Friday, May 6, 2011

Final Day

On the final day of this year’s session we got an unexpected but a good surprise. The Conference Committee report on H. 264, a DUI bill, contains H. 79, the uniform adult guardianship and protective proceedings jurisdiction act. This was a bill that passed the House earlier this year but it did not appear that the Senate would act on it until next year. Members of our Elder Law, Disability Law and Probate and Truest Sections, should be very pleased by adoption of this Report.
On the property law front, we will not see enactment of H. 272, the private roads maintenance bill or S. 98, the licensed lender bill. Both will be on the top of our agenda to work on next year.
The VBA Board, at its meeting today, appointed Bill Dakin to represent the real estate bar on the energy audit disclosure working group created in H. 56. They also appointed Penny Benelli to represent the family bar in a study committee on child support enforcement created in S. 101.
There will be two more appointments dealing with probate matters for study committees created in H. 264, again, the DUI bill.

Thursday, May 5, 2011

Thursday Morning Update

There are two updates this morning. The first is that the energy bill, H. 56, has passed both chambers. Included in that bill is a study committee to address the issues contained in the energy audit disclosure bill, H. 57. The VBA does have seat on that committee which has an extensive charge. Here is the language as passed:

(a) Creation of working group. There is created a working group on
building energy disclosure to study whether and how to require disclosure of the energy efficiency of commercial and residential buildings in order to make data on building energy performance visible in the marketplace for real property and inform the choices of those who may purchase or rent such property.
(b) Membership. The building energy disclosure working group (the
working group) shall be composed of the following members:
(1) A member of the senate appointed by the committee on committees.
(2) A member of the house appointed by the speaker of the house.
(3) The commissioner of public service or designee.
(4) The secretary of commerce and community development or
(5) A real estate broker licensed in Vermont appointed by the governor
from a list of three names recommended by the Vermont association of
(6) A representative of an entity appointed pursuant to 30 V.S.A.
§ 209(d)(2) to deliver energy efficiency services to multiple utility service
territories, designated by the entity.
(7) A real estate appraiser licensed in Vermont appointed by the
(8) A building construction contractor appointed by the governor.
(9) A representative of the Vermont homebuilders and remodelers
association designated by the association.
(10) A person who is an accredited provider of energy rating services
under the process adopted by the department of public service pursuant to
21 V.S.A. § 267, appointed by the governor.
(11) A person with expertise in energy policy appointed by the
(12) A person who is an active member of a local energy committee that
is part of the Vermont energy and climate action network, appointed by the
governor from a list of three names recommended by that network.
(13) A representative of a financial institution appointed by the governor
from a list of three names submitted by the Vermont bankers association and the association of Vermont credit unions.
(14) A representative of the Vermont housing finance agency designated
by the agency.
(15) A member of the Vermont Bar Association with experience in the
conveyance of real property designated by the association.
(16) A representative of the heating service industry designated by the
Vermont Fuel Dealers Association.
(c) Structure; decision-making. The working group shall elect two
co-chairs from its membership, one of whom shall be a legislative member.
The provisions of 1 V.S.A. § 172 (joint authority to three or more) shall apply to the meetings and decision-making of the working group.
(d) Issues. The working group shall consider the following:
(1) Whether there should be requirements to disclose building energy
performance, that is, to disclose the energy use of buildings in a standardized manner that allows comparison and assessment of energy use among multiple buildings.
(2) Requirements for disclosure of building energy performance that
have been adopted in other jurisdictions and model codes or statutes that have been published relating to such disclosure.
(3) If requirements to disclose building energy performance as described
in subdivision (1) of this subsection were to be adopted:
(A) To whom should such disclosure be made (e.g., prospective
buyers, prospective renters, the general public, the state).
(B) When such disclosure, if any, should be required (e.g., time of
offer for sale, execution of contract for sale, at regular intervals).
(C) Which properties, if any, should be exempt from such
(D) For which markets (e.g., residential property, commercial
property, purchase of property, rental of property) such disclosure, if any,
should be required, and whether there should be a phase-in of any requirements for disclosure.
(E) What type or types of building energy ratings and audits should
be employed.
(F) Whether the state should subsidize the cost of energy audits (e.g.,
for low income housing) and what sources of funding would be used to support the subsidy.
(4) Any other issue relevant to the question of disclosing building
energy performance as described in subdivision (1) of this subsection.
(e) Report. On or before December 15, 2011, the working group shall
submit to the general assembly its recommendation on whether the state of Vermont should adopt requirements on disclosure of building energy
performance and recommended legislation on such disclosure if the general
assembly were to choose to adopt such requirements.
(f) Assistance. For the purpose of its study of the issues identified in
subsection (d) of this section and the preparation of its recommendation
pursuant to subsection (e) of this section on whether the state should adopt requirements on building energy performance, the working group shall have the administrative, technical, and legal assistance of the department of public service and of the agency of commerce and community development. For the purpose of scheduling meetings and preparing its recommended legislation pursuant to subsection (e) of this section, the working group shall have the assistance of the office of legislative council.
(g) Meetings; term of working group; reimbursement. The working group
may meet no more than four times during adjournment of the general
assembly, and shall cease to exist on July 1, 2012.
(h) Reimbursement. For attendance at meetings during adjournment of the
general assembly, legislative members of the working group shall be entitled to compensation and reimbursement for expenses as provided in 2 V.S.A. § 406; and other members of the working group who are not employees of the state of Vermont and whose participation is not supported by their employment or association shall be reimbursed at the per diem rate set in 32 V.S.A. § 1010.
The costs of reimbursement of members of the working group who are not
legislative members shall be allocated among the budgets of the department of public service and the agency of commerce and community development.
(i) Appointments. Within 30 days of this section’s effective date, each
entity required to submit a list of names to the governor pursuant to subsection (b) of this section shall make such submission. Within 60 days of this section’s effective date, the appointing or designating authority shall appoint or designate each member of the working group under subsection (b) of this section and shall report the member so appointed or designated to the office of legislative council.

