In my last post about landlords and tenants, I mentioned a few tips on how to make sure you get your security deposit back, and to be wary of bad roommates. Both of those topics come up before and after the lease. Now I'd like to talk about something that you should be aware of during the lease.
What if the landlord doesn't fix something that's broken?
This is something that comes up from time-to-time. A leaky roof, a broken water heater, whatever the case may be, there are times where something in the property just doesn't work. While a good landlord will make every effort to repair it, some landlords won't even bother. Even worse, there are times when a landlord tries to fix the issue repeatedly, but simply can't get it repaired. So what are the tenants options?
First and foremost, these situations don't automatically excuse the tenant from the lease. Make no mistake, if you simply try to walk away from a lease because the stove won't turn on, then you will likely be found in breach, and therefore the landlord will be able to come after you according to the terms of the lease. But, Ohio law provides you with a way to motivate the landlord into fixing the problem, but you must follow the law exactly in order to avoid getting yourself into trouble.
This statute explains how and when a tenant can deposit the rent due to the landlord with the clerk of courts. It also allows for an application to be made to the court in which the rent will be reduced based upon what is wrong with the rental property. Lastly, it allows a tenant to terminate the rental agreement. The important thing to remember is that in order for a tenant to use this particular statute, the landlord must have failed to do something listed under this separate statute.
This can be confusing for the uninitiated and successfully using this law will likely require an attorney. Remember, if you go about it the wrong way or for the wrong reason, you can be held liable for breaching the lease.
There are still a lot more things to be aware of, but I will save those for another post later on.
This post is for informational purposes only and should not be regarded as legal advice or as forming an attorney-client relationship. If you are in the Dayton, Ohio area and feel that you may be in need of legal advice please contact Strain Law Office, LLC for a free consultation.
Thursday, April 21, 2016
Thursday, April 7, 2016
There's more to traffic laws than just not getting a ticket...
Have you heard those personal injury attorney commercials? You know the ones, "Have you been injured by a distracted driver?" Once upon a time it was just, "have you been injured." But now? Now they want to know if the other driver was distracted. Ever wondered why that's the thing they want to know?
I was driving back from court today and the commercial for my area came on. Now of course, I had my hands at "10 and 2" because I know the answer to the above question...Negligence Per Se.
In plain English, Negligence Per Se simply means that, under certain circumstances, a defendant will be presumed to be at fault. For instance, in Ohio it became illegal to text and drive when the legislature passed this into law. So if you are caught texting and driving it is a minor misdemeanor. But here is where it gets interesting. If you are in a car accident while you are texting and driving, the law assumes you were negligent and therefore responsible for any resulting injuries or damages, regardless of whether that is the case.
This is important for several reasons. First and foremost, it shifts the burden from the plaintiff to the defendant. Generally speaking, in civil cases the plaintiff has the burden of proving that the defendant was the cause of an injury and therefore responsible for paying any damages. the defendant's goal is to poke holes in the plaintiff's case and try to provide some mitigating factors for why they shouldn't be liable. Once Negligence Per Se enters the picture, the defendant bears the burden of proving that they were not the cause of the injury. This means that the plaintiff can sit back, while the defendant has to do all of the work trying to disprove that their violation of a law was not the reason the accident happened.
Second, it gives personal injury attorneys an incentive to take the case when the doctrine applies. Usually, personal injury cases are very time consuming and require a great deal of resources in order to meet the burden of proof. Due to this aspect of personal injury law, attorneys who practice in it must be very careful in selecting cases that they feel will be successful. However, Negligence Per Se shifts that responsibility to the defendant, making the case very attractive to personal injury attorneys. After all, they get the benefit of the law assuming that their new client was right and the defendant is wrong.
So if a car accident occurs, the two parties will fight over who was at fault, and therefore who is responsible for paying damages. But, if you take that same accident and can show that one of the drivers was texting at the time, well, they are going to have to come up with proof that their violation of the law did not actually cause the car accident. How do you suppose you would go about proving that?
My two cents is simply this: don't text and drive. All legal maneuvering aside, it is dangerous and it could end up getting people seriously injured or killed. There is no information that I have ever received or sent in a text message that couldn't wait until I was parked to read or respond to. Please be safe on the roads, and remember, failure to obey traffic laws could cost you a lot more than a traffic ticket.
I was driving back from court today and the commercial for my area came on. Now of course, I had my hands at "10 and 2" because I know the answer to the above question...Negligence Per Se.
In plain English, Negligence Per Se simply means that, under certain circumstances, a defendant will be presumed to be at fault. For instance, in Ohio it became illegal to text and drive when the legislature passed this into law. So if you are caught texting and driving it is a minor misdemeanor. But here is where it gets interesting. If you are in a car accident while you are texting and driving, the law assumes you were negligent and therefore responsible for any resulting injuries or damages, regardless of whether that is the case.
