Virginia's Statutory Warranty for New Homes

Purchasers of new homes in Virginia are granted special warranty protections -- by statute -- that purchasers of used homes do not receive (an important parenthetical: since caveat emptor remains the general rule in Virginia, all home buyers are well-advised to hire a licensed inspector and to make their offer-to-purchase contingent on the results of the inspection).

The applicable statute for new homes is Code of Virginia Section 55-70.1 (you can read it here).

As with other special rights granted by the General Assembly, every word of 55-70.1 is important. Unfortunately for careless purchasers, the vendor's liability for defects can be waived if the purchase contract includes the required waiver language and the purchaser signs off on the waiver.

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If the vendor is "in the business of building or selling dwellings," then the warranty in 55-70.1 provides that he warrants -- for a period of one year after conveyance of the property (or the date of the purchaser's taking possession, if earlier) -- that the dwelling and its fixtures are:

1. "Sufficiently free from structural defects, so as to pass without objection in the trade;
   
   
2. Constructed in a workmanlike manner, so as to pass without objection in the trade; and
   
   
3. Fit for habitation"

The warranty against structural defects applies for five years to the foundations of new homes. The terms "new dwelling" and "structural defects" are both defined in the statute. However, as you might imagine, a "structural defect" sometimes lies in the eye of the beholder, and thus the applicability of the statute is not always as clear-cut as one might expect.

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Manufacturers of many products in Americas disclaim any warranties as to their product's workmanship and performance -- sometimes, the disclaimers can fill entire pages of legal documentation included in the product's packaging. For that reason, when a legislature sees fit to include a warranty protection for a hugely important investment - a new home - it's particularly important that the buyer be aware of the nature of the protection and discuss with his or her Realtor or attorney what is or is not included.

Employment Law, E-Mail, and Expectations of Privacy

"The Law of E-Mail" may be fertile ground for an aspiring legal treatise writer.

We've written previously about courts grappling with the technology; see this post, for example, for an analysis of a City of Charlottesville Circuit Court decision examining whether a series of e-mails constitutes an enforceable contract.

Today we look at e-mail in the employment law context: in a recent Wall Street Journal article (here), Dionne Searcy cites a trend of courts holding that employees -- under certain circumstances (that's always the key, right?) -- have a reasonable expectation that e-mails sent from their work computer will remain private.

As Searcy points out, the prevailing view of e-mails sent from work computers has been that they are the property of the employer, regardless of whether the messages are sent from a work or personal e-mail account:

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.

Recently, however, several courts have sided with employees who've argued that they reasonably expected their e-mails from personal accounts were private -- as opposed to company -- property.

Searcy gives the example of a New Jersey decision:

In a case earlier this year in New Jersey, a worker on the brink of resigning from her job at the Loving Care Agency Inc. used a personal, password-protected Yahoo account on a work laptop to email her lawyer to hash out the details of a workplace discrimination suit she was planning to file against the agency. After the employee, Marina Stengart, left her job and filed suit, her employer extracted the emails from the hard drive of her computer laptop.

A lower court found that the emails from Ms. Stengart were company property, because the company's internal policies had put her on sufficient notice that her emails would be viewed. But a New Jersey appellate court disagreed, ruling in her favor in June, ordering the company to turn over the emails to Ms. Stengart and delete them from their hard drives.

The court's ruling went so far as to dissect the company's internal policies about employee communications and decided they offered "little to suggest that an employee would not retain an expectation of privacy in such [personal] emails." "We reject the employer's claimed right to rummage through and retain the employee's emails to her attorney," the appellate court ruling said.

Searcy does not cite to any Virginia decisions in the article (though she does review one Virginia dispute that settled), and given the small sample size it's difficult to say if she has identified an actual trend in the law or just several outlier cases.

Nevertheless, employers would be well-advised to articulate clearly and in detail (and in writing!) their e-mail policies. For their part, employees should always err on the safe side and not use the company computer for private correspondence.

Homeowners Association Struggles

One of the underreported stories of the housing downtown, to date, has been the increasing difficulties facing homeowners associations.

