LegalMatch: Real Estate

Small Claims Court 101

2010-08-31T13:54:20-07:00

My good friend recently took her landlord to small claims court over a security deposit issue. The process got me thinking about small claims court in general. To call it “small claims” may seem like a bit of an insult for people with issues with their landlord, neighbor, or a total stranger, but the name only refers to the amount in controversy and is not a dig at the worth of your claim. Small Claims court is a judicial vehicle for those individuals who have a claim generally up to $7,500 depending on where you live.

Typical claims brought to small claims court involve landlord-tenant issues, auto accidents, and merchandise refunds. The beauty of this type of resolution is that it is truly a people’s court in that lawyers are not usually allowed in the court room. It is just you, the other party, and the judge hashing through the issues of your situation—an approach that helps to keep the costs down and the playing field even (or relatively so). Taking another person to small claims court still requires filing paperwork, paying a filing fee, and proper service but the smaller scale approach is a great option for people who feel like working the issue out is not working at all.

LegalMatch offers some helpful advice for when a person is deciding whether or not to file a claim with small claims court. Some factors to consider include:

How it will affect your relationship with this party in the future
If the time and effort are worth the possible monetary reward
If the disagreement between the two sides is minor or large
Whether you have kept good records of all your transactions with the other party
How likely is it that you can collect from the other party
Whether other methods of settlement been tried or not

As with most issues, it is always best to try to work it out before seeking judicial intervention. Nevertheless I have many friends who have been very happy with the process and enjoyed the opportunity to really use the legal system for their everyday issues. As for my friend, she won her claim; now it has become a matter of actually collecting the judgment!

By: Violet Petran

Does The First Amendment Include The Right To Tattoo?

2010-06-03T12:26:25-07:00

Most people don’t know the constitution by heart (sorry if I am breaking this to my fellow law nerds for the first time). What the average American does know has to do with the more popular rights such as freedom of religion, free speech, and rights dealing with search and seizure.

Perhaps the most popular constitutional amendment is the first amendment and the right to free speech. From school classes to movies, issues dealing with free speech are popular and plenty, partly because of the wide range of speech and communication that the first amendment protects. Speech is protected at various levels depending on the nature and context of the speech communicated.

There are basically nine categories of unprotected speech: obscenity, fighting words, defamation, child pornography, perjury, blackmail, incitement to commit imminent lawless action, true threats, and incitement to commit crimes.

A new speech-related issue is taking shape in the context of a tattoo parlor in Hermosa Beach, California. Johnny Anderson is a 33 year old tattoo artist that is bringing a first amendment claim against the city because it has a ban on tattooing based on public safety and welfare concerns. More specifically, the city contends that, tattooing poses health risks, creates “aesthetic concerns,” and would impose a financial burden on the city to provide adequate inspection and regulation. Anderson was hoping to relocate his tattoo parlor to the affluent beach city to attract more customers and increase his clientele.

After losing in his initial claim, Anderson is taking his case to the 9th Circuit to review whether such a ban violates his first amendment right to free speech. Anderson claims that his custom-deigned tattoos are a form of constitutionally protected art and that his work expresses an individuals beliefs, emotions, and loyalties—all things that have been recognized as protected speech.

Although the language of the first amendment refers specifically to the freedoms of speech (and the press), it in fact encompasses a wide range of expressions beyond the spoken word. Art forms — including plays, music, dance, film, literature, poetry and the visual arts, enjoy liberal first amendment protections and it is under this thread of protection that Anderson is arguing a tattoo parlor should enjoy the same liberties.

LegalMatch has listed some reasons why the protection of free speech, in its many forms, is so important:

* Encourages self-governance

* Promotes societal tolerance and self-restraint

* Helps ensure that government officials do not abuse their power

* Helps develop moral virtue

This should be a very interesting case to follow as approximately 16% of Americans have a tattoo. I think that Anderson has a good case here. The right to free speech is an essential ingredient to any civilized and healthy society. Tattoos are art, and they are a form of expression that typically enjoys protection of in other media forms. They have become increasingly more mainstream in recent times and to ban them altogether in Hermosa Beach seems like an overly broad city ordinance. Although Anderson is providing a service (an unprotected form of speech) in a sense, it is his design and his speech coming together with the ideas of his customers.

By: Violet Petran

Second Hand Smoke is Bad and Neighbors Will Sue You For It!

2010-02-18T15:13:10-08:00

We have all heard about how bad smoking can be for our health. In addition to the mandatory labeling on cigarette cartons, the Department of Health and other public and private agencies spend lots of money on commercials and advertising targeting potential and current smokers. There is also the push to inform people about the negative effects of second hand smoke.

And now there is a lawsuit to show just how seriously people take these affronts to their health, but it is not your typical second hand smoke lawsuit.

As a condominium buyer in Massachusetts, Alyssa Buyrrage was also an asthmatic with concerns for her respiratory health. But her second hand smoke lawsuit is not against a smoker, as one may initially think - but rather it is against her real estate broker for his failure to disclose this deal-breaking aspect of the building.

When Burrage spoke with her real estate agent about purchasing her condo, he never mentioned that her downstairs neighbors were heavy smokers. Massachusetts real estate brokers must disclose to a buyer “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.” Although she admittedly smelled “the unmistakable stench” of cigarette smoke at several visits to the unit, her broker assured her that the smell would dissipate once she painted and renovated the unit.

