New Virginia Laws Take Effect July 1 – Part 2
In Virginia, new laws take effect generally on July 1. Below are some of the changes in 2018 that may be relevant to you or someone you know who has a legal issue.
Estates and Trusts
HB746 eliminates certain inconsistencies between wills and revocable trusts by extending to revocable trusts.
A court may change the terms of the decedent’s will to correct a mistake while not modifying the decedent’s intent, as proved by clear and convincing evidence. If given clear and convincing evidence, a court may make modifications to a decedent’s will to achieve their tax objectives in a way that is not the decedent’s probable intention. The bill’s provisions apply retroactively to wills executed and judicial proceedings commenced prior to July 1, 2018, unless the changes to the will substantially interfere with the judicial proceeding or prejudice the parties’ rights.
HB754 makes changes to elective share claims for surviving spouses. The bill states that a surviving spouse claiming an elective share cannot claim a share of the decedent spouse’s separate property at death but the decedent spouse may satisfy the surviving spouse’s right to claim a share of the marital property.
HB855/SB197 rewrites the two statutes that address the landlord’s acceptance of rent with reservation, and makes it clear that even though the landlord accepts full or partial payment of the outstanding amounts owed by the tenant, the landlord may still proceed forward with obtaining possession in an unlawful detainer action and then eviction provided that the landlord has given notice to the tenant that any payments made are accepted by the landlord with reservation.
A judge is required, upon request of the plaintiff, to order issuance of a writ of possession immediately upon entry of judgement in an unlawful detainer case where plaintiff is awarded a judgement for possession according to HB856. The bill also requires the sheriff to serve notice of the writ, including the date and time of eviction, on the defendant at least 72 hours prior to execution of the writ. The bill further provides that a sheriff shall not evict the defendant from the dwelling unit sooner than the expiration of the defendant’s 10-day appeal period.
The availability of the use of self-help eviction in certain circumstances to the owner of transient lodging shall not preclude such owner from pursuing any civil or criminal remedies under the laws of the Commonwealth according to HB1227/SB286.
Contempt of Court
According to HB128, in any civil action in a court of record, a party requesting a rule to show cause for a violation of a court order shall file a motion or petition, which may be on a form prescribed by the Office of the Executive Secretary, with the court, which shall include facts identifying with particularity the violation or which shall be accompanied by an affidavit setting forth such facts.
HB987/SB567 states that agricultural operations are exempt from nuisance claims is such operations are in substantial compliance, defined in the bill, with applicable laws, regulations, and best management practices. The bills also prohibit a person from bringing a nuisance action against any agricultural operation the existence of which was known or reasonably knowable when that person’s use or occupancy of his property began. The bills also prohibit anyone other than a person with an ownership interest in the affected property from bringing an action for private nuisance and set out certain limitations on recovery for compensatory damages.
Jury Service Changes
If you are enrolled as a full-time student and are attending classes at an accredited public or private institution of higher education, HB481 allows a court to defer your jury service to a later term of court.
A clerk of court shall make all non-confidential court records available to the public upon request and shall be provided no later than 30 days after the request. The clerk may charge a fee that shall not exceed the actual cost incurred in accessing, duplicating, reviewing, supplying, or searching for the requested records HB780/SB564.
A circuit court or circuit court clerk may allow a fiduciary to qualify by giving bond without surety when there are no assets, as well as when the asset or amount coming into the possession of the fiduciary does not exceed $25,000 according to recent changes made to Va. Code 64.2-1411 by HB1142
Freedom of Information Act and Access to Records
HB1 (Chapter 806) allows schools to disclose student directory information publicly as long as the school gives notice to the parent or the eligible student of:
- The types of information that the school designates as directory information
- The student or parent’s right to refuse the designation of any or all of the types of information about the student as directory information.
III. The period of time within which a parent or eligible student must notify the school in writing that he/she does not want any or all of the types of information about the student designated as directory information.
No school may disclose the address, phone number, or email address of a student pursuant to the Virginia Freedom of Information Act unless the parent or eligible student has affirmatively consented in writing to such disclosure.
The definition of electronic communication in the Virginia Freedom of Information Act has been amended by HB906 to mean the use of technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities to transmit or receive information.
HB907 consolidates existing provisions concerning public meetings conducted by electronic communication means. The bill contains technical amendments. The bill is both recommendations of the Freedom of Information Advisory Council.
HB909 clarifies that the discretionary exemptions contained in the Freedom of Information Act pertaining to law-enforcement and criminal records may be used by public bodies engaged in criminal law-enforcement activities. The bill also restricts the application of the discretionary exemption for those portions of noncriminal incident or other noncriminal investigative reports or materials that contain identifying information, the release of which would jeopardize the safety or privacy of any person, to only those portions of noncriminal incident or other noncriminal investigative reports or materials that are in the possession of people engaged in emergency medical services, fire protection services, criminal law-enforcement activities, or processing calls for service to an emergency 911 system or any other equivalent reporting system.
HB1024 repeals the provision that allows only the fee of one attorney to be taxed by the court, even if the recovering party had more than one attorney.
Guardian ad litem
Recent changes to Va. Code 16.1-267 by HB278, allows a court to adjust a guardian’s compensation ad litem “for good cause shown, or upon the failure by the guardian ad litem to substantially comply with the standards adopted for attorneys appointed as guardian’s ad litem pursuant to Va code 16.1-266.1”