7 acre lot, argued that a house-mounted flag would be "dwarfed." Complex and lengthy litigation followed the Oultons’ decision to defy the board. In its June 11, 2001, written opinion, the Henrico Court initially found that the Wyndham covenants and restrictions did apply as they were a matter of public record at the time the Oultons purchased the property. Moreover, even though the Oultons claimed not to have read them, their purchase contract specifically stated that their property was subject to them.
The case then turned on whether the flagpole was a "structure" within the meaning of those covenants. The court, citing among other things Webster's Dictionary, concluded that Oulton's flagpole was a structure that is subject to regulation. The court ruled that notwithstanding the Oultons' good intentions, "the covenants are for the benefit of all property owners in the community, and at best it would be unfair to the other owners who purchased lots with the knowledge of these covenants if they were not enforced."

It was "Taps" for the Oultons' stars and stripes, but not for the controversy.
In a follow-up ruling on July 25, 2001, the same court ordered the Oultons to pay Wyndham its attorneys' fees and costs in the total amount of $87,858.58.
It is not uncommon for HOA covenants to contain provisions for fee awards such as the one relied on by this court. The Oultons appealed to the Virginia Supreme Court, where the case is still pending.

In the media and political circus that trailed the Oulton case, Virginia's General Assembly enacted a statute that generally prevents HOAs from prohibiting homeowners from displaying certain flags. However, the statute came too late to help Oulton, as the Henrico Circuit Court ruled that it had no retroactive effect to his case. For purchasers of property in a planned community, some practical advice:

• Obtain and exercise the right to receive and review all applicable HOA rules, regulations, and other relevant information prior to closing on the purchase of the home. If the applicable state law does not provide that right, insist that it be part of the purchase contract.

• Exercise the right to cancel the contract, if applicable.

• Read the rules and regulations. Take particular note of those items that may affect intended uses or activities, such as decks, hot tubs, tree pruning, and/or the construction of outdoor play stations or basketball courts.

• Understand how the covenants may restrict the use of your property in the future.

• For existing homeowners, get involved, regularly attend HOA meetings, keep informed, and voice your opinions to others. Politics play an important role in owning a home.

COMPENSATION IN PERSONAL INJURY CASES
Goal is Making Victim “Whole”
BY: ARTHUR V. SHAHEEN, ESQ.

In my fourteen years of handling personal injury cases, I have not had a seriously injured client who would not have chosen to return to his or her pre-accident health over the compensation he or she received in a personal injury case, no matter how substantial.

     Yet there is an often-held poplar belief that personal injury victims feel as though they have won the lottery.

      The main objective of personal injury law is to make the injured person “whole,” not rich. Since it is impossible for the law to return a seriously disabled or injured person to his pre-accident state of health, the law must do the next best thing: award money damages. Sometimes we underestimate the value of good health, the ability to work and function without restriction, or a good “pain-free” night’s sleep. Personal injury law and practice endeavors to determine the amount it will take to compensate for these types of tangible and intangible losses. When the parties, including insurance companies, cannot agree, it is left to a Jury.

      In an effort to make an injured person whole, the law provides the following categories of compensation:

- Compensation for the injury itself, whether a hurt neck or back, a severed limb, or other medical condition;

- Reimbursement for medical bills;

- Reimbursement for lost wages;

- Compensation for inconvenience, embarrassment, and disfigurement (like scarring); and

- Compensation for pain and suffering.

      Determining appropriate compensation in a serious personal injury case can be a complex endeavor best handled by qualified legal counsel. The existence and amount of liability insurance are also important factors. For a recent article written by the Shaheen Law Firm on automobile liability insurance, please see the article entitled “Is Your Automobile Liability Insurance Adequate?” in the Fall/Winter 2001 edition of our newsletter.

      The Shaheen Law Firm provides effective and highly professional assistance in personal injury cases. Though we do not advertise on television, we take great pride in providing first rank, professional, and dignified representation. For a free initial consultation, please let us know.

Editor’s Note: Arthur has enjoyed a diverse and substantial litigation practice, handling cases involving serious injury and wrongful death, commercial motor vehicle accidents, defective products, and insurance coverage. He is a member of the American and Virginia Trial Lawyers Associations, and the National Association of Subrogation Professionals. Arthur actively volunteers his time to the legal profession and the community. He currently serves as an elected member of the Council, Virginia State Bar, the Board of the Henrico County Bar Association, the Board of the Folk Art Society of America, and the board of his homeowner’s association.

Getting Charged
Traffic Convictions Can Cause “Ripple Effect”
By: Christopher N. Petersen, Esq.

     Have you been stopped for a traffic charge lately? The consequences of being convicted of a moving violation in Virginia are numerous and costly and can include:

·                    fines and court costs
·                    loss of license that may affect your employment
·                    increased insurance rates
·                    civil liability from accidents
·                    jail time in serious cases.