This is important for several reasons. First and foremost, it shifts the burden from the plaintiff to the defendant. Generally speaking, in civil cases the plaintiff has the burden of proving that the defendant was the cause of an injury and therefore responsible for paying any damages. the defendant's goal is to poke holes in the plaintiff's case and try to provide some mitigating factors for why they shouldn't be liable. Once Negligence Per Se enters the picture, the defendant bears the burden of proving that they were not the cause of the injury. This means that the plaintiff can sit back, while the defendant has to do all of the work trying to disprove that their violation of a law was not the reason the accident happened.
Second, it gives personal injury attorneys an incentive to take the case when the doctrine applies. Usually, personal injury cases are very time consuming and require a great deal of resources in order to meet the burden of proof. Due to this aspect of personal injury law, attorneys who practice in it must be very careful in selecting cases that they feel will be successful. However, Negligence Per Se shifts that responsibility to the defendant, making the case very attractive to personal injury attorneys. After all, they get the benefit of the law assuming that their new client was right and the defendant is wrong.
So if a car accident occurs, the two parties will fight over who was at fault, and therefore who is responsible for paying damages. But, if you take that same accident and can show that one of the drivers was texting at the time, well, they are going to have to come up with proof that their violation of the law did not actually cause the car accident. How do you suppose you would go about proving that?
My two cents is simply this: don't text and drive. All legal maneuvering aside, it is dangerous and it could end up getting people seriously injured or killed. There is no information that I have ever received or sent in a text message that couldn't wait until I was parked to read or respond to. Please be safe on the roads, and remember, failure to obey traffic laws could cost you a lot more than a traffic ticket.
This post is for informational purposes only and should not be regarded as legal advice or as forming an attorney-client relationship. If you are in the Dayton, Ohio area and feel that you may be in need of legal advice please contact Strain Law Office, LLC for a free consultation.
Wednesday, March 2, 2016
Landlords and Tenants: Part I.
Landlord/Tenant law is a hybrid of three different areas of law: contract (the lease agreement), property (the tenant's right to occupy and the owner's right to the property), and statutes (the state laws that govern the rights, remedies, and obligations of both the tenant and the landlord). In short, whether you are the tenant or the landlord, there is a lot of law behind that lease agreement you signed.
Roommates. Most people become roommates with a friend or significant other. Knowing who you are going to be living with is important, not just for your own sanity, but also because all the tenants will be equally responsible for carrying out the terms of the lease agreement. In other words, a "bad roommate" could potentially be the reason you find yourself involved in a lawsuit.
There are apartment complexes which assign roommates to live together. Historically this practice was limited to school dormitories. However, there has been a growing trend where private apartment complexes, usually near college campuses, have begun implementing this same system. BE CAUTIOUS. Some people are simply not meant to live together and not all roommates are created equal.
If there is a dispute between yourself and a roommate, whether they are refusing to pay their fair share of the bills or if they are engaging in behavior which could be in violation of your lease agreement, you should contact an attorney in your area to make sure you don't end up in court over it.
When it comes to roommates, choose wisely.
In the next Landlord/Tenant post I will try to cover what a landlord is responsible for and what to do when there is a dispute.
This post is for informational purposes only and should not be regarded as legal advice or as forming an attorney-client relationship. If you are in the Dayton, Ohio area and feel that you may be in need of legal advice please contact Strain Law Office, LLC for a free consultation.
Because this area of law can be rather dense, I have decided to split the subject across a series of posts. I will try to be as thorough as possible, but, as always, if you feel that you have a potential legal issue, you need to contact an attorney in your jurisdiction so that you can have your case evaluated. In other words, don't take my word for it.
Security Deposit. Most landlords require a security deposit and they typically require it to be paid before the tenant takes possession of the rental unit. While most renters understand the nature of a security deposit, the return of the security deposit remains a common issue. In order to make recovering a security deposit easier, there are a few things that a tenant must do:
- Maintain the property. Do not let issues go unattended! Call maintenance, report things to the property manager, and document everything. Take pictures when you move in, and take pictures before you vacate. A picture can be worth a thousand words, and sometimes it can be worth every penny of your security deposit. Ohio specifically lays out what a tenant is obligated to do and it can be found here.
- Provide your landlord with a forwarding address. In order to hold a landlord accountable for not paying back a security deposit, you must have provided the landlord with your new address according to Ohio Revised Code 5321.16 (B).
- Make sure your rent is paid. A security deposit can be applied to past due rent. If you end a lease agreement without having paid all of your rent, then you will probably not be seeing that security deposit.
Roommates. Most people become roommates with a friend or significant other. Knowing who you are going to be living with is important, not just for your own sanity, but also because all the tenants will be equally responsible for carrying out the terms of the lease agreement. In other words, a "bad roommate" could potentially be the reason you find yourself involved in a lawsuit.
