As we start the New Year, there are a number of legal challenges that face us. Many of our clients have voiced concerens about the issues we discuss in this Newsletter.
Estate and Death Taxes
Government funding has taken a prominent role in legislative circles, with mounting federal deficits, national health care proposals, and bailouts. This is the last year of President George W. Bush's tax reforms, which will sunset at year's end, unless Congress acts soon. One of the central features of the Bush tax "reforms" was an easing of the federal estate taxes. So far, there are no estate taxes for this year, but with mounting budget pressures, this is not expected to last. Adding fuel to this fire are the public statements of Warren Buffet and Bill Gates calling for retention of the estate tax as a means to spur charitable giving among the wealthy. We believe that given these pressures, there is very little chance that the federal estate tax will be repealed. Since Texas death taxes are in essence a "surcharge" of the federal estate taxes, these will not be going away either.
Given these uncertainties, now is the time to review your estate plans. You should check your estate officers, beneficiaries, and check your net worth against your current estate plan. You should make sure that you understand what is currently being sheltered and what changes you may need to make for the future. As we all learn to adjust to the economic realities of the Great Recession, the certainty of knowing that your family is well provided for in an orderly manner is paramount, even if a more permanent "solution" awaits further Congressional action. Other elements of your estate plan, such as health and disability issues are completely independent of these tax considerations and are needs that are addressed separately and via separate forms.
The currenty Administration proposal would freeze the Unified Credit (the tax credit available to U.S. citizens against either the estate and/or gift tax) at last year's level of $3.5mm. It is unclear whether or not this amount will be indexed for inflation. We recommend caution in terms of commtting to estate tax measures that are "irrevocable" for the time being, but encourage our clients to monitor events in Washington and maintain a higher degree of flexibility in their estate planning. Levin & Atwood remains available to assist you with these needs.
Friday, January 15, 2010
Monday, August 3, 2009
THE MORTGAGE DISCLOSURE IMPROVEMENT ACT OF 2008 by Grant Hamilton
The Mortgage Disclosure Improvement Act of 2008 (“MDIA”) required that the Federal Reserve Board issue implementing rules which changed certain aspects of the federal Truth in Lending Act (“TILA”) and Regulation Z (“Reg. Z”). The new rules are applicable to all residential mortgage loan applications taken on or after July 30, 2009 (the “effective date”). According to the new rules as published in Volume 74, No. 95 of the Federal Register (dated May 19, 2009), mortgage loan applications taken on or after the effective date impose certain restrictions regarding fees, are subject to waiting or delay periods for a certain amount of time after the estimated TILA disclosures are provided at application, and are also subject to waiting or delay periods after the corrected or “final” TILA disclosures are received by the consumer.
Though most residential mortgage lenders have already adopted the practice, under the MDIA, the early TILA disclosures must be provided on all loans subject to RESPA that are secured by the consumer’s principal dwelling. Additionally, creditors and any other person(s) may not impose a fee on the consumer in connection with a loan before the consumer receives the early TILA disclosures. Along standard “mailbox rule” lines, consumers are deemed to receive the early TILA disclosures three business days after they are mailed. However, the commentary to the MDIA provides that fees may be imposed any time after the consumer actually receives the disclosures. As an exception to the rule above, under the MDIA, a reasonable, bona fide fee may be collected for the cost of a credit bureau report before the consumer receives the early TILA disclosures.
Under the old rules, if the annual percentage rate in the early disclosures becomes inaccurate, corrected disclosures could be provided at consummation or settlement; however, under the new rules of the MDIA, the creditor must furnish the corrected disclosures to the consumer no later than three business days before the date of consummation. This is, perhaps, the most problematic aspect of the MDIA, in that certain quality control steps will need to be taken internally by mortgage lenders to evidence compliance with this rule.
The new rules of the MDIA provide that both the early estimated TILA disclosures and the corrected, final TILA disclosures must include the following notification: “You are not required to complete this agreement merely because you have received these disclosures or signed a loan application.” This disclosure may be included in the notices required by Reg. Z Section 226.19(a)(1) and 226.19(a)(2).
Just like the existing rules governing the waiving of rescission under Regulation Z, the waiting periods under MDIA may be waived if there is a bona fide personal financial emergency affecting the consumer. This may be done by the consumer if the consumer provides a signed and dated written statement that describes the emergency and modifies or waives the waiting period. It must be signed by all consumers who are liable on the obligation and preprinted forms may not be used.
