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Tuesday, April 28, 2009

Landlord's Duties for Criminal and Terrorist Attacks

Although there is no specific body of terrorist case law, legal analysis of landlord's liability for acts of terrorism will probably rely on the general body of law involving landlord liability for criminal actions of third parties.

Unless there is a lease provision obligating the landlord to provide security measures, a lawsuit will be based upon a negligence (tort) theory. The required elements for asserting a negligence case against a landlord are: (a) a duty to protect the victim, (b) the attack was foreseeable, (c) breach of a duty to protect the victim, and (d) the breach was the proximate cause of the attack and the victim's injuries.

District of Columbia: One of the first cases to hold that a landlord has a duty to protect tenants was a 1970 District of Columbia case, Kline v. 1500 Massachusetts Avenue Apartment Corp., in which the court imposed a duty on residential landlords to take reasonable steps to protect tenants from foreseeable criminal acts by applying a warranty of habilitability to defects in security and by recognizing a "special relationship" between landlord and tenant.

Virginia: There are some cases in Virginia, such as Thompson v. Skate America (2001), in which the landlord was held liable for an assault. Nevertheless, for the most part Virginia has not favored these suits. A 2001 Virginia Supreme Court case, Yuzefovsky v. St. John's Wood Apartment, indicates that there are very limited circumstances in which liability will be imposed on a property owner, leasing broker or property manager for injuries to a tenant or invitee.

Facts of Yuzefovsky Case: Prior to signing the lease, Plaintiff had specifically inquired about the safety of the apartment building. The property manager stated that the development was "safe", that police officers lived in the development and that police vehicles patrolled the development. The tenant sued the landlord for being shot by a sawed-off shotgun in the common area of the development. After the shooting the tenant learned that in 1 year there were 656 crimes reported in the vicinity and within 3 years there were 257 crimes (including 5 robberies and 8 aggravated assaults) reported in the development. Thus, it was proven that the landlord's employee had misrepresented that the development was safe and crime-free, and that police lived in and patrolled the development.

Finding by the Court: While the Virginia Supreme Court concluded that the statements of the property manager were fraudulent, it found that the fraud was too remote from the criminal assault to give rise to liability. The Court stated that there might be a contract claim based upon fraudulent inducement, but not a claim for negligence.

When would Virginia impose liability? The Court enumerated some circumstances under which the landlord might be held liable for a criminal assault, including if the landlord knows that criminal assaults were occurring or were about to occur on the premises. With this knowledge there would be a heightened degree of foreseeable harm that would impose a duty on landlord to protect tenants and invitees.

The above article is not meant to replace legal counsel. To speak to one of our attorneys please contact Gross & Romanick directly at (703) 273-1400.

Wednesday, April 22, 2009

Payment Bonds

If your company is a subcontractor or supplier to a government project, you need to understand payment bonds. Some private jobs also utilize payment bonds. The federal statute generally applicable to payment bonds on federal projects is the Miller Act, with state and local statutes termed Little Miller Acts.

Payment Bonds Defined

Payment bonds are required on almost all federal, state and local construction projects. Federal and state laws require these bonds on public projects for the protection of the subcontractors, materialmen and suppliers against insolvent or defaulting contractors and subcontractors. Although no legal requirement exists regarding privately owned construction projects, payment bonds are frequently required by owners and lenders.

The bonding relationship is as follows: The "principal" is the general contractor or the subcontractor whose work is being bonded. The "surety" is usually an insurance company that is standing behind the principal. If the general contractor is the principal, the "obligee" is the owner of the project. If the subcontractor is the principal, the "obligee" is the general contractor. The "claimant" is the subcontractor, materialman or supplier seeking payment from the bond.

Who is Covered, and What is Covered

Payments bonds posted by a general contractor will always cover the subcontractors, materialmen and suppliers who have a direct relationship with that general contractor. On public projects, a general contractor may be required to have its subcontractors post payment bonds; in such a case, sub-subcontractors, materialmen and suppliers to those subcontracts will then be covered by the bonds of those subcontracts. In addition, on both public and private projects, the terms of a payment bond itself might extend coverage to include suppliers and materialmen who would not generally be covered.

The terms of a payment bond along with any applicable statutes define the extent of the bond's coverage. The typical payment bond coverage is for labor and materials furnished for use on contract projects. Numerous factors are considered by the courts in determining coverage, including the relationship of the parties, the nature of the product or labor provided and the cost of the work or materials relative to the overall project. Such an analysis is complex.

Notice Requirements

Notice of a bond claim to the principal and surety needs to be done within prescribed time limitations in order to pursue a claim. The terms of the payment bonds on both public and private projects typically contain strict time requirements for giving notice, as well as time limitations on when suit must be filed. Furthermore, federal, state and municipal statutes will set strict time deadlines.

For state projects in Virginia, the applicable statute is Virginia Code Section 11-60B. This section bars suits or actions under certain circumstances on a payment bond unless the claimant had given written notice to the principal and surety within 180 days after it performed the last of the work or labor or furnished the last of the materials for which the claim was made.

Summary

Before you begin a job, get a copy of the bond that covers the project in order to determine whether you are covered and how to enforce your rights. Notices of your claim must exactly track the bond and applicable statutes. Legal enforcement is never simple, since the principals and sureties typically assert every available defense.