There are apartment complexes which assign roommates to live together. Historically this practice was limited to school dormitories. However, there has been a growing trend where private apartment complexes, usually near college campuses, have begun implementing this same system. BE CAUTIOUS. Some people are simply not meant to live together and not all roommates are created equal.
If there is a dispute between yourself and a roommate, whether they are refusing to pay their fair share of the bills or if they are engaging in behavior which could be in violation of your lease agreement, you should contact an attorney in your area to make sure you don't end up in court over it.
When it comes to roommates, choose wisely.
In the next Landlord/Tenant post I will try to cover what a landlord is responsible for and what to do when there is a dispute.
This post is for informational purposes only and should not be regarded as legal advice or as forming an attorney-client relationship. If you are in the Dayton, Ohio area and feel that you may be in need of legal advice please contact Strain Law Office, LLC for a free consultation.
Thursday, February 25, 2016
Courtroom Etiquette.
Since my first day of law school, I have heard the statistic that "98% of cases don't go to trial," (or something to that effect). While this may be true, it does not mean that "98% of clients never stand in front of a judge."
A trial is where the facts and evidence get put before a judge, or jury, who will then weigh that evidence and make a determination. There are plenty of other situations where you may find yourself standing in a courtroom, so I thought it would be nice to provide a few things to keep in mind.
1. Dress appropriately.
I have yet to find myself in a court where there is not at least one person wearing street clothes. Look, I like comfortable clothes too. So does the judge, the court reporter, and the bailiff. Legal professionals are, after all, humans. But, you won't see an attorney, judge, court reporter, or bailiff wearing their favorite sweatpants and hoodie combo to work. Think of it as a "when in Rome" kind of situation. Everybody who is on the clock is dressed professionally, so why not follow suit (no pun intended) and show everyone that you take their job seriously too? It certainly can't hurt.
2. Addressing The Court
Repeat after me: "Yes your Honor," "No your Honor," "Thank you your Honor." Notice a pattern? "Sir" and "ma'am" are usually considered to be a very respectful way of addressing someone and most judges and magistrates probably won't take any offense to being called "sir or "ma'am." But, at the end of the day, they earned the right to wear those robes and to be addressed as "your Honor." By saying "your Honor" instead of "sir" or "ma'am" you are simply recognizing the distinction. Once again, it can't hurt.
3. Turn off your cellphone.
Do I need to explain this one? "Off" means off. Don't put it on silent, TURN...IT...OFF!
4. Speak when spoken to.
Judges have a lot of discretion in how they choose to run their courtroom. Some are more informal than others, some prefer certain parties to sit on certain sides of their courtroom, some like pie more than cake. What they do not like is to have their courtroom turn into a circus.
Opposing parties and witnesses may say things that rile you up or seem to distort the truth, or may even be flat out lies. This is what your attorney is there for. If you start speaking out of turn or start addressing the other side directly, or, worse yet, start interrupting the judge, you are very likely going to turn the judge against you. This is not going to help you and it will almost certainly hurt your case. Keep calm, and speak when spoken to.
5. Don't be late, but if you can't help it...
Sometimes there are circumstances beyond your control (i.e. a traffic accident, your car won't start etc.) which can cause you to be late. If you are going to be late to a court hearing of any kind, call your attorney, or, if you don't have an attorney representing you, call the court as soon as possible. Sometimes being late can't be avoided, but letting a judge stew while waiting for you to show up is definitely not going to help your situation. Most courts have their phone numbers posted on a website. It takes no time at all to look it up on a smartphone, or to enter it into your phone before your day in court. Once again, the judge may not be happy, but hopefully a phone call can prevent the judge from being truly irate.
This post is for informational purposes and should not be construed as legal advice or as forming an attorney-client relationship. If you are in the Dayton, Ohio area and think that you may be in need of legal assistance, please contact Strain Law Office, LLC.
A trial is where the facts and evidence get put before a judge, or jury, who will then weigh that evidence and make a determination. There are plenty of other situations where you may find yourself standing in a courtroom, so I thought it would be nice to provide a few things to keep in mind.
1. Dress appropriately.
I have yet to find myself in a court where there is not at least one person wearing street clothes. Look, I like comfortable clothes too. So does the judge, the court reporter, and the bailiff. Legal professionals are, after all, humans. But, you won't see an attorney, judge, court reporter, or bailiff wearing their favorite sweatpants and hoodie combo to work. Think of it as a "when in Rome" kind of situation. Everybody who is on the clock is dressed professionally, so why not follow suit (no pun intended) and show everyone that you take their job seriously too? It certainly can't hurt.
