News + Insights

The Intersection of the Bipartisan Infrastructure Law and Davis-Bacon Act Requirements for Federal Contractors and Subcontractors

Written By Xavier D. Lightfoot and Devon D. Williams

On November 15, 2021, President Joe Biden signed the $1.2 trillion Infrastructure Investment and Jobs Act into law, which is popularly known as the Bipartisan Infrastructure Law ("BIL").  The BIL is estimated to crea…

New Law Limits Broad Form Lien Waivers in Construction Projects

Written By Evan M. Musselwhite

Lien rights can be one of a contractor's most important means of securing payment on any private construction project in North Carolina.  Under Chapter 44A of the North Carolina Statutes, contractors that contract di…

A Few Things You Should Know in Case of Windstorm Damage to Your Home or Building

Written By Michael J. Parrish and Amy H. Wooten

North Carolinians know when Hurricane season begins and ends; we know what a "spaghetti model" is; and we know who in our neighborhood has a generator!  But do we know enough about windstorm insurance policies and ho…

When Is a Deal a Deal?

Written By Isabelle M. Chammas and E. Bradley Evans

Oftentimes, individuals attempt to negotiate deals on their own without the benefit of legal advice and assistance. At best, this can lead to certain pitfalls. At worst, this can lead to the complete invalidity of the att…

North Carolina Licensing for General Contractors: Licensure of Joint Ventures

Written By E. Bradley Evans and Evan M. Musselwhite

Joint ventures are a common method of undertaking construction projects in North Carolina. Through a joint venture, two companies can pool their resources and expertise to complete a project.  Joint ventures are unin…

The Application of North Carolina's Economic Loss Rule to Commercial Construction Projects

Written By Luke C. Tompkins

This article addresses recent developments in North Carolina law regarding the economic loss rule, explores the application of the economic loss rule to commercial construction projects in light of those developments, and …

Environmental Justice 101: Leveling the Playing Field in the Permitting Process

Written By Amy P. Wang

The concept of "environmental justice" (or "EJ" among environmental practitioners) is not new.  It developed in response to the inordinate number of industrial facilities and contaminated sites located near underrepr…

Community Association Building Blocks: Community Drainage and Flooding and Architectural Control Parameters

Written By Eric J. Remington and Amy P. Wang

Many homeowners in North Carolina experience issues with excessive surface water flow and localized nuisance flooding after rain events.  How communities deal with these problems was the focus of Ward and Smith's lat…

Land Use and Zoning Basics for Community Associations

Written By Clint H. Cogburn

Recently, I detailed a variety of land use laws and land use regulations pertinent to community associations and community association managers. The webinar, which is part of Ward and Smith’s Community Association B…

State Stormwater Program Amendments Significant for Those Affected by Post Construction Stormwater Permits

Written By Amy P. Wang

Extensive changes to North Carolina's stormwater runoff statute went into effect on September 16,2021 as part of Session Law 2021-158. The Stormwater Program amendments are embedded in an environmental omnibus b…

Use Clarity to Avoid Contempt in Bankruptcy

Written By Lance P. Martin

This is a story about contempt and clarity.  It comes to us from a July 2021 North Carolina district court decision reversing a $115,000 sanctions order by a North Carolina bankruptcy court.  The story offers a …

Taking License Liberties Based on Affiliation

Written By Donalt J. Eglinton and Evan M. Musselwhite

Questions regarding general contractor licensure requirements often arise among affiliated or related companies, namely, which entities are required to have a license. The issue often arises where a licensed general contr…

Common Mistakes to Avoid When Appealing a North Carolina Occupational Licensing Board Decision

Written By Eric J. Remington and Amy H. Wooten

Ed. Note: This is the third in a series of three articles examining disciplinary and appeals processes in front of North Carolina professional and occupational licensing boards. See the first article here and the seco…

What Community Associations Should Know from HOA Attorneys

Written By Adam M. Beaudoin

Maintenance, repairs, upkeep, and enforcement of rules are all in a day's work for a community association – now one of the most common housing arrangements in North Carolina. To date, nearly 27% of the state's popu…

North Carolina Occupational Licensing Boards: Disciplinary Hearings and Appeals, 101

Written By Eric J. Remington and Amy H. Wooten

Ed. Note: This is the first in a series of three articles examining disciplinary and appeals processes in front of North Carolina professional and occupational licensing boards. In North Carolina, a significant number of …

Restrictive Covenants: What Are They And Why Should You Care?

