FAIRFAX LAWYERS KEEP YOU UPDATED ON DC METRO LAWS

A SERVICE OF GROSS & ROMANICK, PC

Wednesday, January 27, 2010

Commercial Landlord Law: Evictions

Jeffrey Romanick, partner at Gross & Romanick, P.C., prevailed on January 26, 2010 at a rehearing of an eviction of a restaurant in Baltimore (Maryland) City District Court.  

The Tenant, who was evicted January 15, 2010 for non-payment of rent, requested and received three separate hearings after the originally scheduled eviction date and time in the attempt to prevent or undue the eviction.  Mr. Romanick successfully won all of the hearings.  During the most recent three hour hearing, the tenant's lawyer argued that the rent had been cured at the time that the writ of restitution was filed and that the tenant should be given the opportunity to cure the rental default.  Mr. Romanick effectively presented factual evidence and legal argument sufficient to prevail at the hearing.

Because of a threatened protest by the Tenant's customers and friends, Edward Gross (managing partner at Gross & Romanick) arranged for a bodyguard to accompany the Landlord's chief witness.

The grateful Landlord's property manager circulated the following message: "I'm pleased to report that the judge awarded in favor of the Landlord and that the eviction was not reversed. Jeff did a wonderful job in court today to secure a successful outcome for Landlord. The hearing was long but without incident. (The bodyguard) who [accompanied] me to hearing was very helpful.  Thanks to the entire group!!"

Gross & Romanick, P.C. is a very experienced law firm, handling commercial landlord matters. Phone: 703-273-1400;  Website:www.gross.com

Wednesday, January 13, 2010

ASAP Pre-court Evaluation

The Alcohol Safety Action Program (ASAP) was established by the Virginia legislature to provide alcohol courses and programs for persons convicted of a DWI (Driving motor vehicle, engine, etc., while intoxicated). As a condition of probation and to obtain a restricted license, a person convicted of a DWI must enter into and successfully complete ASAP. Although a court may decline to order participation in ASAP if the assessment by ASAP indicates that intervention is not appropriate for such person, it almost never happens in the Northern Virginia courts. Nevertheless, a pre-court evaluation by ASAP can be a valuable tool in certain cases.

While an ASAP evaluation normally takes place after a conviction of a DWI, Fairfax ASAP offers a pre-court evaluation service. Someone who is charged with a DWI and who took a blood or breath test indicating a high level of alcohol may wish to obtain a pre-court evaluation. In cases of high blood alcohol levels a judge may require an ASAP evaluation before issuing a restricted license. A pre-court evaluation which indicates that the accused does not have a serious alcohol problem and will not be a danger on the road may enable this person to obtain a restricted license at the first court hearing. Since an ASAP evaluation in Fairfax County can take 6 weeks or more to obtain, a pre-court evaluation may save a person from a substantial period of time without a driver's license.

An appointment for a pre-court evaluation must be made at least several weeks prior to the court date. The evaluation interview is conducted in a group setting and takes approximately three hours. The pre-court evaluation report contains a demographic statement, offense history, alcohol and drug history, recommendations for program requirements and a risk assessment. A copy of the pre-court evaluation report is sent to the court, the defendant's attorney and the client.

Although a good evaluation can be very helpful, a bad report can be devastating to the attempt to obtain a positive result in court. Because the report generally contains information about the drinking behavior of the accused on the day of the charge, a decision to obtain the pre-court evaluation should be made in consultation with an experienced DWI lawyer. This lawyer can also advise the client on how to properly conduct oneself during the interview.

***

The above is not meant to replace legal counsel. If you'd like to speak to one of the attorneys at Gross & Romanick, call the firm directly at 703-273-1400 or fill out their online information request form.

Tuesday, January 12, 2010

Residential and Commercial Tenants: Do Not Treat Them the Same

All leases are not created equal. Commercial leases are generally governed by the specific terms of the lease agreement between landlord and tenant, but Virginia law automatically merges certain statutory terms into every residential lease. The Virginia Residential Landlord Tenant Act gives residential tenants considerably more rights than are afforded to commercial tenants.