2. Addressing The Court
Repeat after me: "Yes your Honor," "No your Honor," "Thank you your Honor." Notice a pattern? "Sir" and "ma'am" are usually considered to be a very respectful way of addressing someone and most judges and magistrates probably won't take any offense to being called "sir or "ma'am." But, at the end of the day, they earned the right to wear those robes and to be addressed as "your Honor." By saying "your Honor" instead of "sir" or "ma'am" you are simply recognizing the distinction. Once again, it can't hurt.
3. Turn off your cellphone.
Do I need to explain this one? "Off" means off. Don't put it on silent, TURN...IT...OFF!
4. Speak when spoken to.
Judges have a lot of discretion in how they choose to run their courtroom. Some are more informal than others, some prefer certain parties to sit on certain sides of their courtroom, some like pie more than cake. What they do not like is to have their courtroom turn into a circus.
Opposing parties and witnesses may say things that rile you up or seem to distort the truth, or may even be flat out lies. This is what your attorney is there for. If you start speaking out of turn or start addressing the other side directly, or, worse yet, start interrupting the judge, you are very likely going to turn the judge against you. This is not going to help you and it will almost certainly hurt your case. Keep calm, and speak when spoken to.
5. Don't be late, but if you can't help it...
Sometimes there are circumstances beyond your control (i.e. a traffic accident, your car won't start etc.) which can cause you to be late. If you are going to be late to a court hearing of any kind, call your attorney, or, if you don't have an attorney representing you, call the court as soon as possible. Sometimes being late can't be avoided, but letting a judge stew while waiting for you to show up is definitely not going to help your situation. Most courts have their phone numbers posted on a website. It takes no time at all to look it up on a smartphone, or to enter it into your phone before your day in court. Once again, the judge may not be happy, but hopefully a phone call can prevent the judge from being truly irate.
This post is for informational purposes and should not be construed as legal advice or as forming an attorney-client relationship. If you are in the Dayton, Ohio area and think that you may be in need of legal assistance, please contact Strain Law Office, LLC.
Friday, February 5, 2016
The Middle Class Gap: Too rich for legal aid and too poor to hire an attorney.
Lawyers are expensive. Lawyers are also usually necessary to achieve a fair outcome. Our justice system is an adversarial one, meaning that the two sides of a dispute (or the criminal defendant and the state) will argue tooth and nail for their respective sides, the end result will be a product of that conflict, and, hopefully, it will therefore be just, or at least, justifiable.
There is a growing concern that the middle class, those above the poverty line, but without a lot of disposable income, are being relegated to going it alone, not because they do not want a lawyer to help them, but because they can not afford to hire an attorney, and do not qualify for legal assistance through a legal aid foundation or a public defenders office.
This article from the Washington Post (June 2, 2015) gives a more in depth analysis of the problem, but the title itself describes the solution: "We don't need fewer lawyers, we need cheaper ones." As the article points out, one of the biggest issues for lawyers is that they have very large student loans which they must repay. This drives up their overhead, and that cost is passed on to the client. This is one of several factors that makes legal representation so expensive.
When you factor in the overhead of actually practicing law, such as an office (rent, furniture, supplies, computers), support staff (paralegals, secretaries, assistants), and the cost of maintaining a law license (bar dues, continuing legal education courses, professional malpractice insurance) it starts to become clear that the profit margin for an attorney is very slim, while the paycheck they do take home is drastically reduced by the need to payback student loans. This ultimately results in attorneys being unaffordable to the vast majority of clients, while legal aid programs must turn more and more clients away due to budget cuts. In other words, the middle class (a majority of potential clients) simply go without an attorney despite the fact that it puts them at a serious disadvantage.
So what's the solution? Well, there are several. First and foremost, it is up to individual attorneys to cut down their overhead. This can be tricky, but if enough fat is trimmed then a creative practitioner can create room for a profit while still keeping the clients' bills low. This can be done by utilizing things like free legal research tools that can be accessed by state and local bar associations (something most attorneys belong to), setting an adjustable fee schedule, and setting up clients with a repayment plan. Ultimately, individual attorneys need to reject the "business-as-usual" approach to representation, and come up with a system of practicing law that allows for more individuals to access their services.
One of the solutions listed above, an adjustable fee schedule, is something that I have personally had success with. For my work, there are two basic types of fees: a flat rate and an hourly fee. A flat rate is exactly what it sounds like. The client and myself agree to a specific kind of legal representation, counseling, or service, and a specific dollar amount for that service. This gives the client a known price, and if it can not be paid all at once, then a payment plan can be agreed to, i.e. pay $100 per month until the fee is paid in full.
The other type of fee is a billable rate. This is a set price per hour for time spent on a client's case. Usually (or at least, traditionally) this is a one-size-fits-all rate, i.e. $200 per hour. However, there is nothing preventing an attorney from setting multiple billable rates for different types of work. To this end, I split my billable rates into different categories ranging from the least intensive work (client communication or basic research) all the way up to the most intensive work (trials and court appearances). While it is a generally accepted practice to bill hours according to one set price, I personally don't see why a client should be paying me the same amount of money to write an email as they would to have me actively representing them in a courtroom.