More than 60 million Americans live in subdivisions or condominiums which are governed -- to one extent or another -- by homeowners or property owners associations. These associations can be surprisingly influential in regulating people's lives - they are not government entities per se, but they certainly exercise powers that can look and feel like government. Unfortunately, many homebuyers pay little attention to the rules or structure of their property association at the time they make the decision to purchase.

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In an article in yesterday's Washington Post (here), Derek Kravitz reports that more and more associations in the DC-area are struggling. The problems can be divided into two main categories: financial difficulties (especially related to collecting assessments) and disagreements regarding governance.

Robert Diamond, a partner at ReedSmith (and former president of the Community Associations Institute), says that part of the issue is that homeowners associations are assuming functions that were formerly handled by local governments:

Diamond ... said that adding to the money crunch are responsibilities many associations have taken on in the past decade. Those functions, including the maintenance of private roads and lighting, trash removal and security patrols, used to be managed solely by local governments.

Virginia recently established the Office of the Common Interest Community Ombudsman. The Office's primary functions are (1) to hear complaints from associations and property owners and (2) to issue non-binding guidance on laws and regulations affecting associations.

You can link to the Ombudsman's website here. Business is strong: Kravitz reports that the Ombudsman has received 322 formal complaints through October of this year, in addition to 2,600 e-mails and phone calls.

The House of Representatives Will Examine the Estate Tax This Week

Amidst all its work on health care reform, we'd started to wonder whether Congress had forgotten to set-up a tickler to remind itself that the estate tax exemption amount becomes unlimited on January 1, 2010 (meaning that there'd be no federal estate tax on anyone dying in 2010, no matter how wealthy, if current law remained unchanged).

Kim Dixon, though, reports in last Friday's Washington Post (here) that the House is expected to take up revisions to the estate tax framework sometime this week. As Dixon writes, the stakes are high:

At stake are billions of dollars in taxes the U.S. Treasury receives annually from the existing tax and the desire by wealthy Americans for certainty in planning how to dispose of their estates after death.

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We wrote in early October (here) about the shifting tactics of interest groups with a stake in estate tax reform.

Justice Scalia and Brown v. Board of Education

Regardless of your opinion of his jurisprudence (at Richmond & Fishburne, it's a fair bet he has both admirers and detractors!), it is hard to argue that Justice Antonin Scalia is one of the most consistently compelling figures in American law.

Scalia's opinions have a stylistic flair that distinguishes them, and he rarely shies away from controversy. Central Virginians also take an interest in Scalia's work in light of his personal connection to the area: he resided in Charlottesville for several years in the 1970's while a faculty member at the University of Virginia School of Law.

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In yesterday's New York Times, Adam Liptak poses the question of how Justice Scalia would square his dogged constitutional originalism with the result in the landmark school desegregation ruling, Brown v. Board of Education. You can link to Liptak's piece here.

As Liptak points out, the weight of historical evidence demonstrates that the individuals who drafted and ratified the 14th Amendment -- the basis for the holding in Brown -- did not believe themselves to be ending school segregation and were, indeed, in favor of continued segregation. This makes originalists like Scalia uncomfortable, since they do not want to find themselves on the wrong side of a decision that is widely regarded as a legal -- and moral -- landmark in American history.

Liptak writes that, during a forum last month at the University of Arizona, Scalia was confronted with the question of how he would have voted in Brown. Uncharacteristically, Scalia ducked the question:

Justice Scalia did not give a direct answer to how he would have voted in Brown. “As for Brown v. Board of Education, I think I would have” — and then he changed directions.

He said he would have voted with the dissent in Plessy v. Ferguson, the case Brown overruled. But Plessy, decided in 1896, concerned the segregation of passengers on railroads. That is an easier case for originalists. For starters, railroads were long considered common carriers required to serve all customers equally.

Every good theory of constitutional interpretation should provide a framework for understanding, and defending, the decisions (like Brown) which are pillars of the American system of justice. From this writer's perspective, it sounds as though Justice Scalia is still struggling with how to explain and justify Brown using the originalist framework.