Written By Justin M. Lewis

Restrictive covenants have a significant and substantial impact on the use and value of property; yet they are often ignored entirely or not considered until the end of the due diligence period before purchasing the proper…

Joint Check Agreements in Construction: Use with Caution

Written By Luke C. Tompkins

Construction projects involve a tiered relationship, which consists of (a) the project owner, (b) a general contractor hired by the owner who manages the construction project as a whole, (c) first-tier subcontractors hired…

What Do You Mean I Can’t Place the List of Delinquent Homeowners on the Clubhouse Door? Community Association Pitfalls: State and Federal Collection Laws

Written By Thomas C. Wolff

Whether you are a board member or a property manager for a community association ("Association"), you have probably dealt with owners that fail to pay their assessments, and whose accounts need to be referred for collectio…

Short-Term Rentals Regulations: Not Always a Day at the Beach for Municipalities

Written By Clint H. Cogburn

The explosion of short-term rental properties through North Carolina – from mountain cities to coastal destinations, and cities and towns in between – has resulted in increased scrutiny and regulation by munici…

Serving on Your Community Association’s ARC, ACC, or ARB? Take Note to Whom Your Fiduciary Duties Are Owed

Written By Allen N. Trask, III and Amy H. Wooten

Residents of planned communities often must obtain approval prior to making any modifications to their homes and lots.  Through their declaration of covenants, conditions, and restrictions - commonly referred to as t…

WOTUS Encore: The Fate of the Navigable Waters Protection Rule and Implications for Groundwater

Written By Amy P. Wang

It seems like yesterday, but it was actually last summer when the United States Environmental Protection Agency and Army Corps of Engineers published the Navigable Waters Protection Rule, effective June 22, 2020 (the "Ru…

More Breathing Room for Commercial Tenants in Bankruptcy

Written By Lance P. Martin

The Consolidated Appropriations Act of 2021 ("CAA") took effect on December 27, 2020.  The mammoth spending and COVID-19 pandemic relief bill contains provisions related to commercial real estate leases in bankruptcy…

The Economic Loss Rule - Recently Refined or Redefined by the North Carolina Supreme Court

Written By Evan M. Musselwhite and Amy H. Wooten

Recently, the North Carolina Supreme Court issued a decision impacting the application of the economic loss rule in commercial settings, particularly construction.  This article provides a refresher on the economic l…

Who is the Declarant? And Why Does it Matter?

Written By Samuel B. Franck

The concept and designation of the "Declarant" arise from the formation of a planned community or a condominium.  When the developer declares land to restrictions described in a "Declaration" for a planned community …

Industry Veteran Delivers Economic Forecast, Advice for N.C. Construction Firms

Written By Luke C. Tompkins

On October 8, 2020, Hank Harris, the director of Ward and Smith Business Consulting and a senior chairman at FMI Corporation, delivered the keynote address at Ward and Smith's 2020 Virtual Construction Conference.  H…

The Role of the Community Association Attorney

Written By Allen N. Trask, III

People often view Community Associations as simple collections of rule-obsessed homeowners that do little more than debate the color of the flowers under the monument signs leading into the community.  But at their b…

Issues Impacting Enforceability of Liquidated Damages in Construction Contracts

Written By Luke C. Tompkins

Liquidated damages are a sum specified in a contract as the measure of recovery in the event of a breach of the contract.  Liquidated damages provisions are common in construction contracts to guard against damages t…

Political Season is Upon Us: Guidance for Navigating Political Sign Display in Community Associations

Written By Adam M. Beaudoin and Kristin D. Mitcham

With Presidential, Senate, and House elections less than thirty days away, political signs are popping up in yards everywhere.  Many community associations have restrictions in their governing documents prohibiting o…

Claims of Lien For Community Associations: How to Effectively Utilize them to Compel Payment

Written By Thomas C. Wolff

Many community association managers know that a lien can be placed on a delinquent owner's lot as a method of securing repayment of assessments.  In many cases, the mere threat of having a lien placed against the own…