There are other emerging trends in the legal industry designed to reduce the cost of hiring an attorney, and this is the direction that the profession needs to continue moving in. Ultimately, this will benefit the profession by creating a new market of clients that have previously been going without representation, and it certainly benefits those individuals who would otherwise not have an attorney to give them the best chance there is to achieving a fair result.
This post is for informational purposes only and should not be construed as legal advice or forming an attorney-client relationship. If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.
There is a growing concern that the middle class, those above the poverty line, but without a lot of disposable income, are being relegated to going it alone, not because they do not want a lawyer to help them, but because they can not afford to hire an attorney, and do not qualify for legal assistance through a legal aid foundation or a public defenders office.
This article from the Washington Post (June 2, 2015) gives a more in depth analysis of the problem, but the title itself describes the solution: "We don't need fewer lawyers, we need cheaper ones." As the article points out, one of the biggest issues for lawyers is that they have very large student loans which they must repay. This drives up their overhead, and that cost is passed on to the client. This is one of several factors that makes legal representation so expensive.
When you factor in the overhead of actually practicing law, such as an office (rent, furniture, supplies, computers), support staff (paralegals, secretaries, assistants), and the cost of maintaining a law license (bar dues, continuing legal education courses, professional malpractice insurance) it starts to become clear that the profit margin for an attorney is very slim, while the paycheck they do take home is drastically reduced by the need to payback student loans. This ultimately results in attorneys being unaffordable to the vast majority of clients, while legal aid programs must turn more and more clients away due to budget cuts. In other words, the middle class (a majority of potential clients) simply go without an attorney despite the fact that it puts them at a serious disadvantage.
So what's the solution? Well, there are several. First and foremost, it is up to individual attorneys to cut down their overhead. This can be tricky, but if enough fat is trimmed then a creative practitioner can create room for a profit while still keeping the clients' bills low. This can be done by utilizing things like free legal research tools that can be accessed by state and local bar associations (something most attorneys belong to), setting an adjustable fee schedule, and setting up clients with a repayment plan. Ultimately, individual attorneys need to reject the "business-as-usual" approach to representation, and come up with a system of practicing law that allows for more individuals to access their services.
One of the solutions listed above, an adjustable fee schedule, is something that I have personally had success with. For my work, there are two basic types of fees: a flat rate and an hourly fee. A flat rate is exactly what it sounds like. The client and myself agree to a specific kind of legal representation, counseling, or service, and a specific dollar amount for that service. This gives the client a known price, and if it can not be paid all at once, then a payment plan can be agreed to, i.e. pay $100 per month until the fee is paid in full.
The other type of fee is a billable rate. This is a set price per hour for time spent on a client's case. Usually (or at least, traditionally) this is a one-size-fits-all rate, i.e. $200 per hour. However, there is nothing preventing an attorney from setting multiple billable rates for different types of work. To this end, I split my billable rates into different categories ranging from the least intensive work (client communication or basic research) all the way up to the most intensive work (trials and court appearances). While it is a generally accepted practice to bill hours according to one set price, I personally don't see why a client should be paying me the same amount of money to write an email as they would to have me actively representing them in a courtroom.
There are other emerging trends in the legal industry designed to reduce the cost of hiring an attorney, and this is the direction that the profession needs to continue moving in. Ultimately, this will benefit the profession by creating a new market of clients that have previously been going without representation, and it certainly benefits those individuals who would otherwise not have an attorney to give them the best chance there is to achieving a fair result.
This post is for informational purposes only and should not be construed as legal advice or forming an attorney-client relationship. If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.
Sunday, January 31, 2016
Will and Estate Planning 101
Having a properly executed will can provide a great peace of mind. It is a reassurance that your estate (all the stuff you own when you die) will be passed on to the people you wish to have it.
This is a topic that I receive a lot of questions on so I wanted to go over some basic information regarding wills. I want to preface this by saying that there is no substitute for speaking with an attorney as to whether or not you should consider having a will drafted, because every client has a different set of circumstances to take into consideration. As always, if you are unsure, you should contact an attorney.
In probate law, the deceased fall into one of two categories: those with a will, and those without a will. Those without a will are referred to as being "intestate," and Ohio's probate code establishes how the deceased's property is to be distributed. This is known as intestate succession and Ohio's can be viewed here.
Another issue that comes up is the difference between probate and non-probate assets. Probate being the process by which a court will transfer ownership of your property to the people you choose to leave it to (or the people listed in the above statute). There are certain kinds of assets which are considered "non-probate" assets, which means that they pass on without any action from a court. The most typical example is a life insurance policy. This is basically a contract between you and the insurance company where, upon receipt of a copy of your death certificate, they are to pay the named beneficiary that you have listed. This doesn't require a probate court, it just happens automatically.
