All posts by Admin BoweDigital

| Christopher A. Glaser

DC Court of Appeals clarifies definition of single-family accommodation for TOPA

The United States District Court for the District of Columbia has resolved an issue created by the 2018 amendments to the Tenant Opportunity to Purchase Act (TOPA). Those amendments created a distinction between rights which tenants and tenant organizations hold in multi-family accommodations versus single-family accommodations. In single-family accommodations, tenants have the right to a notice of a sale, but the opportunity to purchase is a right only afforded to tenants within a multi-family accommodation. The not-so-simple issue is what is the distinction between a single-family accommodation and a multi-family one when it relates to a condominium spanning 33 separate buildings containing individual condominium units being separately rented to tenants.

In Katherine DeMetro v. Vaughan McLean, LLC, the owner of a complex of 33 residential buildings containing a total of 574 individual condominium units sought to sell the property. Treating the sale as one of multiple single-family accommodations, the owner provided the individual tenants with notice of its intent to sell but did not provide the tenants with an opportunity to purchase. Following a tortured pathway through administrative claims at the Department of Housing and Community Development and the Court of Appeals, the tenants filed new claims in the Superior Court which were removed to the District Court. Once in the District Court, the remaining tenants argued that the owner had registered each of the 33 buildings as multi-family accommodations with the Rental Accommodations Division so as to claim an exemption from rent-control requirements and that the owner’s prior declaration was binding on the determination of whether the property was single-family or multi-family. The District Court disagreed noting that the statutory notice requirements control without regard to how the owner had treated the property in its regulatory filings. The statute, the District Court held, included within the definition of “single-family accommodation” a “single rental unit in a condominium.” Thus, whether a sale is for one individual condominium or a bulk transfer of hundreds of individual condominium units, the sale is treated as one for a single-family accommodation and the tenants are entitled only to notice and not an opportunity to purchase.

Jackson & Campbell, P.C. represents title insurers and insureds in Maryland, Virginia, and Washington, D.C. and we strive to keep our clients and other title professionals up to date on various developments in the law. Additionally, we present no-cost in-house updates of the nation’s most noteworthy cases and national trends following the spring and fall American Land Title Association’s Title Counsel meetings.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

| Nathan J. Bresee, Arthur D. Burger, David H. Cox, Crystal S. Deese, Christopher P. Ferragamo, Roy L. Kaufmann, Selena A. Motley

The Best Lawyers in America 2026

Jackson & Campbell, P.C. is pleased to announce a number of our attorneys have been named The Best Lawyers in America© 2026 Edition and Best Lawyers: Ones to Watch®.

Congratulations to:

The Best Lawyers in America©

  • Nathan J. Bresee – Real Estate Law
  • Arthur D. Burger – Ethics and Professional Responsibility Law
  • David H. Cox – Litigation – Real Estate and Real Estate Law
  • Crystal S. Deese – Medical Malpractice Law – Defendants
  • Christopher Ferragamo – Insurance Law
  • Roy L. Kaufmann – Real Estate Law

Best Lawyers: Ones to Watch®

  • Selena A. Motley – Commercial Litigation and Litigation – Real Estate

Since it was first published in 1983, The Best Lawyers in America© has become widely regarded as the definitive guide to legal excellence. The Best Lawyers in America lists are based on exhaustive peer review surveys in which over 50,000 top attorneys cast more than 5.5 million votes on the legal abilities of other lawyers in their practice areas. Corporate Counsel magazine has called The Best Lawyers in America “the most respected referral list of attorneys in practice.” Congratulations to our attorneys for such prestigious recognition by their peers in their specific areas of law.

Jackson & Campbell’s attorneys are among the most respected in Washington, D.C. routinely winning national awards and high rankings from organizations like The Best Lawyers in America, Super Lawyers, Who’s Who in America, and many others. Dependability is the cornerstone of a successful attorney-client relationship. We take particular pride that our clients depend on our advice to address what is often among their most important decisions – wills, family trusts, generation wealth transfers, real estate transactions, business transactions, professional negligence, and all types of dispute resolutions ranging from arbitrations to jury trials. Jackson & Campbell traces its roots to 1887, making it one of the oldest law firms in Washington. We pride ourselves on more than a century of service to our clients and our community.

| Carolina A. Jordan

Maryland Supreme Court Holds Anti-Assignment Provision Unenforceable

In its July 24, 2025 opinion, the Supreme Court of Maryland held that an anti-assignment clause did not prohibit the assignment of a post-loss claim made under an insurance policy. In re Petition of Featherfall Restoration, LLC, 2025 WL 2080932 (Md. July 24, 2025). In so ruling, the court distinguished between the policy itself and a claim arising under it, noting that a claim is a “chose in action” and thus an assignable property interest. 

In early 2019, two homeowners purchased an insurance policy from Travelers Home and Marine Insurance Company (“Travelers”) for their residence. The policy included an anti-assignment clause prohibiting assignment without the insurer’s consent. In May 2020, after the policy expired, the Policyholders reported roof damage from a 2019 storm and hired Featherfall Restoration, LLC (“Featherfall”) to repair it. Travelers denied the claim, citing wear and tear. The Policyholders then assigned their claim to Featherfall, which Travelers refused to recognize due to the anti-assignment clause. Featherfall filed a complaint with the Maryland Insurance Administration (MIA), the agency regulating the state’s insurance industry and in charge of investigating consumer claims against insurers, asserting its right to act in place of the Policyholders. The MIA upheld the anti-assignment clause and concluded that Featherfall was not entitled to a hearing. Featherfall sought judicial review. Prior to reaching the Maryland Supreme Court, the MIA and the courts below primarily relied on precedent upholding anti-assignment clauses as enforceable and refused to acknowledge there was any distinction between pre-loss or post-loss assignments.

The central issue in this case was whether the assignment operated to assign a specific claim or assigned the whole policy and all the rights and benefits flowing from it. The court disagreed that a policy and a “claim” under the policy, are not conceptually different. The court noted the policy used the word “claim” to address specific requests for coverage or payment. The court recognized that the distinction between a claim and a policy is embedded in Maryland law on “chose in action.” A “chose in action” is a proprietary right to a debt owed by another person or a claim for damages in tort and a right to bring an action to recover a debt, money, or thing. Such right includes the right to enforce claims for breach of contract or for benefits under a contract, like a payment of money. A “chose in action” is different from a contract instrument from which a claim arises. In reaching its holding, the court concluded that a “reasonable person in the position of the parties would not have understood a prohibition on the assignment of ‘this policy’ to include a prohibition on the assignment of a single post-loss claim.” Ultimately, the court concluded that Travelers should have honored the assignment and handled Featherfall’s claim no differently than if it had been asserted by the Policyholders.

| Lexie Delgado-Boone, John J. Matteo

Impact of New Omnibus Statute

On July 4, 2025, a new tax law, Section 70106 of H.R. 1, was signed, creating a new federal estate and gift tax exemption. It’s important to know what this exemption means, how it may affect your current estate plan, and whether you should consider making changes to your current estate plan. 

The federal estate and gift tax exemption is now set at $15 million for estates of decedents dying, or gifts made, on or after January 1, 2026. This exemption will be adjusted in the future based on inflation. The federal estate and gift tax exemption remains at $13,990,000, for deaths and gifts occurring in 2025. It is important to note that the new statute did not modify the annual gift tax exemption which remains at $19,000.00 per individual and is expected to be adjusted in the future for inflation.

