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9
Aug
2022

The Importance of A Guaranty.

Written by: Guy Jeffress

The decision of the Supreme Court of Virginia in Grayson v. Westwood Buildings L.P., 300 Va. 25, 859 S.E.2d 651 (2021) highlights the need to confirm a tenant’s financial ability to pay the rent during the term of a lease and obtain personal guaranties regarding the same.

The facts of the cited case are complex but can be briefly summarized as follows: Landlord obtained judgments for unpaid rent against tenants. Landlord, upon finding that the tenants and their principals had engaged in a number of transactions that left the tenant entities all but insolvent, filed suit against both tenants and other parties claiming, in part, that the defendants engaged in a series of fraudulent conveyances and sham transactions designed to avoid the judgments. The trial court found in favor of landlord making each of the remaining defendants jointly and severally liable for unpaid rent, awarding the landlord attorney fees, and imposing sanctions. On appeal, however, the Supreme Court of Virginia reversed the trial court, vacated the judgments, and entered the opinion as final judgment. The court noted that the “badges of fraud” relied upon by the trial court to support its findings “did not apply here.” The opinion also noted that the landlord failed to perfect landlord’s security interest in tenant’s inventory and other assets (as landlord was permitted under the terms and conditions of the lease) and did not obtain a signed personal guaranty from principals of the tenants.

The purpose of this article is not to undertake a deep dive in the law of fraudulent conveyances but to illustrate some basic strategies a landlord could use to avoid an outcome similar to that in the above-referenced case.

First, as regards landlord lien rights we have noticed that many landlords are quick to negotiate their lien rights away. The lien right is a powerful remedy to landlord. If a tenant objects because the rights of a lender or lessor of equipment are primary, offer to subordinate landlord’s lien rights to that of the primary lien holder until such time as the primary lien is satisfied or extinguished. It is better to be in a subordinated position than to waive the lien rights altogether.

Second, obtain personal guaranties from tenant principals and their spouses. Under Virginia law guaranty agreements must be independent agreements that are supported by separate consideration. The terms and conditions of a guaranty should also include certain waivers including a waiver of the application of certain Virginia statutes. The absence of said waivers could delay or jeopardize a landlord’s recourse against the named guarantor.

Third, when vetting a tenant, a landlord should undertake sufficient due diligence to accurately determine the tenant’s management structure and its credit worthiness. Additionally, the landlord should try to keep tabs on a tenant’s financial condition throughout the term of the lease by including language in the lease that allows the landlord to request, from time to time, financial disclosures from a tenant which are (preferably) audited or certified as true and correct by a principal of the tenant.

Fourth, we advise letting one of our lease attorneys review letters of intent prior to sending them to prospective tenants. Our financing and lease attorneys frequently notice issues in letters of intent that put the landlord on its hind legs before the first draft of the lease is even circulated.

Fifth, do not negotiate against yourself and offer concessions the tenant does not ask for, and do not give into the frequent lament of tenant brokers, “it’s not market” without substantial and verifiable data to back it up.

Recent changes in the economy and lender practices are prompting building owners to review their lease forms. If you are feeling challenged by current circumstances or have not reviewed your lease forms in the last few years consider having the lease attorneys at Vanderpool, Frostick & Nishanian, P.C., review your lease and lease-related documents.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

16
May
2022

Abandoned Permits

Written by: Guy Jeffress

On April 25, 2022, Prince William County Development Services, Building Development Division, issued Policy 1.03 entitled Abandoned Building Permits and Applications, and is in the process of auditing and revoking “abandoned” permit applications and issued permits. In general, an issued permit may be revoked if work on the site authorized by the permit is not commenced within six months after the issuance of a permit, or if the authorized work on the site is suspended or abandoned for a period of six months after the permit is issued; however, permits issued for plumbing, electrical and mechanical work shall not be revoked if the building permit is still in effect.