If you are thinking of having your will drafted, there are some questions that you should probably start asking yourself. I generally encourage people to think about anything specific that they want to have passed down to a particular person (i.e. I want my necklace to go to my daughter) which is referred to as a specific devise. After that, it will be necessary to decide how you want the rest of your estate to be passed on. Oftentimes people will come up with a percentage such as "100% to my children" or "50% to my spouse and 50% into a trust for my children."
Once someone has decided how they want their estate to be distributed, it is then time to figure out who will be responsible for achieving those goals. Almost all wills contain a cast of characters who will play important roles once you pass away. Again, I am not providing an exhaustive list, just a few positions that you should think about.
Executor: This is the person who you are putting in charge of your estate. This should be someone you trust. who is organized and reliable, as they will be responsible for seeing to it that your possessions make their way into the hands of your loved ones. The court will have oversight for their actions, and they will be compensated by your estate. If you do not name an executor, the court may appoint one.
Trustee: Depending on your individual circumstances, your will may direct some or all of your possessions into a trust. The purpose of a trust is to provide for an individual or group of people known as the beneficiaries. Oftentimes a will can be used to establish a trust in order to provide for minor children until they reach a certain age, but there can be many other reasons to establish one. The trustee is responsible for managing the trust. Again, this should be someone you are confident can handle responsibility, as they will have a great deal of discretion in how they manage the property that is placed in the trust.
Guardian: This person is to become the legal guardian of your minor children. This is more than a person who attempts to execute your wishes, they will be responsible for your children's upbringing until your children reach adulthood. This isn't just someone you think would be okay with the idea of taking care of your kids. This should be someone who you have sat down and talked to about whether they would be okay with that responsibility.
Alternates: For every person you may consider for the above listed responsibilities, you should also think of an alternate, and perhaps even a third person if you can. For a will to be truly thorough, it should contemplate many different contingencies and scenarios. This can feel incredibly redundant, but the person you would hope takes on the responsibility may not be able to do it for any number of reasons.
There is another thing to consider when thinking of the responsibilities you are asking people to take on. They might say "no." They may completely 100% be on board for taking care of these things when you pass on, but when the time arrives they refuse. This also goes for any property you wish to pass on. The beneficiary may simply not want it. There could be any number of reasons for someone to refuse something passed to them by a will, but they are not under any legal duty to accept what you intend to pass to them.
Having a properly drafted will takes a bit of planning, to be sure. While not everyone necessarily needs one, it is big step in making sure that your loved ones are taken care of at a time when they will be emotionally upset. I hope this has been a helpful read, but for true legal advice on getting a will prepared you should contact an attorney in your area.
This writing is for informational purposes only and should not be construed as legal advice or forming an attorney client relationship. If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.
This is a topic that I receive a lot of questions on so I wanted to go over some basic information regarding wills. I want to preface this by saying that there is no substitute for speaking with an attorney as to whether or not you should consider having a will drafted, because every client has a different set of circumstances to take into consideration. As always, if you are unsure, you should contact an attorney.
Now, I don't want anyone reading this to think that I have included everything there is to know about wills, so I decided to include a couple of pictures of my 2014 Ohio probate code book. Hopefully this will impress upon you that probate law (which governs, among other things, how a deceased individual's property is distributed) is not something that can be summarized in a paragraph or two. My goal here is to simply outline a few key terms and concepts that can help you make a more informed decision.
In probate law, the deceased fall into one of two categories: those with a will, and those without a will. Those without a will are referred to as being "intestate," and Ohio's probate code establishes how the deceased's property is to be distributed. This is known as intestate succession and Ohio's can be viewed here.
Another issue that comes up is the difference between probate and non-probate assets. Probate being the process by which a court will transfer ownership of your property to the people you choose to leave it to (or the people listed in the above statute). There are certain kinds of assets which are considered "non-probate" assets, which means that they pass on without any action from a court. The most typical example is a life insurance policy. This is basically a contract between you and the insurance company where, upon receipt of a copy of your death certificate, they are to pay the named beneficiary that you have listed. This doesn't require a probate court, it just happens automatically.
If you are thinking of having your will drafted, there are some questions that you should probably start asking yourself. I generally encourage people to think about anything specific that they want to have passed down to a particular person (i.e. I want my necklace to go to my daughter) which is referred to as a specific devise. After that, it will be necessary to decide how you want the rest of your estate to be passed on. Oftentimes people will come up with a percentage such as "100% to my children" or "50% to my spouse and 50% into a trust for my children."
Once someone has decided how they want their estate to be distributed, it is then time to figure out who will be responsible for achieving those goals. Almost all wills contain a cast of characters who will play important roles once you pass away. Again, I am not providing an exhaustive list, just a few positions that you should think about.
