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Monday, August 3, 2015

The No-Party Clause and Other Bumps in the Road

The No-Party Clause and Other Bumps in the Road

Everyone has questions from time to time about how to handle knotty problems that threaten to make life miserable. I get phone calls or emails from many of these people who hope that I can provide answers, or refer them on to someone who can. Some are minor issues or sad ones – and some of them are very serious. They cover a vast range of troubles that could happen to any of us. Here are a few recent questions that came up:

Question: Two friends and I get along really well, so we signed a lease on a house together. My friends threw a big party while I was out of town a couple of weeks ago, and neighbors called the police to break it up. Now the landlord has sent a letter telling us all to move out because the lease says no noisy parties are allowed. I am furious. I don’t want to move. I wasn’t even here for the party, so it wasn’t my fault. How can I get the landlord to let me stay, even if the others have to leave?


Answer:  You probably can’t convince him to continue your lease. When the 3 of you leased the property together, you gave up your separate rights and became a single renter. The rights and responsibilities of each one of you are shared by all 3 of you. You may not have been personally involved in the party, but you are just as responsible for it as the other 2 are. The landlord has every right to evict all of you for breaking the terms of the lease.

Question: What should I do if I get a call from a collection agency and know I don’t owe them any money?


Answer: First, do not ignore the call. Immediately, request verification of the debt in writing. Under California and federal Fair Debt Collection Practices Act rules, you must usually do so within 30 days of receiving the first notification of the debt. When you receive the validation, determine whether it is correct, and that you truly do not owe that debt. Pull together whatever proof or substantiation you can and promptly send that back to the collection agency.

Second, if the collector refuses to acknowledge your response or withdraw the claim that you owe money, protect yourself by doing the following:

1.      Check your credit report to see if the debt has been reported to any of the
         3 credit reporting agencies. If it has, file a dispute of the claim with each
         of those agencies.
2.      If the collector threatens or harasses you, file a complaint with the
         California Attorney General’s office and the federal Consumer Financial
         Protection Bureau.
3.      If the collector files suit against you to make you pay the debt, do not
         ignore the notice of hearing. You have a very short period of time to
         respond. If you don’t file a protest, you will need to appear at the hearing,
         or it is very likely the court will rule that you owe the debt.

Finally, if you must go to court, consult an attorney to make sure you have as
much proof for your position as possible, and that you understand your legal
rights under the circumstances.

Question: What can I do to make the Homeowners Association respond to my requests for repairs to my condo and our common areas? They don’t answer my calls, and they don’t tell us when the board meets, so I can’t go to meetings to talk to them.

Answer:  California has strong HOA laws that clearly spell out how these organizations
and boards of directors must operate. Each homeowner must be provided with a
copy of the covenants, conditions and restrictions (CC&Rs), bylaws and other
information when the home is purchased; and the HOA must keep these up to date at least annually. Also, an annual budget and outside audit of HOA finances must be provided to each homeowner.

A management company who handles day-to-day HOA affairs is responsible
directly to the board of directors, who are themselves elected by the
homeowners. Notice of meetings and meeting minutes must be provided. You
have the right to inspect and copy association books and records.

Most requests to the management company and the board must be in writing.
This may be one reason your calls are being ignored. Write to the manager and
the board requesting copies of meeting minutes for the past year, and meeting
schedules for the remainder of this year. In a separate letter, identify the
problems you are having in your condo and the common areas, and how you expect them to be resolved. If there is no response, attend the next board meeting, and be prepared to present your concerns in a very brief and concise way. Board meetings must allow time for homeowner participation, but the time is usually limited to 3 or 4 minutes per person.

In the meantime, discuss the situation with as many of your other HOA members
as possible. If you are having trouble with the manager and the board, it is very
likely your neighbors are too. An action plan to get the HOA’s attention is often
successful when they see an uprising in their future.

If none of the above works, and repair and other problems affect daily living,
consult an attorney who is experienced with HOA issues to help decide if legal
action is needed.


Wednesday, May 6, 2015

I'm a Consumer! What has the California Attorney General's Office and the Department of Consumer Affairs Done for Me Lately?

The Attorney General heads up the California Department of Justice (DOJ), and according to the department’s mission statement, has broad responsibilities to enforce laws fairly and impartially; ensure justice, safety and liberty for everyone; encourage economic prosperity, equal opportunity and tolerance; and safeguard California’s human, natural, and financial resources for this and future generations.  Justice is served by helping to prevent and prosecute criminal activity, protect consumers from victimization, and promote public safety.

 

The Attorney General can’t give specific legal advice about personal problems or represent individual Californians, but whether you realize it or not, your life is touched by many of the Attorney General’s actions every day. Here are some of the major areas that are designed to support your safety, general welfare, and quality of life:

 

  • DOJ bureaus are responsible for a variety of regulatory responsibilities in the areas of narcotics, gambling, and firearms control. They carry out laws, assist other state and local law enforcement agencies, and provide education to the public. The Bureau of Investigation has wide-ranging duties including information and intelligence networks, an anti-terrorism program, and special operations units that combat violent criminals, gangs, drug and human trafficking, and fraud.