CDC Enacts New Residential Eviction Moratorium

Written By Xavier D. Lightfoot and Hayley R. Wells

On September 2, 2020, the Centers for Disease Control and Prevention ("CDC"), which is under the Department of Health and Human Services ("DHHS"), issued a temporary Order ("Order") halting certain residential evictions to…

Call of [Fiduciary] Duty: How Good Faith, Due Care, and Loyalty Guide Community Associations' Boards

Written By Allen N. Trask, III and Amy H. Wooten

Nearly 30 percent of North Carolina's population lives in a community association of some sort, be that a condominium or single-family community.  Yet, confusion among the general population about the nature of …

The Notice of Contract Mechanism: How Contractors Can Avoid Double Payment

Written By Jason T. Strickland

As the economic crisis stemming from the coronavirus pandemic unfolds, it is ever more important that contractors and subcontractors protect their payment rights and avoid the risk of double payment; i.e., the risk of havi…

Your HOA Got Served: Now What?

Written By Allen N. Trask, III and Amy H. Wooten

The unfortunate reality for many community associations and their boards of directors is that at some point in their existence they will be sued.    When that happens, there are a number of basic but import…

Commercial Owners Associations/Residential Owners Associations The Same — But Different

Written By Justin M. Lewis

What are commercial owners associations, and are they really that different from residential owners associations?  Commercial owners associations are nonprofit corporations that govern planned communities, condominiu…

Wave Goodbye to the Waiver Defense in Some Landlord/Tenant Disputes

Written By Norman J. Leonard

On May 1, 2020, in Winston Affordable Housing, LLC v. Roberts, the North Carolina Supreme Court clarified the law surrounding a landlord's acceptance of rent after issuing a non-renewal notice because of the tenant's breac…

Heavy Is the Head That Wears the Crown: Board of Director Authority in a Community Association

Written By Adam M. Beaudoin

The Board of Directors for a Community Association functions in a very similar capacity as the Board of a standard corporation. Approximately 95% of all decisions to be made on behalf of a Community Association will be ma…

COVID-19 Eviction Moratoriums: Need-To-Know Information for NC Landlords and Tenants

Written By Juliana S. Inman and Eric J. Remington

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress and signed into law by President Trump on March 27, 2020.  The CARES Act provided immediate economic assistance for American worke…

Replacing the Clean Water Rule – Is the Dance Really Over?

Written By Amy P. Wang

On April 21, 2020, the United States Environmental Protection Agency ("EPA") and Army Corps of Engineers ("Corps") completed step two of the two-step "repeal and replace" process ordered by President Trump in 2017 by publi…

North Carolina Extends Certain Real Property Development Approvals

Written By Samuel B. Franck and Kristin D. Mitcham

This week the General Assembly of North Carolina provided some relief to developers with active development approvals.  Pursuant to Senate Bill 704, signed into law on May 4, 2020 (the "Act"), the expiration of those…

Economic and Financial Uncertainty: How a Homeowners Association Can Protect Itself

Written By Tyler J. Russell and Thomas C. Wolff

In a short period of time, COVID-19 has changed the way we live and conduct business.  Sadly, the pandemic seems as though it will cause (or already has caused, depending on who you ask) a devastating impact on our l…

ARC Approval – Gotta Have It

Written By Ryal W. Tayloe and Allen N. Trask, III

Ward and Smith's Community Associations attorneys have successfully defended a Wilmington area Community Association in the North Carolina Court of Appeals. On April 21, 2020, the North Carolina Court of Appeals…

HOA Boards and the Coronavirus

Written By Adam M. Beaudoin

We are seeing the emails already. "We have a Board Meeting and need to award the contract for the pool, but we shouldn’t be in the same room. How do we do this?" "We have a Membership meeting scheduled for April bu…

When a Condominium Falls Down

Written By Samuel B. Franck and Kristin D. Mitcham

Buildings do not last forever.  Eventually, gravity and time will prevail over concrete, steel, wood, and glass.  The risks associated with that life span are captured well in transactions related to single-fami…

When is a General Contractor's License Required for Emergency Remediation Services?