Proposed Increases in Albemarle County Zoning Fees

This coming Tuesday (November 10), the Albemarle County Planning Commission is holding a public hearing at which Commissioners will listen to feedback on the proposed increases in County zoning fees.

The zoning fees cover a range of applications and reviews, including zoning map amendments, applications for approval from the Architectural Review Board, and certain special use permits.

The fees have not been systematically revised since 1991. They are now significantly lower than analogous fees in other localities, and according to a County report issued this summer, the current fees do not re-coup the expense of staff time necessary to review the various applications.

The proposed fee increases have generated arguments -- in support and in opposition.

Opponents claim that the large increases (some fees would increase by a factor of 10) could stifle economic development just when the County needs it most. Supporters retort that the revised fee schedule simply puts the burden of zoning expenses on the individuals and companies who actually use them -- rather than spreading the expense among all taxpayers.

Brandon Shulleeta summarizes the zoning fee debate in this morning's Progress (here). As Shulleeta reports, Supervisors-elect Duane Snow and Rodney Thomas have both expressed skepticism about the proposed increases, so it will be interesting to see whether the current Board delays action on the Planning Commission's recommendations.

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One of the fee increases would be for an "Official Determination of Development Rights."

We have many clients who request an Official Determination of Development Rights, either in connection with contemplated conservation easements or when evaluating the terms of a real estate purchase. Currently, such a Determination costs $40, and we have long told clients that this is one of the best bargains in the world -- in light of the hours and hours that County staff spend poring over and analyzing deeds, plats and other records in order to determine the number of development rights that attach to a particular parcel. The proposed new fee for a Determination -- $750 -- would account for some of those hours of staff time.

The Supreme Court of Virginia's Decision in Keener v. Keener

In Keener v. Keener, the Supreme Court of Virginia held that valid forfeiture clauses in revocable trusts are to be strictly enforced. Keener was decided on September 18, 2009, and you can read the full opinion by Senior Justice Russell here.

Keener is a significant case because it is the first time that the Supreme Court has expanded the "strict enforcement" rule from wills to their ever-more-popular estate planning cousin: revocable trusts.

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First, some background. A forfeiture clause -- also known as a "no contest" or "in terrorem" provision -- typically looks something like this:

If any beneficiary of this will shall conduct or take part in any proceedings to invalidate or set aside this will or any provisions of this will, or to contest any action proposed to be taken by my Executor, then, in such event, the provision made in this will for the benefit of such person shall be revoked. Such person shall cease to have any right to any portion my estate, and the share of such person shall be distributed as if such person were deceased.

Wow! Sounds rather scary, no?

In fact, their scariness is the reason for the name "in terrorem," which is Latin for "to frighten": the purpose of including this kind of language in one's will (or trust) is to discourage the beneficiaries from engaging in unnecessary legal wrangling -- from going straight from the funeral home to the courthouse, if you will.

The discouragement is accomplished by frightening the potential-litigant by way of threatening to take away his or her portion of the estate.

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Whether a court will enfoce a forfeiture clause like the one above depends upon the state in which the will is probated. Some states enforce the provisions in all cases, while other states refuse to enforce them if probable cause exists for challenging the will.

In general, Virginia courts have tended historically to reach decisions that promote individual autonomy, and Virginia law regarding forfeiture clauses is no exception: Virginia strictly enforces the clauses because -- in the words of past decisions -- doing so protects an individual's "right to dispose of his property as he sees fit."

As a second rationale, Virginia courts also refer to the "societal benefit of deterring the bitter family disputes" that typically result when sibilings -- or parents and children -- take one another to court to fight-out what mom or dad really meant to do with their property.

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Getting back to Keener: the facts in the case are interesting, if a bit convoluted.

Debra Keener attempted to qualify as the administrator of her father's intestate estate, alleging that he did not have a will (though later agreeing, in court, to abide by the provisions of his will).

Mr. Keener's will (a pourover will, which left everything to the trustee of his revocable trust, to be distributed according to its provisions) did not include a forfeiture clause, while his revocable trust did include such a clause.

