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Archive for April, 2014

Michigan Senate Bill: Owner of Real Property Owes No Duty to Trespasser

April 29, 2014 Leave a comment

Back in February I posted an update on real estate legislation in Michigan, including Senate Bill  788, a proposed bill that would provide that an owner of an interest in real property would generally owe no legal duty to a trespasser. You can see that proposed Bill Here

 

The Senate Judiciary Committee is Meeting tomorrow, April 30, 2014 to consider this bill.  You can take a look at that information, and track the progress of this and other bills here. It will be interesting to see if this gets approved in its current version.

 

As a general point, Michigan law has generally held that the “possession rights” in foreclosed real property  belong to the owner/borrower/mortgagor up through the expiration of the redemption period.

 

This Bill and others recently passed have shown an understanding by the legislature that there certain problems that can and do arise associated with vacant property; particularly during this odd time period between foreclosure of a mortgage, and through the redemption period.

 

These bills recognize  a homeowner’s “equity of redemption” – but at the same time, minimize the harm caused when a homeowner has no intention of redeeming the property.

 

 

Questions? Comments?

 

Email me: Jeshua@dwlawpc.com

call: (616) 454-3883

http://www.dwlawpc.com

 

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Categories: Uncategorized

Universal Legal Forms: A Win for Legal Zoom?

April 28, 2014 Leave a comment

A few of my blog posts have discussed the pitfalls of relying on universal legal forms like those provided through Legal Zoom.

 

the ABA Journal has posted what seems to be a legal victory for Legal Zoom – the South Carolina Supreme Court has declared that Legal Zoom’s document service is not the
unauthorized practice of law”   – for those of you non-lawyers reading this, in most states, you need to be licensed to practice law.

See the article here

 

I thought the following was particularly noteworthy:

of 20 practice areas encompassed by LegalZoom’s document service, for 19 of them the same basic services “are available online to South Carolina citizens (and the public at large) via other self-help portals at websites maintained by various South Carolina governmental agencies.”

 

It is not the provision of these forms that I find problematic, so much as the reliance of using these forms without legal advice.   This is where the general population who use these forms can get into trouble.

 

 

 

Categories: Uncategorized

Business law – Tricky Terms and Conditions (part 2) – General Mills Product Eliminates Right To Sue in Their Legal Terms.

April 18, 2014 Leave a comment

I previously wrote a blog post about how businesses should be careful to read their contracts, particularly those tiny printed “Terms and Conditions”. You can read that blog post here

 

An update in General Mill’s policies, prompted by Court rulings, was posted through the ABAJournal provided another illustration of this point. See that article here   The article is headlined “Buying a General Mills product eliminates the right to sue, according to online legal terms

 

As the ABA Journal reports: In language “quietly added” to its website, General Mills said anyone who prints a digital coupon for its products, participates in its contests, or simply joins its online community has given up the right to sue, the New York Times reports.

 

Well, the additional language may have been quietly added, but it is “not so quiet” any longer.

 

Questions? Comments?

 

Email: Jeshua@dwlawpc.com

(616) 454-3883

http://www.dwlawpc.com

 

 

 

Categories: Uncategorized

Real Estate Professionals: New Michigan Law Can Extinguish Redemption Rights

April 11, 2014 1 comment

Real estate law is complicated.

 

I am just going to throw that out there.

 

Particularly when dealing with a mortgagor (borrower’s) rights associated with the redemption period at a foreclosure sale.

 

I. Purchasers at Foreclosure Sales – what do they own?

In general, if a third party is the bidder at a foreclosure sale, they have certain restrictions on their ownership. They get a sheriff’s deed.

 

That deed doesn’t ultimately “vest” them with full legal title until the redemption period expires. Until that “vesting” occurs, Michigan Courts have described a purchaser’s rights as “equitable title” while legal title still remains with the borrower/homeowner/mortgagor.