If current events including supply chain disruptions have delayed your project be sure to check the status of your permit applications and permits. The full policy along with a process flow chart can be seen below and found here https://www.pwcva.gov/department/building-development-division/abandoned-building-permits-applications.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

12
May
2022

Prince William County Is Totally Awesome And VFN Is More Gooder Than Other Firms

Written by: Guy Jeffress

In April 2022, the Commercial Real Estate Development Association (aka “NAIOP”), released the results of their national Developer Approvals Index study. The results of the study ranked Prince William County, Virginia in sixth place nationally, with an overall weighted score of 51, and attained a category-leading score of 75 points for “Consistency.” Consistency metrics covered code and ordinance updates, time frames for completed reviews, approval processes, feedback across different organizational levels and functions, including published approvals for project phases, and staff-based results, such as tenure, training, and their ability to handle complex projects. In short, Prince William County, Virginia is open for business.

For the attorneys at Vanderpool, Frostick & Nishanian, P.C., the study reiterated what we already knew, i.e., that Prince William County, Virginia, is a national leader when it comes to the provision of building development services and the approval of innovative projects including world-class data center infrastructure, bio/life science incubators, and higher education. Nor was the result of the study a surprise to some of our county’s most well-known business residents which include Amazon Web Services and the microchip manufacturer Micron.

If you are considering a project in Prince William County, Virginia, or any of the surrounding jurisdictions, the attorneys at Vanderpool, Frostick, & Nishanian, P.C. are able to bring their 80+ years of combined experience and community involvement to mitigate the legal risks and challenges related to your real estate development projects.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

14
Mar
2022

DON’T RISK YOUR BUSINESS BY IGNORING VIOLATION NOTICES.

Written by: Guy Jeffress

In a January 2022 unpublished opinion, the Court of Appeals of Virginia upheld the immediate revocation of a certificate of occupancy for a hospitality venue located in Fairfax County, effectively closing the business. The revocation was based in part on a single notice of violation issued by Fairfax County almost nine years prior in 2013.

In June 2012 the operator of the establishment obtained a non-residential use permit to open a restaurant located in Fairfax County. In March 2013, the Fairfax County Department of Code Enforcement cited the operator for violating the Uniform Statewide Building Code by constructing unpermitted additions. In May 2013, because the violations remained unresolved, the Department issued a notice of violation and two criminal summonses to the operator. The summonses were subsequently resolved by order of nolle prosequi (a dismissal without prejudice) to allow operator time to submit a “minor site plan,” which was necessary for obtaining the required permits. The operator initially attempted to obtain the minor site plan but ultimately abandoned the effort.

Between April 2014 and October 2019, no inspections were made on the property. However, in October 2019, the county received a complaint about a new structure on the property. A county official researched various records pertaining to, and visually examined, the property. The official observed various violations, including a newly constructed enclosure with a deck, bar, new plumbing and electrical fixtures, and gas fired heaters. The official determined that all of the alterations and additions were completed without appropriate permits.

In early November 2019 the official, accompanied by the fire marshal, returned to the property during business hours. They observed over one hundred people on the premises, which had a certificate of occupancy for a maximum of forty-nine. Shortly thereafter, the Building Official issued a revocation notice for appellant’s certificate of occupancy, effectively closing the business. The revocation notice identified various code violations dating back to the original 2013 notice/citation, and listed safety hazards created by the conditions on the property specified the corrective actions required, and contained information concerning appellant’s right to appeal. The operator appealed the revocation to the Virginia Department of Housing and Community Development State Building Code Technical Review Board (“TRB”). The TRB upheld the county’s finding and the operator appealed to the county circuit court which affirmed the TRB ruling.

The operator then appealed to the Court of Appeals of Virginia arguing that the revocation of the certificate of occupancy was improper on a number of grounds including: (i) that there was no evidence of repeated violations since the only notice of violation was issued in 2013; (ii) the TRB was required to issue a corrective work order and a notice of violation before revoking the certificate of occupancy; (iii) and operator should have been given a reasonable time for compliance before the revocation.