Evictions

The differences between residential and commercial leases are most starkly apparent when a landlord attempts to evict a defaulting tenant. Commercial landlords have rights of self-help; they can, under proper circumstances, simply lockout non-paying tenants (as long as this is done with great care - see Edward Gross Report, Spring 1992). Residential landlords, however, have no such remedy. The Virginia Code Section §55.248.36 provides that "Landlord may not refuse to permit tenant access to a unit unless refusal is pursuant to a court order." Furthermore, a residential landlord is also forbidden from denying essential services to his tenant, such water, heat, or electricity, in an effort to force out that tenant. Residential tenant must be served with a 5 day "pay or quit" notice before eviction, but no such notice is required for commercial tenants (we recommend serving notice on both types of tenants).

Duty to Maintain

A commercial landlord has no duty to maintain the premises during the lease term; repairs are the responsibility of the tenant. Of course, both commercial landlords and tenants can, and often do, specifically contract to impose a duty to repair upon the landlord, but no such duty is implied in law. Conversely, the Virginia Residential Landlord Tenant Act imposes a specific affirmative duty on every residential landlord to maintain and repair the premises throughout the term of the lease. A residential landlord must keep all common areas in a clean and safe condition, must maintain all plumbing and heating, sanitary facilities, and any appliances on the premises. A residential landlord also has a general obligation to keep the premises in a "fit and habitable" condition. These duties can be transferred to the tenant, but the transfer must be in writing and done for a "good faith" purpose (something other than just an attempt by the landlord to evade his obligations).

Security Deposits

In commercial settings, the amount and disposition of security deposits are generally governed by provisions of the lease. The lease will spell out for what purposes it can be used by the landlord, and when and how the security deposit is to be returned to the tenant. Residential landlords, on the other hand, must comply with Section §55-248.11 of the Act, which provides detailed procedures and rules governing the use of residential security deposits. Among its provisions, the Act mandates that a residential security deposit cannot exceed more than two month's rent; and the landlord must provide interest at five percent per anum payable to the tenant upon termination of the lease (if the deposit is kept for over thirteen months).

The residential landlord may apply the security deposit only to the payment of accrued rent (with attendant late charges), and to offset damage to the premises caused by the tenant. The landlord must inspect the premises for damage within 72 hours from the time the tenant vacates, and the tenant has a right to be present during the inspection. After making deductions for damage, the landlord must return the remaining portion of the security deposit within thirty days after the termination of the tenancy, along with a written itemization of the damages to which the deposit was applied. If the landlord fails to comply with any of these provisions, the tenant may recover from the landlord the security deposit plus any actual damages and reasonable attorney's fees.

In the Fall, 1991 edition of the Edward Gross Report, an article discussed the possibility of losing a security deposit after foreclosure. In fact, this only applies to commercial tenants because Virginia Code Section §55-248.11 states: "The holder of the Landlord's interest at the time of termination of tenancy regardless of how that interest is acquired or transferred...shall be required to return any security deposit received by the original Landlord."

***

The above is not meant to replace legal counsel. If you'd like to speak to an attorney at Gross & Romanick, please contact the firm directly by calling 703-273-1400 or by filling out their online information request form.

Thursday, January 7, 2010

The Automobile Injury Patient: How to get paid

Many doctors who have treated personal injury victims have themselves become victims due to nonpayment of the medical bills. The desire of physicians to help the personal injury patient is often peppered with the fear that the mounting bills will not be paid or may not be paid for several years. However, there are ways to significantly reduce the risk of delayed or nonpayment for this type of care. In fact, the automobile injury case affords the doctor many avenues of insurance coverage not available in other types of case.

This article will discuss the best means of protecting your rights to be paid, utilizing available insurance and avoiding the pitfalls inherent in these cases.

