P R O B A T E   &   P R O P E R T Y
July/August 2003
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Articles from other issues of Probate and Property


Keeping Current Property

Keeping Current-—Property Editor: Daniel B. Bogart, Chapman University School of Law, One University Drive, Orange, CA 92866, bogart@chapman.edu . Contributing editors: James C. Smith and William G. Baker.

Keeping Current—Property offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.


CLOSING CHARGE for recording may exceed actual cost. Republic Title closed plaintiffs' home purchase, charging $50 for recording the mortgage, while paying the recording office only $36. The Real Estate Settlement Procedures Act (RESPA) prohibits the receipt of a charge "other than for services actually performed." The Seventh Circuit held for defendant, interpreting RESPA to bar only the splitting of fees (kickbacks). The court rejected a policy statement, issued by the Department of Housing and Urban Development in 2001, declaring that any repricing of charges is unlawful. The court stated that the HUD statement was not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), although Judge Posner, author of the panel's opinion, and Judge Easterbrook, concurring, expressed different reasons for that conclusion. Krzalic v. Republic Title Co., 314 F.3d 875 (7th Cir. 2002).

CONTRACT must name legally appointed church trustees. A contract naming the Seventh Day Adventist Church as buyer was signed by its pastor, with no indication of his capacity. The trustees of the church sought specific performance. A West Virginia statute mandates that a congregational-type church can purchase real property only through trustees, with an order of appointment of trustees recorded in the real property records. The pastor was not a trustee, and the appointment of trustees was recorded after the trustees filed the action against the seller. The supreme court held the contract void and wholly unenforceable. The court's formalism disadvantages churches, compared to other persons who purchase and own land. The questionable outcome may even conflict with the First Amendment protection of freedom of religion, an issue not mentioned by the court. State ex rel. Ware v. Henning, 569 S.E.2d 436 (W.Va. 2002).

DEED GIVEN TO LENDER under foreclosure settlement is valid. After a lender obtained a summary judgment for foreclosure, the parties signed a settlement agreement, under which the borrower delivered a deed in escrow to the lender's counsel. If the borrower paid the debt in full within two months, counsel would return the deed to him. Otherwise, the deed was to be effective and the borrower agreed to surrender possession. After failing to pay, the borrower claimed that the deed constituted a disguised mortgage, and thus he still had the right to redeem. The court rejected this argument, stating that agreements settling foreclosure actions should be valid and that the borrower had benefited from the agreement. The court interpreted a Florida statute providing all "conveyances . . . for the purpose or with the intention of securing the payment of money . . . shall be deemed and held mortgages." The decision is of general applicability, however, because the statute merely codifies the generally accepted principle of equitable or disguised mortgages. Rothschild Reserve Int'l, Inc. v. Silver, 830 So. 2d 224 (Fla. Dist. Ct. App. 2002).

GOVERNMENT TERMINATION of residential covenant is taking. The owners of lots containing empty houses, which adjoined a busy road, obtained rezoning to build a shopping center. They also persuaded the planning commission to vacate the lots from residential use covenants. Neighboring homeowners alleged an unconstitutional taking for a private purpose. Courts differ as to whether restrictive covenants are property for takings purposes. One view (e.g, Georgia) treats them as mere contract rights and thus noncompensable. Holding for the plaintiffs, the Seventh Circuit relied on an Indiana case embracing the other view—covenants are property just like fee estates. Moreover, the court ruled that the taking was for an invalid private purpose, because state legislation did not specifically authorize the planning commission to vacate covenants unless it followed special condemnation procedures for the redevelopment of blighted areas. Daniels v. Area Plan Comm'n, 306 F.3d 445 (7th Cir. 2002).

LEASEHOLD TRANSFEREE lacks standing to sue landlord for refusing approval. A commercial lease of a food processing facility prohibited assignments and subleases without the landlord's consent, not to be unreasonably withheld. The tenant vacated the premises and submitted to the landlord an assignment proposal from Court House Plaza. It proposed to demolish the building on the leased premises and build a condominium complex on the leased premises and an adjoining tract. After several rounds of negotiations, the landlord announced its decision to lease to another person. Court House brought an action, claiming that the landlord had unreasonably withheld consent to the assignment proposal and that Court House was a third-party beneficiary of the assignment provision in the lease. The trial court granted summary judgment to the landlord, holding Court House was not a third-party beneficiary. The appellate court agreed with this ruling but observed that a proposed assignee had standing to sue on another theory—the proposed assignee is a real party in interest if it has an assignment from the tenant, conditioned on the landlord's consent. The appellate court, however, affirmed on another ground: Court House was requesting a new lease, not an assignment, because of the condominium proposal's extensive changes to the existing provisions. Court House Plaza Co. v. Goodenough, 131 Cal. Rptr. 2d 193 (Cal. Ct. App. 2003).