As is typical, individual investors may have specific rules regarding a showing of compliance with the new rules created under the MDIA. All lenders are encouraged to consult their individual investors prior to closing any loan where the application was taken on or after the effective date of the MDIA.
We hope you have found this information to be helpful. If we can be of further assistance to you with regard to this issue or any other matter, please let us know.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Grant Hamilton is an attorney with Levin & Atwood, L.L.P. He has a general practice focusing on commercial litigation and residential real estate document preparation. Grant can be reached via phone at 281-579-6044 or by email ghamilton@levinandatwood.com
Though most residential mortgage lenders have already adopted the practice, under the MDIA, the early TILA disclosures must be provided on all loans subject to RESPA that are secured by the consumer’s principal dwelling. Additionally, creditors and any other person(s) may not impose a fee on the consumer in connection with a loan before the consumer receives the early TILA disclosures. Along standard “mailbox rule” lines, consumers are deemed to receive the early TILA disclosures three business days after they are mailed. However, the commentary to the MDIA provides that fees may be imposed any time after the consumer actually receives the disclosures. As an exception to the rule above, under the MDIA, a reasonable, bona fide fee may be collected for the cost of a credit bureau report before the consumer receives the early TILA disclosures.
Under the old rules, if the annual percentage rate in the early disclosures becomes inaccurate, corrected disclosures could be provided at consummation or settlement; however, under the new rules of the MDIA, the creditor must furnish the corrected disclosures to the consumer no later than three business days before the date of consummation. This is, perhaps, the most problematic aspect of the MDIA, in that certain quality control steps will need to be taken internally by mortgage lenders to evidence compliance with this rule.
The new rules of the MDIA provide that both the early estimated TILA disclosures and the corrected, final TILA disclosures must include the following notification: “You are not required to complete this agreement merely because you have received these disclosures or signed a loan application.” This disclosure may be included in the notices required by Reg. Z Section 226.19(a)(1) and 226.19(a)(2).
Just like the existing rules governing the waiving of rescission under Regulation Z, the waiting periods under MDIA may be waived if there is a bona fide personal financial emergency affecting the consumer. This may be done by the consumer if the consumer provides a signed and dated written statement that describes the emergency and modifies or waives the waiting period. It must be signed by all consumers who are liable on the obligation and preprinted forms may not be used.
As is typical, individual investors may have specific rules regarding a showing of compliance with the new rules created under the MDIA. All lenders are encouraged to consult their individual investors prior to closing any loan where the application was taken on or after the effective date of the MDIA.
We hope you have found this information to be helpful. If we can be of further assistance to you with regard to this issue or any other matter, please let us know.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Grant Hamilton is an attorney with Levin & Atwood, L.L.P. He has a general practice focusing on commercial litigation and residential real estate document preparation. Grant can be reached via phone at 281-579-6044 or by email ghamilton@levinandatwood.com
Saturday, June 13, 2009
Commercial Lease Pitfalls
Many times new business owners are faced with difficult legal decisions when dealing with renting commercial space. Most people do not take the time to review their leases. Tenants are so excited to be entering into a lease and starting or expanding their business that they do not think about what happens if things do not go as planned. Often tenants might not realize that they can negotiate the terms of the lease. Almost everything is negotiable! Tenants who are thinking about entering into a commercial lease need to be aware of the following clauses. (1) Percentage Rent – A percentage rent clause may require the tenant to pay additional rent based on sales; (2) CAM charges – these are charges for the “Common Area Maintenance” of the leased space; (3) Personal Guarantees – this clause requires an individual to guarantee the lease; and (4) Entireties Clause – almost every lease will have an entireties clause. This clause will basically state that the lease is the final and complete expression of the parties’ agreement. This means that any agreement that a tenant had with the landlord (whether in writing, verbally or by email) prior to the signing of the lease, is now, in most instances, unenforceable. Tenants need to be careful when entering into leases and they need to make sure that they understand and are comfortable with the terms of the lease.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Ashley Atwood is an attorney with Levin & Atwood, L.L.P. She has a general practice focusing on corporations and transactional law. Ashley can be reached via phone at 281-579-6044 or by email ashleyatwood@levinandatwood.com
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Ashley Atwood is an attorney with Levin & Atwood, L.L.P. She has a general practice focusing on corporations and transactional law. Ashley can be reached via phone at 281-579-6044 or by email ashleyatwood@levinandatwood.com
General Legal Questions (2)
Question: I have a consulting business that I operate out of my home but it’s not as if I ‘m running a retail business out of my home. Am I in danger of violating any deed restrictions or having the home owners’ association come after me?