Written By Evan M. Musselwhite

North Carolina has seen an increase in the need for building repair services following the damage caused by recent hurricanes, including Florence in 2018 and Dorian in 2019.  Frequently, these services must be perfor…

Two Pairs of Eyes Are Better Than One: Why Community Associations and Developers Should Have Separate Legal Counsel

Written By Allen N. Trask, III

North Carolina has the third most planned communities in the United States after California and Florida.  All of these planned communities typically evolve in a similar three-step process.  First, a real estate …

The Member’s Role in a Community Association

Written By Adam M. Beaudoin

Congratulations!  You just purchased your first home in a planned community and became a member of a community association.  For a detailed understanding of what a community association is all about, please clic…

NC Anti-Indemnity Statute Update, New Changes Now in Effect

Written By William S. Durr and Evan M. Musselwhite

On July 8, 2019, Governor Roy Cooper signed into law HB 871, significantly altering North Carolina's anti-indemnity statute, N.C. Gen. Stat § 22B-1 ("Anti-Indemnity Statute"), particularly as it relates to indemnity a…

The Accidental Construction Owner: A Checklist of Considerations for HOAs Engaging in Construction

Written By Jason T. Strickland

Homeowners associations ("HOAs") do not typically act as construction owners.  HOAs are set up as entities to maintain and manage planned unit communities.  The most important and common role of the HOA is to ma…

Construction Conference Insights: Industry Expert Lays Out Prospects for Growth

Written By Amy P. Wang

Wondering about the outlook for the construction industry in 2019 and beyond? Chris Daum, president and CEO of Raleigh-based FMI Corp., has a forecast. Daum told attendees at Ward and Smith’s 2019 Construction …

Can I Get Sued Over a Court-Authorized Foreclosure?

Written By Lance P. Martin

If a Clerk of Court authorizes a foreclosure sale and the trustee sells the property, can a borrower or other aggrieved party later sue to nullify the foreclosure sale or recover damages caused by the foreclosure?  I…

Avoiding Commercial Lease Disputes – Clearly Reflecting the Intent of the Parties is Key!

Written By Eric J. Remington

A commercial lease symbolizes a consensual relationship between parties that can be enduring and rewarding, or short-sighted and emotionally and financially taxing. Entering into a clearly drafted lease agreement at the o…

Rental Rebellion: New Bill Would Change the Leasing Landscape in Planned Communities

Written By Allen N. Trask, III

The battle between "pesky, disrespectful, transient tenants," and "overbearing, Big Brother community associations" may be heating up in North Carolina, thanks to a bill filed at the General Assembly this week. The abilit…

Brownfields Redevelopment Receives Boost Under the BUILD Act

Redevelopment of environmentally-damaged property has seen steady growth in North Carolina and nationwide.  The attraction to dense, urban communities offering work/live/play opportunities and away from suburban livi…

When a Chapter 11 Plan is Absolutely Dead on Arrival

Written By Lance P. Martin

Recently, we discussed In re CHL, a case involving a real estate developer in Chapter 11. We focused on the importance of the Disclosure Statement as a prerequisite to a debtor's ability to move forward with a plan of reo…

Leaving the Nest: Healthy Community Association Transition

Written By Allen N. Trask, III

Community associations in North Carolina typically are developed by private developers that plat the community, build the infrastructure and improvements, develop the lots, and organize the property owners or community ass…

Community Association Restrictions Last Forever … Right? Community Association Restrictions and the Confusion Surrounding Tax Sales

Written By Dana M. Lingenfelser, Kristin D. Mitcham, and Thomas C. Wolff

It may be hard to believe, but community associations ("Associations") occasionally deal with property owners who do not think they are required to pay assessments.   The reasoning for these beliefs can range from "I…

When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community

Written By Adam M. Beaudoin and Justin M. Lewis

"I will just combine my two lots into one, then I only have to pay one assessment but I'll still have two votes." REALLY? – NOT SO FAST! Owners of adjoining lots in subdivisions often decide to combine them for…

New Coastal Stormwater Program Variances May Benefit Community Associations

Written By Amy P. Wang

In the latest version of what appears to be an annual exercise, the North Carolina General Assembly passed a regulatory reform bill over the Governor's veto that includes relaxation of environmental provisions.  This…

Trademarks and Community Associations: Maintaining Your Community's Brand

Written By Norman J. Leonard

Your community association ("Association") probably invests substantial resources in protecting and maintaining its green spaces, facilities, and other common elements. But what about its good name?  If your communit…