PREMISES LIABILITY does not exist for customer's nocturnal detour. An intoxicated sports bar patron entered a grassy area behind the bar's parking lot, intending to urinate behind bushes and trees. She fell over a retaining wall and onto a loading dock, sustaining serious injuries. She brought a personal injury action against the bar's lessor and lessee. The court granted summary judgment for defendants. The owner and occupier owe a duty of reasonable care to keep their premises safe, but that duty is limited to the foreseeable risk of harm. It was not foreseeable that a customer would choose to urinate behind bushes rather than use the indoor restrooms. Hendricks v. Lee's Family, Inc., 754 N.Y.S.2d 454 (N.Y. App. Div. 2003).

PRESCRIPTIVE EASEMENT not created when original use is permissive. Since the 1940s, neighboring landowners used a private road together with a footpath over two of their lots to reach a river and a nearby state park. Members of the public also frequently used the road and path to enter the park. The area was sparsely populated, and a "friendly, cordial, and neighborly attitude" existed between the owners and anyone traveling on the road and path. In 1995, owners blocked the path with a fence, and members of the public brought an action for a public prescriptive easement. The supreme court modernized its law by adopting Restatement (Third) of Property: Servitudes § 2.17 (2000), which requires an adverse use that is "(1) open or notorious, and (2) continued without effective interruption for the prescriptive period." The court recognized the standard presumption of adversity: in the absence of evidence of express or implied permission, the claimants' use is deemed adverse. Plaintiffs did not prevail, however, because of a countervailing presumption. The original permissive use in the 1940s was presumed to last until the owners fenced their lot. The court also expressed concern that the owners could not readily distinguish trespassing members of the public from the neighbors and their relatives, friends, and invitees, who had a right to cross. For this reason, the court was skeptical as to whether the claimed use was open or notorious. Algermissen v. Sutin,61 P.3d 176 (N.M. 2002).

RECREATIONAL USE STATUTE covers playground swing. During a break in a softball tournament held at a city park, a player sat on a swing, which broke, injuring her. She sued the city for premises defect. Under the Texas Recreational Use Statute, an owner is not liable to a person permitted "to enter the premises for recreation" in the absence of gross negligence or malice. The statute lists as recreation hunting, fishing, swimming, and several other activities, but fails to mention team sports or the use of playground equipment. The court of appeals reasoned that the purpose for which she entered the park—playing softball—was not recreational. The supreme court reversed, holding that the plaintiff's activity at the time of the injury governs and that swinging is a recreational use. City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. 2002).

ZONING ALLOWS ADDITION of roof to nonconforming structure. A homeowners' wood patio structure was a nonconforming structure because of its location in a setback area. The owners added fiberglass panels to the open-air rafters of the structure. The zoning ordinance prohibited extensions and changes in use of nonconforming structures but allowed repair or upgrade "so long as the extent of non-conformity is not increased." The neighbors complained that the roof reflected light and threw rainwater onto their property. The board of adjustment ruled that the addition of panels was a lawful upgrade in material, which was consistent with the patio structure's past use. The supreme court affirmed, applying a substantial evidence standard. Some states are harsher than others in their treatment of zoning nonconformities, and this case could have come out either way. Had the neighbors won before the board, in all likelihood the court would have affirmed that decision. Donaghy v. Board of Adjustment,55 P.3d 707 (Wyo. 2002).

ZONING WAIVER cannot be challenged by neighboring city. Existing zoning of a parcel allowed a multifamily residential project with a special use permit. The developer sought rezoning, which the town rejected, and the developer commenced litigation. The parties settled, with an agreement that authorized development at a higher density than allowed by the special permit zoning. The parcel abutted a street within a neighboring city. That city refused to grant the developer access to the street for its project. The city sued the developer, alleging that the settlement agreement unlawfully varied the special permit regulations. In a case of first impression in Connecticut, the appellate court held that the settlement agreement was not subject to collateral attack by the neighboring city. Because of the public interest in finality of litigation, a collateral attack is allowed only if the agreement is "so far outside what could have been regarded as a valid exercise of zoning power" that the parties could not have justifiably relied upon it. The neighboring city had known of the earlier litigation; the court's implicit message is that the city should have sought to intervene in that litigation. City of Torrington v. Zoning Comm'n of Town of Harwinton, 806 A.2d 1020 (Conn. 2002).


