Source: Public Domain

Prior to World War II, it was not uncommon, especially in rural areas, for families to bury their deceased family members in a small corner of their property. Now that some of those rural areas are not so rural anymore, a property owner may be surprised to find that their land is host to the remains of prior owners from days gone by.

The owner of land that contains a family cemetery has two options with respect to the cemetery. The first is to allow the cemetery to remain in place. The other option is to obtain a court order allowing the relocation of the cemetery. In Virginia, a circuit court can order relocation of a family cemetery if the cemetery has been abandoned and it is not historically significant.

If the owner allows the cemetery to remain in place, that owner generally has no duty to maintain the cemetery, other than any duty local proffer requirements and zoning ordinances might impose.

If an owner wants to relocate an abandoned family cemetery on their property to an established cemetery, there are several steps the owner must take.

The owner should have a title examination performed to determine whether there is a reservation of rights to the cemetery in the chain of title. A reservation of rights to a family cemetery in a deed is generally not considered a reservation of the fee-simple ownership of the land that constitutes the cemetery. Rather, it is akin to an easement in gross that allows family members or other beneficiaries to make burials, visit, and maintain the cemetery. If the cemetery use is discontinued and the remains relocated, the reservation is extinguished, and the beneficiaries of the reservation have no further rights to the underlying land.

The owner should also confirm that the cemetery is, in fact, abandoned. The Virginia Code specifically requires that to be considered abandoned, there can have been no human remains buried in the cemetery for a period of at least 25 years. In addition, the owner should confirm that the cemetery is in a state of disrepair and has not been maintained in any way for a substantial time period.

Family cemeteries are generally not considered “historically significant” unless a historically significant person is buried there, there is some unique architectural aspect of the cemetery, or the cemetery is directly connected to a historically significant place or event.

While not required, it is advisable to get an archeologist to perform a cemetery delineation to confirm the boundaries of the cemetery and the location of any marked and unmarked graves.

It is also advisable to retain a genealogist to locate the descendants of those known to be buried in the cemetery and any other possible beneficiaries of any reservation of rights. If not all of the descendants can be located, the Virginia Code encourages the property owner to follow several guidelines, including publishing a notice for the public, and alerting local genealogical and historical societies.

If the cemetery has no historical significance and has been abandoned, the landowner can petition its jurisdiction’s circuit court for an order allowing the relocation of the cemetery to an established cemetery where the graves would receive perpetual care and maintenance. The property owner is responsible for the relocation costs.

Prior to filing a petition to relocate a cemetery, it may be advisable to contact the known descendants of individuals buried on the property to explain the process to them and to establish some goodwill. The owner should also ask them if they have knowledge of other descendants who might not have been identified, and ask them for consent to relocate the graves at no expense to them.

The petition must name “all parties in interest,” which is not clearly defined in the Virginia Code. Therefore, it might be advisable to include “parties unknown” in the petition. The “parties unknown” must be served through publication in a local newspaper and a guardian ad litem must be appointed.

It is within the discretion of a circuit court to determine whether the relocation is appropriate and, in the past, courts have ordered relocations over the objections of some descendants.

Once the court has entered an order and the 30-day appeal period has run, the graves can be relocated. This is usually handled by a licensed funeral home.

In many instances, it is simply not economically feasible to relocate an abandoned family cemetery. Other times, the size of the cemetery or the topography of the site make relocation an economic necessity. These are things to consider before filing a petition for relocation.

As a property owner, determining the best way to address a cemetery on your land can involve numerous parties and high costs, but it can be done.  If you have any questions about this issue, please contact John Rinaldi.

Source: LCE

Virginia’s Land Sense last interviewed Bill Fogarty about his passion to serve the Arlington community back in 2016. Since then, he has continued his community involvement as a reading mentor with Everybody Wins! DC, as a member of the Board of Directors for the Walter T. McCarthy Law Library, and as a youth adviser at his church. Bill has served as Chair of the Board of Directors at the Arlington Partnership for Affordable Housing (APAH), coached youth soccer teams for more than 10 years, and even chaired a Homework Committee for Arlington Public Schools. How does he stay motivated to continue his volunteerism? I sat down with him to find out, and his answer was: “A sense of curiosity, followed by more community involvement.”

Bill’s curiosity led to his involvement with Leadership Center for Excellence, located in Arlington, which he has been a part of since 2010. He has encouraged other Firm colleagues to become involved with LCE as well. This organization runs a multitude of programs to build and strengthen the community. LCE offers consulting services and workshops tailored to a company’s specific needs for reaching goals. They also offer a youth and young professionals program for those just getting their foot in the door. The range of programs offered by LCE provides people with professional skills and tools to network in a broad community. LCE also partners with numerous non-profit organizations to help them be more influential in the community.