Know Your Patient's Attorney

Contrary to political grandstanding, not all injuries are compensated by the court system through awards of millions of dollars. In fact, a great number of juries render verdicts for the defendant and give no money to the injured party. Ask the patient's attorney for an evaluation of the likelihood of success, especially if you are asked to wait for your money until after settlement or trial. Your bill is an extension of credit and you are entitled to consider whether you should invest in this case. A skilled attorney will want to cooperate with the doctor for many reasons including the need for medical reports and expert testimony at trial.

The good attorney should search for and help process insurance in order to pay the medical bills as they accumulate. Unfortunately, many attorneys believe that their only obligation is to handle the legal case without regard to payment of the medical bills. Even worse, many lawyers will help clients obtain the insurance coverage payments and advise them that they are entitled to keep this money even if it means a failure to pay the doctor.

While competent counsel cannot guarantee a win at trial, an inexperienced or ineffective attorney will have a difficult task contending with the high-caliber law firms hired by the insurance companies. Even if no suit is filed, an attorney who does not specialize in this area of law will generally not obtain the same level of settlements as experienced counsel. Finally, be extremely skeptical of the patients who are handling their own personal injury cases; insurance companies will take advantage of this situation. Doctors treating self-help patients should insist on "pay as you go" or refer them to a lawyer.

Medical Payments Coverage

Most automobile insurance policies have medical payments coverage, which is a "no-fault" source of payment for medical bills. If this type of coverage is included in a Virginia policy, there must be a minimum of $2,000 available (typical coverage is $5,000) over a maximum period of 3 years treatment. Policies issued in other States have similar provisions. The medical office should process these bills to obtain direct payment to the office. Allowing the patient, to process these bills may result in loss of this income. Before you rely on the attorney, find out his philosophy in this respect because many attorneys consider this money to be the property of the client. The patient's insurance agent can explain the amount of coverage available.

Do not expect the insurance company to offer information regarding the availability of coverage. Quite often, the insurance company will tell you to go to the liable party's insurance even when there is medical payments coverage. An attorney's call or letter should overcome this difficulty.

Reimbursement is only required for "reasonable and necessary expenses." Under this standard the insurance companies regularly claim that the treatment was excessive, that certain procedures were not needed or that the bills were abnormally high for the type of injury. They will request the medical records, narratives and other proof; give them what is reasonable, but do not accept a determination not to pay. The doctor's office must often advocate on behalf of the patient and should get the lawyer to insist on payment.

Do not assume a lack of coverage. Medical expense coverage may be available to many unexpected parties, such as relatives of policyholders even when they are in someone else's vehicle or are pedestrians. Read the policy. Ask the lawyer to make inquiries.

Health Insurance

Under Virginia law, medical bills must be paid by the health insurance carrier even if there is a personal injury-third party claim. Health insurance should be handled in the normal manner.

The medical office should not agree to any reimbursement to the health insurance company by way of assignment, subrogation or other type of pay back. Except in limited circumstances, health insurance policies issued in Virginia cannot require repayment to the insurance company. Therefore, do not reimburse any insurance company for payment received on a paid bill without the specific permission of the patient, as this may cause tremendous problems in obtaining return of this money by the patient from the insurance company.

Lien or Assignment

The patient and the lawyer should always be required to sign a lien/assignment form which requires the lawyer to pay the medical office out of the patient's portion of any settlement or judgment. Be sure the form is sent to the law firm. Current billing should be sent in order to be sure that the latest amount is paid.

Oral promises to pay out of settlement are not enforceable. Just sending the bills to the law firm will only amount to a total lien of $300 under the Virginia Code. Do not send this billing and medical records information directly to the insurance companies, unless instructed to do so by the law firm.

***

The above article is not meant to replace legal counsel. If you'd like to speak to an attorney at Gross & Romanick, call 703-273-1400 or fill out their online Information Request form here.