Single clients with a net worth substantially above $15 million and married couples with a net worth substantially above $30 million, need to consider advance estate planning avenues to utilize these exemptions and to reduce estate taxes.  Clients whose net worth is close to the thresholds or predicted to exceed the thresholds should contemplate changes to their estate plans to stay ahead. If you have questions about how these changes may affect your estate plan, please do not hesitate to contact the Trust & Estates Group at Jackson & Campbell:  John J. Matteo at JMatteo@JacksCamp.com and Lexie Delgado-Boone at LDelgadoBoone@JacksCamp.com.

| Don Kim

Client Alert: State and Local Tax Deduction: Effect on Business and Real Estate Owners

On July 4, 2025, President Trump signed into law the One Big Beautiful Bill Act (OBBBA), which modifies and extends numerous provisions of the 2017 Tax Cuts and Jobs Act (TCJA). One key area of focus is the state and local tax (SALT) deduction. While the TCJA imposed a $10,000 SALT deduction limit ($5,000 for married filing separately), the OBBBA temporarily raises the cap to $40,000 ($20,000 for married individuals filing separately) for 2025, with slight annual inflation adjustments through 2029. This temporary increase offers limited relief for individuals and small business owners in high-tax jurisdictions, but the benefit is phased down for taxpayers with modified adjusted gross income (MAGI) over $500,000 ($250,000 for married taxpayers filing separately), reducing the expanded deduction by 30% of the amount over the threshold—though not below the $10,000 threshold. 

Business

The OBBBA preserves the viability of the Pass-Through Entity Tax (PTET) workaround established under IRS Notice 2020-75. PTET allows owners of S corporations, LLCs, partnerships, and sole proprietorships to pay state income tax at the entity level, thus bypassing the SALT cap for owners who otherwise deduct taxes at the individual level. Importantly, drafts of the legislation proposed eliminating this option for specified service trades such as law and medicine, but those restrictions were not adopted. Thus, professional pass-through entities remain eligible to make PTET elections, and their owners may continue deducting the full entity-level state tax from their federal tax liability. This development is particularly relevant for small businesses and professional practices in high-tax jurisdictions such as the D.C. metropolitan area.

Furthermore, the OBBBA makes permanent the 20% qualified business income (QBI) deduction under Section 199A, which had been set to expire at the end of 2025. The legislation enhances the deduction by increasing the phase-in limits for wage and investment-based restrictions and by introducing a minimum $400 deduction for taxpayers with at least $1,000 in qualified business income from active trades or businesses. As a result, more business owners may become eligible for the QBI deduction as well as benefit from the guaranteed $400 deduction. 

Real Estate

The legislation also revises the accounting rules for residential construction. Under prior law, contractors on projects with four or fewer dwelling units could avoid using the percentage-of-completion method (PCM). The OBBBA expands this exemption to cover larger residential projects, including those with more than four units such as apartments and condominiums. For contracts entered into after 2025, eligible developers and builders may now use more favorable accounting methods like the completed-contract method, allowing for deferred revenue recognition and improved cash flow. This change enhances flexibility for developers and may incentivize greater housing development with cash flow advantages for developers, builders, and contractors working on larger-scale residential developments.

On the affordable housing front, the annual allocation of 9% LIHTCs will see a permanent 12% increase beginning in 2026. These changes are expected to accelerate affordable housing development nationwide. Additionally, developers seeking 4% LIHTCs now only need to finance 25% of project costs with bonds—down from 50%— allowing states to finance twice as many projects. It would be prudent for developers that were considering including LIHTCs as part of their sources and uses to revisit eligibility criteria and adjust their plans accordingly.

The OBBBA provides certain benefits for many individuals and small businesses, particularly in the areas of state tax deductibility, pass-through taxation, real estate and affordable housing incentives. However, because legislation is projected to reduce federal revenue by nearly $1.5 trillion over the next decade, future funding for infrastructure, workforce development, and social safety net programs—services many small businesses rely on—could be at risk. While the OBBB Act offers near-term deductions and favorable provisions, long-term business strategy should consider both the potential phase-out of individual benefits and the uncertain fiscal and legal landscape ahead. If you have questions about how the OBBBA may impact your business and real estate,  please reach out to your Jackson & Campbell team with any questions or for support.

| Christopher A. Glaser

In new TOPA case, DC Court of Appeals does not apply court-approved settlement exemption to limit tenant purchase rights.

In the District of Columbia, a tenant’s right to the first opportunity to purchase a housing accommodation through the Tenant Opportunity to Purchase Act (TOPA) does not arise where the initiating third-party transfer does not qualify as an arms-length “sale.” Transfers pursuant to foreclosure sales, bankruptcies, court orders or court-approved settlements are exempted from TOPA and tenants have traditionally been excluded from the purchase. However, the District of Columbia Court of Appeals has recently ruled that not all court-approved settlements are exempted and further examination of the underlying agreement is required.

In Farina v. Janet Keenan Housing Corp., Mr. Farina was a tenant of Janet Keenan Housing Corp., a charity identifying its purpose as preserving and promoting affordable housing. In September 2022, Mr. Farina learned that JKHC was soliciting buyers to purchase the property and alerted District authorities. Once JKHC entered into a sales agreement, the District filed suit to enjoin the sale alleging it would be contrary to JKHC’s charitable purposes. Mr. Farina invoked his TOPA rights and, during the pendency of the District’s litigation, filed a separate suit to stop the sale as the tenants were not afforded their TOPA rights. After the District’s litigation was resolved through a court-approved settlement confirming that the sale did comport with JKHC’s charitable purposes, the Superior Court dismissed Mr. Farina’s TOPA action as the sale was now statutorily exempt from TOPA. Mr. Farina appealed.

The Court of Appeals noted that a classic sale is one in which an owner agrees to transfer property in an arms-length third-party contract and that the statutory exemptions, such as foreclosures or tax sales, are not typically between unaffiliated parties with equal bargaining power resulting in a fair market price. In the District’s litigation, the third-party contract was entered into before the District sought to enjoin the suit and the terms of the contemplated sale were not arrived at through litigation. Instead, the court-approved settlement merely resolved the District’s challenge to the sale, not the sale itself and the terms of the sale to the third-party were not altered by the settlement. The Court concluded that the proposed transfer was a classic “sale” notwithstanding that it was only allowed to proceed due to the court-approved settlement. Mr. Farina retained his TOPA rights and the matter was remanded.

Historically, TOPA has caused title practitioners to give pause and double-check that a tenant’s TOPA rights had been properly extinguished and, when practitioners determined that transfers followed one of the statutory exemptions, it provided title practitioners with some level of comfort. Following Farina, one should take an additional step to determine whether or not the statutory exemption was properly invoked given the liberal construction that courts are obligated to afford when interpreting TOPA. 

Jackson & Campbell, P.C. represents title insurers and insureds in Maryland, Virginia, and Washington, D.C. and we strive to keep our clients and other title professionals up to date on various developments in the law. Additionally, we present no-cost in-house updates of the nation’s most noteworthy cases and national trends following the spring and fall American Land Title Association’s Title Counsel meetings.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

| Christine Bondi

Federal Court Tosses DeafBlind Patient’s Claim of Discrimination against Eye Practice

The United States District Court for the Eastern District of Virginia granted our Motion to Dismiss all claims against an eye practice in Northern Virginia.  Plaintiff claimed that the eye practice discriminated against her in violation of the Affordable Care Act (ACA) and Virginians with Disabilities Act (VDA).