In the Fall of 2010, Bill started with the organization’s Leadership Arlington program. This nine-month program is designed to train and inspire senior-level professionals who want to become better leaders in their companies and organizations. This intensive program is made up of people who live and/or work in Arlington ranging from governmental positions, business professions, and non-profit professions. The class meets monthly to discuss matters affecting the community and sometimes breaks into groups to discuss specific issues. Bill’s group closely examined the education system in Arlington.

LCE members are encouraged to showcase the skills they have learned by participating in ongoing annual events, which include presentations on topics of their choice to each year’s class. “My first talk was entitled ‘The New Arlington Way,’ in which I examined the process a community goes through to arrive at important decisions.” At the end of last year, Bill gave another talk as part of the LEAD Talks event, a forum to promote a program of learning and sharing ideas. I had the pleasure of attending this event and was enlightened by the experience. Bill’s talk expanded on his previous presentation, in which he spoke about the way contentious issues are approached and “the need for thoughtful conversation and reflection.” His talk did just that. He discussed the Civil War and its influence on today’s civil rights. His thoughtful approach examined the rich history of the state we live in and the remnants left behind by the legacy of slavery and the Confederacy. Other presentations touched on similar topics, from immigration challenges of starting a new life and what Arlington is doing to help create a diverse and inclusive community, to a presentation focused on appreciative inquiry and the journey to find what inspires people to be connected to their work. I found all of the presentations inspiring and thought-provoking. It made me look inward to examine what I could bring to the table in my own community.

Bill has likewise been inspired and motivated from attending many of these events over the years. “I have learned a lot from these presentations, and I envision the possibility that I will be presenting topics at future conferences.” This organization holds value in the community and is surely leading the way for forward-thinking leaders.

If you would like more information about Arlington’s Leadership Center for Excellence, visit their website: http://leadercenter.org.

Source: United States Tennis Association

The Prince William Board of County Supervisors announced that the United States Tennis Association Mid-Atlantic Section (USTA MAS) will move its headquarters from Reston to Prince William County. Land Use and Zoning attorneys Pete Dolan and Stephen Hall from the Firm’s Prince William office worked with USTA MAS and the Board of County Supervisors to obtain a zoning approval for the proposed 105,000-square-foot facility. USTA MAS’s plans for the $15 million facility include building new offices and state-of-the-art indoor and outdoor tennis facilities for hosting educational programs, tournaments, public tennis play, and special events.

USTA MAS serves more than 33,000 members in DC, Maryland, Virginia, and portions of West Virginia. USTA MAS identified Innovation Park as the future home of the facility, specifically a 46 acre parcel located across from the George Mason University Science and Technology Campus on Freedom Center Boulevard. The facility will add to the existing amenities at Innovation Park — George Mason University Manassas campus, the Hylton Performing Arts Center, Freedom Aquatic & Fitness Center, and Farm Brew Live.

Approval of the headquarters and tennis facility has generated significant and enthusiastic interest. The Prince William Board of County Supervisors provided USTA MAS with a $100,000 Economic Development Opportunity Fund grant as an incentive for the project. USTA MAS will provide the D.C.-metropolitan area with competitive sporting opportunities, and an estimated 300,000 visitors are expected to visit the new facility per year. The facility is not only a new recreation destination for local tennis players, it will introduce the sport to people of all ages and abilities and will inspire the next generation of tennis players in the region.

Source: iStock

Often, one of the first steps in the process of selling or buying property is entering into a letter of intent with the other party. Because an LOI is less formal and detailed than a purchase contract, many clients feel comfortable signing an LOI prior to involving an attorney; however, there are a number of key considerations for a party negotiating an LOI. Many such considerations are dependent upon whether the party is the buyer or the seller, including such basic considerations as whether or not it is advisable to sign an LOI and the level of detail to include in an LOI. Members of the Firm’s transactional team are experienced in walking clients through these key considerations and can help clients avoid common pitfalls.

Courts have taken various positions regarding whether LOIs are binding and enforceable agreements. In a recent decision[1], the Virginia Supreme Court held that an LOI (or, as it was referred to in the case, the “term sheet”) was itself an enforceable agreement. Decisions regarding the enforceability of LOIs are generally fact-specific, but specific language can be included in an LOI to address enforceability issues head-on. The enforceability of an LOI is an important consideration for both seller and buyer.

