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James C. Brincefield Jr.

James Brincefield’s Answers

7 total

  • I received false information from my leasing company and wondering if I have a legal leg to stand on.

    I have reviewed my lease and it does not describe the issue at hand.

    James’s Answer

    It is very difficult to answer your question because so many important facts are missing. Is it a residential or commercial lease? Who are you referring to when you say "my leasing company"? A real estate licensee? Was the "leasing company" representing you or the landlord or both? What was the nature of the "false information"? If you can prove that: (1) the leasing company intentionally misrepresented to you certain material facts; (2) in order to induce you to enter into a transaction that you would not otherwise have entered into but for the leasing agent's misrepresentation; (3) that you reasonably relied on the misrepresentation; (4) and that you suffered some damage as a result, you can sue the leasing company for fraud. If you win the case, you could possibly recover the amount of damages you suffered and, if you prove that the fraud was committed either with the intent of harming you or was committed consciously, willfully, and deliberately, or with a wanton, willful and reckless disregard for your rights, you might also be able to recover punitive damages. In some states, (like VA), fraud must be proved by "clear and convincing" evidence. This standard of proof is higher than the usual standard for civil cases (a "preponderence of the evidence") but lower than the standard of proof required in criminal cases ("beyond a reasonable doubt").

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  • Why do I need an attorney when selling real estate in Virginia?

    I am the seller of real estate in VA and have been asked by the closing attorney who will be representing me in the transaction? I reside in MD and have never been represented by an attorney when selling property there. The title attorney in MD ...

    James’s Answer

    You are not legally required to employ an attorney in order to sell real estate that you own in VA. However, you would be well-advised to hire a knowledgeable VA real estate attorney to represent you at the closing. From your statement that the "closing attorney" has asked you who is representing you for purposes of settlement, I assume that you and the buyer(s) have agreed to, and properly signed, a written contract containing all of the necessary terms of sale. That's a big--and potentially dangerous--assumption to make. You may be unaware of some of the rights and duties you will have at settlement. You may not even have an enforceable sales contract. If you don't employ an attorney to represent your interests at settlement, and anything important comes up at settlement that you are not prepared for, who will advise you and represent your interests in negotiating a resolution of the problem? The settlement attorney cannot represent both you and the buyer(s). Any non-lawyers present are prohibited by law from giving any legal advice. Do you know how the settlement costs are to be allocated between you and the buyer(s)? Are you required to provide any Reports (Termite, septic, compliance with Code, etc.) at settlement? Have you agreed to correct any defects in the property? Have you agreed to pay any costs or expenses for the buyer(s)? Are there any significant issues about the sale that haven't been finalized? The cost of employing an attorney to represent you at settlement is a small fraction of what it could cost you if you don't have one and an unforeseen problem arises. Ask yourself: would you rather have a lawyer at settlement and not need him/her or need one and not have one? Based on 45 years of practicing real estate law and seeing all the kinds of problems that can unexpectedly arise at settlement--- even if you have had the benefit of a lawyer's advice when you negotiated the terms of the sales contract---the cost of having an attorney at least available at the time of settlement is a small amount to pay for peace of mind. Suggestion for the Savvy Consumer: you can have the best of both worlds (adequate legal representation and the lowest possible cost) by finding a knowledgeable real estate attorney who will work with you by (1) arranging with the settlement attorney to provide to him/her copies of the unsigned settlement documents by email to review before settlement and (2) arranging to be available by phone during the time of settlement so that you can call him/her for advice just in case an unforeseen problem arises at settlement.

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  • My lease states if i don't pay rent by the tenth of the month Landlord can padlock the doors and my belongings are his?

    i live in Pennsylvania and i have a 1 year lease and in 10 months i have never been late with the rent except this month

    James’s Answer

    You need to hire an attorney familiar with landlord/tenant law in the jurisdiction where the property is located (PA?). Is the lease residential or commercial? Remedies for non-payment of rent for commercial property can be more draconian than remedies in residential leases. I am not admitted in PA, nor am I familiar with PA law concerning the question you posed, but I Can assure you that you need to retain counsel as soon as possible. If you cannot afford a lawyer, check with the local Bar Association to find out if there are any free legal services available in your area for people in your situation.

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  • How Arbitration works?

    A Unit owner has filed a suit against our small condo association while the declaration of this association prohibits owners from suing the association and they have to settle any dispute by arbitration. Can the association appear in court as pro ...

    James’s Answer

    Condominiums are creatures of statute. You need to hire an attorney who is familiar with the condo laws of your state. Generally speaking, if the Declaration for your condo was properly drafted and requires any dispute between a unit owner and the association to be resolved by arbitration, that requirement would probably be enforced by the court in which the lawsuit was filed. I don't know all the condo statutes in all the various states, but I believe that most states would not authorize a Unit Owners Association to represent itself (i.e. "pro se") or the other members of the Association in litigation brought by a unit owner.

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  • My father passed away in Iowa and he loaned my 2 brothers $40,000 each for their house, the brothers stole the loan documents.

    The brothers are both co-executors and filed probate so his house could be sold and divided. They took the loan documents about a week before his death. His 2nd wife, myself and a family friend had either seen or had discussions with him about the...

    James’s Answer

    You need to hire an attorney who is familiar with the real estate and probate laws in your state. If the loans were secured by a lien against certain specific assets (such as the house), the documents may have been recorded to evidence the loans. You have left out some important facts in your question. When did your father die? Did he have a will? At the time of his death, was he the sole owner of the property? Did he have any equity in the property? When was the probate of the estate commenced?

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  • Can the restrictions on the property deed be changed?

    My mother in law wrote the deed and it states that the property can't be sold until my husbands youngest child is 18 and can agree to it. The property is in VA & my husbands job is relocating us to TX in Aug. Our youngest child is 5 and it is in...

    James’s Answer

    Yes, the deed can be changed and the restriction lifted if the proper documents are prepared and signed by the appropriate people. However, depending on some facts that were not included in your question, it could be complicated. The first thing you need to do is hire a good attorney who is familiar with real estate law in VA. He/she will want to look at the deed to see whether your mother- in- law drafted and recorded it properly . For example, when your MIL recorded the deed, was she the sole owner of the property? To whom did she transfer title? Is there any kind of lien secured by the property?

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  • If i am the only one pay taxes on a property for 4 yrs that was left to me and someone else. is this consider abanoned prop.

    they didn't help me pay any taxes since 2004.

    James’s Answer

    You need to talk to a real estate lawyer who is familiar with the law applicable in your jurisdiction. Generally, 4 years of failure to pay real estate taxes on one's interest in a parcel of real estate would not be considered an abandonment of that person's interest in the property.

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