Ms. Burrage claims that she wouldn’t have purchased the unit in the first place if she had known about the smoke problem and her attempts at stopping the smokers were futile.

A recent LegalMatch study revealed an interest in second hand smoke lawsuits, but primarily in the realm of workplace issues (employers not protecting their employees) and class actions against tobacco companies.

Second hand smoke is an interesting area of litigation and also a major health concerns. The recent “failure to disclose” case is a less charted area of this subject but may become more prevalent in the future if this case is successful in setting a precedent. However, I think it is hard to impose a strict duty on the real estate agent with such a subjective and fluid standard. Put simply, what matters to some might now matter to others, and there is very little clarity on what has the potential to be "material". That being said, things are about to get a lot more clear!

By: Violet Petran

Weight Watchers Meeting Collapse May Lead to Landlord Liability

2010-01-28T16:18:35-08:00

I know it is the new year and losing weight and getting in shape is always a popular resolution (it happens to be my resolution for the past 10 years running) but if you are looking for an excuse...here’s one of the best ones out there—the floor literally collapsed at a recent Weight Watchers meeting. Who knew dieting could be so dangerous!!! The good news is, all of the dieters escaped uninjured and managed to move the scales to the corridor, which was not damaged in the accident, and were able to complete their weekly weigh in. Phew!

Whenever events like this happen my mind automatically goes to liability. Specifically, even if this is a freak accident, who is responsible for the damages? Although, I am not sure of the specific liability for the weight watchers case, generally the landlord (or owner) or the premise is responsible for damages relating to the structure of the property, the fixtures, and other relatively permanent elements of the property are considered to be under the landlord's control, and the landlord will probably be liable if they cause hazardous conditions that cause injury or loss. This liability applies even if the landlord did not specifically know of the structural issues.

Landlords are typically not responsible for the elements of the property that are under the leaser's control, such as the furniture, store shelving, and general non-structural maintenance, like keeping the floor free of debris. It’s easy to see how there is a lot of grey area between the two, which explains the high rate of landlord/tenant litigation in the area of commercial and residential leases.

A recent LegalMatch study revealed a high level of inquiries both on the plaintiff and defendant sides for residential and commercial liability. When renting properties, either on the landlord or tenant side, I think it is wise to invest in insurance. Renters insurance is very easy to get and relatively cheap. Landlord insurance is essential as there will always be issues when you are renting your premises to other people. In the end, the old motto, “better safe than sorry” is the best way to approach situations such as these!

Madoff's Homes On The Cheap: A Lesson On Estate Planning

2009-11-16T14:48:08-08:00

When we last left the corrupt Ponzi schemer Bernie Madoff, he was convicted for securities fraud, wire fraud, mail fraud, and pretty much every other type of fraud under the sun. He was then sentenced by a federal judge to 150 years in the slammer, and last month he got into a fight with a fellow inmate over a squabble about the stock market. We all got a good laugh because, well, old Bernie deserved it. I mean, who gets a consultant to teach them about prison life before getting sent to the joint? It sounds like a plot for an awful straight-to-DVD movie. Personally, I’m taking solace in the fact that he’s doing awful in prison (too bad his stay there was only temporary). I’m usually not one to revel in another’s misery, but I’ll make an exception in Bernie’s case.

Well, it just keeps getting better and better for Madoff and company. Last week, his luxury residential properties in Manhattan and Florida were cut in price, from $9.9 million to $8.9 million and $8.49 million to $7.9 million, respectively. What a steal, right? It’s going to take a lot more than that to cover Madoff’s $21.2 billion worth of investor losses. And working in the prison’s mess hall for 40 cents an hour definitely won’t cover it. Maybe someone can go after that $2.5 million settlement his wife, Ruth Madoff, made off with (I’m a wordsmith) after striking a deal with the Department of Justice. Oh wait, someone already did.

Getting back to Madoff’s former properties, the extravagant lifestyle he once lived as exemplified by these two homes is a testament to the fruits born from Bernie’s fishy investments. While he lived in these luxury residences, his clients were unknowingly losing their fortunes and livelihoods to pay for him and his family’s dalliances around the world. From that perspective Bernie’s ownership of just these properties alone is enough to make a person sick.

But on a more positive note, Bernie’s fall from grace serves as an important reminder to everyone who leaves their finances in the hands of others. To be able to afford the kind of properties and lifestyle Bernie once had takes careful financial planning and research. When people amass fortunes, they often do so with the intent to not only provide for themselves, but to also secure the financial stability of those they’ll leave behind. In a sense, Bernie did that for his own family, but failed at doing so because he (to use a metaphor) built that secured future on a foundation made out of quicksand. It could’ve only lasted for so long until his Ponzi scheme would’ve inevitably been discovered and his family’s financial future would be left in ruin.

The lesson here is don’t be like Bernie because for one thing people will hate you and your family for years and years to come. But also though not everyone will be gaining their riches via a Ponzi scheme, the crux of Bernie’s story is that he became wealthy using an unstable means. The best way to become financially secured is the same way your parents, financial experts, and academics have been telling you for years - by doing it honestly and taking an active role in managing your money. LegalMatch has received countless requests from clients looking to get hooked up with the right estate planning lawyer who can help them do just that.

But remember, even the experts can falter, so don’t forget to keep you hands in the pot and ensure that your planner isn’t being careless with your hard-earned moolah. You’re going to need plenty of it if you want to pickup that Manhattan penthouse.