Answer: The answer depends on what the deed restrictions in your particular subdivision say and how aggressive your home owners’ association is. Generally speaking a home office is not going to raise the ire of anyone (including the courts) as long as the business activity is not visible. By not visible I mean your house is not open to customers, clients, or the general public, you don’t advertise your business with your house as the location, employees don’t report to work at your house, you don’t have any signage, and you are not constantly receiving deliveries from carriers.
Question: My kids are frequently getting invited to birthday parties at these indoor jumping places and none of them will let you inside until you’ve signed their waiver of liability form. Can they do this?
Answer: Yes they can, but here’s a little secret: those forms are unenforceable to the extent they seek to have an adult waive a child’s right to sue for injuries.
Question: I recently took my truck to a repair shop who charged me for roughly $800 worth of repairs. Two days after I got my truck back (and paid for the repairs with a credit card), I noticed that the shop did not do all the repairs they charged me for. I have since successfully stopped payment on the charge with the credit card company and now the repair shop is calling me and threatening to repossess my truck. Can they do that?
Answer: The repair shop can only repossess your truck if you signed a contract with the shop that provides, in a conspicuous manner, for repossession. Otherwise, the repair shop cannot repossess. If you did sign such a contract, the shop cannot “breach the peace” when repossessing your truck.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Geoff Sansom is an attorney with Levin & Atwood, L.L.P. He has a general practice focusing on probate and litigation. Geoff can be reached via phone at 281-579-6044 or 713-392-0914 or by email gsansom@levinandatwood.com
Answer: The answer depends on what the deed restrictions in your particular subdivision say and how aggressive your home owners’ association is. Generally speaking a home office is not going to raise the ire of anyone (including the courts) as long as the business activity is not visible. By not visible I mean your house is not open to customers, clients, or the general public, you don’t advertise your business with your house as the location, employees don’t report to work at your house, you don’t have any signage, and you are not constantly receiving deliveries from carriers.
Question: My kids are frequently getting invited to birthday parties at these indoor jumping places and none of them will let you inside until you’ve signed their waiver of liability form. Can they do this?
Answer: Yes they can, but here’s a little secret: those forms are unenforceable to the extent they seek to have an adult waive a child’s right to sue for injuries.
Question: I recently took my truck to a repair shop who charged me for roughly $800 worth of repairs. Two days after I got my truck back (and paid for the repairs with a credit card), I noticed that the shop did not do all the repairs they charged me for. I have since successfully stopped payment on the charge with the credit card company and now the repair shop is calling me and threatening to repossess my truck. Can they do that?
Answer: The repair shop can only repossess your truck if you signed a contract with the shop that provides, in a conspicuous manner, for repossession. Otherwise, the repair shop cannot repossess. If you did sign such a contract, the shop cannot “breach the peace” when repossessing your truck.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Geoff Sansom is an attorney with Levin & Atwood, L.L.P. He has a general practice focusing on probate and litigation. Geoff can be reached via phone at 281-579-6044 or 713-392-0914 or by email gsansom@levinandatwood.com
Raising Parents
All of us looked to our parents as a source of comfort and guidance. There will come a day when that role is reversed, and you may be faced with parenting your parents. When parents become dependent on us, there are certain steps that you can take to make it easier for you and the parents that depend on you.
1. Locate and update important documents. If your parent has any insurance, pensions, 401(k), bank accounts, have your parents check to see who the beneficiaries and the contingent beneficiaries are. If your parent has served in the armed forces, locating his service number and discharge papers will be helpful in getting any VA benefits to which he is entitled. Locating and organizing these documents often leads to frank discussions on what your parent wants. You should also make sure that your parent has the documents in place that are needed to put his or her wishes into effect. Ideally, your parents need a will, a durable power of attorney, a health care power of attorney, a directive to physicians (living will), and a HIPAA release.
Wills need to be updated to make sure that they reflect the parents’ wishes at the stage of life that they are in. Updating a will may be necessary if the last time your parent signed his or her will was when you and your little sister were toddlers.