The Court of Appeals dispatched these arguments and affirmed the decision of the circuit court finding that: (i) no applicable law required the county official to provide a notice of violation before revoking a certificate of occupancy, and repeated violations were implied by the improvements to the property constructed between 2013 and 2019, all without the required permits; (ii) nothing in the building code required a notice of violation or a corrective work order before revoking the certificate of occupancy; and (iii) enforcement of the building code is a legitimate use of state power necessary to protect the health, safety, and welfare of its citizens.

Ignoring or shrugging off a single zoning or building code violation, even one made years prior, could jeopardize your business. Don’t wait until it’s too late, call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

12
Mar
2022

VF&N is pleased to announce that four of its senior associates have been named as partners!

VF&N is pleased to announce that four of its senior associates, consisting of Brett Callahan, Olaun Simmons, Guy Jeffress, and Bradley Marshall, have been named as partners effective March 1, 2022.“Each of our new partners have demonstrated superior legal ability, work ethic and commitment to our clients and our communities,” said Rick Nishanian, the VF&N Managing Partner. “We are lucky and honored to have such talented lawyers practicing at VF&N.”

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

12
Mar
2022

March Fun Friday Employee events

Every second Friday of the month VFN host a fun event for their employees.

This month’s Fun Friday did not disappoint. Murlarkey Distilled Spirits set up a tasting and a few mixed drinks at our office. Thank you MurLarkey Distilled Spirits for creating a memorable event for our staff.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

13
Jan
2022

Reporting Requirements For “Non-Financed” Real Estate Transactions In The Works

Written by: Guy Jeffress

On Wednesday, December 8, 2021, the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Treasury that works to safeguard the U.S. financial system from illicit use and money laundering, and to promote national security, issued an advance notice of proposed rulemaking (a “ANPRM”) to solicit public comments on proposed changes to the Bank Secrecy Act (“BSA”). The changes would require additional disclosures for persons involved in “non-financed” transactions involving both commercial and residential real estate. The ANPRM can be found at 86 Fed. Reg. 69589 (Dec. 8, 2021).

A “non-financed purchase,” “non-financed transaction,” “all-cash purchase,” and “all-cash transaction” are defined in the ANPRM as any real estate purchase or transaction that is not financed via a loan, mortgage, or other similar instruments, issued by a bank or non-bank residential mortgage lender or originator, and that is made, at least in part, using currency or value that substitutes for currency (including convertible virtual currency (CVC)), or a cashier’s check, a certified check, a traveler’s check, a personal check, a business check, a money order in any form, or a funds transfer.

According to a June 6, 2021, White House Press Release: “For too long, the U.S. real estate market has been susceptible to being manipulated and used as a haven for the laundered proceeds of illicit activity, including corruption. Our real estate market is a relatively stable store of value. It can be opaque, and there are gaps in industry regulation. As a result, criminals and corrupt officials are able to exploit real estate far too often.”

Recently reported cases and studies cited in the ANPRM and the press release indicate that many groups are using cash-only purchases of U.S. real estate to launder money. The end goal of the rulemaking process is to prepare a rule that would impose nationwide record-keeping and reporting requirements on certain persons participating in transactions involving non-financed purchases of real estate similar to those already required in financed transactions.

The ANPRM points out that there are several key factors that make these types of transactions appealing, those factors include, but are not limited to, the following:

First, the lack of transparency in the real estate market contributes to its vulnerability to money laundering activity. Real estate may be held directly or indirectly through nominees, legal entities (such as one or more shell holding companies), or through various investment vehicles. Buyers may use shell companies in many legitimate circumstances, such as when buyers use legal entities to shield themselves and their assets from liability related to the purchase of real property or as a means of protecting their privacy. Illicit actors, however, can take advantage of the opacity of shell companies or other legal entities or arrangements to mask their identity as the true beneficial owners of the property and their involvement in real estate transactions.