      The Courts hand out the initial punishment. The Department of Motor Vehicles (DMV) and your own liability insurer will also weigh in, resulting in a "ripple effect."

      Most cases are misdemeanors, but some are felonies. Charges range everywhere from DUI and reckless driving to speeding, improper driving, and following too closely. Jail time and the loss of license are reserved for the more serious offenses, where injury and death result, and for repeat offenders.

      DMV keeps a watchful eye on your convictions and may suspend or revoke your license even if the Courts do not. DMV classifies moving violations based on a “point” system. The more serious convictions carry six points, and the less serious, such as improper passing, carry three points. Depending on the accumulation of points, DMV may require you to attend a personal interview or a driving improvement clinic, or to prove “financial responsibility.” Only when these fail will DMV suspend your license.

      Increased auto insurance premiums are another "ripple effect" of traffic convictions. Your insurance company’s underwriting department will review your DMV record and those of your family who may be covered by your policy. Insurance premiums and your DMV records are directly related. Some insurance companies will refuse to provide coverage to "high-risk" drivers, or will insure them only under certain strict conditions.

      Avoiding conviction – and the "ripple effect" – often seems difficult because in many traffic cases evidence of guilt seems clear. Legal guilt and innocence, however, can be technical questions. Courts, moreover, often consider dismissing charges upon completion of an approved driver improvement clinic, and reducing charges to less serious or non-moving ones that carry fewer or no points. The Court’s willingness to dismiss or reduce charges depends upon many factors in addition to your DMV record.

      Qualified legal counsel, particularly in more serious traffic offenses, can make a difference in Court. Please let one of us know if you have further questions.

Editor’s Note: Christopher N. Petersen is a Stafford County, Virginia native and graduate of Virginia Tech where he majored in finance and helped found the Alpha Sigma Phi fraternity. He attended Ohio Northern University College of Law (Class’00) on an academic scholarship and graduated with distinction. After serving a one-year Judicial Clerkship for the Honorable Richard K. Warren Court of Common Pleas, Chris joined our firm. He is a member of the Virginia Trial Lawyers Association and the Virginia, Richmond City and Henrico County Bar Associations. At Shaheen & Shaheen, P.C., Chris concentrates his practice in personal injury and insurance law, traffic court representation, and family law. He can be reached at 804-474-9418 (direct dial) or chrispetersen@shaheenlaw.com (e-mail).

Buying A Home: Do You Need a Home Inspection?
Seller Has Option Not To Disclose Defects
By: Timothy D. Freshly, Esq.

      When looking to buy a home, there are many exciting decisions to make. Three bedrooms or four? Two story colonial on ? acre lot or a ranch on an acre? Henrico, Chesterfield, Hanover, Richmond, or Goochland? There are also some less exciting, but just as important, decisions that you will need to make. One of these decisions is whether to have a home inspection performed by a professional home inspector.

      Although some home defects may be readily apparent (such as a broken light switch) and although the seller may choose to disclose certain defects (see sidebar), some defects may simply go undisclosed or unnoticed. A professional home inspector hired by the purchaser is trained to discover "hidden" defects. Real estate contracts in Virginia usually give the buyer the right to inspect the property at the buyer’s expense. Once the inspection is complete, the buyer can request that the seller repair any defective items found by the home inspector.

      SIDE BAR. In Virginia, the seller of residential real estate may either disclaim or disclose material defects of which he has actual knowledge. If the seller disclaims, he makes no warranties or representations about the property and the buyer accepts the property “AS-IS.” The Code of Virginia, Sections 55-517 through 55-525, set forth the law on the subject, including the required disclosures, the timing of disclosure, provisions for cancellation of the contract, and the duties of the real estate agents.

      When purchasing a home, a buyer should ensure that the contract permits the purchaser to have the home inspected by a professional. Also, a buyer should be familiar with any time limits imposed by the contract. The time frame for completing the home inspection is normally limited by contract. If the inspection is not performed within the given time frame, the right to have the inspection is waived, the buyer loses the right to request repairs from the seller, and the buyer purchases the home “AS-IS.”

      For most of us, our home is the single largest investment we will ever make. Without a home inspection, a buyer runs the risk of purchasing a home that might contain serious defects. A home inspection can help you protect your investment.

Editor’s Note: An Ohio native and cum laude graduate of Allegheny College where he was a wide receiver on the football team and 8 time letterman in track, Timothy D. Freshly is a fourth year associate at Shaheen & Shaheen, P. C. At University of Richmond’s Law School (Class’97), Tim was President of the Student Bar Association. At Shaheen & Shaheen, P. C., Tim concentrates in residential real estate transactions and corporate employee relocations. He can be reached at 804-474-9413 (direct dial) or timfreshly@shaheenlaw.com (e-mail).