The second update is the private roads bill. Here is the language of the bill as voted out of the Commerce Committee last night. It is on today’s Notice Calendar and could well pass the House this week. It will probably be January before the Senate acts on it however.

Favorable with Amendment
H. 272
An act relating to maintenance of private roads
Rep. Kupersmith of South Burlington, for the Committee on Commerce
and Economic Development, recommends the bill be amended by striking all
after the enacting clause and inserting in lieu thereof the following:
The general assembly finds that:
(1) Fannie Mae (the Federal National Mortgage Association) is both a
major purchaser of residential mortgage loans on the secondary market and an
organization that sets the standards for the underwriting and legal requirements
for loans sold on the secondary market.
(2) The current Fannie Mae appraisal form contains a section for the
appraiser to comment on off-site improvements—including private streets—
and to indicate whether the improvements are publicly or privately maintained.
If a property is located on a community-owned or privately owned and
maintained street, Fannie Mae requires a legally enforceable agreement or
covenant for maintenance of the street.
(3) On January 31, 2008, Fannie Mae issued Announcement 08-01,
which specifies that Fannie Mae will permit the delivery of mortgage loans for
properties for which there is no such maintenance agreement or covenant,
provided that the property is located in a state that has statutory provisions
defining the responsibilities of property owners for the maintenance and repair
of private streets. Prior to this act, Vermont had no such statutory provisions.
(4) Since the mortgage crisis, Fannie Mae has become stricter in its
underwriting standards and in enforcing the private street maintenance
agreement requirement. Because the ability to sell mortgages to Fannie Mae
on the secondary market is critical to most mortgage lenders, this has delayed
mortgage closings and created uncertainty for Vermont homeowners
throughout the state.
(5) When a conflict arises among persons who share a private road but
lack an express agreement concerning the maintenance of that road, the
Vermont supreme court has applied common law equitable principles to
apportion the cost of maintaining the private road. In the reported decision
Hubbard v. Bolieau, 144 Vt. 373 (1984), the supreme court held that “when
several persons enjoy a common benefit, all must contribute rateably to the
discharge of the burdens incident to the existence of the benefit.”
(6) Vermonters have a long history of working together to share the
costs of maintaining private roads. Nothing in this act is intended to disturb
the many working arrangements that exist between neighbors in Vermont.
Instead, this act codifies a standard drawn from established principles of
Vermont law, and the act will apply to resolve conflicts regarding maintenance
of private roads only in the absence of a legally enforceable agreement. The
term “rateably” as used in this act follows the existing common law standard,
and continues to give courts the flexibility to examine the facts and
circumstances of each case.
(7) This act will facilitate the sales of real property, promote the
availability of secondary mortgage market financing, and reduce uncertainty
for Vermont homeowners.
Sec. 2. 19 V.S.A. chapter 27 is added to read:
As used in this chapter:
(1) “Maintenance” includes activities related to the upkeep of a private
road in its usual condition or that are necessary to allow safe passage.
“Maintenance” shall not be construed to include an expansion of the private
(2) “Private road” means a road or street other than a highway as
defined in subdivision 1(12) of this title that is owned by one or more persons
and used by more than one owner or holder of a recorded easement as a means
of access to one or more parcels of land.
In the absence of a legally enforceable agreement—including obligations
established by covenants and requirements contained in deeds, state and local
permits, and land development and subdivision bylaws—regarding the
allocation of costs for the maintenance of a private road, the owners of
property that utilize a private road for access and the holders of recorded
easements with a right to use a private road for access shall contribute rateably
to the payment of the expenses for maintenance of the private road on account
of the common benefit enjoyed by each owner and easement holder.
If an owner or easement holder fails to pay after demand his or her rateable
share of maintenance costs as required under section 2702 of this chapter, an
owner or easement holder who suffers damage as a result may bring an action
in the civil division of a superior court where the private road is located for
damages or injunctive relief or both.
This act shall take effect on July 1, 2011.
( Committee Vote: 10-1-0)

Tuesday, May 3, 2011

S.101 passed both chambers

The Senate yesterday concurred with the House proposal of amendment to this bill dealing with child support. Of special interest to family division practitioners is Section 2 which creates a child support enforcement study group to make recommendations for next year's sesison. Here is the authorizing language:

(a) A working group composed of the director of the office of child
support, the administrative judge, the commissioner of the department of
corrections, the executive director of the department of state’s attorneys and sheriffs, the defender general, and a representative of the family law division of the Vermont bar association shall develop recommendations and a legislative proposal regarding:
(1) how the state can assist willing obligors to comply with child support orders;
(2) the use of civil and criminal contempt and any other strategies for
unwilling obligors;
(3) an approach to address arrearages due to the custodial parent, both
the large amounts that will likely never be paid and the small amounts that
keep an obligor from being in compliance;
(4) the value of license suspension as it relates to child support
(5) the use of presumptive orders, alternatives, and strategies to develop an appropriate order when a noncustodial parent does not appear at a hearing;
(6) whether child support should continue to terminate at age 18 or
whether it should be extended if a child is still in college; and
(7) the feasibility of a family problem-solving docket that could address
issues of child support.
(b) The working group shall present its findings and recommendations to
the office of legislative council no later than November 1, 2011, and the
legislative council shall draft a bill implementing the proposal for
consideration by the senate and house committees on judiciary.