The answer is it depends. The doctrine of equitable conversion has been well established in Virginia case law and applies the maxim that “equity treats that as done which ought to be done.” In other words, when a buyer and seller of real estate have executed and signed the sales contract, the buyer’s interest is called equitable title. The seller holds the property in trust for the buyer until final closing and the deed has been recorded.
This means that the risk of loss of damage to the property before closing and before recording, falls on the purchaser unless otherwise agreed to in a written agreement. Most sales contracts in Virginia provide that the seller bears the risk of loss with an option to cancel the contract if destruction to the property occurs.
So what happens in the event a natural disaster strikes? Like the tornado that devastated Appomattox, Virginia on February 24, 2016. Under the doctrine of equitable conversion as explained above, the buyer will bear any loss on the property due to destruction or damage until the deed has been recorded and title has been passed to the buyer unless a purchase agreement states otherwise. This is why it is extremely important for purchase agreements to include a risk of loss provision and an option to walk away from the contract should the property be damaged or completely destroyed.
Should a party seek specific performance of the contract even in the event of damage or complete destruction, the courts have decided that specific performance will not be granted where circumstances and conditions of things have been so changed as to work loss and hardship on the party of whom specific performance is sought to be enforced.
The bottom line: make sure a real estate attorney has reviewed the purchase agreement before buyer and seller sign, so as to ensure all necessary provisions are included to protect both parties from unforeseen disaster.
Our office is committed to providing excellent client service as we uphold high professional standards and we seek long term relationships over occasional transactions. Our team strives to meet any challenges presented in the complex navigation of real estate transactions from beginning to end. We look forward to earning your business.

Editors Note: The office of Fairchild & Yoder, PLLC offers its sincere condolences to the families and the community of Appomattox for their loss.

Divorce and Accounting for a Child’s Best Interests

Lindsay R. Horne, Esq.

John was getting ready to go to school. He had just finished his breakfast when his phone buzzed with a text message from his best friend. The text relayed a message to remind John not to forget about the later-than-usual basketball practice that evening-a practice that was very important for John not to miss. John grabbed his backpack from the counter and ran to meet his mother in the car for the ride to school. John told his mother about the practice and that he needed a ride because of the time, however, John’s mother had a business meeting that was scheduled and she would not be able to take him. John’s mother told John that she would contact his father, her soon-to-be ex-husband, to see if he could drop John off at the practice. John’s mother did not attempt the call to John’s father without first making the comments that John’s father probably would not be available, as he is never available to help them when they needed it. John sat in the car silently as his mother made the call to his father. He heard the conversation-that it began somewhat cordially, but ended with an argument between both of his parents. John’s mother finished the conversation with John’s father just as she pulled into the school to drop John off. John, without speaking to his mother and with no resolution regarding his ride to practice, got out of the car and left for his day at school.

Divorce can be hard. Divorce can be especially difficult for those couples who have a child, or children, in common. As the above fictional story illustrates, when divorce tends to be stressful for the adults involved, it may undoubtedly bring stress to their children as well. Some of the last things that divorcing, or divorced, couples should want is for a divorce to negatively impact their children, or for a Court to have to evaluate how a parent’s actions have negatively affected their children.

Clearly, the stress that accompanies some couples involved in the divorce process can manifest itself in many ways: an overall inability of couples to communicate, a tendency for couples to constantly disagree, or even couples getting caught up in heated arguments. These manifestations of course create challenges for the adults involved, but they also can be detrimental to the child(ren) who sometimes, even inadvertently, get caught in the middle. Situations involving these manifestations not only can have negative implications for a child’s development, but Courts may be faced with the task of evaluating these situations in order to make important determinations regarding the children of divorcing couples.

Many times, Courts may be faced with making important determinations regarding children because when couples with children divorce, child custody and child visitation arrangements must be addressed. It is true that sometimes these arrangements may be based on a mutually agreed upon plan, but many other times, these arrangements will be based on a Court’s determination. When Virginia Courts are faced with child custody and child visitation determinations, Courts are bound to consider a set of factors found within the Virginia Code; the Court’s determination hinges largely on what is in a child’s best interests.