An LOI is the first attempt of the parties to memorialize the terms of their deal, and it sets expectations going forward. An attorney reviewing an LOI can help to identify errors, additional considerations, or problematic or unclear LOI terms. When you proceed to contract negotiations, it is difficult to alter an LOI term that may not have received enough attention or consideration at the LOI drafting stage. The other party will likely perceive a change to an LOI term as a renegotiation of the deal, and their response could be negative and resistant.

An LOI is a first bite at the apple, and although it is neither practical nor advisable to include every deal point in an LOI, an LOI can be a good and relatively inexpensive vehicle to bring to light unusual, key, or controversial deal terms. Without attorney involvement, a mistake parties often make is using a generic one-size-fits-all form LOI that does not reflect or attempt to tackle any of the nuances of their particular deal, such as conditions precedent and details regarding any necessary land use approvals. If there is an issue that may be contentious, the LOI provides an opportunity for the parties to resolve that issue prior to spending a lot of time and money negotiating the finer points of the contract. The LOI drafting and negotiation process can help the parties determine whether they are actually in agreement on key issues and identify the finer points that will need to be addressed in greater detail in the contract.

Finally, a key element that may appear in a LOI is an exclusivity clause. Such a clause generally provides that a seller agrees not to solicit, consider, or accept offers or bids from any other party for a specific period of time after the execution of an LOI to allow the parties, in good faith, to attempt to agree on a binding contract. Exclusivity provisions typically provide that they are enforceable against the seller, even if the rest of the LOI is not. Sellers and buyers generally have different views on exclusivity clauses. Exclusivity clauses are often glossed over but are worthy of discussion and consideration.

Once the LOI is finalized, the real fun of drafting and negotiating a contract can begin!

[1] LongView International Technology Solutions, Inc., et al. v. Terry Lin, et al., Record No. 160228, From the Circuit Court of Fairfax, CL 2014-14312.

A native of Northern Virginia, Matt first joined Walsh, Colucci, Lubeley & Walsh in 2007 after graduating from York College of Pennsylvania. At that time, he worked in the Real Estate Transactions and Business Transactions practice groups — first as a legal assistant, then as a paralegal assisting in the preparation of documents for the acquisition, finance, sale, and development of real property. Matt returned as a Summer Associate in 2009 and 2010, before rejoining the Firm as an Associate in 2011 after graduating from the Dickinson School of Law at Penn State University.

Today, Matt works with the Litigation and Eminent Domain practice groups assisting property owners and developers in zoning, subdivision, eminent domain, and other land use disputes in state and federal courts in Virginia. He also represents lenders, developers, and property owners in issues involving complex real estate transactions, landlord/tenant conflicts, and title, easement, and alley disputes. In addition, Matt assists clients in obtaining administrative approvals such as ABC licenses, complex business disputes, trusts and estates litigation, and drafting documents for the acquisition, finance, and sale of real property.

In his free time, Matt enjoys spending time with his family and friends, golfing, hunting, and rooting for his favorite sports teams. A former college baseball player, Matt is also part of the Firm’s Mushball team which competes annually against teams from other D.C.-area law firms and real estate companies in the Legal Mushball Classic benefiting the Washington Nationals Youth Baseball Academy. Last year, Matt and his wife, Kristin, welcomed their first child, a baby girl, Kennedy.

Read this month’s employee spotlight and get to know more about Matt!

The Land Lawyers: Thank you for participating in this month’s employee spotlight. You worked for the Firm on and off throughout high school, after you graduated from college, and finally as an Associate beginning in 2011. What made you decide to continue working with the Firm?

Matt Westover: The people. Period. I’ve heard many people say this Firm is a great place to work because of the people who work here, and I think that cannot be said enough. The Firm is a family, and I have been blessed to be a part of it for the last 10+ years.

TLL: When did you first become interested in the legal field? What interested you about it?

MW: The earliest I can remember sincerely taking an interest in the legal field was in college. What appealed to me most was the challenge of helping others accomplish a goal or avoid the consequences of a difficult situation.

TLL: Who would you say is/was your best mentor?

MW: This one is tough! I have been fortunate throughout my life to be surrounded by a number of people who have supported me and helped me achieve my goals. I have had wonderful mentors in my baseball, educational, and legal careers, and life in general. It is impossible to name just one because each has made a significant impact on my life. I would not be where I am today without any of them!

TLL: What do you like most about being part of the Land Lawyers team? What aspect of your role do you enjoy the most?

MW: First and foremost, the people who make up the Firm are what I enjoy most about being a part of the team. I also enjoy the intellectual challenge that comes with trying to help a client achieve his or her goal or work through a difficult situation.

TLL: Congratulations again on your baby girl! How is parenthood? What would you say are the biggest lessons you’ve learned so far?