This brief article is only meant to provide a very broad overview of the complex area involving payment bonds and cannot be relied upon as a substitute for legal advise. Contact Gross & Romanick directly by calling (703) 273-1400 if you need information about your specific situation.

Thursday, April 16, 2009

Fairfax Injury Lawyer

The personal injury lawyers at Gross & Romanick are poised to represent you in your personal injury case.

We'll:

Investigate your personal injury claim
Identify potential insurance coverage sources
Correspond with the identified insurance companies
Coordinate medical bills payment
Stay in regular contact with your medical support team
Negotiate a settlement for you
File suit for you
Protect your interests during the entire process

To speak to one of our personal injury lawyers today contact Gross & Romanick directly at (703) 273-1400.

Tuesday, April 14, 2009

Contractor's Hit Hard By Taxes/Licenses

If you do construction contract work in Virginia, you may wonder when the taxes end and the profits begin. Both federal and state laws require income taxes, but you may not realize the extent to which localities can pick your pocket. Here is a brief summary of some of the taxes and fees that Virginia counties, cities and towns can levy on your business:

§58.1-3703 - Counties, cities and towns can require a license, impose a fee and assess a license tax.

§58.1-3706
- Under the new BPOL tax restrictions, localities cannot impose a license tax on gross receipts of $100,000 if the locality has more than 50,000 people or $50,000 to $25,000 if the locality has between 25,000 and 50,000 people. For contractors, the rate can be no higher than 16 cents per $100 gross receipts. However, BPOL rates can be set higher if a locality had such rate set on January 1, 1978.

§58.1-3714
- Contractors subject to a license tax can also be required to post a bond and prove maintenance of workers' compensation coverage before getting a business license.

§58.1-3715
- Contractors are exempt from paying to other localities if they pay the required license tax in their office locality. However, if the work in another locality exceeds $25,000, that locality may assess a license tax.

Virginia also has no shortage of licensing requirements, including:

§54.1-1106 - Class licenses are required by all contractors doing work valued over $70,000 in a single contract or project; or $500,000 over a twelve month period.

§54.1-1108
- Class B licenses are required by all contractors doing work valued over $7,500 in a single contract or project but less than $70,000; or a total of $150,000 but less than $500,000 over a twelve month period.

§54.1-1108.2
- Class C licenses are required by all contractors doing work valued over $1,000 in a single contract or project but less than $7,500; or a total of less than $150,000 over a twelve month period.

§54.1-1111
- Before issuing a building permit, a locality can require proof of licensing or an affidavit demonstrating that a license is not required. In addition, an applicant must prove that required license fees and taxes have been paid.

§54.1-1113
- Nonresident bidders cannot bid on jobs in Virginia without appointing the Director of the Department of Professional and Occupational Regulation as their agent for lawful process.

§54.1-1115
- A fine of $500 per day can be assessed for failure to obtain a valid Virginia contractor's license or certificate, as well as conviction of a Class 1 misdemeanor.

§54.1-1117
- Counties, cities and towns can require local licenses if contractors do not have a Class A license.

The above article is not meant to replace legal counsel. To speak to an attorney, contact the offices of Gross & Romanick today.

Tuesday, April 7, 2009

Traffic Case Dismissed

Recently, Gross & Romanick had a client with a severe point accumulation against his VA driver’s license. He was charged with running a red light and faced an additional 60-day license suspension from DMV if convicted. Thanks to Gross & Romanick, though, his case was dismissed at trial.

He wrote the following to the firm afterward to say:

“I want to thank you again for managing to get my case dismissed. I was quite impressed. I would absolutely use your firm for any future legal concerns and you are my only legal referral! Hopefully all future dealings will be non-traffic related. Again, thank you for your fine legal work.”

Friday, April 3, 2009

New Mechanic's Lien Statute: Cure of Just Another Hurdle

Several major title insurers refused to continue writing title insurance in Virginia, citing loses from undisclosed mechanic's lien claims. Since the Virginia Code permits notification of a claim even after settlement, many residential properties would be conveyed prior to notification, which caused problems for the new owners and their title insurers.

With the participation of the title companies the Virginia legislature has amended the mechanic's lien statute, which substantially alters the notification procedures relative to one and two-family residential dwellings. A construction project may have a "mechanic's lien agent" for receipt of notices from potential mechanic's lien claimants. The agent will be identified in the building permit, which must be "conspicuously and continuously posted" on the property. If no agent is designated, the normal rules apply.

A claimant must notify the agent in writing within thirty days of the time he first furnishes any work or materials. An agent may be designated after construction begins, in which case the claimant must provide notice within thirty days after such permit is issued. Notice must be sent by registered or certified mail or by physical delivery. The required contents of the notice are set out in Virginia Code Section 43-4.01(B).

Only title insurance companies, banking institutions, and attorneys may perform the duties of a mechanic's lien agent. Builders who fail to disclose at settlement all claims for mechanic's liens will face criminal sanctions.

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This brief article is only meant to provide a very broad overview and cannot be relied upon as a substitute for legal advise. Contact Gross & Romanick if you need information about your specific situation.