The Virginia Code provides a number of factors for a Court to consider in their evaluation of what is in a child’s best interests (while there are in fact multiple factors for a Court’s consideration, for the sake of this article only portions of a few will be highlighted in order to present an illustration to readers). There are several areas within these factors that should be of particular concern for divorcing parents who may not be getting along well with one another. Consider the following:

It is in a child’s best interests for parents to be able to cooperate in and to resolve disputes in matters which affect their child. Is there a soccer practice scheduled during one parent’s time with the child that the parent can’t get the child to due to their work schedule? Is there an important parent conference at the child’s school? Is there a problem with a bill at the pediatrician’s office that needs to be addressed? There are a whole host of issues pertaining to a child that come up. Many times these issues may need the involvement of both parents. Although the parents may be going through a divorce, their child benefits when the parents are able to put their personal differences aside in order to handle the issues involving their child. A child will benefit from seeing their parents working together on issues involving the child. If divorcing parents are getting along very poorly with one another, however, the child is unaware of this, even better yet. Even if at times it may be challenging, divorcing parents should strive to keep their personal issues with one another separate from raising and co-parenting their child.

It is in a child’s best interests for parents to be able to support the child’s contact and relationship with the child’s other parent. Sometimes when parents come to the point of divorce, it may seem challenging for one parent to refrain from using harsh words when discussing the other parent. Even so, it is extremely important that neither parent speak negatively about the other in the presence of their child. Divorcing parents should work to not take actions that would harm the relationship that the child has with either parent. Additionally, with the exception of certain circumstances, a parent should be sure to not unreasonably deny the other parent access to the child.

It is in a child’s best interests for parents to be able to accurately assess and meet emotional, intellectual, and physical needs of their child. Of course, parents always need to be attuned to all of their child’s needs. Divorcing parents should be careful that any personal issues that they may have with one another, that these issues don’t interfere with how alert the parents are to the child’s needs. It can be easy to fall into a slump while going through a difficult divorce, however, it is important to make sure this slump does not blur the parents’ vision when it comes to being able to see what the child needs.

Again, divorce can certainly be a trying time for some. Couples with children may even face additional challenges when it comes to divorcing. However, divorcing parents could certainly do their children, and themselves, some good by working to put personal problems aside when they are dealing with matters of their children in common. Although at times it may seem difficult, a willingness of divorcing couples to cooperate with one another regarding their children, a willingness to co-parent, and a willingness to do nothing to jeopardize the child’s relationship with the other parent, greatly benefits children of divorce; these actions are in a child’s best interests. Not only are these actions beneficial for the children, they also help to give Courts a glimpse into how divorcing parents are able to work together in matters involving their children. In closing, consider how parental decisions accounting for a child’s best interests change the story presented at the beginning of this article.

John was getting ready to go to school. He had just finished his breakfast when his phone buzzed with a text message from his best friend. The text relayed a message to remind John not to forget about the later-than-usual basketball practice that evening-a practice that was very important for John not to miss. John grabbed his backpack from the counter and ran to meet his mother in the car for the ride to school. John told his mother about the practice and that he needed a ride to because of the time, however, John’s mother had a business meeting that was scheduled and she would not be able to take him. John’s mother told John that she would contact his father, her soon-to-be ex-husband, to see if he could drop John off at the practice. John’s father was very busy at work when the call came in, but he assumed the call may involve an important issue with John, so he stepped outside and answered his phone. John’s parents talked calmly and politely for a few minutes. John’s father stated that he was very busy at work that day, but he thought he could finish up things that were necessary and that he should be available to take John to practice, and if not, he would let John’s mother know well before practice time. John’s parents agreed that this arrangement would work out, and they both hung up their phones. John’s mother explained to John what the plan was, John took this plan as acceptable, and told his mother that he would be in touch with her and his father after school to finalize the details. John got out of the car, told his mother goodbye, and left for his day at school.

* Lindsay R. Horne, Esq. is an Associate with the Law Office of Fairchild & Yoder, PLLC, located in Lynchburg, Virginia.

*This article is for informational purposes only and it is not a substitute for legal advice.