Law Professors . It seems to the editor that many of the articles that law professors write in the property/real estate area have to do with takings. A quick glance at the weekly updated Current Index of Legal Periodicals shows that many of the articles authored by full-time faculty deal with constitutional issues or with questions having to do with bedrock principles of property law. Articles having to do with liens, title, contracts for sale, finance, letters of credit—and complicated aspects of doing the deal—are left to student notes, if these articles are written at all. The editor will continue to highlight articles on constitutional themes, but he hopes that the balance of pieces might shift in time to reflect what real property lawyers do in practice. There is a harbinger of good news, however. A group of real estate law professors has petitioned the Association of American Law Schools to approve a new substantive law section devoted to real estate practice. Professor Celeste Hammond of John Marshall Law School in Chicago is the initial chair of this "unofficial" section. Hammond is also director of that school's LL.M. program in real estate law. The establishment of a new section within the AALS would increase alliances between sophisticated practitioners and real estate law professors and spur scholarship that matters to both groups.

Nondisturbance Agreements. In Needless Disturbances? Do Nondistur-bance Agreements Justify All the Trouble and Time They Take?, 37 REAL PROP. PROB. & TR. J. 701 (2003), Joshua Stein comprehensively evaluates an important overlap in "the worlds of leasing and lending": subordination, nondisturbance, and attornment agreements. According to Stein, the negotiations that result from the demands of a tenant or lender that the landlord provide an SNDA agreement are "awkward and uncomfortable." Stein explains the legal import of the provisions in the document and the motivations and goals of the parties. Given the time Stein takes to thoughtfully explain SNDA agreements, it is interesting that he concludes that these documents may not be worth the time and effort lawyers spend negotiating them. He points out that many of the issues that lenders and tenants fret over do not appear to have been litigated to any great degree and are not often discussed in reported opinions.

Professional Ethics; Firm Liability . In the wake of the Enron debacle, it would be surprising if lawyers practicing in a large firm setting did not at least occasionally wonder about the ethics of their colleagues and whether perhaps some of their colleagues' transactions, advice, or behavior did not violate canons of ethics or general professional responsibilities. The larger the law firm, the greater the likelihood will be that some lawyer, in a nook or cranny of the firm, has breached an ethical or professional obligation. Scholars have recently been debating the degree to which the entire firm should be held accountable for the sins of its members. This debate is reviewed and engaged in Professor Julie Rose O'Sullivan's recent article, Professional Discipline for Law Firms? A Response to Professor Schneyer's Proposal, 16 GEO. J. LEGAL ETHICS 1 (2002). The Model Rule of Professional Conduct 5.1(a) requires only that individual partners make "reasonable efforts" to ensure that all firm lawyers live up to their ethical obligations. Model Rule 5.3(a) requires partners to make "reasonable efforts" to see to it that the firm has a system to ensure that the behavior of nonlawyers (paralegals and other personnel) is compatible with the ethical and professional responsibilities of the firm's attorneys. Real estate lawyers are not immune to the concerns described in the article: they often work in large firm settings and work closely with an army of nonlawyers in the firm's employ. As O'Sullivan notes, the two Model Rules described above have seen little real action, with enforcement an almost unknown event. In a prior article, Professor Ted Schneyer proposed to light a fire under firms with a new regime: firms would be sanctioned and monetarily fined for the misdeeds of their lawyers and nonlawyers. Furthermore, Schneyer suggested that a firm's liability should be based on the same standard of respondeat superior liability that is typically employed in civil cases. O'Sullivan takes an opposing view and concludes that it will not be feasible or preferable to hold a firm accountable in the manner proposed. She argues that firm-wide disciplinary action is likely to be random and unfair and that it makes more sense to focus the limited disciplinary resources of the bar on individual lawyers. Nevertheless, the reader should be aware that these issues are now being discussed.

