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    Civil Procedure

    The Utility of a Declaratory Judgment Action

    Posted by Paul A. Ferrer on October 26, 2023 at 1:52 PM

    Lawletter Vol  48 No. 3

    The Utility of a Declaratory Judgment Action

    Paul Ferrer—Senior Attorney

              Most states, as well as the federal government, have enacted some form of declaratory judgment act, which authorizes courts to declare the rights and other legal relations among parties even though traditional remedies for damages or equitable relief are not yet available. Virginia’s Declaratory Judgment Act is typical. It permits Virginia’s trial courts, “[i]n cases of actual controversy, . . . to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed” by the parties. Va. Code Ann. § 8.01-184. Declaratory relief is particularly useful in settling controversies involving the interpretation of written instruments, such as contracts, deeds, and wills, but relief may be sought whenever there is an “actual antagonistic assertion and denial of right.” Ames Ctr., L.C. v. Soho Arlington, LLC, 301 Va. 246, 876 S.E.2d 344, 347 (2022) (quoting Va. Code Ann. § 8.01-184). In Ames Center, the Virginia Supreme Court noted the struggle courts have sometimes faced in finding “the case-specific equilibrium where a declaratory-judgment action serves its intended purpose without going too far or not going far enough.” 876 S.E.2d at 348. That, however, was not one of those cases.

                In that case, the defendant leased hotel property under a long-term ground lease. The lease provided that if any construction was contemplated to be made on adjoining property, the tenant had to afford to the person undertaking the construction the right to enter the hotel property for the purpose of doing such work as the person “shall consider to be necessary to the safety and preservation of any of the foundations, walls or structures of the Building [being leased] from injury or damage and to support the same by proper foundations.” When a developer planning to build two 30-story buildings on adjacent property asserted a right to enter the hotel property pursuant to this provision, the tenant responded, in the strongest possible terms, that the developer was not welcome on the property, “for any reason.” In fact, the tenant threatened to have the developer’s representatives removed for trespassing and subjected to civil and criminal suit if they entered the property. The tenant went so far as to say that even a trespass in the form of a construction crane swinging into its airspace would be met with a damages action.

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    Topics: wills, wills & estates, declaratory relief, contract

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