Plaintiff, a DeafBlind individual, was seen at the eye practice and was scheduled for surgery to treat her retinitis pigmentosa.  The surgery was to take place at an outside surgery center not owned or operated by the eye practice.  Plaintiff reminded the eye practice that she would require an in-person interpreter for the surgery.  However, the eye practice apparently learned from the surgery center that an in-person interpreter would not be allowed in the operating room.  The eye practice communicated this to Plaintiff and recommended that Plaintiff reach out to the surgery center directly. When Plaintiff arrived for her surgery, an interpreter was not present, and she did not proceed with her surgery.

Plaintiff alleged that the eye practice discriminated against her by “den[ying] her full and equal enjoyment of their programs and services” and brought a claim under the ACA and VDA.

On her claim under the ACA, the Court found that Plaintiff failed to show that the eye practice had the ability to override the policies, practices, or decisions of the surgery center when it came to allowing interpreters in the operating room.  Her failure to demonstrate that the eye practice had any control over the allegedly discriminatory practices of the surgery center was fatal to her ACA claim.

The VDA allows for equal access to accommodations in “places of public accommodation.”  The Court held that Plaintiff’s complaint alleges that the surgery center—not the eye practice—was the “place of public accommodation,” and Plaintiff failed to plausibly allege that the eye practice provides any services at the surgery center.

Finally, the Court found that Plaintiff did not have standing to seek injunctive relief for two reasons.  First, having been dismissed from the eye practice as a patient, there was “no immediate threat of repeated injury.”   City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Brandt v. Monte, 626 F. Supp. 2d 469, 493 (D.N.J. 2009) (finding that a plaintiff who is no longer a patient “lacks standing to seek injunctive relief.”). Second, because she was no longer a patient at the eye practice, Plaintiff’s claim for injunctive relief would only serve others, and “courts usually do not allow litigants to assert claims for injuries suffered by others.”  Thorne v. Hale, 2009 WL 890136, at *10 (E.D. Va. Mar. 26, 2009).

If you have any questions about this case or laws impacting health care providers in Washington, D.C., Maryland, or Virginia, feel free to contact us. Our Health Law Practice Group is ready to assist.

| Don Kim, John J. Matteo

Corporate Transparency Act Update

In the continuing developments surrounding the implementation of the Corporate Transparency Act, on March 21, 2025, the Financial Crimes Enforcement Network (FinCEN) issued an interim final rule that removes the former requirement for U.S. persons to report beneficial ownership information (BOI to FinCEN under the Corporate Transparency Act. The definition of “reporting company” under the interim rule was revised to mean only those entities formed under a foreign country’s law and registered to do business in any U.S. State or Tribal jurisdiction.  Thus, U.S. companies and persons are no longer obligated to file. The rule also exempts entities previously known as “domestic reporting companies.” Foreign entities that are not exempt will not be required to report any U.S. persons as beneficial owners and U.S. persons will not be required to report BOI with respect to any such entity. FinCEN is accepting comments on the interim final rule and will issue a final rule later in the year.

Companies should continue to monitor developments regarding FinCEN’s rule to determine whether they are a “reporting company.” Jackson & Campbell lawyers are available to respond to questions on the interim final rule and any future developments.

| Crystal S. Deese, Miranda Ross

Legal Victory: Leveraging the Medical Malpractice Proceeding Act of 2006 to Dismiss Meritless Claims

Crystal Deese and Miranda Ross successfully obtained a dismissal for their local hospital client accused of baseless medical malpractice, discrimination, conversion, and assault. Utilizing the Medical Malpractice Proceedings Act, we acted swiftly to shut down this meritless lawsuit before it could result in unnecessary litigation costs. We strategically filed a Motion to Dismiss, which was ruled on before appearing for oral argument or an initial status conference. Our background investigation of plaintiff uncovered a pattern of meritless lawsuits filed against various individuals and entities.  We cited these in our Motion and believe this contributed to the quick, favorable ruling. 

This case exemplifies that the Medical Malpractice Proceedings Act remains a powerful tool for health care providers facing frivolous litigation.  Rather than engaging in prolonged  defense efforts, our efficient approach allowed our client to avoid significant expenses and burdens typically associated with defending against meritless claims.

| Christopher A. Glaser

Court of Appeals of Virginia traces church property disputes back to English Reformation to determine lack of jurisdiction.

Unlike other property ownership disputes, challenges regarding ownership by churches begin with a more fundamental question of whether the matter should be brought in civil or ecclesiastic courts. The Court of Appeals of Virginia, in Atlantic Korean American Presbytery v. Shalom Presbyterian Church of Washington, Inc., decided on March 11, 2025, issued a lengthy decision tracing the history of the ecclesiastical abstention doctrine and its application in Virginia.

In England, civil jurisdiction regarding church property was separated from ecclesiastic jurisdiction in the wake of Henry VIII’s English Reformation, but questions of ownership and transfer of such property continued to be a perplexing thicket. This separation of jurisdiction was narrowed in the American colonies with an early act of the Virginia General Assembly vesting jurisdiction of both ecclesiastical and civil matters in the trial courts. The First Amendment revived the separation of jurisdiction but questions of how this separation was to be applied as to property issues remained.

Even as the law developed in the United States such that civil courts had jurisdiction to decide property disputes in the absence of any dispute between the parties about any matter of religious faith, jurisdiction was dependent on both sides having the same faith and being members of the same church. In essence, the religious principles in such cases were neutral because the parties agreed upon them. However, what occurs when the parties did not agree on the religious principles, such as when a congregation splits or a schism occurs? Which faction becomes the property owner? 

The Virginia General Assembly attempted to solve this beginning in 1867 by declaring that the majority of the members who joined a church and submitted to its polity had authority to decide ownership. This approach favored certain congregational churches to the potential detriment of hierarchical ones. This statutory scheme was short lived when, four years later, the United States Supreme Court held that competing church factions—each of which had submitted to the church’s polity granting authority of the church itself to determine ownership—divested the civil courts from jurisdiction.

Over the ensuing century, the case law developed such that civil jurisdiction existed to determine ownership of church property only where the civil court relied solely on neutral principles of law, and courts could reject ecclesiastical decisions only if they were fraudulently obtained. Absent fraud, civil courts were required to accept ecclesiastical determinations as to property disposition. However, as the Virginia Supreme Court has noted, “what is or is not an ecclesiastical dispute is often debatable.”

In Atlantic Korean, the Court of Appeals drew on this long history of jurisdictional separation. In that matter, Pastor Bo Chang Seo became the head pastor of an independent Christian church for Korean-speaking immigrants. Ten years later, Pastor Seo and Shalom Church submitted an application to join the newly-formed Atlantic Korean American Presbytery, a presbytery of the Presbyterian Church (USA) formed under the church’s constitution, the Book of Order. Shalom Church then amended its bylaws to provide that it was subject to the “Book of Order in its government and structure.” After joining, Shalom acquired valuable property in Fairfax County, Virginia but did not inform the Presbytery of its purchase. Pursuant to the Book of Order, all property owned by a member church is held in trust for the Presbyterian Church (USA).

More than two decades after acquiring the property, the Presbytery investigated Pastor Seo’s ordination and determined that he was ineligible to serve as pastor. The Presbytery then decided to take direct control over the property. In response, Pastor Seo and Shalom Church filed a complaint with the Synod of the Mid-Atlantic, the regional governing body with oversight over presbyteries. The Synod denied the relief requested and permitted the Presbytery to take control over the property. One month later, Pastor Seo and Shalom Church filed suit in the circuit court.