 

  • The DOJ collects, analyzes and reports crime statistics, and maintains criminal history records for use by law enforcement and other authorized agencies. An individual may request a copy of his or her own criminal record. DOJ maintains a central index for cases of child abuse throughout the state, and handles international child abduction cases together with the U.S. Department of State under the Hague Convention; and domestic child abduction cases together with the California Child Abduction Task Force.

     

  • “Megan’s Law” information and locations for registered sex offenders may be accessed by applying on-line through the DOJ website. There is a searchable database for people who have gone missing, and you can subscribe to a Missing Persons Bulletin which covers children, dependent and voluntarily missing adults.

     

  • Elder abuse may become more prevalent as our aging population grows rapidly. The DOJ has responsibility for prosecuting abuses and policies that lead to neglect and poor quality of elder care in skilled nursing homes, hospitals and residential care facilities. Criminal history data is provided to employers of unlicensed persons providing in-home supportive or personal care services to dependent or elderly adults.

     

  • The DOJ handles many consumer fraud and complaint issues. Their website oag.ca.gov/programs offers detailed information about consumer concerns such as debt collectors, homeowners associations, e-crime, identity theft, loan modification fraud, antitrust issues, corporate fraud, lemon law, prescription drug monitoring, and many other problems that affect Californians.

 

  • Consumer questions and complaints may be filed with an on-line complaint form which is sent to the Attorney General’s Public Inquiry Unit, and will be forwarded on to other state agencies if they are responsible for regulation of the issue.

 

The California Department of Consumer Affairs (DCA) regulates and issues licenses in several hundred business and professional categories.  The DCA has

bureaus and boards that carry out the legal requirements for each of the specialties. All individuals and/or groups covered by these rules must apply for and be granted a license or certification to operate and practice in the state of California. You may check to see if someone has a valid license by going to www2.dca.ca.gov.

 

From your hair stylist, CPA, car mechanic, doctor, realtor, contractor, to your appliance repairman, pharmacist, pest control service, mental health counselor, security guard, and funeral director, all, and many more, are required to meet regulations for practice and must be licensed. The DCA handles complaints from consumers in all areas, and works together with the California Attorney General and local district attorneys to prevent and prosecute fraud in the marketplace.

 

Consumers are encouraged to make complaints and report problems when issues with business and professional practitioners are serious. Issues with certain businesses and practitioners might be resolved through the department’s Complaint Resolution Program. For other disputes, the DCA may recommend new approaches to resolving the problems, or possibly mediation, or filing suit in small claims or civil court.  File a complaint on-line at www.dca.ca.gov/online_services/complaints.

 

The DCA also offers important free information covering a wide range of consumer issues. There are guides for business and professional categories that are licensed, and a variety of others which offer important tips for handling concerns ranging from disasters to consumer fraud.  One well-known guide is “California Tenants – A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities”.  This is an excellent

brochure, giving a clear explanation of California rules and what they mean.


Tuesday, July 1, 2014

Cross Your Fingers and Fill in the Blanks

You’ve heard enough about estate planning from your family and friends. You’re finally convinced that you need to do something to protect yourself, your partner, your property. But, you say, “I’ll be darned if I’ll pay a high-priced attorney to fill out a few forms”. You saw an ad for a complete estate plan package for $995.00  -  just go on-line, down-load all the forms, fill them out and the job’s done. You don’t have to meet with an attorney, think about it, or even leave your home to do all the estate planning you need. 

Or you heard about a “document service” where a paralegal provides you with several forms, you fill them out, and she puts them in a nice, neat file folder for you. Cheap, over and done with.

And guess what? Your local office supply store sells pre-printed legal forms. Pick them up, fill in the blanks, and you’re good to go. Why not take advantage of these or other low-cost shortcuts to peace of mind? 

There are very strong reasons why most people should avoid these methods. Wills and Trusts require careful thought and sound legal advice. Tax planning is an important part of it, too. An estate plan isn’t just an assortment of forms and documents. It is a map for the future that considers all the aspects of your present life, requires decisions about what might happen to you and your family, and is crafted so the plan will continue to evolve as time goes by.

A recent court case illustrates one major hazard of do-it-yourself documents: 

A Florida lady filled out an “E-Z Legal Form” when she made out her Will. She wanted to leave all of her property to her sister, then to her brother, if her sister predeceased her. The sister did die first, and the brother claimed he was entitled to the entire estate. But the pre-printed Will stated that all “listed” items should go to the brother. Not all of the lady’s assets were listed. And the Will did not have a residuary clause (and not even any room on the form to add such a clause) providing for the disposition of property not listed in the document.