Certain of Mr. Keener's children argued that Debra's attempt to qualify as administrator should disqualify her from inheriting under the revocable trust, since it constituted a challenge to the trust (thereby triggering the forfeiture clause).

The Supreme Court disagreed: the Court held that Debra "made no objection to, or contest of, any provision of the trust" -- instead, her challenge was a challenge to the will.

Notwithstanding the Court's decision on the particular facts of Keener, it held that forfeiture clauses will be strictly enforced in revocable trusts, and it explained that the rationales for the newly-announced rule are the same as those for enforcing the provisions in wills: (1) protecting one's right to dispose of property in accordance one's wishes and (2) decreasing the likelihood of unnecessary and/or harmful litigation among beneficiaries.

Debra's siblings who objected to her actions, therefore, won a Pyrrhic victory (and perhaps not even that?), as they expanded the Court's prior rulings on forfeiture clauses but lost on the facts of their case.

The Legal Aid Justice Center Examines America's Prison System

We are thrilled to report that the turnout at last night's L.A.J.C. event, at the Paramount Theater, appeared to be the largest in the event's history.

The crowd was treated to Alex Gulotta's passion, John Grisham's humor and pointed questions, and a thoughtful examination of a very complicated issue.

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A particular highlight of the night was a poetry reading by Dwayne Betts, who spent eight years in prison and who now teaches in Washington, DC's public schools and has published a memoir (A Question of Freedom) -- with a book of poetry (Shahid Reads His Own Palm) to follow in the spring.

Betts's positive energy about the capacity of both individuals and institutions to reform themselves was incredibly inspiring. I particularly enjoyed his reflection on the power of the written word to change lives.

You can read more about Betts on The Atlantic's website, here.

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Helen Trainor also spoke at the event, discussing the work of the LAJC's Virginia Institutionalized Persons Project (you can read more about the Project here).

Trainor and the other speakers emphasized that Virginia continues to invest in building new prisons and locking more and more people up (including an ever-increasing percentage of inmates who are incarcerated for non-violent crimes). Unfortunately, the state invests tragically little in programs to rehabilitate inmates or to teach them the skills necessary to survive and thrive upon their re-entry into society.

The Legal Aid Justice Center Looks at America's Prison System

Tomorrow night is the Legal Aid Justice Center's annual fundraiser, at 7 PM at the Paramount Theater.

The topic this year is America's prison system. John Grisham hosts the event each year and does a fantastic job of orchestrating a panel discussion about the just-shown film.

There are still tickets available for tomorrow's event, and we are really looking forward to it.

"Who Can I Sue?" Rubs Some Lawyers the Wrong Way

A new Florida-based website called "whocanisue.com" (you can link to it here) is raising some hackles in the legal community.

The site, which was launched in 2008, attempts to match potential clients with attorneys specializing in the relevant field of law. It includes drop-down menus with broad categories (such as "Personal Injury" and "Nursing Home") and then subcategories (such as "Dog Bites" and "Bed Sores").

Certain members of the Florida bar are complaining that the site (1) feeds into negative stereotypes of lawyers "chasing" for clients and encouraging unnecessary litigation and (2) may violate bar guidelines that restrict the form and/or content of attorneys' advertisements.

The "Who Can I Sue" logo

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Attorneys in Virginia are subject to a series of rules that govern how they can (and cannot) advertise their services. The Virginia rules are currently the subject of considerable discussion about how they should be applied to new forms of electronic communication and marketing.

Some attorneys think that any overt advertising -- aside from hanging a shingle from the office door and perhaps a discreet listing in the Yellow Pages -- cheapens the profession. Others (like those behind whocanisue.com, we assume) argue that the public needs to be made aware of their legal rights, and attorney advertisements are one way that such education is accomplished.

As evidenced by the existence of this blog, Richmond & Fishburne is itself experimenting with new ways to reach out to the public. It will be interesting to see the way that the legal profession -- like many other professions -- continues to evolve with the ever-expanding reach of the internet.