Real Estate Agency. In her article, Redefining Realtor Relationships and Responsibilities: The Failure of State Regulatory Responses, 40 HARV. J. ON LEGIS. 66 (2003), Professor Ann Morales Olazabal looks at recent statutes intended to clarify the relationship of realtors to buyers and sellers and to protect buyers who might otherwise believe that an agent is looking out for their interests. For many years, buyers and sellers engaged brokers typically termed "selling" and "listing" agents. Despite the appearance that the selling agent represented the buyer, the law continued to treat the selling agent as a fiduciary of the seller of real property. Although Olazabal acknowledges that now commonplace disclosure and dual agency statutes provide parties to the basic residential transaction with a palette of additional choices, she asserts that these statutes have neither eliminated the confusion nor provided buyers with needed protection. Olazabal argues that state legislatures should enact new laws that require agents to clearly inform both the buyer and the seller of the extent of the agent's fiduciary duties.

Recordation. The Western New England Law Review recently examined the future of electronic recordation of real property documents in a series of articles in its symposium edition, Choosing the Digital Future: The Use and Recording of Electronic Real Estate Instruments, 24 W. NEW ENG. L. REV. 205-314 (2002). Real estate and title lawyers are by necessity very familiar with the recording systems in their jurisdictions. The thought that something significantly different may one day replace those systems may be the cause for discomfort. This is all the more reason for real property lawyers to catch a glimpse of what the future holds.

Professor Sam Stonefield begins this series of three articles in a piece titled Electronic Real Estate Documents: Context, Unresolved Cost-Benefit Issues and a Recommended Decisional Process, 24 W. NEW ENG. L. REV. 205 (2002). Stonefield reviews the costs and benefits of moving to an electronic recording system. He notes that any such system will come about only if "consumers" of services (homebuyers and lenders) and officials see benefits justifying the attendant costs. Benefits would include administrative cost savings, savings in time, a reduction in the loan originator's cost of money, and new efficiencies for Fannie Mae and Freddie Mac in oversight of loan compliance. There would be costs, of course, many of which have to do with training and enhancement of information and computer systems, both in the official document rooms and in the offices of private parties (including lawyers and lenders). Adoption of electronic filing and transactions may open new doors to fraud and transactional misbehavior. Stonefield argues that states should create task forces to evaluate the costs and benefits of the new system, and then to coordinate and support the transition by the private and public sectors.

In Are We There Yet? The Case for a Uniform Electronic Recording Act,24 W. NEW ENG. L. REV. 245 (2002), Professor Dale A. Whitman revisits a topic that he first broached in 1999. He earlier suggested that "our nation [is] faced with an unprecedented opportunity to use digital technology to make the public real estate recording system functional once again." His premise was simple and direct: that new information technology can provide for more timely recordation, eliminate errors, reduce the number of forgeries, and make title more marketable and less costly. Whitman wonders what positive steps legislators and lawyers have taken since the publication of his first article. Although he describes progress as "glacially slow," he focuses on two important developments: The Electronic Signatures in Global and National Commerce Act (E-SIGN), a federal statute made effective on October 1, 2000, and the Uniform Electronic Transactions Act (UETA), adopted in 1999 by the National Conference of Commissioners on Uniform State Laws. Whitman's primary concern is the failure (so far) of recording authorities to accept real property documents in electronic form. Even where indices and records are available for review in electronic form, documents are originally submitted to recording rooms in paper form and then scanned. As he points out, this is a cumbersome and costly process. Reviewing E-SIGN and UETA, Whitman discovers a critical flaw in both: neither adequately provides legal authority for electronic submission of documents for recordation. Whitman therefore proposes a new uniform act to fill this gap. The new act would provide for standard document forms, require grantees to "digitally sign" to provide a basis for comparison when that grantee later conveys the property and digitally signs as grantor, consolidate regional and statewide recorders' functions, and provide public access to records via the Internet. In addition, this new statute would address political questions, including the role of the notary in real estate transactions and the fee collection regimes that are part of the recording process.