MW: Thank you! Parenthood is fantastic! We have been incredibly blessed with Kennedy, who is happy, healthy, and full of energy. I’m sure I’m in store for many lessons as she grows up, but I think the biggest thing I have learned so far is to slow down and enjoy each moment with her because she is growing up way too fast! She may only be 9 months old, but it seems like yesterday we were in the hospital meeting her for the first time.

TLL: Aside from practicing the law and being a parent, what do you like to do for fun?

MW: Aside from spending time with family and friends, I enjoy golfing when it’s warm and skiing and bird hunting with our dog (a Brittany named Kayla) when it’s cold. I also enjoy watching baseball, football, and golf.

TLL: What is your favorite sports team?

MW: Although I have lived in Northern Virginia for almost 30 years, I was born outside of Seattle and raised a Mariners and Seahawks fan (I was also a Sonics fan until they moved to Oklahoma City …). My loyalty to those teams has not changed throughout the years. My dad and brother still live near Seattle, so I try to make it back for Mariners and Hawks games when I can.

TLL: Thank you, Matt!

Andrew Painter, a shareholder in the Firm’s Land Use practice group, is pleased to announce the publication of his book, Virginia Wine: Four Centuries of Change. The book chronicles the history and modern rise of the Commonwealth’s $1.3 billion wine industry from the earliest Spanish accounts in 1570 through its rebirth in the modern era. Cultivation of the grape — whether for agriculture, horticultural curiosity, or the production of wine — has absorbed the ambition of countless over the past 400 years. Indeed, no state can claim a longer history experimenting and promoting viticulture — nor can any boast a more spectacular record of initial failure and ultimate success — than Virginia.

Both academic and recreational interests in Virginia’s wine industry have exploded in recent years. Wineries have sprung up in all regions of the Commonwealth and prosper in places heretofore unimagined. “I have sought to provide readers with a detailed yet readable history that addresses an unmet need for a written record similar to those already available for the world’s more established wine regions,” Painter said. “Virginia viticulture and winemaking have come of age, and deserve no less.”

Andrew spent nearly a decade researching the growth of the industry and interviewing industry leaders. Firm shareholder John Foote and administrative assistant Jacqualine Allison assisted with drafting and editing the piece.

More information on the book, as well as copies for purchase, may be found here!

Walsh, Colucci, Lubeley & Walsh is pleased to announce that Michael Kieffer, real estate transactions attorney, has been named a shareholder of the Firm effective January 1, 2018.

“Mike has been a tremendous asset to the firm and is a very talented young man. The other shareholders and I are very proud to have Mike join us,” said Tom Colucci.

Mike works in the Firm’s Arlington office as part of the Real Estate Transactions practice group. He also supports the Firm’s Business Transactions and Litigation practice groups. Outside of the Firm, Mike volunteers his time serving as Board Counsel for the Foundation for Applied Technical Education, Inc., an organization dedicated to providing resources, support, and career opportunities to students enrolled in career and technical education programs in Fairfax County Public Schools.

In one of its last opinions for 2017, the Supreme Court of Virginia ruled that a misrepresentation of a stated fact in a contract likely cannot give rise to a claim of fraud by the misled contracting party. Rather, that misrepresentation will likely only support a claim for a breach of the contract itself, and any harm arising out of that misrepresentation may lead to contractual damages alone. This decision might not greatly alter the landscape, but it is still an important ruling that parties should consider when drafting agreements that are dependent upon mutual understanding of the present status of material facts.

The facts supporting the Court’s decision in the matter of MCR Federal, LLC v. JB&A, Inc.,[1] are straightforward. MCR Federal entered into a contract with the shareholders of another government contracting firm, JB&A, to buy its business. At the closing, MCR Federal certified that representations it made in the contract were true, including the representation that MCR Federal was not under any investigation or inquiry from a governmental entity that could materially harm MCR Federal’s ability to complete its purchase obligations to JB&A’s shareholders. However, as of the closing date, MCR Federal knew it was being investigated by the Air Force for allegedly lying about disseminating data it obtained from the Air Force to undercut a competitor’s bid on an Air Force contract. As a direct result of that investigation, MCR Federal was removed from federal contract consideration and thereafter defaulted on its purchase contract terms with the JB&A shareholders.