Estate Planning in the National News: Brooke Astor

Since Brooke Astor's death in 2007, there has been contentious civil and criminal litigation regarding the distribution of her estate.

Last week, Astor's estate -- and the cast of intriguing family members, charities, and attorneys with a stake in its disposition -- were back in the news, in a major way, with the criminal conviction of her son.

Samples of the coverage are here (New York Times), here (Washington Post), and here (Wall Street Journal).

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When Astor's son Anthony Marshall was initially arrested in November 2007, Manhattan District Attorney Robert Morgenthau stated that "Marshall and Francis Morrissey (an attorney who represented Mrs. Astor in connection with her estate planning) took advantage of Mrs. Astor’s diminished mental capacity in a scheme to defraud her and others out of millions of dollars ... Marshall abused his power of attorney and convinced Mrs. Astor to sell property by falsely telling her that she was running out of money."

Last week, Marshall was convicted on 14 of the criminal charges related to defrauding his mother, including a conviction for grand larceny related to a retroactive $1 million raise that Marshall gave to himself as his mother's power of attorney. He faces up to 25 years in prison, though it sounds as though he's likely to appeal the convictions.

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Now that the criminal trial is complete (pending the posibility of appeal), the action will shift back to the Westchester County Surrogate's Court, where the primary issue will be whether Mrs. Astor had testamentary capacity to execute her 2002 will.

The 2002 document gave Mr. Marshall greater control over a larger portion of Mrs. Astor's property, as compared to her prior will (executed in 1997), which left a larger share of the property to charities including the Met and the New York Public Library and which left Marshall's share in trust.

Commentators writing about the criminal conviction last week generally agreed that the 2002 will is less likely to be deemed valid in light of the judgment against Marshall. However, it sounds as though the issue may ultimately be settled out of court.

The stakes are large: Mrs. Astor's estate was valued at approximately $180 million and several of the charities stand to lose in the range of $10 million if the 2002 will is deemed valid.

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Whether an individual has the "testamentary capacity" to execute a valid will is often described, in popular culture, in terms of whether the person is "of sound mind."

In Virginia, the testamentary capacity determination includes an assessment of whether the person actually understands the nature (and extent) of the property he possesses and the way that the will purports to distribute that property.

Interestingly (and importantly) the legal capacity to enter into a valid contract and the legal capacity to make a valid will do not necessarily equate in all cases. Moreover, as the Astor litigation is showing, a determination of testamentary capacity is not always clear cut (particularly when one or more potentially-benefiting parties believes, rightly or wrongly, that the testator was unduly influenced or defrauded).

Partnership Law: Smith v. Lowe

In an earlier post (here), we wrote about Virginia's Statute of Frauds. The Statute of Frauds requires that certain contracts be in writing in order to be enforceable. Many contracts, however, do not depend upon the existence of a written agreement -- this can be a rude surprise for someone who believes that legal obligations depend upon the existence of a signature.

Today we consider a related issue that focuses on the law of partnerships, rather than the law of contracts.

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Our clients are sometimes surprised to learn that a person can enter into a legal partnership -- and thereby subject himself to certain obligations, both to his partners and to third parties dealing with the partners -- without actually signing a written partnership agreement. To put it differently: Virginia law does not require a written agreement in order for a partnership to exist. What matters, instead, is the "intention" of the parties.

(Aside #1: "Intention." Now there's a word that a lawyer will love. It's right up there with "reasonble" and "substantial" on the hierarchy of ambiguous vocabulary!)

(Aside #2: in its 1989 decision of Wingate v. Coombs (237 Va. 501), the Supreme Court of Virginia considered whether a partnership agreement among purchasers of real estate must be in writing, in light of the Statute of Frauds requirement that contracts for the sale of real estate be in writing. In a fascinating decision, the Court held in the negative, based on the idea that interests in land held among partners are personal (rather than real) property: "A partnership for the purchase and sale of land for speculation, the profits to be divided among the partners, is valid when verbally made.")

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In Smith v. Lowe (September 9, 2009; 3:08 CV 736), the US District Court for the Eastern District of Virginia considered a dispute about whether a partnership existed in the absence of a written agreement.