The circuit court held that the Presbytery failed to establish that Pastor Seo and Shalom Church were members of the Presbyterian Church (USA) as the court interpreted church doctrine to require a member to sign a written covenant in order to first become a member. Drawing an analogy to golf club membership, the circuit court reasoned that, absent such a signed writing, neither Pastor Seo nor Shalom Church could be a member of Presbyterian Church (USA) even if they desired to be a member.

The Court of Appeals strongly disagreed, holding that—when Pastor Seo and Shalom Church contended that they were members of Presbyterian Church (USA) and submitted their property dispute to the Synod—the parties invoked ecclesiastical jurisdiction to challenge the attempt to exercise authority over the real property and that the matter is now governed by ecclesiastic law. In doing so, Pastor Seo and Shalom Church deprived the circuit court of jurisdiction to later hear their lawsuit in civil court on that very same issue. The Court of Appeals reversed the circuit court and remanded the matter with instructions to dismiss the “current” complaint with suggestion that Pastor Seo and Shalom Church can file a new complaint to invoke neutral principles of law to determine whether a trust was created upon becoming a member but that membership could not be relitigated because that issue had been conclusively established by the Synod.

Jackson & Campbell, P.C. represents title insurers and insureds in Maryland, Virginia, and Washington, D.C. and we strive to keep our clients and other title professionals up to date on various developments in the law. Additionally, we present no-cost in-house updates of the nation’s most noteworthy cases and national trends following the spring and fall American Land Title Association’s Title Counsel meetings.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

 

Celebrating Growth: Announcing Two New Elevations at Jackson & Campbell, P.C.

Congratulations to Caroline Lee-Ghosal, who was recently elevated to Director and Benjamin S. Harvey, who was recently elevated to Senior Counsel at Jackson & Campbell, P.C.

Ms. Lee-Ghosal is a member of the General Litigation and Trial and Real Estate Practice Groups. Prior to joining the Firm, Caroline represented clients in a broad range of civil litigation matters, including complex commercial and business disputes, real estate/construction, professional discipline and liability, insurance defense, and others, and served as in-house counsel for a regional healthcare provider, where she advised the company on business, regulatory compliance, and labor and employment issues. She served as a judicial law clerk for the Honorable Lynne A. Battaglia, a senior judge of the Maryland Court of Appeals.

Caroline earned her J.D. from the University of Maryland School of Law, where she served as Executive Editor for the Maryland Journal of International Law and earned her B.S. in Biochemistry from Georgetown University. She is admitted to practice in the District of Columbia, Maryland, and the U.S. District Court for the District of Maryland.

Caroline has served as Treasurer for the Asian Pacific American Bar Association of Maryland and is a member of the Montgomery County Bar Association.

 

Mr. Harvey is a member of the Firm’s Health Law Practice Group. He has 9 years’ experience representing health care providers in medical malpractice suits, manufacturers in products liability claims, and other professional liability actions in state and federal courts.

Prior to joining private practice, Mr. Harvey served as Deputy Director of Baltimore City Circuit Court’s Civil Alternative Dispute Resolution Office where he presided over settlement conferences and court-ordered mediations in various civil cases.

In 2013, Mr. Harvey graduated, magna cum laude, from the University of Baltimore School of Law. In addition to graduating with honors, he participated on the Civil Trial Advocacy Team.

Please join us in congratulating them both.

| Crystal S. Deese, Pamela J. Diedrich

Summary judgment for client accused of negligent elevator maintenance

Pam Diedrich and Crystal Deese obtained summary judgment for their local hospital client accused of negligent elevator maintenance. Plaintiff claimed she injured her hand when the elevator dropped two floors suddenly. Her attorney failed to identify a liability expert and first sought leave to extend the deadline after Defendants sought summary judgment. This is a nice, citable order, denying Plaintiff leave to late name an expert and reinforcing the utility of summary judgment as a tool. Learn more here.

| Arthur D. Burger

Upcoming Webinar: Assessment of Six Common Ethics Dilemmas as Depicted in On-Screen Video Vignettes

Arthur D. Burger will present an ethics law CLE webinar on February 12 from 1:00 pm to 3:10 pm.

Participants will view the vignettes and engage in a guided discussion on the application of ABA Model Rules, best practices, and practical solutions. Each scenario raises critical questions about confidentiality, conflicts of interest, client communication, and other ethical challenges, providing attorneys with actionable insights for navigating these situations in their own practice.

Key topics to be discussed:

  • Joint representation of multiple defendants in a civil suit
  • Fee sharing with nonlawyers
  • Clarity in communicating the scope of a representation
  • A motion to disqualify opposing counsel based on a prior representation
  • Representing a possibly untruthful client in litigation
  • A lawyer moves to a new law firm

This live webinar is produced by myLawCLE. Learn more and register here.  

| Don Kim

DC Court Of Appeals Interprets Amended Provisions Regarding Condo Lien Priorities

In a decision issued last week, the D.C. Court of Appeals held that when a condominium association forecloses on its super-priority lien and its subordinate lien for more than six months of unpaid assessments, the sale must be made subject to the first deed of trust. 

This Court in Wonder Twins Holdings, LLC v. 450101 DC Housing Trust interprets, for the first time, the 2017 amendments to the D.C. Condominium Act (“Act”). Specifically, D.C. Code § 42-1903.13 subsection (c)(4)(B)(ii) now requires that a condominium association conducting a foreclosure sale to provide the unit owner with notice prior to sale that states that the foreclosure sale is either (1) for the statutory six-month priority lien and not subject to the first deed of trust, or (2) for more than the statutory six-month priority lien and subject to the first deed of trust. D.C. Code § 42-1903.13(c)(4)(B)(ii).

This change, as interpreted in Wonder Twins, means that if a condominium association forecloses on both the super-priority lien portion and its subordinate lien for more than six months of assessments, the first deed of trust will survive the foreclosure even if the proceeds from the sale are insufficient to cover it. This overrules the previous interpretation in 4700 Conn 305 Tr. v. Capital One, N.A., where the court held that any first deed of trust would be extinguished in such cases.

Despite this change, the Court has maintained that the new provision does not alter its interpretation of D.C. Code § 42-1903.13(a)(2) of the Act, which holds that when the most recent six-months of unpaid condominium assessments constitute a super-priority lien,  a condominium association foreclosing on only that six-month portion will extinguish any first deed of trust. See Chase Plaza Condo. Ass’n, Inc. v. JPMorgan Chase Bank, N.A., 98 A.3d 166 (D.C. 2014); Liu v. U.S. Bank Nat’l Ass’n, 179 A.3d 871 (D.C. 2018); 4700 Conn 305 Tr. v. Capital One, N.A., 193 A.3d 762 (D.C. 2018). 

In those cases, the court clarified the relationship between condominium foreclosures and first deeds of trust, establishing that if a condominium association forecloses solely on its six-month super-priority lien and the sale proceeds are insufficient to cover the first mortgage, the first deed of trust is extinguished. However, if the association forecloses on both the super-priority lien and additional assessments, the first deed of trust may survive the sale. Although the 2017 amendment preceded the court’s decisions in Liu and 4700 Conn, the court did not address the amendment’s implications in either case.