Professor Arthur R. Gaudio (who also happens to be dean of Western New England College School of Law) concludes the trilogy with his article, Electronic Real Estate Records: A Model for Action, 24 W. NEW ENG. L. REV. 271 (2002). Gaudio is the reporter for the committee charged with drafting an electronic land records statute on behalf of the National Conference of Commissioners on Uniform State Laws. He first reviews the history of the recordation process in the United States, focusing particularly on "prior attempts at establishing an electronic recording system." He then describes in detail the Iowa Electronic Recording System (IERS), which as of the time of Gaudio's article had not yet been adopted by the Iowa legislature. Under IERS, recordable documents are submitted to recording offices in the county where real property is located. The local office reviews the document for formalities and assures that fees are paid. Local recording offices then convert those documents that are not already in electronic form to a digital format. These documents are in turn electronically submitted to a centralized database maintained by the Secretary of State. IERS may serve as a model for a uniform statute. Gaudio points out several benefits of a centralized searching system. One of the more interesting is that it may eliminate the need for abstracters and title insurance companies to maintain separate title plants. Lawyers and lenders will be able to bring title up to date immediately before closings.

The editor agrees with the symposium authors that implementation of a system of electronic filing and title searches would be a significant step forward in the development of real estate practice. One hopes it proceeds further than Torrens Registration statutes.

Takings. David L. Callies and

J. David Breemer authored Selected Legal and Policy Trends in Takings Law: Background Principles, Custom and Public Trust "Exceptions" and the (Mis)use of Investment Backed Expectations, 36 VAL. U. L. REV. 339 (2002), as part of a symposium titled Rights with Responsibilities/Land Use Law Symposium. The authors examine an exception to the per se takings rule crafted by Justice Scalia in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). In Lucas, the Court declared that a regulation depriving a property owner of all "economically beneficial use" constitutes a taking, notwithstanding the valid governmental policy standing behind the regulation. Justice Scalia's opinion explained, however, that a regulation that otherwise destroys all use might escape being tarred a taking if it (1) constituted a nuisance or (2) was based in the state's "background principles" of property law. The authors focus on the latter exception. They worry that states will attempt to expand the set of background principles to such an extent as to neutralize Lucas. Callies and Breemer suggest limits to this exception of the per se takings rule in Lucas by defining "background principles" in the context of "traditional and well understood" custom and the public trust doctrine. An example of a "newly discovered" and (in the authors' view) illegitimate expansion of pubic trust doctrine would be the establishment of public trusts for environmental preservation.

Takings. Law review articles evaluating some aspect of the Takings Clause of the Constitution are inevitably (and correctly) historical. These articles must not only examine what the drafters of the Fifth Amendment intended, but also 200 years of state and federal case law. Occasionally, however, an article highlights a novel aspect of the history flowing from the Takings Clause. The Tulsa Law Review recently devoted an entire edition to the 100th anniversary of the U.S. Supreme Court case, Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). That case has been described as the Dred Scott opinion for Native Americans and as one of the most tragic chapters in Supreme Court jurisprudence. Lone Wolf concerned the General Allotment Act, which permitted Indian lands to be specifically allocated to tribal citizens. If, after the passage of time, Indian land remained unallocated to specified persons (which was the norm considering the huge number of Indian acres and the small size of the allocation amounts), the remainder was deemed "surplus" and available to be distributed to non-Indians. What transpired next, according to Joseph William Singer in Lone Wolf , or How to Take Property by Calling It a "Mere Change" in the Form of Investment, 38 TULSA L. REV. 37 (2002), was the "most massive uncompensated taking of property in United States history." Singer explains that the failure of the United States to live up to its treaty obligation to obtain consent to cession of Indian property constituted an uncompensated taking. It is a short essay, and a depressing one, but one worth reading.

Tenancy by the Entireties. Colleen M. Feeney evaluates the recent U.S. Supreme Court case United States v. Craft, 535 U.S. 274 (2002), in her Note, Lien on Me: After Craft , a Federal Tax Lien Can Attach to Tenancy-by-the-Entirety Property, 34 LOY. U. CHI. L. J. 245 (2002). Feeney concludes that Craft was rightly decided. In Craft, a husband and wife owned real property as tenants by the entirety. The husband failed to pay significant federal income taxes, and the IRS responded by assessing the delinquent amount, and then filing its lien against his property. The couple conveyed the entirety property to Mrs. Craft alone, which she then tried to sell. A dispute followed over the nature of the property interest held by Mrs. Craft, whether the conveyance resulted in a "severance" of the entirety property interests, and whether the IRS lien attached to a separate 50% interest of Mr. Craft in the property. The Court ultimately determined that the lien did attach to Mr. Craft's interest, notwithstanding the characterization of the property as tenancy by the entirety. According to Feeney, Craft reversed appellate decisions that held that the tax lien would only apply to entirety property "if the state in which the property was held allowed creditors of a single spouse to reach the property." Feeney reviews the basic elements of Code § 6321 (the tax lien statute), as well as the history of and rules defining tenancy by the entireties. She then examines the case law that preceded Craft, including the 1999 Supreme Court case, Drye v. United States, 528 U.S. 49 (1999). According to Feeney, the Court's decision in Craft "will reduce the manipulation and abuse of the tax system as a whole and create more equity" in its application.


