An easement is a non-possessory interest for the use of real property that belongs to another for some specific purpose.  The most common easement is for ingress and egress (road access to the property), but easements can also be obtained for utility lines, windmills, logging, hunting rights, and even scenic views.  Easements can be public (granted for public access to beaches or other public areas) or private (granted to a person for individual privileges.)  It is not a fee interest in the land, but it is a right to an ownership interest and has an inherent value (particularly if it runs with the land, i.e. is transferable to future owners.)  Indeed, easement rights are sometimes purchased for valuable consideration.

 There are several types of easements: Continue reading ‘EQUITABLE EASEMENTS IN CALIFORNIA’

Is a Buy-Sell Agreement Right For Your Company?

 You’ve worked so hard to get your company up and running.  The business is finally turning a profit, and you and the other owners of the business are getting on famously.  Any ownership issues have been ironed out and it’s going to be smooth sailing from now on, right?   

 Wrong.  The only thing for certain is change, and some changes in the ownership of a small business are inevitable and can be devastating to the company.  Continue reading ‘Is a Buy-Sell Agreement Right For Your Company?’

Why should my corporation hold annual meetings?

 Our corporate clients who are not publically traded, and maybe only have one or two shareholders, sometimes don’t understand the necessity of having annual shareholder and director meetings. But there are some very good reasons why it is a good idea to do so:

 First, it is required by law.  Continue reading ‘Why should my corporation hold annual meetings?’

Free Speech Considerations in Commercial Real Estate

 Owners and tenants entering into shopping mall or other commercial leases must cover many deal points in the lease documents.   One issue that may get overlooked concerns free speech rights.

The general rule is that shopping malls must allow free speech protests within the visual and aural range of the targeted business, when the mall is open to the public.  Current law requires a shopping mall to provide more access to public expression than stand-alone stores.  This is because malls are more of a public meeting place than stand-alone stores.  One recent court opinion signalled (without holding)  that this rule may change.  In the future, the distinction between malls  and, say, big box stores which provide a public seating area, may blur.  In the future, courts in California   may look at the scope and nature of the public space offered by a store, to determine the scope of public expression.

A mall owner can create lease restrictions on speech and expression, but any restrictions on time, place and manner must be content-neutral.  For example a court recently held that the rules for a Southern California mall unconstitutional; the rules were not content-neutral because they treated labor protests differently from other types of speech.  The mall’s argument that  the rules were constitutional, because they didn’t restrict the content of the labor protests, did not impress the court. 

Retail property owners and tenants would do well to pay attention to free speech and expression rights and restrictions in their leases and rules.  Reviewing the constitutionality of such lease terms and updating problematic language may prevent a constitutional legal battle in the future.   

Leslie Baxter is a Partner at Randick, O’Dea & Tooliatos, LLP; she is an author of “California Real Estate Brokers Law and Litigation,” published by Continuing Education of the Bar. 

Estate Tax Law Reenacted

The following posting was created by Randick O’Dea & Tooliatos, LLP partner Nick Tooliatos.  Nick is a Certified Specialist in Probate, Estate Planning and Trust Law.  Nick recently returned to the firm after a 1-year deployment in the Army Reserves.

As you may have known, 2010 was an exciting year for me.  As an Army Reserve Officer, I spent the year deployed on active duty as the Deputy Commanding General of the 1st Theater Sustainment Command, working in Kuwait, Afghanistan, Iraq, Egypt and Kyrgyzstan.  We had the mission to logistically support both the substantial drawdown of forces and equipment from Iraq, while at the same time, uplifting the 30,000-troop surge and required equipment into Afghanistan.  It was a tremendous experience working with thousands of great American service members.  I am grateful for your continued support to the law firm and me during my absence.  I am back to work now, full-time, and I look forward to seeing you one of these days, soon.

To make matters even more interesting for all of us in 2010. . . in mid-December, Congress enacted new tax legislation that may affect your estate plan.   When the President signed the new “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,” (“TRUIRJCA”, or “2010 Tax Relief Act”) the federal estate tax sprang back to life.  For at least the next two years, the IRS will collect a 35% tax on all estates worth more than $5 million. This article provides you with a brief overview of the new law, and more importantly, gives you some things to think about as you consider how it may affect you.

Continue reading ‘Estate Tax Law Reenacted’

Are You a Fiduciary? Are You Sure?

California law describes a broad definition of fiduciary, involving trust, confidence, and good faith between a principal and their agent.  In a recent case, however, the federal bankruptcy court construed fiduciary capacity in a different and significantly narrower manner, with dramatic results. 

In a holding at odds with other bankruptcy cases, a bankruptcy court recently held that a debtor’s status as a California real estate agent was insufficient to show that she stood in a ‘fiduciary capacity.”  That holding allowed the agent, who had filed a Chapter 7 bankruptcy, to discharge a $356,000 state court judgment, awarded to her client, a potential real estate buyer.  The California state court jury had found that the agent negligently and intentionally breached here fiduciary duty to the buyer, by misrepresenting the purchase agreement and falsely informing the seller that the buyer could not satisfy the financing requirements.  While the jury found that the buyer was entitled to the $356,000 damage award, the bankruptcy court said no; under the federal bankruptcy statues, the agent was not acting in a fiduciary capacity because she did not hold property in trust for her client, the buyer.    Thus, a damage award that may otherwise have been nondischargeable in bankruptcy because of the debtor’s fraud was found to be dischargeable.

             Real Estate Agents in Bankruptcy

Under this holding, California real estate agents who negligently or intentionally breach their fiduciary duties may find refuge in bankruptcy court, where they may be able to avoid and discharge judgments against them.  Even if no judgment is rendered, the settlement of high value disputes concerning brokers and agents may be influenced by the possibility that the insolvent wrongdoer will seek to discharge the debt in bankruptcy.   In the future, the holding may extend to other types of fiduciaries as well. 

             Attorney’s Advice Can Maximize Outcomes

Conflicts in the law sometimes arise between federal and state courts.  The law is sometimes  more fluid than solid.  An aggrieved party must look beyond the mere fact that they were wronged and, with competent counsel, broadly evaluate the chances of achieving and collecting a monetary judgment.     

Leslie Baxter is a Partner, practicing Real Estate and Business Law at Randick, O’Dea & Tooliatos, LLP; she is an author of “California Real Estate Brokers Law and Litigation,” published by Continuing Education of the Bar. 

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