In Chase Plaza, the court ruled that a condominium foreclosure sale extinguishes the first deed of trust when the association forecloses only on its super-priority lien and the sale proceeds are insufficient to pay off the first deed of trust. In Liu, the court held that the first deed of trust is effectively extinguished by the foreclosure on the six-month super-priority lien, regardless of language like “subject to the deed of trust” in the sale notice, citing the Condominium Act’s anti-waiver provisions. In 4700 Conn, the court reiterated its earlier ruling in Chase Plaza that condominium-assessment liens are split into two parts with differing priorities and also examined, for the first time, the impact of a condominium association foreclosing on more than just the super-priority portion of its lien.

The key shift in this Court’s interpretation in Wonder Twins is that when foreclosing on more than six months of assessments, the first deed of trust remains valid after the sale. The central question that the court will look to, going forward, is whether the condominium association foreclosed on just its six-month super-priority lien or both its six-month super-priority lien and any subordinate lien.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions and Business Law Practice Groups are ready to assist.

Read the full case here.

| Christine Bondi

Another Physician Found Not Liable for Suicide in Virginia

A jury in Virginia Beach returned a defense verdict for a family medicine physician in December 2023.  Plaintiff alleged that the defendant failed to recognize suicidal ideation in her patient and was therefore liable when the patient ultimately took her own life.  But the jury disagreed, finding that plaintiff was of sound mind during the act, and therefore the defendant could not be liable.

In Virginia, suicide is still considered a common law crime, which is a hot-button issue with some lawmakers due to the tax implications for families.  But beyond that, a party who commits an illegal act cannot recover from other participants in the commission of that act, nor can they recover from parties who consented to or failed to prevent the act.  Miller v. Bennett, 190 Va. 162, 164-65 (1949).  This means that a patient who commits suicide cannot recover from a health care provider who failed to intervene to prevent the suicide, nor can their family.

There is a caveat, however.  To constitute a “suicide” under Virginia common law, the patient who commits suicide must be “of years of discretion” and of sound mind.  Wackwitz v. Roy, 244 Va. 60, 65 (1992). When a defendant raises the defense of illegality because the patient was of sound mind, the burden then shifts to the plaintiff to prove that the patient was of unsound mind at the time of their death.  This defense verdict, and several others in Virginia in recent years, is evidence that juries have concluded that the act of suicide itself is not concrete evidence of an “unsound mind.”

If you have any questions about this case or laws impacting health care providers in Washington, D.C., Maryland, or Virginia, feel free to contact us. Our Health Law Practice Group is ready to assist.

| Don Kim

Corporate Transparency Act Update

Businesses and their beneficial owners have less than four months to comply with the reporting requirements set forth in the Corporate Transparency Act (CTA), which took effect January 1, 2024. The CTA is designed to combat money laundering and other financial crimes by requiring a broad range of entities to disclose information about their owners and persons who exercise control to the Financial Crimes Enforcement Network (FinCEN), a bureau of the United States Treasury. A more in-depth review of the CTA’s applicability can be found in our earlier post. 

The CTA imposes the following deadlines for Reporting Companies to file their Beneficial Ownership Information (BOI):  

  • Reporting Companies formed before January 1, 2024: On or before January 1, 2025 (one year after the effective date of the CTA).  
  • Reporting Companies formed on or after January 1, 2024: Within 90 days after its date of formation (i.e., the date its organizational document was accepted for filing by the applicable state agency . 
  • Reporting Companies formed on or after January 1, 2025: Within 30 days after its date of formation (i.e., the date its organizational document was accepted for filing by the applicable state agency).

* The CTA does not require annual renewals but does require Reporting Companies to update their filings within 30 days of any changes to the information contained in the BOI 

Given the number of cases pending in the federal court system (including cases pending in courts in Alabama, Ohio, Maine, Michigan, Texas, Massachusetts) challenging the constitutionality of the CTA, many businesses remain uncertain about their obligations under the CTA and its enforcement.

Despite that uncertainty, the most prudent approach for businesses is to submit the requisite filing now to ensure compliance rather than deferring filing in hopes of a judicial or legislative intervention. Most recently, on September 20, the US District Court for the District of Oregon denied a motion for preliminary injunction filed by plaintiffs challenging the constitutionality of the CTA. The order stands in contrast to recent order issued by a federal court in Alabama  declaring the law unconstitutional and blocking its enforcement against the two named plaintiffs in that case. 

Some states, including as California, Maryland, and Massachusetts, are considering or reviewing proposed legislation for state-level laws that resemble the CTA. Given these developments, it appears likely that business entities will be required to report beneficial ownership information in the coming years in some way or another. 

Compliance challenges for business entities remain abundant.  Businesses have complained about difficulty identifying their beneficial owners (board members, senior officers, trusts, etc.), determining the applicability of the law’s myriad exemptions, and gathering the information required for filing. Of course,  questions about how the CTA will be enforced remain to be answered. However, in  July 2024, Treasury Secretary Janet Yellen testified before the House Financial Services Committee  that although CTA penalizes deliberate violations of the law, FinCEN was not seeking to take “gotcha enforcement actions against small businesses.” FinCEN Director Andrea Gacki recently echoed that sentiment.

Overall, determining whether the CTA applies to a specific entity requires a fact-intensive examination, and, as evidenced by FinCEN’s ongoing issuance of new guidance through its FAQs, the application of the CTA is still evolving. Please reach out to your Jackson & Campbell team with any questions or for support.

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No ‘Occurrence’ For Ghost Gun Seller

In Granite State Insurance Co. et al., v. Primary Arms, LLC, the U.S. District Court for the Southern District of New York recently addressed the issue of whether an insurance company has a duty to defend a firearms retailer in lawsuits alleging that the retailer’s sale of “ghost guns” contributed to gun violence. Granite State Insurance Co., No. 23 CIV. 7651 (LGS), 2024 WL 4008167 (S.D.N.Y. Aug. 30, 2024). The court held that the insurers had no duty to defend because the underlying lawsuits did not allege an “occurrence” as defined in the insurance policies.

The State of New York and the cities of Buffalo and Rochester sued Primary Arms, a Texas-based firearms retailer, alleging that the company unlawfully sold unfinished frames and firearm parts to New York residents which could be easily converted into completed firearms, evading gun control laws and regulations requiring serial numbers and background checks and contributing to an increase in gun violence.

The lawsuits claimed that Primary Arms’ actions violated various laws and constituted public nuisance, negligence, and deceptive business practices. Primary Arms sought coverage under its commercial general liability and commercial umbrella liability insurance policies. The policies provided coverage for damages caused by an “occurrence,” defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

The court granted the insurers’ motion for summary judgment, declaring that they had no duty to defend Primary Arms in the underlying lawsuits. The court reasoned that the underlying lawsuits did not allege an “occurrence” because Primary Arms’ alleged conduct was not accidental. The court explained that under Texas law (which applied to the case), it is not an accident if the insured commits an intentional act that results in injuries that ordinarily follow from or could be reasonably anticipated from the intentional act. The court emphasized that the focus is on the factual allegations in the underlying lawsuits, not the legal theories asserted.

The court further noted that the underlying lawsuits alleged that Primary Arms intentionally marketed and sold unfinished firearm parts with the knowledge that they could be easily converted into untraceable firearms and rejected Primary Arms’ argument that its alleged failure to implement controls on who could purchase its products constituted negligence rather than intentional conduct. The court concluded that Primary Arms’ deliberate choice not to implement controls despite these risks was not an accident, noting “[t]hese allegations may be presented as negligence claims, but they do not allege an accident.“ Accordingly, the court held that the insurers had no duty to defend under the policies.

| Selena A. Motley

D.C. Court of Appeals Rules in Favor of Homeowners on Single-Family Exemption Act of 2018

On August 22, 2024, the D.C. Court of Appeals in Lashawn Lane v. District of Columbia Department of Housing and Community Development held that the Single-Family Exemption Act of 2018, D.C. Law 22-120, § 409, 65 D.C. Reg. 5077 (2018) (“Single-Family Exemption Act”) applies to all tenants of single-family properties regardless of when their tenancies began.  Landlords must still notify tenants of their intent to sell, but only elderly and disabled tenants who began residing in the property prior to April 15, 2018 have the right to match a bona fide offer of sale. 