Second, the attractiveness of the U.S. real estate market as a stable vehicle for maintaining and increasing investment value also contributes to its vulnerability to money laundering activity. Illicit actors seek to conceal the origins of their illicit funds in a way that grows as an investment, “cleans” as much money as possible with each transaction and allows them to enjoy the fruits of their illicit activity while minimizing potential losses from market instability and fluctuating exchange rates. Consequently, real estate—especially in a relatively stable market with strong private property protections such as in the United States—is an attractive asset to facilitate money laundering. Real estate is highly appealing for this purpose because there are a large number of transactions, and each transaction is high is amount; as of mid-2021 the average residential sale price in the U.S. was about $350,000.

Third, the lack of industry regulation for non-financed transactions exacerbates the money laundering vulnerabilities of the U.S. real estate market. Non-financed purchases of real estate currently are not subject to the same regulatory requirements as those that involve financing underwritten by a financial institution which are subject to BSA requirements. This leaves a substantial portion of the real estate market without the same protections and safeguards as those applicable to banks, casinos, or other financial institutions. Moreover, data on real estate purchases is held in a patchwork of different state and county databases, making investigation and analysis difficult.

Written comments to the ANPRM must be received on or before Feb. 7, 2022.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

9
Dec
2021

Phase I Environmental Site Assessment – updated standard requirements

Written by: Guy Jeffress

Phase I Environmental Site Assessment – updated standard requirements

On November 1, 2021, ASTM International (formerly the American Society for Testing and Materials) approved revisions to the ASTM 1527 standard, more commonly known as a Phase I Environmental Site Assessment Report. Once the new standard is adopted by the Environmental Protection Agency (EPA), purchasers of real estate will need to comply with the updated requirements.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a property owner risks strict liability for environmental contamination caused by prior owners. However, CERCLA provides defenses for a current owner if the current owner satisfies certain requirements, i.e., the All Appropriate Inquiries (AAI) requirement. To qualify for an AAI defense, a prospective owner, prior to the purchase, must make reasonable inquiries to determine if a property has existing contamination, this includes conducting a Phase I environmental site assessment undertaken in accordance with the ASTM 1527 standard.

Potential purchasers of commercial real property should ensure that environmental professionals are conducting Phase I Reports according to the required standards, i.e., ASTM 1527-13 or ASTM 1527-21. Likewise, lenders funding acquisition loans should keep an eye open for the upcoming change. Adoption of the new standard, ASTM 1527-21, by the EPA is expected to occur in December 2021. There should be a “phase-out” or transition period during which both standards may be allowed. Note that as a result of the new standard Phase I reports may become more costly and time-consuming as environmental professionals get up to speed on the new requirements.

Additional information regarding the revised standard can be found on the ASTM website: https://newsroom.astm.org/astm-international-revises-standard-practice-environmental-site-assessments

Contact the attorneys at Vanderpool, Frostick & Nishanian, P.C., if you have any questions regarding the purchase and/or sale of commercial real estate.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

30
Mar
2020

Virtual Meetings and Consultations Now Available

In efforts to continue to serve our clients in a safe and CDC compliant manner, we are now offering virtual meetings and consultations.

If you are interested in scheduling a virtual consultation or meeting with your attorney, please call 703-369-4738 and one of our legal assistants will schedule a zoom appointment.

17
Dec
2019

Six Attorneys Named Legal Elite in 2019

Vanderpool, Frostick & Nishanian, P.C. is proud to announce that six of its attorneys have been recognized by the Virginia Business Magazine as being among Virginia’s “Legal Elite” within their various practice categories. All of the attorneys named have been nominated as Legal Elite in the past and we’re extremely honored to celebrate their continued success and exceptional work!

Litigation & Construction– Randolph Frostick

Land Use & Real Estate– Michael Vanderpool

Intellectual Property– Christopher Collins

Employment Law– Kristina Keech Spitler

Young Lawyer (under 40) – Brett Callahan

Business Law– V. Rick Nishanian