Two of the lady’s nieces (children of another brother, already deceased) brought action. After lengthy arguments on both sides, the court decided that the listed items must go to the brother, as the Will provided, but the unlisted assets must pass outside the Will, to the nieces, who were the next heirs in the line of succession.   Although it may have been the lady’s intent that her brother inherit all of her estate, the Will did not say so, and it did not provide any way for him to claim the unlisted items. Concurring Justice Barbara Pariente commented, “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage ‘penny-wise and pound foolish.’”

Pre-printed forms can’t possibly include all the language needed to cover the wide range of possibilities and probabilities that are part of our everyday lives. There is no single Will, Trust, Power of Attorney or any other pre-printed form or pre-written format that can meet the needs of everyone. How would you know if some essential language is missing, or certain statements can cause problems, or your intent is not truly reflected in the document? How do you know what you don’t know?

Attorneys have studied the laws (and the court cases) and get to know you and all the details of your particular situation. They recognize the hazards and pitfalls of missing or incorrect language, and draft comprehensive documents that fit you like a glove. You are not a John Doe, and your estate plan shouldn’t be, either.

For those of us in the LGBT community, it is even more crucial that our plans cover the  unique family, health and property issues we face because we still lack equality under most state and some federal laws. A properly crafted estate plan gives us the visibility and legal standing that is so essential to protect our families and our assets. Our special needs require special planning.

There should be ads and articles in the newspaper and magazines cautioning people against using pre-printed legal forms. But attorneys often chuckle about this. They don’t plan to run any ads. They get a lot of business from clients who tried the do-it-yourself approach and found the documents unusable when they were needed. Folks who wanted to save a little money bought a lot grief for themselves or their families.

In the court case, the lady may have tried to save herself a few dollars by filling in the blanks, but in the end her estate had huge attorneys’ fees and two years of wasted time. The nieces, of course, were delighted with the E-Z Legal Form she used. They came out over $100,000 ahead. Definitely not the result the lady wanted.


Monday, August 20, 2012

Setting Up and Operating Your Own Business

Are you thinking of starting a business, or do you operate a small business now? The legal structure of your firm and the care you take in setting it up can make a difference in your success down the road.

There are several forms of business organization, and each may have advantages and disadvantages, depending on your personal and/or family situation.  The legal structure will determine how your profits are taxed, and who is liable for business debts.

Sole Proprietorship  -  usually a business owned and operated by one person. You simply begin offering your products or services (obtaining any licenses or permits that might be required) and you are in business. You are personally liable for all of your business debts, and you pay personal income taxes on all income you receive from the business.

Partnership  -  an association of two or more people to run a business as co-owners. There is usually a partnership agreement (very important) which covers all of the aspects of the business operation and finances. The partners are personally liable for all debts of the business, and again, pay personal income taxes on all income.

Corporation  -  one or more individuals draw up Articles of Incorporation, identify a board of directors and issue shares of stock. In California, a corporation must be approved and certified by the Secretary of State. If the corporation does business in more than one state, it must comply with corporation laws in the other states, may have to pay taxes in those states, and must also comply with Federal Interstate Commerce and Securities regulations. In most instances, shareholders are not personally liable for corporation debts or lawsuits. The corporation pays taxes on its income. Shareholders pay taxes on the dividends they receive from the company.

Limited Liability Company (LLC)  -  one or more individuals draw up Articles of Organization and file them with the Secretary of State. An LLC combines some of the advantages of a corporation (limited liability for company debts or lawsuits) and of a partnership (flexible organization, no separate taxes on the business entity). Owners of an LLC are called members. Not all businesses are permitted to operate as an LLC. In California, banking, trust, insurance businesses, and professionals such as doctors, accountants, attorneys and licensed healthcare workers are prohibited from using the LLC structure.

Regardless of the type of business entity you choose, you must meet all federal, state, county and local regulations for operating a business. If you are a sole proprietorship or partnership, you will need a fictitious business name permit if you operate the business under anything other than your own name(s). Counties and cities often require business licenses, vendor permits, safety inspections and other things before you may legally do business there. If you set up a corporation, you must apply for a federal Employer Identification Number (EIN) from the Internal Revenue Service, since it will be taxed as a separate entity from the shareholders.

In partnerships and LLCs, it is crucial to have a business plan and an operating agreement. The agreement sets out rules for splitting up profits, how major business decisions will be made and the process for handling the departure and addition of partners or members. It helps prevent misunderstandings among the owners over finances and management. It shows that the business owners were careful and thoughtful about the security and details of business operation.

For sole proprietorships, partnerships and LLCs, a business plan or formal operating procedures should identify all the elements that will be needed to keep the business healthy if an owner should become incapacitated or pass away. The plan will detail who should succeed the owner or manager, and how the business will stay profitable if a key person is no longer around. It should also provide a process for buying out partners or members who want to leave the business.




The lawyers at Heritage Legal, PC, assist clients throughout Palm Springs, Riverside County, San Diego County, San Bernardino County and the surrounding area.



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