As background, after the enactment of the Single-Family Exemption Act, owners of single-family accommodations who intend to sell their property need only provide tenants with notice of sale within three days of receiving or soliciting an offer, and that notice no longer triggers a tenant’s right to purchase. D.C. Code § 42-3404.09(b).

In Lashawn Lane, a tenant leased a single-family home in 2010. In 2023, the property owners contracted to sell the property to a third party and served the tenant with certain Tenant Opportunity to Purchase (“TOPA”) Forms pursuant to D.C. Code § 42-3404.09(b). The tenant argued that the Single-Family Exemption Act did not apply to tenants of single-family housing who had resided in their properties before the 2018 amendments were enacted. The tenant further argued that she was entitled to the far broader protections and privileges of the pre-amendment TOPA.

The tenant filed for a “Petition for Declaratory Relief” in the Department of Housing and Community Development (“DHCD”) for violation of TOPA. DCHA determined that the property owners did not violate the tenant’s TOPA rights. The tenant subsequently appealed to the D.C. Court of Appeals.

The Court of Appeals noted that the legislative history of the Single-Family Exemption Act clearly intended to override a tenant’s prior TOPA rights after its enactment. Moreover, “[t]he text of the 2018 amendments make it crystal clear that the Council intended the new single-family accommodation exemption to apply to tenants . . . whose tenancies preceded the 2018 amendments in all but the limited subset of cases where the tenant is elderly or disabled.” Consequently, tenants who leased property prior to 2018 and do not claim elderly or disabled status do not have a right of first refusal for the sale of a property under the Single-Family Exemption Act.

Jackson & Campbell, P.C. attorneys Brian W. Thompson and Selena A. Motley represented the property owners, as intervenors, in this case.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

Read the full decision here.

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Massachusetts Appellate Court Holds Construction Defects Not “Property Damage” Under Commercial General Liability Policy

In a significant decision issued on August 14, 2024, the Massachusetts Appeals Court in Lessard v. R.C. Havens & Sons, Inc. held that widespread construction defects in the construction of a home were not covered by the construction company’s general liability (CGL) policy. The appellate court upheld a trial court decision granting summary judgment for an insurer who had argued that the coverage for “property damage” offered under the CGL policy contemplated physical injury to existing property, not faulty construction.

A jury in the underlying case had awarded the homeowners, Lawrence Lessard and Jennifer Meshna, the sum of $272,533 in compensatory damages for numerous serious construction defects in their home. The plaintiffs had contracted with R.C. Havens & Sons, Inc. (Havens) to build their home, but the residence ended up exhibiting improper framing and inadequate support beams which shifted loads onto partition walls, along with errors in the construction of flashing, siding, and the roof. The defects compromised the structural integrity of the entire building and necessitated extensive repairs.

Havens’ insurer, Main Street America Assurance Company (MSA), intervened in the case seeking a declaration that it had no duty to indemnify Havens under its CGL policy.  The trial court found that the construction defects were not “property damage” caused by an “occurrence” under the terms of the CGL policy, and granted summary judgment for MSA against the homeowners. 

On appeal, the Massachusetts Appeals Court analyzed the definition of “property damage” within the CGL policy at issue, which defined the term to require physical injury to tangible property (or loss of use of tangible property that is not otherwise physically injured). Following the requirement to construe insurance policy definitions in a “reasonable and practical way” under Norfolk & Dedham Mut. Fire Ins. Co. v. Norton, 100 Mass. App. Ct. 476, 478 (2021), the court followed rulings from other jurisdictions such as Florida, North Carolina, Tennessee, and Texas in holding that “property damage” does not include costs to repair or remove construction defects. “Commercial general liability policies provide coverage for tort liability for physical damages to others,” the court explained, not coverage for contract damages when “the product or completed work is not that for which the damaged person bargained.”

In holding that the homeowner’s judgment was not covered under Havens’ CGL policy, the court did not foreclose that such a policy could include coverage for property damage to separate property caused by a construction defect. The court drew a clear distinction between construction defects themselves and any damage caused by those defects. Although the costs of repairing or removing construction defects are not covered under a CGL policy, as they represent a failure to meet the expected quality of work from the outset, damages resulting from the impact of the defects on other property may be covered.  “Taking a simple example, an improperly installed window would not be ‘property damage,’ but resulting water damage to the surrounding wall would be.”

The court noted that, although the homeowners argued on appeal that they were seeking damages for such secondary, consequential loss, an examination of the record below did not show any award for such secondary losses, only for the actual construction defects and associated remediation costs. “In this situation, absent evidence that the construction defects caused injury to other property, MSA had no duty under its commercial general liability policy . . . to indemnify R.C. Havens for the final judgment.”

| Nathan J. Bresee, Arthur D. Burger, David H. Cox, Crystal S. Deese, Christopher P. Ferragamo, Roy L. Kaufmann

The Best Lawyers in America 2025

Jackson & Campbell, P.C. is pleased to announce a number of our Directors have been named The Best Lawyers in America© 2025 Edition.

Congratulations to:
  • Nathan J. Bresee (2025) – Real Estate Law
  • Arthur D. Burger (2015) – Ethics and Professional Responsibility Law
  • David H. Cox (2010) – Litigation – Real Estate, Real Estate Law
  • Crystal S. Deese (2024) – Medical Malpractice Law – Defendants
  • Christopher Ferragamo (2024) – Insurance Law
  • Roy L. Kaufmann (2018) – Real Estate Law

Since it was first published in 1983, The Best Lawyers in America© has become widely regarded as the definitive guide to legal excellence. The Best Lawyers in America lists are based on exhaustive peer review surveys in which over 50,000 top attorneys cast more than 5.5 million votes on the legal abilities of other lawyers in their practice areas. Corporate Counsel magazine has called The Best Lawyers in America “the most respected referral list of attorneys in practice.” Congratulations to our attorneys for such prestigious recognition by their peers in their specific areas of law.

Jackson & Campbell’s attorneys are among the most respected in Washington, D.C. routinely winning national awards and high rankings from organizations like The Best Lawyers in America, Super Lawyers, Who’s Who in America, and many others. Dependability is the cornerstone of a successful attorney-client relationship. We take particular pride that our clients depend on our advice to address what is often among their most important decisions – wills, family trusts, generation wealth transfers, real estate transactions, business transactions, professional negligence, and all types of dispute resolutions ranging from arbitrations to jury trials. Jackson & Campbell traces its roots to 1887, making it one of the oldest law firms in Washington. We pride ourselves on more than a century of service to our clients and our community.

| Christopher A. Glaser

Appellate Court of Maryland leaves unresolved issue of whether riparian owners have right to unobstructed view.

The Appellate Court of Maryland recently declined to decide whether riparian owners have a right to unobstructed water views, noting that other states have approached the issue differently. In Buck v. Steele, the court reminded litigants that legal arguments to create new law must be predicated upon actual facts and one cannot skip over the basic building blocks of a case.