Meeting Street: Safely Traveling the Road to Community Association Annual Meetings

Written By Allen N. Trask, III

Annual membership meetings are an essential thread of the fabric of community associations.  Indeed, North Carolina law requires that all community associations hold a meeting of the association's members at least on…

The Reach of the Clean Water Act Takes a Dive into Groundwater

Written By Amy P. Wang

Can the law that protects the quality of the nation's waters seep into groundwater below the surface? According to the United States Court of Appeals for the Fourth Circuit, which includes North Carolina in its jurisdicti…

Construction Law: Final Payment by Owner, Avoiding Lien Claims

Written By Donalt J. Eglinton

A contractor has finished work on a construction project in North Carolina and submitted a written request for final payment to the owner of the real property that has been improved by the construction.  The owner is…

Construction Arbitration: The Pros and Cons

Written By Jason T. Strickland

It's an unfortunate fact that many construction projects end in disputes, driving the parties into some form of dispute resolution. Many of these construction disputes are resolved through arbitration, which is a process …

Pre-Closing Due Diligence with Commercial Real Estate Helps Avoid Post-Closing Remorse

Written By Joanne Badr Morgan

Your business has taken off, and you've been searching for that perfect 7,500 square foot building on an acre of land close to town, with parking and a view, and you've finally found it.  Mission accomplished, right?…

Real Property: More Than Meets the Eye

Written By Samuel B. Franck

Each parcel of real property is a unique asset. It is typically well understood that location is paramount, and that size, elevation, and other physical characteristics are other important factors.  Nonetheless, ther…

Focus on Military Readiness Means More Construction Work on Military Bases

Written By James W. Norment

The United States military is the most powerful warfighting force in world history. But Secretary of Defense Jim Mattis made a stark observation in the 2017 National Defense Strategy: Without sustained and predictable in…

"ITIN Contractors" – What North Carolina Construction Companies Need to Know to Minimize Risk

Written By Lee C. Hodge

As explained in an earlier article, the North Carolina Department of Revenue (the "NCDOR") has aggressively audited North Carolina construction companies on the issue of whether they are properly withholding with respect t…

The 2018 North Carolina Chamber Environmental Compliance Conference

Written By Amy P. Wang

The North Carolina Chamber hosted its annual Environmental Compliance Conference on February 1, 2018, in Durham. North Carolina leaders were on hand to provide updates and advice on environmental compliance regarding air, …

Exclusive Use Provisions in Commercial Leases

Written By Justin M. Lewis

Exclusive use provisions are common in commercial leases, especially in large shopping centers with many tenants. An exclusive use provision essentially allows a tenant to use its premises for an intended specific use (for…

Muddy Waters: Stormwater Permits Not Meant to Control Flooding or Flood Losses

Written By Amy P. Wang

Those living in communities subject to North Carolina Stormwater Permits or local stormwater management easement agreements are increasingly alarmed as rainy weather, even without a named storm, causes property to saturate…

Issues to Consider in Rights of First Refusal

Written By Clint D. Routson

People often talk about giving or getting a Right of First Refusal ("ROFR") in real estate transactions.  But what is a ROFR?  A simple definition might be: If the owner of the property decides to sell the prope…

Your Foreclosure Hearing Just Got More Crowded

Written By Lance P. Martin

On August 30, 2017, an amendment to North Carolina’s foreclosure statutes took immediate effect.  The amended statute, Section 45-10, concerns substitute trustees under a deed of trust.  As amended, Section…

Well, Isn't That a Special Use? Navigating the Special Use Permit Process in North Carolina

Written By Clifford P. Parson

North Carolina statutes provide that cities and counties may issue special use permits in accordance with the principles, conditions, safeguards, and procedures specified in their zoning regulations.  A special use pe…

What NC Community Associations Need to Know about Fair Debt Collection

Written By Norman J. Leonard

Nearly all Community Associations ("Associations") must cope with owners who fail or refuse to pay their periodic assessments (also known as "Dues").  When this happens, the Association, typically acting through its p…

Commercial Real Estate Sellers: Hire Your Own Attorney!