Plaintiff James Smith alleged that he had formed a partnership with Defendant Barry Lowe (and others) when they agreed to cooperate in the installation of compressors at an electric power plant and then proceeded to work together for several years. Lowe and his affiliated companies provided much of the financing for the project, while Smith was in charge of machine maintenance and customer relations.

After working together for several years -- but having never formalized their relationship in a single written document -- Lowe et als. purported to terminate Smith. Smith argued that he was a partner with Lowe and entitled to share in profits from the project, and he sued Lowe and the affiliated companies for $2 million.

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In analyzing the facts and finding in favor of Lowe, Magistrate Judge Dohnal of the US District Court cited to Virginia's Uniform Partnership Act (the text of which you can link to here) and judicial interpretation of that Act's provisions. The Uniform Partnership Act defines a partnership as "the association of two or more persons to carry on as co-owners a business for profit ... whether or not the persons intend to form a partnership."

Based on this definition, Smith would seem to have a solid argument that a partnership existed between him and Lowe: after all, they had agreed to work together on the compressor project and, upon its conclusion, to share the profits after the distribution of certain administrative fees to Lowe's affiliates.

HOWEVER, said Judge Dohnal, the Supreme Court of Virginia has interpreted the critical words "carry on" in a way that defeats Smith's claim. In particular, the Supreme Court has held that carrying on means "the conduct of a business for a sustained period for the purposes of livelihood or profit and not merely the carrying on of some single transaction."

Applying this standard to Smith and Lowe's relationship, Judge Dohnal said that there was no evidence that the parties contemplated the "sustained" relationship which is a necessary condition of the formation of a legal partnership:

"Neither Smith nor the Defendants have presented evidence or argued that they ever contemplated similar endeavors for the future, or that they would join in smilar activity involving the purchase of additional compressors [for this client or other clients]. Accordingly, the business relationship would necessarily end with the [end of this project]."

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The provisions of the Virginia Uniform Partnership Act, even once they are read in light of the relevant case law, include ambiguous language that leave room for legitimate arguments from multiple perspectives. In Smith v. Lowe, the Court examined closely the course of dealing between the parties in reaching its decision. A major take-away is the value of obtaining a written partnership agreement (or other form of contract) in connection with a business venture that involves a significant investment.

The Chamber of Commerce, American Farm Bureau and Other Groups Change Tactics on Estate Tax Reform

In April of this year, we wrote that the estate tax debate was heating up (the post is here). Since then, however, Congress has focused the majority of its attention on health care reform (with the occasional foray into environmental regulation), and there's been little movement on the estate tax issue.

Last week, a coalition of business groups released a letter that has put estate taxes back in the headlines. The group, which includes the Chamber of Commerce and the American Farm Bureau Association, is advocating a permanent exemption amount of $5 million, with a 35% tax on amounts above $5 million. Ryan Donmoyer, at Bloomberg, has the story here.

The significance of the letter is that it represents a significant change in the business groups' position. Up until now, most of the groups had lobbied for a total repeal of the estate tax. As recently as last January, for instance, Bruce Josten of the Chamber called for sending the estate tax "to the grave once and for all."

Now, however, the business groups appear to have recognized the inevitability of some form of continued estate tax, in light of Democratic control of both houses of Congress. The letter is, therefore, a tactical concession aimed at preserving the groups' larger strategic aims -- (1) a higher exemption amount (to be locked-in rather than fluctuating from year to year) and (2) a lower rate.

Burdette v. Brush Mountain Estates, LLC

In its recent opinion in Burdette v. Brush Mountain Estates, LLC, the Supreme Court of Virginia held that a reference to an easement on a plat does not -- without more -- bind the successor in interest to the servient tract.

Burdette was decided on September 18, 2009, and you can read the full opinion by Justice Kinser here.

The decision has put the real estate and title insurance communities on notice that the Court requires, for the creation of an enforceable easement, a deed or other "instrument of conveyance" with valid "words of conveyance."