In Buck, Rosalie Buck owned waterfront property in a subdivided community containing 31 lots in Port Tobacco, Maryland. The original 1921 deed from the developer to Ms. Buck’s predecessor provided that the water rights and privileges were reserved to the developer and in common with all lot owners within the subdivision. In 2019, Mark Steele purchased an improved lot adjacent to Ms. Buck’s property. At the time of his purchase, Mr. Steele had unobstructed views across Ms. Buck’s property to Port Tobacco Creek. Shortly after Mr. Steele’s purchase, Ms. Buck erected a fence for the sole purpose of blocking Mr. Steele’s view. The trial court ordered removal of the portion of the fence which blocked Mr. Steele’s view finding that Mr. Steele held riparian “rights and privileges in the waterfront, including the right to the view of Port Tobacco Creek.” 

Recognizing that Maryland has not addressed the issue of whether or not unobstructed views is within the bundle of riparian rights recognized in the state, the Appellate Court turned to other states for guidance. It noted that in Florida the right of an unobstructed water view is within the rights afforded to riparian owners; whereas, other states, such as Idaho, Indiana, and Michigan, do not include rights to unobstructed views within riparian owners’ rights. After its analysis of other states’ positions on the matter, the Appellate Court concluded that Maryland’s silence on the matter to-date would continue as Mr. Steele was not a riparian owner and could not assert riparian rights in any event. Mr. Steele only owned an interior lot which did not border on the water. In the litigation over whether Maryland would recognize unobstructed views as being within a riparian owner’s rights, the parties had apparently neglected to determine whether or not the parties were both riparian owners. Had the original developer intended to prohibit fences or other obstructions to the interior lots’ owners, it could have placed an express restriction in the deeds. It did not.

Jackson & Campbell, P.C. represents title insurers and insureds in Maryland, Virginia, and Washington, D.C. and we strive to keep our clients and other title professionals up to date on various developments in the law. Additionally, we present no-cost in-house updates of the nation’s most noteworthy cases and national trends following the spring and fall American Land Title Association’s Title Counsel meetings.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

Chris Glaser.

CAI Files Amicus Brief in NSBA v. Treasury – Corporate Transparency Act

The Corporate Transparency Act (“CTA”), which went into effect on January 1, 2024, was enacted to curb tax fraud, terrorism financing, money laundering, and other illicit activity by requiring business entities to report information about their owners.  Specifically, entities covered under the CTA are required to file a Beneficial Ownership Information (“BOI”) Report with the U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) that contains information about individuals with certain interests in the business.

Although the intent of the CTA is to limit illicit activity carried out by anonymous business entities, the CTA requires countless above-board entities, including nonprofit community associations, to file BOIs.   The National Small Business Association sued the Department of Treasury in the Northern District of Alabama, challenging the constitutionality of the CTA.  In March 2024, the U.S. District Court for the Northern District of Alabama ruled that the CTA was an unconstitutional overreach of congressional power, and the Treasury Department appealed that decision to the 11th Circuit.  On May 20, 2024, the Community Association Institute (“CAI”) filed an amicus brief in the U.S. Court of Appeals for the 11th Circuit in National Small Business United, et al. v. U.S. Department of the Treasury, et al. 

In its amicus brief, CAI argued that the CTA – a law designed to limit terrorist financing and illicit money laundering – should not apply to local, nonprofit community associations.  In the brief, CAI emphasized the fact that most community associations rely on the willingness of owners to serve as volunteer boards to make their communities better places to live.  Requiring potential volunteers to provide their personal information to FinCEN would likely damper individual interest in serving on volunteer boards and, in turn, render community associations difficult if not impossible to operate. 

CAI also argued that community associations are not a hotbed for terrorist activity or money laundering and, therefore, are not the intended target of this law.  In addition, the ownership of community associations is already de-anonymized.  Indeed, when a person or entity purchases a unit in a community association, the buyer’s information is reflected in the land records in which the association is located.  CAI also emphasized the fact that community associations are already required to file annual reports to state governments identifying their officers and directors.  As the information that would be contained in the BOI reports is already available through the land records or other state agencies for community associations, these entities should not be required to file BOIs with FinCEN as well.    For the reasons outlined above, CAI requested that community associations be granted an exemption from the CTA’s reporting requirements. 

The U.S. Court of Appeals for the 11th Circuit will hear oral arguments on the appeal in the coming months.  If the appellate court affirms the trial court’s decision, the case will likely head to the Supreme Court.  

| Roy L. Kaufmann

How to Make Sure You Know the Boundaries of Your Property: The Difference Between a House Location Drawing and a Survey

How to Make Sure You Know the Boundaries of Your Property

The Difference Between a House Location Drawing and a Survey

By Roy L. Kaufmann

Prudent buyers of real estate (excluding most condos and co-ops) will want to know where the property boundaries are located, before they proceed to closing.  This article will explore the following important points:

  • When the buyer has first contact with the settlement company, there should be a discussion about surveys.
  • The buyer should make a careful decision about what type of survey to order.  Resist the settlement company’s suggestion that “everyone does it this way”.  That might not be the best decision for you.
  • The buyer can shop for a surveyor.
  • The buyer should try to have the settlement company “remove the general survey exception” from the title insurance policy.

All too often,  the settlement process moves along quickly, and decisions are made for the buyer about surveys without the buyer’s knowledge and, years later, the buyer wishes they had paid more attention and made a better decision. 

Problems that can arise later that could have been avoided if a survey had been more carefully discussed:

  • Fences that do not follow the property line (google “adverse possession”). 
  • Projections of the building, gardens, walkways, or driveways  onto the neighbors’ property (or vice versa).
  • Location of easements – a neighbor has the right to cross over the land or a utility company has the exclusive right to use land exactly where you intended to build a shed or pool.
  • There is a shared driveway and no written agreement about maintenance or splitting costs, or even worse, the possibility of losing access to the driveway. 

How to decide between a House Location Drawing and a Boundary Survey.

A buyer usually has two options: a house location drawing and a survey.  They may sound the same, and they may look similar when presented, but there are major difference.  The survey is more expensive, and takes longer to prepare, but some buyers may benefit from a survey.

House Location Drawing Boundary Survey
Cost $250-$450 $750+
Time to Prepare 7-10 days 10-25 days
  • Basically a “sketch”. Does not guaranty property lines. 
  • Usually involves a field visit.
  • The more common choice (but that doesn’t mean always the correct choice).
  • Shows general location of property lines and visible buildings and improvements.
  • Accurate usually to +/- one foot.
  • Contains disclaimer: can’t be used to determine boundary lines, fence lines, location of  existing or future improvements,  or applications for permits.
  • Generally, do not show easements or anything else that is not visible. 
  • Not usable for boundary line disputes. 
  • Does not include foundation certifications or wall checks. 
  • Extremely accurate.
  • Requires a field visit.
  • Measures property lines.
  • Shows distances/lengths of property lines.
  • Cross-references with recorded and historical documents.
  • Usually corners of property are marked with a rebar “pin” and there may be wood stakes or other visible markers
  • Should show easements.
  • Suitable to secure permits, build fences, property line disputes, etc.

 

House location drawings have a disclaimer which illustrates their limited use.  Here is a sample:

If you want to know absolutely where your boundary lines are, whether the fences are encroaching on to the neighbor, or you want your survey to show you where encroachments are, you should opt for a boundary survey.