Powers of Attorney can be made to go into effect immediately or upon a parent’s disability. A properly executed power of attorney can often help caregivers avoid costly guardianship lawsuits and the annual accounting and attorney fees associated with them. A power of attorney also allows a family to be more flexible than many courts would let them be in a guardianship monitored by the court.
A health care power of attorney will assist in giving the health care providers a “family spokesman” for the health care decisions of the parent. That person should be someone who knows the parent and his or her wishes concerning health care decisions.
Directives to Physicians or living wills let health care providers know what the wishes of your parent are when they are faced with a terminal illness, and the amount of heroic measures the person signing it wants taken.
A HIPAA release allows care providers to communicate with people that the parent designates concerning his medical information and prognosis. Often health care providers are not allowed to communicate vital information to family members concerning the patient if this release has not been signed due to their obligation under federal law to protect the patient’s privacy.
2. Make an “owner’s manual” for your parent. When my dad got really ill eight years ago, my sister and I devised a system to manage all the information about him that doctors kept asking. We call it our “owner’s manual” for the care and keeping of our parents. I suggest setting up a three ring binder with page protectors. This binder needs to be divided into sections. One section includes a photocopy of each prescription he or she takes, and the dosage. Another section should have contact information for each doctor or medical provider, and any medical records or diagnoses that were given concerning that parent’s condition. You should also include a section which lists the assets, pensions, bank accounts, and the location of safe deposit boxes. I also keep some looseleaf notebook paper in the doctor section so that my parents and I can write notes about what the doctor told them at the last visit or write any questions that they want to ask the doctor at the next visit. Why should you do this? Often a caregiver for a senior is the spouse. If the regular caregiver suddenly is sick or unable to care for your parent, someone can step in quickly and the care of that person will be less chaotic in an already stressful situation.
Nothing makes the transition of parenting your parents carefree, but having the right documents in place and putting together information concerning the parent in a central place can help smooth the bumps in this part of the road of life.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Karen Taylor is an attorney with Levin & Atwood, L.L.P. She has a general practice focusing on family law, probate and guardianship. Karen can be reached via phone at 281-579-6044 or by email: karentaylor@levinandatwood.com
1. Locate and update important documents. If your parent has any insurance, pensions, 401(k), bank accounts, have your parents check to see who the beneficiaries and the contingent beneficiaries are. If your parent has served in the armed forces, locating his service number and discharge papers will be helpful in getting any VA benefits to which he is entitled. Locating and organizing these documents often leads to frank discussions on what your parent wants. You should also make sure that your parent has the documents in place that are needed to put his or her wishes into effect. Ideally, your parents need a will, a durable power of attorney, a health care power of attorney, a directive to physicians (living will), and a HIPAA release.
Wills need to be updated to make sure that they reflect the parents’ wishes at the stage of life that they are in. Updating a will may be necessary if the last time your parent signed his or her will was when you and your little sister were toddlers.
Powers of Attorney can be made to go into effect immediately or upon a parent’s disability. A properly executed power of attorney can often help caregivers avoid costly guardianship lawsuits and the annual accounting and attorney fees associated with them. A power of attorney also allows a family to be more flexible than many courts would let them be in a guardianship monitored by the court.
A health care power of attorney will assist in giving the health care providers a “family spokesman” for the health care decisions of the parent. That person should be someone who knows the parent and his or her wishes concerning health care decisions.
Directives to Physicians or living wills let health care providers know what the wishes of your parent are when they are faced with a terminal illness, and the amount of heroic measures the person signing it wants taken.
A HIPAA release allows care providers to communicate with people that the parent designates concerning his medical information and prognosis. Often health care providers are not allowed to communicate vital information to family members concerning the patient if this release has not been signed due to their obligation under federal law to protect the patient’s privacy.
2. Make an “owner’s manual” for your parent. When my dad got really ill eight years ago, my sister and I devised a system to manage all the information about him that doctors kept asking. We call it our “owner’s manual” for the care and keeping of our parents. I suggest setting up a three ring binder with page protectors. This binder needs to be divided into sections. One section includes a photocopy of each prescription he or she takes, and the dosage. Another section should have contact information for each doctor or medical provider, and any medical records or diagnoses that were given concerning that parent’s condition. You should also include a section which lists the assets, pensions, bank accounts, and the location of safe deposit boxes. I also keep some looseleaf notebook paper in the doctor section so that my parents and I can write notes about what the doctor told them at the last visit or write any questions that they want to ask the doctor at the next visit. Why should you do this? Often a caregiver for a senior is the spouse. If the regular caregiver suddenly is sick or unable to care for your parent, someone can step in quickly and the care of that person will be less chaotic in an already stressful situation.