Executor: This is the person who you are putting in charge of your estate. This should be someone you trust. who is organized and reliable, as they will be responsible for seeing to it that your possessions make their way into the hands of your loved ones. The court will have oversight for their actions, and they will be compensated by your estate. If you do not name an executor, the court may appoint one.
Trustee: Depending on your individual circumstances, your will may direct some or all of your possessions into a trust. The purpose of a trust is to provide for an individual or group of people known as the beneficiaries. Oftentimes a will can be used to establish a trust in order to provide for minor children until they reach a certain age, but there can be many other reasons to establish one. The trustee is responsible for managing the trust. Again, this should be someone you are confident can handle responsibility, as they will have a great deal of discretion in how they manage the property that is placed in the trust.
Guardian: This person is to become the legal guardian of your minor children. This is more than a person who attempts to execute your wishes, they will be responsible for your children's upbringing until your children reach adulthood. This isn't just someone you think would be okay with the idea of taking care of your kids. This should be someone who you have sat down and talked to about whether they would be okay with that responsibility.
Alternates: For every person you may consider for the above listed responsibilities, you should also think of an alternate, and perhaps even a third person if you can. For a will to be truly thorough, it should contemplate many different contingencies and scenarios. This can feel incredibly redundant, but the person you would hope takes on the responsibility may not be able to do it for any number of reasons.
There is another thing to consider when thinking of the responsibilities you are asking people to take on. They might say "no." They may completely 100% be on board for taking care of these things when you pass on, but when the time arrives they refuse. This also goes for any property you wish to pass on. The beneficiary may simply not want it. There could be any number of reasons for someone to refuse something passed to them by a will, but they are not under any legal duty to accept what you intend to pass to them.
Having a properly drafted will takes a bit of planning, to be sure. While not everyone necessarily needs one, it is big step in making sure that your loved ones are taken care of at a time when they will be emotionally upset. I hope this has been a helpful read, but for true legal advice on getting a will prepared you should contact an attorney in your area.
This writing is for informational purposes only and should not be construed as legal advice or forming an attorney client relationship. If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.
Friday, January 22, 2016
5 things everybody needs to know about contracts.
First things first: we enter into contractual relationships all the time without giving it a second thought. I'll give you an example:
Let's say you're feeling hungry, so you decide to head on down to your favorite burger joint. You park your car, head inside, and wait in line. While you're waiting in line you look up at the big board behind the cashier. There's a bunch of individual items and some combo meals, and everything has a price listed next to it. When it's your turn, you step up to the cashier and place your order. The cashier rings it up, you pay for your order, and the cashier hands you a receipt. Congratulations, you just entered a contract.
A contract is, fundamentally, any legally enforceable promise. The burger joint offered to serve you a meal at a set price, you agreed to pay that amount of money in order to receive the meal. You held up your end of the bargain by paying for the meal and now the burger joint is contractually obligated to hand you that number 5, no onion, extra pickles.
Contracts can be as simple as ordering a sandwich, and as complex as an imaginative attorney can make them. So regardless of what it is for, there's a few things everyone should know about contracts.
1. You don't have to read a contract to be bound by it.
I can not begin to tell you how many times I have heard a client lament, "I didn't know it said that!" This is never a good thing to hear for two reasons: 1) It's probably true, which means that the client feels taken advantage of; and 2) it doesn't matter once you get into a courtroom.
If we could escape contractual obligations by simply not reading the contract, then no one would read contracts, and no contract would be enforceable. When you sign a contract, courts apply what is known as a "presumption" which assumes you were aware of all of the relevant terms and conditions, whether or not you really were. The moral of the story is that if you don't know what a contract says, don't sign it. If you have questions about the agreement, ask. Better still, if you have the opportunity, contact an attorney.
2. Just because it's in the contract, doesn't mean you have to do it.
Now, before you start thinking you can break that lease agreement without any repercussions, most of the things you find in a formal contract are enforceable. Contracts are usually drafted by attorneys and a lot of thought is given to every aspect of each provision. With that said, I have seen language in formal and informal contracts which is unenforceable.
As unenforceable terms go, the one I see most often is found in most (if not all) apartment leases. Buried somewhere on the second or third page, in very fine print, will be something along the lines of, "if the Tenant fails to fulfill their obligations under this lease agreement, the Tenant hereby agrees to pay any and all legal fees incurred by the Landlord as a result of such breach."
Sounds legal right? It isn't. Ohio Revised Code 5321.13 (C) states that "no agreement to pay the landlord's or tenant's attorney's fees shall be recognized in any rental agreement for residential premises or in any other agreement between a landlord and tenant." What that means is, while landlords are free to place that language in a lease agreement, no court will enforce it. This type of language is often written into what are known as "form contracts." (See number 3 below for an explanation).