Written By J. Drake Brinkley

Does a seller of commercial real estate really need an attorney?  I get asked this question often, and the resounding answer is "yes!"  Many sellers believe, possibly based on their experience in residential rea…

New Stormwater Rules Effective January 1, 2017

Written By Amy P. Wang

Stormwater management is a concern across the country.  The United States Environmental Protection Agency renewed municipal stormwater as one of its National Enforcement Initiatives.  North Carolina is no differe…

The Basics of 1031 Exchanges - Part One

Written By Lee C. Hodge

This is part one of a two-part series on Internal Revenue Code Section 1031 Tax-Deferred property exchanges.  This first article will provide an overview of the rules that govern 1031 exchanges.  Part two will de…

Wet Weather Regulations Now More Expensive Under EPA's Industrial Stormwater Settlement Penalty Policy

Written By Amy P. Wang

Heavy and consistent rainfall this summer, even before Tropical Storms Hermine and Julia and Hurricane Matthew, produced a tremendous amount of stormwater.  Grass swales were too saturated to allow infiltration, and r…

Just Compensation for Contaminated Land

Written By Eric J. Remington

When a government agency or private party involuntarily takes your property (a proceeding called eminent domain or condemnation), you are entitled to receive "just compensation" for the property.  In North Caroli…

The Benefits of Using Multiple "Single-Asset" Limited Liability Companies for Investment Properties

Written By Joanne Badr Morgan

Practicing real estate law means that I’m constantly talking with all types of clients, including large scale developers as well as individuals simply looking to do a little investing in real estate.  Interestin…

TAKEN! Historic Eminent Domain Decision: NCDOT Must Pay When it Files a Transportation Corridor Protection Map

Written By Ryal W. Tayloe and Jeremy M. Wilson

On June 10, 2016 the North Carolina Supreme Court affirmed the decision of the North Carolina Court of Appeals in the case of Kirby v. North Carolina Department of Transportation. The North Carolina Supreme Court unanimou…

North Carolina General Assembly Makes Public-Private Development Agreements More Available And Attractive

Written By Clifford P. Parson

Background Before 2005, North Carolina's laws on vested rights offered developers some protection, but not enough, for the large, multi-phased, multi-year, mixed use developments that are becoming the norm.  Develope…

North Carolina Construction Companies – Have You Covered Your Bases on Your Payments to Your "ITIN Contractors"?

Written By Lee C. Hodge

If you are like many North Carolina construction company owners and managers, the phrase "ITIN contractor withholdings" is one with which you are unfamiliar.  However, the North Carolina Department of Revenue (the "NC…

Can't Find Enough Cash Flow In the Stock Market? Maybe a "Triple-Net Lease" Is Your Answer

Written By J. Drake Brinkley

Maybe you are getting your finances in order for retirement.  Maybe you own real estate that requires a lot of oversight and you would prefer to be invested in an asset that requires less hands-on attention.  May…

Real Estate Developers - Proper Planning is Key to Maximizing The After-Tax Return on a Development Project

Written By Lee C. Hodge

Before starting a new development project, residential and commercial real estate developers should focus on properly structuring the acquisition and development of the property to minimize taxes.  Proper planning on …

Supreme Court of North Carolina Recognizes Compensable Right in Approved Subdivision Development Plan

Written By Jason T. Strickland

Introduction The power of eminent domain, or "condemnation," is the power of the government and certain regulated public utilities to take private property for public use.  Constitutional protections require …

Transportation Corridor Protection Maps—Has Your Land Been Taken?

Written By Ryal W. Tayloe

When a corridor protection map was filed in 2005 for the extension of Military Cutoff Road in New Hanover County in accordance with the Transportation Corridor Official Map Act ("Map Act"), a client who owned property in t…

Fracking—One Step Closer To Reality In North Carolina

Written By Amy P. Wang

The North Carolina Rules Review Commission ("RRC") recently approved 107 new rules proposed by the state's Mining and Energy Commission, putting North Carolina one step closer to gas drilling by hydraulic fracturing. …

Low-Income Housing Tax Credits - Introduction

Written By J. Drake Brinkley

Do you have any idea how most affordable housing units get built in the United States?  Does the federal government build them or are they built by private developers?  The answer is both, but together.  In …