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In 1999, Kelly Burdette purchased 8 acres in Montgomery County, Virginia fromThomas and Margaret Davis. Brush Mountain Estates, LLC owned an adjacent parcel.

(For those unfamiliar with Virginia geography, Montgomery County is south of Roanoke and is the county in which Blacksburg is located. For those unfamiliar with Virginia sports, Blacksburg is the hometown of the football team that's off to a strong start, while Charlottesville's team is struggling mightily. Keep the faith, Cavalier fans -- it's only October 2.)

Burdette's deed from the Davises contained, in the description of the property being conveyed, a reference to a plat. The deed also contained standard, boilerplate language that the conveyance was made "subject to all easements, reservations, restrictions and conditions of record affecting the property."

The referenced-plat, which was signed by the Davises and Brush Mountain Estates, included a note that stated "50' private easement for ingress, egress, and public utility for the benefit of [the property owned by Brush Mountain Estates] is hereby conveyed."

Notwithstanding the note on the plat, Burdette argued that she should not be bound by the 50' easement because the Davises had not granted it by a deed or other valid instument of conveyance. Brush Mountain Estates countered that the conveyance was accomplished by the combination of the reference to the plat, the general "subject to" language, and the note on the Plat which purported to convey the easement.

The Supreme Court of Virginia held for Burdette.

According to the Court, the plat, and the note thereon, do not constitute an "instrument of conveyance" and valid "words of conveyance" (although the Court also held that a deed is not statutorily required in order to convey a binding easement, since an easement is not an "estate" governed by Code of Virginia Section 55-2).

Unfortunately, the Court does not provide a thorough explanation of why the phrase "easement ... is hereby conveyed" on the Plat note does not suffice as the operative conveying-language.

Our take-away from Burdette is that the Court wanted a "bright-line rule" regarding the ability to convey an easement by a plat alone, and in Burdette the Court has articulated such a rule: a plat notation, alone, is insufficient to convey a binding easement.

John Dickerson on the "Fine Print" of Health Care Legislation

Yesterday, John Dickerson at Slate delved into the nitty gritty of the lawmaking process.

Dickerson's piece (you can link to it here) brought to mind a law school course called Legislation. Among other topics, the class examined the issue of whether judges and lawyers -- when confronted with ambiguous statutory language -- can (or should) rely on "legislative intent" or whether they should adhere strictly to the "plain meaning" of the statute.

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According to Dickerson, Olympia Snowe and other Republicans are requesting that Congressional Democrats put the proposed health care bill into "legislative language" prior to bringing the legislation to a vote.

"Legislative language" refers to the actual, legalistic, technical [mind-numbingly confusing?!] language that that will appear in the US Code. The Democrats and President Obama, anxious to keep the process moving forward, want lawmakers to vote yea or nay based on the "conceptual language" -- plain, readable language that sets forth the general framework of the new law.

Dickerson argues that lawmakers should be able to decide whether a proposed bill is acceptable based on the conceptual language, and he analogizes to someone purchasing a house without actually reading every bit of fine print in the legal documentation:

Think of it like buying a house: I want to buy this house at this price. I make an agreement with the seller. A month later I sit down in a lawyer's office and go through page after page of legal jargon with someone I trust—not just to have the expertise to explain it to me but to protect me from anything I don't want in there. I could study real estate law, read the contract, and make my own determination—but I have a job and a family. If there's a problem with the final language of the contract, my lawyer alerts me and modifications are made (or I back out). That's what finance committee Democrats say Republicans will be able to do when the health care language is crafted into final language that will come up for a vote on the Senate floor.

Dickerson's piece is well-reasoned, and it is hard to expect that even the most diligent Representative or Senator has time to read every word of the hundred (and even thousand) page bills that are routinely enacted.

However, he probably overstates his case when it comes to health care reform.

Some of the key debates with which people are currently grappling do turn on the details, and in order to assess how the law will change the delivery of health care in the future, legislators need to examine the actual (fine print) wording on which decisions will be based. After all, many of the alleged insurance industry abuses (particularly as regards determinations not to cover certain medical expenses) which the President is attempting to reform are themselves based on "the fine print."