So if it isn't enforceable, why is it in the contract? Two reasons: 1) using spooky language that sounds right (even though it isn't) is one way of trying to get the tenant to believe that it is in their best interest to not bring a lawsuit under the lease agreement, because if they lose, they will have to pay for the landlord's attorney; and 2) most lease agreements are used in multiple jurisdictions and states, so there's an off chance that it may be enforceable somewhere else. This brings me to my next point:
3. Form contracts
Form contracts are typically what people think of when they think of a contract. It is what you signed when you got your cell phone plan. These are standardized contracts, usually used by large companies, and the consumer has absolutely no chance to bargain or negotiate the terms of the agreement.
This type of contract is a double-edged sword. On the one hand, imagine if you had to hire an attorney every time you wanted to change your cell phone plan or carrier? It is a ludicrous idea, which is where the form contract does a lot of good. Both the customer and the company save a lot of money by having a "one-size fits all" contract. The bad news? You don't get to change anything in the contract. You either accept the terms, or you don't get the product or service.
Because of this uneven footing between the customer and the company, courts interpret these contracts (more than most other contracts) under a doctrine known as contra proferentum. This doctrine, at its simplest, means that the terms of the contract are interpreted in favor of the disadvantaged party. Basically, there is a trade-off made when you sign a form contract. You don't get to negotiate the terms of the contract, but if there is any ambiguity to the terms, a court will interpret in favor of you, instead of the company that created it.
As far as what you can be obligated to do, standardized "form contracts" are meant to be used across a large number of jurisdictions. Once again, just because the contract says something, doesn't mean it is legally enforceable. If you aren't sure, contact an attorney.
As far as what you can be obligated to do, standardized "form contracts" are meant to be used across a large number of jurisdictions. Once again, just because the contract says something, doesn't mean it is legally enforceable. If you aren't sure, contact an attorney.
4. Don't let them tell you what the contract says.
If there is one thing I wish I could tell every consumer who is about to sign a contract for something, it's this: if it isn't in the contract, it isn't a part of the deal. There are rare exceptions to this rule of thumb, so it is important to compare what you are being told with what the contract says.
I have heard it countless times, "but the property manager/salesman/receptionist told me that the contract said ."
Did it?
There are a couple of ways this problem comes up. An aggressive salesperson may imply that you are getting something as part of your agreement. However, if that "something" isn't reflected in the contract, then it will be your word against their's. This is not a god position to be in.
Another way this problem comes up is when the contract says that you are obligated to do something, but the other party says "don't worry about it." A common example is a landlord who tells you not to worry about being a little late on the rent. The property manager, or the owner, may suggest that being a few days behind is no problem. If that's true, then get it in writing. Otherwise, you may find yourself being evicted for paying rent late, which according to the lease agreement puts you in breach. You can scream and shout that the landlord told you it was okay, but what proof do you have?
When there is a dispute involving a contract, always remember: the court will look at what is in the contract first and foremost. If you are being told that a contract contains certain provisions, but the person telling you so can't point to them somewhere in the contract itself, you need to seriously reconsider what you are about to sign.
5. When the deal falls apart, lawyer up.
Contracts can say a lot of things. Contracts can contain unenforceable provisions. Contracts might not say things that you were told they did. There are causes of action, defenses, and remedies that all take place outside the words of the contract itself. This is why taking on the other party, whether you are suing or defending a lawsuit, is something you need to run by an attorney.
Most attorneys will provide a free consultation, if only to sort out whether you have a viable case. You may need to go to court or you may be able to reach a settlement, but oftentimes you will need someone with knowledge of contract law to get a fair result.
If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.
Strain Law Office, LLC
Another way this problem comes up is when the contract says that you are obligated to do something, but the other party says "don't worry about it." A common example is a landlord who tells you not to worry about being a little late on the rent. The property manager, or the owner, may suggest that being a few days behind is no problem. If that's true, then get it in writing. Otherwise, you may find yourself being evicted for paying rent late, which according to the lease agreement puts you in breach. You can scream and shout that the landlord told you it was okay, but what proof do you have?
When there is a dispute involving a contract, always remember: the court will look at what is in the contract first and foremost. If you are being told that a contract contains certain provisions, but the person telling you so can't point to them somewhere in the contract itself, you need to seriously reconsider what you are about to sign.
5. When the deal falls apart, lawyer up.
Contracts can say a lot of things. Contracts can contain unenforceable provisions. Contracts might not say things that you were told they did. There are causes of action, defenses, and remedies that all take place outside the words of the contract itself. This is why taking on the other party, whether you are suing or defending a lawsuit, is something you need to run by an attorney.
Most attorneys will provide a free consultation, if only to sort out whether you have a viable case. You may need to go to court or you may be able to reach a settlement, but oftentimes you will need someone with knowledge of contract law to get a fair result.
If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.
Strain Law Office, LLC
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