Property Exchanges For Involuntarily Relinquished Land

Written By Samuel B. Franck

Income taxes that would otherwise be incurred as a result of the involuntary conveyance or destruction of real property can be deferred to a later date by using the tax-free exchange of property provisions of the federal I…

Fracking Movement in North Carolina: What Landowners Need to Know about the Energy Modernization Act

Written By Amy P. Wang

On June 4, 2014, Governor Pat McCrory signed into law a bill that will allow permits to be issued in North Carolina for gas drilling by a method called hydraulic fracturing.  The process, commonly referred to as "frac…

More Appropriate Inquiries

Written By Amy P. Wang

A new standard practice for Phase I Environmental Site Assessments was adopted by the Environmental Protection Agency on December 30, 2013, adding more refined reporting requirements for parties seeking protection from env…

How Not To Get Zoned Out Of Your Transaction Or Project

Written By Eric J. Remington

Commercial real estate transactions and projects have become more complex and expensive.  So, analyzing zoning and land use restrictions prior to the closing has become more important than ever.  The goal is to m…

Deed Warranties and Why They Should Matter To You

Written By Clint D. Routson

You're negotiating to buy a piece of real estate and your attorney tells you that the seller is proposing to give you a "Special Warranty Deed" in exchange for all of the money you will pay.  Special Warranty Deed - t…

Here Comes the Sun – And It's Alright (As Long as You Have a Good Solar Lease)

Written By Clifford P. Parson

The North Carolina General Assembly is requiring North Carolina utilities to purchase energy from renewable sources.  The hot sun beating on you and your land can be one of those sources. Background In August 2007,…

Is a Restrictive Covenant With a Limitation on "Stories" Enforceable?

Written By Eric J. Remington

Consider the following scenario: Your client, a builder of residential homes, purchases six vacant lots in a partially developed subdivision consisting of 100 lots. The subdivision (including your client's lots) is governe…

Sequestration and the Department of Defense Budget: Its Stunning Impact on the National and North Carolina Economies

Written By James W. Norment and Hugh R. Overholt

What is Sequestration? "Sequestration" is the fancy name given in Washington, D.C., to an extremely ugly and blunt form of congressional budget control.  According to the Congressional Research Service, "[s]equestrat…

Title Insurance – The Fine Print

Written By Ryal W. Tayloe

Most purchasers of real property, and almost all of their lenders, obtain title insurance.  Title insurance, however, is not a cure‑all.  This article addresses the coverage that title insurance provides to…

Do Subjective Preservation Standards Trump Objective Zoning Standards?

Written By Eric J. Remington

Numerous North Carolina municipalities and counties have established historic preservation commissions ("HPCs"). Pursuant to N.C. Gen. Stat. Chpt. 160A, Art. 19, Part 3C, HPCs are tasked with creating and implementing guid…

"Let The Lender Beware!'': The Surrender Of Commercial Real Estate Collateral In Chapter 11 "Dirt For Debt" Bankruptcy Plans

Over the last several years, lenders have experienced an increasing number of defaults on loans secured by commercial real estate.  More defaults are likely in the near future as loans made at the height of the real e…

Distressed Real Estate Developments and Declarant Rights: Potential Traps for Foreclosing Lenders

Written By Samuel B. Franck

One of the most complex and challenging categories of OREO assets is distressed real estate developments.  An unsettling number of stalled residential and commercial condominiums, subdivisions, and planned communities…

Distressed Real Estate Developments: Opportunities and Traps for Lenders and Investors

Written By Samuel B. Franck

Special Bulletin DEVELOPMENT ISSUES Recent media reports discuss the impact of the "Great Recession" on unemployment, jobs, and foreclosures of individual residences.  But what has not been generally discussed by th…

Property Owners Association Considerations for Incomplete Developments

Written By Samuel B. Franck

Incomplete Developments – Property Owners Association Considerations The recent economic storm has left many incomplete real estate developments in North Carolina, and that number is likely to increase.  Acknow…

Development Agreements - Long-Term Projects, Extended Vested Rights, and Infrastructure Expense Reimbursements

Written By Amy P. Wang

Legal Update As coastal North Carolina continues to see increased interest in living in untapped areas of the "inner banks" and the resulting population boom, a new tool has become available for developers and municipalit…