Should I shop around for a surveyor?   Your settlement company has relationships with surveyors.  For a house location drawing, it is probably not worth shopping around. But, for a boundary survey, it is advisable.  Survey costs vary according to the property’s size, terrain, amount of work to do, and how quickly you need it done.  Surveyors may make more money cranking out house location drawings, so it might be a challenge to find a surveyor who is willing to do a boundary survey.

Timing:  The buyer should make the decision very early in the process between house location drawing and boundary survey.  After you read this article, you might know more about this topic than the intake person at the settlement company.  If you have questions, ask to speak to someone knowledgeable at the settlement company, or call a surveyor.  

If you are ordering a boundary survey, here is the schedule:

  1. Review your purchase and sale agreement about any deadlines for objecting to survey issues or title issues.  Mark your calendar and include a reminder when the survey is due. 
  2. Advise the settlement company that:
    1. You are electing a boundary survey.
    2. You would like the “general survey exception” deleted from the title insurance commitment (because they will be receiving a boundary survey);
    3. They are to send a copy of the title insurance commitment to the surveyor as soon as possible.
    4. What is the deadline for the title company to receive the survey? 
  3. Advise the surveyor that:
    1. There is a deadline for the survey.  
    2. They are to show easements of record on the survey.
    3. They are not to finalize the survey until they have the title insurance commitment from the settlement company.

4. Upon receipt, review the survey and the title insurance commitment to make sure you are aware of any issues related to the survey.  You should do this before closing.

5. When you look at your title insurance commitment and policy, make sure that the general survey exception is deleted and that you understand any specific survey exceptions. Feel free to discuss concerns with the surveyor and the settlement company.

If a neighbor says that my fence is on her property and it has to be torn down, don’t I have title insurance? 

The short answer is usually “no” unless you purchased a boundary survey before closing. 

Buyers routinely buy an owner’s title insurance policy at closing.  But, a buyer might take false comfort, thinking that the title insurance policy gives protections against a claim involving boundaries.  In this example, unless you ordered a boundary survey, you will be dismayed to find that your title insurance policy has “general survey exception” that says, in effect, that there is no coverage for matters that  could have been shown on a boundary survey.  

As a general rule, buyers should always ask their settlement company to remove the “general survey exception” from the title insurance commitment and from the title insurance policy.  Sometimes this request is granted and sometimes not.  Often the decision may vary from title company to title company, but it will likely always be granted if you order a boundary survey.

Purchasing real estate is complex and you have to keep track of many issues.  While we all hope that you are never plagued by survey issues, if you carefully review the survey considerations, you will greatly reduce that possibility.

| Christopher A. Glaser

Federal court in Maryland confirms “unmarketable” relates to title, not property.

The United States District Court for the District of Maryland recently dismissed a title policy holder’s claim regarding an allegedly unmarketable title and provided especially useful language to the industry. In Kiritsis v. Stewart Title Guaranty Co., the court confirmed that “unmarketable” as used in the policy was not ambiguous and that the term related solely to title and not the property itself.

Plaintiffs owned one dwelling across three adjoining parcels in Ocean City, Maryland. Plaintiffs entered into a sales contract with a developer who announced a plan to replace the existing residence and erect separate dwellings on each of the three lots. Shortly thereafter, Plaintiffs’ neighbor filed suit to bar the development claiming that Ocean City’s Zoning Code prohibited the announced plan. The developer’s intended title insurer would not issue a policy absent an exception for the neighbor’s claim, which caused closing to be disrupted. The Plaintiffs made a claim on their title policy asserting that title to their property was unmarketable.

The Kiritsis Court analyzed whether the title was unmarketable and held that the term referred solely to legal title of the property and neither to its usage nor value. The Court noted that “[i]f a storm destroyed part of a building on a piece of property, it would certainly make the property less desirable or ‘marketable,’ but it would have no impact on whether the title to the property was valid.” Concluding that the policy would not afford the relief demanded by Plaintiffs, the Court held that it “is not the purpose of title insurance to insure against any possible claim brought against owners of a property; rather, as its name suggests, its purpose is to insure against claims to the title of the property at issue.” The Court also noted the policy’s exception for losses related to police powers, zoning, and land use. While a potentially predictable win for the title industry, the decision is useful for practitioners given the strong favorable language throughout the opinion.

Jackson & Campbell, P.C. represents title insurers and insureds in Maryland, Virginia, and Washington, D.C. and we strive to keep our clients and other title professionals up to date on various developments in the law. Additionally, we present no-cost in-house updates of the nation’s most noteworthy cases and national trends following the spring and fall American Land Title Association’s Title Counsel meetings.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

 

| Christopher A. Glaser

Court of Appeals of Virginia opens door to second round of easement litigation

The Court of Appeals of Virginia affirmed the denial of an implied easement absent evidence of its location but may have encouraged the parties to further litigate the issue. In Morris v. Parker, the central issue initially before the trial court was whether the Morrises had established an implied easement to use a platted but unimproved road partially upon the Parkers’ property.

The Morrises owned two lots—Lot 3 being to the west of Lot 5—with Lot 5 bordering a platted but unimproved right of way known as Flurry/Fluridy Road on its east side. Mr. Morris testified at trial that he never used Flurry/Fluridy Road but accessed Lots 3 and 5 via two other entrances to the west and south. The Parkers owned the property on the east side of Flurry/Fluridy Road. The Parkers accessed their property via a gravel road to the east of their parcel. The Morrises subdivided their property and sought to benefit a newly-created Lot 5-A by paving the platted Flurry/Fluridy Road—claiming that it was the same gravel road used by the Parkers—and using it as a driveway.

Importantly, neither side provided the trial court with any accurate description of the physical location of the claimed easement. While a title examiner testified that both properties were once owned by a common grantor as well as to the location of Flurry/Fluridy Road in the land records, no one testified as to the physical location of the platted Flurry/Fluridy Road or whether it was developed or not. For his part, Mr. Morris testified that he did not know whether the gravel road was in the same place as the platted Flurry/Fluridy Road.

The trial court found in favor of the Parkers holding that there was no evidence that the easement was in use at the time of the severance or that it was apparent, continuous, and reasonably necessary. On appeal, the Court of Appeals affirmed on a narrower basis under the “right-result-different-reason” principle. No evidence linked the platted right of way to an actual physical location. As the Morrises failed to establish the location of the claimed easement, their cause of action failed. 

While the Parkers’ trial court victory was affirmed, they may only have a short reprieve from litigation. The Court of Appeals stated in a footnote that its “ruling does not preclude the Morrises from instituting an action alleging an easement over a different location that might correspond to the platted Flurry/Fluridy Road.” The parties are likely in for Round 2.

Jackson & Campbell, P.C. represents title insurers and insureds in Maryland, Virginia, and Washington, D.C. and we strive to keep our clients and other title professionals up to date on various developments in the law. Additionally, we present no-cost in-house updates of the nation’s most noteworthy cases and national trends following the spring and fall American Land Title Association’s Title Counsel meetings.

If you have any questions about this case or laws impacting real estate in and around the Washington, D.C. region, feel free to contact us. Our Real Estate Litigation and Transactions Practice Group is ready to assist.

| Arthur D. Burger

Arthur D. Burger to sit on American University Law Review Symposium Panel

Arthur D. Burger, Of Counsel at Jackson & Campbell P.C.,  will sit on a panel at the American University Law Review Symposium on artificial intelligence on February 9, 2024, from 3:15 p.m. to 4:35 p.m., addressing how the principles of legal ethics will adapt to the use of this burgeoning technology by lawyers and law firms. The program will be live streamed for those who register. Click here to sign up today.