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
Saturday, June 13, 2009
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.
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