In Virginia, if a party incurs damages arising out of actions or reliance induced by another’s misrepresentations that were reasonably relied upon, that party generally may pursue a claim for fraud. If the misrepresentation induces a party to enter into an agreement it would not have otherwise entered into, that is known as “fraud in the inducement” and is a recognized claim in Virginia. For example, where a seller of a condominium complex concealed the fact that hardwood flooring installed in the complex at the time of closing was far inferior to the hardwood floor the purchaser saw in the condominium specifications, and the purchaser relied on the superior hardwood floor specifications when it entered the contract to purchase the units, the Court held the purchaser had a viable claim for fraud in the inducement.[2]

When JB&A shareholders brought suit against MCR Federal, it stated claims for breach of contract as well as actual fraud and constructive fraud in the inducement based on the falsely certified representations in the purchase contract made by MCR Federal. The Circuit Court of Fairfax County agreed with JB&A that the misrepresentations within the agreement presented to JB&A by MCR Federal were misrepresentations that induced the entry of the agreement. Therefore, the Circuit Court ruled that JB&A could bring claims of both fraud and breach of contract against MCR Federal, and ultimately entered judgments against MCR Federal based on both grounds and awarded JB&A attorneys’ fees for having proven fraud. In its final ruling, however, the Supreme Court of Virginia overturned all of JB&A’s claims based in fraud despite agreeing that the misrepresentation was otherwise proved by JB&A’s attorneys. The Supreme Court’s ruling was based on its review of the evidence and finding that the source of MCR Federal’s duty to disclose whether it was under investigation was created by the contract. Rather than being a misrepresentation stated prior to the entrance of an agreement, the misrepresentation was part of the agreement terms itself. As a result, JB&A would have to prove how its damages arose directly from the breach of that term in order to obtain judgment and was unable to obtain damages available to a party pursing allegations of fraud.

Fortunately for JB&A, the damages it suffered as a result of MCR Federal’s breach of the agreement were obvious because MCR Federal failed to pay the price of the agreement. Unfortunately for JB&A, its award of attorneys’ fees was overturned. Based on the Court’s ruling, the common-law jurisprudence this point forward suggests that if a party makes a misrepresentation of a material fact within the contract itself, there is no viable claim for fraud or fraud in the inducement and, instead, only contractual damages may be pursued.

For the rest of us, this ruling enforces the maxim that contracting parties must think twice about the value of the representations they are requiring be made part of any agreement and how they may be damaged in the event of a breach of any term. For example, had MCR Federal not yet missed a payment on its purchase price, what would the value of its misrepresentation have been to JB&A? Parties often require counterparts to make assurances or warranties in their agreements, but how often do they consider the value of that truth?

When negotiating the terms of a contract, Virginia law permits parties to narrow the scope of damages associated with a particular event of default in an effort to minimize the impact of a breach of any one term. Conversely, liquidated damages or pre-agreed awards can be built into an agreement so that the breach of any one term results in automatic payments or other awards that do not require an aggrieved party to prove the effect of any given default. These are excellent methods for analyzing and negotiating for a party’s reliance on these terms.

Parties should also be encouraged to perform due diligence to ensure a mutual understanding of underlying status of the substance of the agreement. The following are methods parties can use to ensure they are on the same page prior to and after execution of the agreement, and through closing: obtain references of each party to ensure both have always been truthful in past agreements, and both are suitable counterparts to carryout the terms of the agreement; require each party to affirm facts at the end of certain time periods after executing the agreement, which gives each party time to investigate the truthfulness of the assertions, instead of reaffirming everything at closing; and request that each party disclose certain financial or other business-related information prior to entering the contract, and that each remains under an obligation to continue disclosing such information through closing. The Court strongly suggests that these sorts of contractual responsibilities will only be enforced through damages provisions the parties include in the contract, which is why diligent parties will also negotiate for damages provisions that explicitly cover breaches of these requirements in their agreement.

Parties may also find themselves questioning whether they should include certain representations in a contract. But all parties will be safe if they negotiate damages provisions into contracts that provide a remedy for breach of the terms contained in the contract, and will make them whole in the event a material term is breached.

It is likely not reasonable to expect the party across the negotiating table to agree to include aggressive damages provisions in every contract (i.e., punitive damages) because the party would find it unreasonable to increase its potential liability when it is committed to negotiating in good faith. Alternatively, it may raise a red flag if one party negotiates fervently against adding certain damages provisions in a contract. There may be a much higher risk of contracting with a party that is reluctant to include damages provisions to account for certain types of defaults when there is no longer a remedy for those defaults outside of the contract. A truly diligent party will strive to foresee where it needs safeguards when doing business with its counterpart. If the truth of any one representation can make or break your deal, you should speak with your transactional counsel not only about ways to ensure the validity of the representation, but about ways to ensure you are made whole by any breach.

[1] MCR Federal, LLC v. JB&A, Inc., Record No. 161799 (Dec. 14, 2017).
[2] See Phillip Abi-Najm, et al. v. Concord Condominium, LLC, 699 S.E.2d 484, 490 (2010).