Arizona adopts the Notice and Opportunity to Repair Act. Before commencing an action against a construction professional for property damages, the claimant must serve a written notice of claim on the construction professional. Settlement is encouraged by an offer of compromise procedure that, under specified circumstances, acts as a limitation on damages. The claimant may recover attorney fees, but, when a reasonable offer of compromise is submitted, attorney fees are limited to those incurred before the offer of compromise is made. ARIZ. REV. STAT.§ 12-1363.

Arkansas passes the Fair Mortgage Lending Act. The Act provides a detailed regulatory scheme for mortgage brokers. 2003 Ark. Acts 554.

Arkansas extends The Soldiers and Sailors Civil Relief Act of 1941 to members of the Arkansas National Guard. To qualify, the member of the National Guard must be called to active duty for a continuous period of more than 180 days. This Act limits the ability of a mortgagee to foreclose property owned by a qualified service member and provides a procedure for a qualified service member to terminate a residential lease. 2003 Ark. Acts 1003.

Idaho adopts the Notice and Opportunity to Repair Act. Before commencing an action against a construction professional for property damages, the claimant must serve a written notice of claim on the construction professional. Settlement is encouraged by an offer of compromise procedure that, under specified circumstances, acts as a limitation on damages. The claimant may recover attorney fees, but, when a reasonable offer of compromise is submitted, attorney fees are limited to those incurred before the offer of compromise is made. 2003 Idaho Sess.Laws 133.

Idaho extends the benefits of The Soldiers and Sailors Civil Relief Act of 1941 to members of the Idaho National Guard. To qualify, the member of the National Guard must be called to active duty for a continuous period of more than 30 days. This Act limits the ability of a mortgagee to foreclose property owned by a qualified service member and provides a procedure for a qualified service member to terminate a residential lease. 2003 Idaho Sess.Laws 251.

Kentucky enacts the Notice and Opportunity to Repair Act. Before commencing an action against a construction professional for property damages, the claimant must serve a written notice of claim on the construction professional. Settlement is encouraged by an offer of compromise procedure that, under specified circumstances, acts as a limitation on damages. The claimant may recover attorney fees, but, when a reasonable offer of compromise is submitted, attorney fees are limited to those incurred before the offer of compromise is made. 2003 Ky. Acts 123.

Montana enacts the National Guard Civil Relief Act for members of the Montana National Guard. To qualify, the member of the National Guard must be called to active duty for a continuous period of more than 30 days. The relief is similar to The Soldiers and Sailors Civil Relief Act of 1941.2003 Mont. Laws 222.

Utah clarifies the relationship between real estate brokers and sales agents by creating a presumption that the sales agent is an independent contractor. The presumption may be overcome only by clear and convincing evidence. 2003 Utah Laws 264.

Utah expands the rights of a condominium association of unit owners to collect unpaid assessments, attorney fees, and other fees. The association may terminate utility service, end access to recreational facilities, and collect rent from tenants. 2003 Utah Laws 265.

Virginia prohibits landlords from demanding or accepting fees or charges from cable modem service providers. Cable modems are now treated like cable, satellite, and other television facilities. Landlords are prohibited from charging fees in conjunction with such service, except when the landlord directly provides the resource. 2003 Va. Acts ch. 60.

Virginia allows condominium unit owners' associations to vote by electronic transmission. Notice to unit owners may be given by electronic transmission. Electronic transmission is broadly defined by reference to the Uniform Electronic Transactions Act. 2003 Va. Acts ch. 442.

Virginia extends the benefits of The Soldiers and Sailors Civil Relief Act of 1941 to members of the Virginia National Guard. To qualify, the member of the National Guard must be called to active duty for a continuous period of more than 30 days. This act limits the ability of a mortgagee to foreclose property owned by a qualified service member and provides a procedure for a qualified service member to terminate a residential lease. 2003 Va. Acts ch. 769.j