Nothing makes the transition of parenting your parents carefree, but having the right documents in place and putting together information concerning the parent in a central place can help smooth the bumps in this part of the road of life.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances. Karen Taylor is an attorney with Levin & Atwood, L.L.P. She has a general practice focusing on family law, probate and guardianship. Karen can be reached via phone at 281-579-6044 or by email: karentaylor@levinandatwood.com
Deciding on your business entity
Deciding on the Entity When Starting a Business
Questions arise when a person decides to start a business. One of the most important is the type of entity that should be used. The answer to this question is usually arrived at by considering several factors, including tax consequences, liability concerns, the purpose for starting the business (and I don’t mean making money), and the parties involved (the owners). This article will touch on the liability concerns. There are three main entities to consider, with various subtypes within each.
Sole Proprietorship: This is the situation many small business owners find themselves in. There is probably no formal entity established. You might have a separate bank account. You probably have cards, and/or flyers with the name of the “company”. You may have filed a d/b/a (“doing business as”) certificate with the county. What you do not have is liability protection. If someone sues the “company”, they are really suing you personally. If they obtain a judgment, they can take your personal assets and money from your bank accounts. While there are restrictions on what they can take, the fact is your personal assets are at risk.
Partnership: 2 or more people want to start a venture. While there may be formal documentation on the partnership, there has been no formal incorporation with the State. Under this General Partnership, you will not only be liable for your acts, but possibly the acts of your partner as well. Again, you have little or no liability protection. You can solve this problem by forming a Limited Partnership. Then, under normal circumstances, your liability is limited to your investment.
Corporation: I think everyone has seen the phrase “Corporation”, “Inc.”, “Incorporated”, “LLC”, “Ltd.” or “Limited” as part of the name of a company. This means that this company has been incorporated with a State or foreign country. There are several variations of the corporate structure, too numerous to explain in this article, but suffice it to say that most do pretty much the same thing; they protect your personal assets. An investor or owners’ liability is limited to their investment, in most cases.
In any of the limited liability scenarios above, there are always circumstances where you can lose that liability protection. Always see an attorney of your choice, and talk to an accountant, before venturing into any of the above.
Questions arise when a person decides to start a business. One of the most important is the type of entity that should be used. The answer to this question is usually arrived at by considering several factors, including tax consequences, liability concerns, the purpose for starting the business (and I don’t mean making money), and the parties involved (the owners). This article will touch on the liability concerns. There are three main entities to consider, with various subtypes within each.
Sole Proprietorship: This is the situation many small business owners find themselves in. There is probably no formal entity established. You might have a separate bank account. You probably have cards, and/or flyers with the name of the “company”. You may have filed a d/b/a (“doing business as”) certificate with the county. What you do not have is liability protection. If someone sues the “company”, they are really suing you personally. If they obtain a judgment, they can take your personal assets and money from your bank accounts. While there are restrictions on what they can take, the fact is your personal assets are at risk.
Partnership: 2 or more people want to start a venture. While there may be formal documentation on the partnership, there has been no formal incorporation with the State. Under this General Partnership, you will not only be liable for your acts, but possibly the acts of your partner as well. Again, you have little or no liability protection. You can solve this problem by forming a Limited Partnership. Then, under normal circumstances, your liability is limited to your investment.
Corporation: I think everyone has seen the phrase “Corporation”, “Inc.”, “Incorporated”, “LLC”, “Ltd.” or “Limited” as part of the name of a company. This means that this company has been incorporated with a State or foreign country. There are several variations of the corporate structure, too numerous to explain in this article, but suffice it to say that most do pretty much the same thing; they protect your personal assets. An investor or owners’ liability is limited to their investment, in most cases.
In any of the limited liability scenarios above, there are always circumstances where you can lose that liability protection. Always see an attorney of your choice, and talk to an accountant, before venturing into any of the above.
Sunday, April 12, 2009
By. Geoffrey C. Sansom, Levin & Atwood, L.L.P.
Question: What do all those letters after a person’s name on a check and bank statement mean?