Is Your Automobile Liability Insurance Adequate?
You May Have to Look To Your Own Insurance If You Are Injured
By: Arthur V. Shaheen, Esq.

     Unlike many states, Virginia does not require automobile owners to have liability insurance. Without insurance, however, you could be held personally responsible for paying any judgment rendered against you in a personal injury case. Such a judgment, which can be substantial, may be enforced through sheriff’s levy of personal property, garnishment of wages, suspension of operator’s license, and/or a forced sale of your home.

      SIDE BAR. In accordance with the Code of Virginia, Section 46.2-706, if you elect not to have automobile liability insurance, you are required to register with the DMV and to pay the appropriate uninsured motorist’s fee (currently $500.00). Failure to do so can result in criminal penalties.

      The great majority of us do have liability insurance, the providers of which, by Virginia law, must afford coverage of no less than $25,000.00 for each claimant and $50,000.00 total for multiple claimants. Since a judgment rendered in excess of your insurance coverage can result in personal liability, you may wish to procure automobile liability insurance that exceeds the minimum. You should determine the appropriate amount of insurance protection based upon your circumstances with an eye toward protecting your income and assets. Do you know your automobile policy limits? If not, request your insurer to provide you a “declarations page.”

      There is another good reason for you to have adequate automobile liability insurance. If an uninsured motorist injures you, Virginia law requires your own insurer to provide coverage to you. The amount of this coverage is normally equal to your liability coverage limits. For example, if an uninsured motorist injures you and your own automobile liability coverage is $50,000.00, you have $50,000.00 coverage available to cover you for your claim. Additionally, if your own coverage exceeds that of the negligent party (which is called an underinsurance situation), Virginia law normally allows you to take advantage of the higher of the two insurance limits in calculating total available insurance.

      Insurance coverage questions can be very technical and this is only a basic overview. When deciding how much insurance coverage to buy, speak to a qualified insurance agent or to legal counsel. If you are seriously injured in an automobile accident or have questions about the extent of insurance coverage available in particular situations, please let us know.

Editor’s Note: Arthur V. Shaheen, Principal and Director of Litigation, Shaheen & Shaheen, P. C., is a USMC veteran and College of William & Mary graduate (’85). A member of the American and Virginia Trial Lawyers Associations, Arthur serves as a Board Member of the Henrico County Bar Association and as an elected member of the Council, Virginia State Bar, the regulatory body for all licensed Virginia attorneys. Since 1988, he has been handling personal injury and insurance law cases (both for the Plaintiff and the Defense), as well as family law throughout the Commonwealth. Arthur may be reached at 804-474-9401 (direct dial) or at artshaheen@shaheenlaw.com (e-mail).

A Primer On StepParent Adoption
However, Courts Are Protective of Natural Parents’ Rights

      Are you a stepparent? More and more, we see more non-birth parents participating in the raising of children. The “absent” parent may be the unfortunate result of divorce. When the non-custodial parent lives far away from the children, the relationship between them has the potential to be weakened, although of course this is not always the case.

      In extreme absentee cases, children have had little or no contact with their birth parents for years, whether in person, by letter or card, or phone call. Many such absent parents have also evaded their child support obligations. On the other hand, when the custodial parent remarries, the new spouse may step in and assume the role of the missing parent. Many of these new relationships are strong, advantageous, and healthy for the children and parents alike. It is not uncommon for the child to think of the stepparent as the “real” parent, or for the stepparent to think of the child as his/her own.

      Even in the extreme “absentee” cases, the newly created family does not always think of adoption as a way of restructuring the family. Life is busy, and adoption proceedings appear unnecessary and difficult. It is true that Virginia law strongly encourages the relationship between the natural parent and his/her child. In order for the stepparent to adopt, either the absentee parent must “consent” or it must be shown that the “termination” of the natural parent’s rights is in the child’s best interests. Proof must be “clear and convincing.” Procedurally, adoption can be complex.

      Yet, in appropriate cases, you may wish to move forward. Not only may the formalization of the new relationships help solidify the bonds that exist, but there are also incidental legal advantages as well, particularly in the estate planning areas. For example, if a stepparent planned to make his/her children the beneficiary of retirement or death benefits, the law may not recognize the stepchildren as his/her “legal” children if the stepparent has not formalized adoption. Moreover, sometimes children feel stigmatized by not having the name of the stepparent, whom he or she considers their real parents. Adoption would cure that.

      A mistaken belief is a person must be under 18 years of age to be adopted. The truth is adoption can take place at any age. Even if the child is older than 18 years, adoption can still be formalized. This is called an adult adoption. Normally, consent of the natural parent is not required.

      Stepparents who already consider the child they are raising and loving as their own may wish to consider adoption so that the law also recognizes the stepparent as the legal parent. You must, however, give careful consideration to the legal and practical consideration to the procedure when it has the potential to be adversarial.