Answer: I assume you’re talking about “JTWROS” and “POD.” If so, “JTWROS” stands for “Joint Tenancy With Right of Survivorship” and “POD” stands for “Payable On Death.” JTWROS indicates an account that is co-owned and, when one owner dies, his or her interest in the account transfers to the co-owner (and outside of probate). POD indicates an account whereby, upon the death of the named account holder, the funds in the account belong to the person named as payee on the account. In both types of accounts the deceased must have executed a written agreement establishing the account for them to be effective. The main difference between the two: a JTWROS account is co-owned during the owners’ lifetime, whereas a POD account is not owned by the payee until after the death of the named account holder. Both, however, pass outside of probate.
Question: What happens if a contractor I hire fails to obtain the necessary permits to perform construction work on my home? Can I be held liable?
Answer: Ultimately the property owner is responsible for securing and maintaining the proper permits. Many contractors, as part of their services, obtain the necessary permits and the owner never has to worry about it. If, however, the contractor fails to do so, it is up to the owner to secure the permits and it is the owner who will be held liable for failing to do so. You as a property owner should also be aware that you cannot purchase a building permit in some areas without signing a sworn deed restriction affidavit stating that you are aware of and agree to abide by deed restrictions pertaining to your particular project. If you sign the deed restriction affidavit under false pretenses, you could be subject to court citations, fines, and the removal of the structure or violating portion of the structure. Bottom line: Choose your contractor wisely!
Question: My neighbor parks some of his cars in the street and he is always having visitors over who park their cars in the street, too. It makes it difficult at times for me to even get in and out of my driveway. Is this against any ordinance or deed restriction?
Answer: Depending on the number of vehicles in the street and the degree to which they prevent you from safely entering or exiting your property, they could be considered a nuisance under municipal and Texas law. A nuisance is a non-trespassory invasion of another’s interest in the use or enjoyment of land, public or private. I would advise bringing the matter to your neighbor’s attention and see if he does anything about it. Failing that you would want to contact the City Attorney’s office (if you live in an incorporated area) to report the nuisance and request that action be taken. Should that get you nowhere, and assuming it is important enough to you, you would then need to retain an attorney to prosecute the matter.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances.
Question: What do all those letters after a person’s name on a check and bank statement mean?
Answer: I assume you’re talking about “JTWROS” and “POD.” If so, “JTWROS” stands for “Joint Tenancy With Right of Survivorship” and “POD” stands for “Payable On Death.” JTWROS indicates an account that is co-owned and, when one owner dies, his or her interest in the account transfers to the co-owner (and outside of probate). POD indicates an account whereby, upon the death of the named account holder, the funds in the account belong to the person named as payee on the account. In both types of accounts the deceased must have executed a written agreement establishing the account for them to be effective. The main difference between the two: a JTWROS account is co-owned during the owners’ lifetime, whereas a POD account is not owned by the payee until after the death of the named account holder. Both, however, pass outside of probate.
Question: What happens if a contractor I hire fails to obtain the necessary permits to perform construction work on my home? Can I be held liable?
Answer: Ultimately the property owner is responsible for securing and maintaining the proper permits. Many contractors, as part of their services, obtain the necessary permits and the owner never has to worry about it. If, however, the contractor fails to do so, it is up to the owner to secure the permits and it is the owner who will be held liable for failing to do so. You as a property owner should also be aware that you cannot purchase a building permit in some areas without signing a sworn deed restriction affidavit stating that you are aware of and agree to abide by deed restrictions pertaining to your particular project. If you sign the deed restriction affidavit under false pretenses, you could be subject to court citations, fines, and the removal of the structure or violating portion of the structure. Bottom line: Choose your contractor wisely!
Question: My neighbor parks some of his cars in the street and he is always having visitors over who park their cars in the street, too. It makes it difficult at times for me to even get in and out of my driveway. Is this against any ordinance or deed restriction?
Answer: Depending on the number of vehicles in the street and the degree to which they prevent you from safely entering or exiting your property, they could be considered a nuisance under municipal and Texas law. A nuisance is a non-trespassory invasion of another’s interest in the use or enjoyment of land, public or private. I would advise bringing the matter to your neighbor’s attention and see if he does anything about it. Failing that you would want to contact the City Attorney’s office (if you live in an incorporated area) to report the nuisance and request that action be taken. Should that get you nowhere, and assuming it is important enough to you, you would then need to retain an attorney to prosecute the matter.
The information in this article is not intended as legal advice but is instead intended to provide a general understanding of the law. Readers with legal problems, including those whose issues are addressed here, should consult an attorney of their choosing for advice on their particular circumstances.
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