 

II. Answer: “Equitable Title” Subject to a Possible Redemption by the Homeowner

 

The sheriff’s deed becomes “void if the mortgagor, the mortgagor’s heirs or personal representative, or any person lawfully claiming under the mortgagor or the mortgagor’s heirs or personal representative redeems the entire premises sold by paying the amount required” prior to the redemption period expiring. MCL 600.3240.

 

Therefore there is this period of time, typically ranging from 1 month to 1 year, where the owner of the sheriff’s deed does not have complete legal title.

 

III. This Creates Problems for the Purchaser

 

Obviously, this causes problems from the purchaser’s point of view.

 

How to get access to the property to rehabilitate it, improve it, etc…?

 

 

IV. Enter: New Law To Extinguish Redemption Rights if Property is Damaged and Remains Unrepaired

 

A new Michigan law became effective January 10, 2014 and provides a mechanism to cut off the redemption period of a home owner who is allowing their property to become blighted.

 

 

Under MCL 600.3240(13):

” After foreclosure sale and periodically throughout the redemption period, the purchaser at the sale may inspect the exterior and interior of the property and all ancillary structures. If inspection is unreasonably refused or if damage to the property is imminent or has occurred, the purchaser may immediately commence summary proceedings for possession of the property…A court shall not enter a judgment for possession…if, before the hearing for possession, the mortgagor repairs any damage to the property that was the basis for the action. If a judgment for possession is entered in favor of the purchaser, the right of redemption is extinguished and full title to the property vests in the purchaser.
The statute provides a non-exhaustive list of what may qualify as damages sufficient to allow for a lawsuit extinguishing redemption rights:
  • The failure to comply with local ordinances regarding maintenance of the property, if the failure is the subject of enforcement action by the appropriate governmental unit.
  •  A boarded up or closed off window or entrance.Multiple broken and unrepaired window panes. 
  • A smashed through, broken off, or unhinged door.
  • Accumulated rubbish, trash, or debris.
  • Stripped plumbing, electrical wiring, siding, or other metal material.
  • Missing fixtures, including, but not limited to, a furnace, water heater, or air conditioning unit.
  • Deterioration below, or being in imminent danger of deteriorating below, community standards for public safety and sanitation.
 

In theory it should sufficiently protect the interests of both a purchaser at foreclosure, as well as a homeowner who intends to redeem, giving them the opportunity to cure any such defect before a court would extinguish their redemption rights.

 

However, it will be interesting to see how this law is utilized, and how courts apply it.

 

Questions? Comments?

 

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

 

Categories: Uncategorized

Estate Dispute Caused by “E-Z Legal Form” – Another Illustration of the Need For Sound Legal Counsel in any Legal Transaction.

 

I wrote a previous post about the Problem with Universal Legal Forms

 

The ABA Journal reports another example making headlines, that highlights my point.

 

In the article a Florida woman, Mrs. Aldrich, used an E-Z legal Will form that she filled out herself; after she passed away it became apparent that the Will did not have the proper language included in it to handle the “residuary” of her estate.

 

Because of that defect in the Will, her intentions were overridden by intestacy laws, basically the “default will” of the State. Under those laws, Mrs. Aldrich’s two nieces were beneficiaries of her estate, even though not named in the Will.

 

I appreciate the comments from the Justices, as cited by the ABA article:

 

Concurring Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer,” Pariente said, “this case does remind me of the old adage ‘penny-wise and pound-foolish.’ …

“I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

 

Another adage –  “Anyone who is his own lawyer has a fool for a client.”

 

This is another cautionary tale of why it pays to retain counsel before making any legal decisions, whether it is related to business, real estate, or estate transactions.

 

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

 

Businesses: Check Out My Guest Blog Article About the Legal Role of Your Board of Directors

 

Yesterday I published a guest blog article with GRAPE where I address the role of a board of directors/board of managers in a business.  You can see that article here

 

I met with a client very recently that illustrated another important, and related, point:

 

It is  important to have good people serving on a board of directors who understand their roles.  

 

A board of directors is there to cast vision, make policy decisions, oversee the company, and its chief executives. The board should also leave the operations of the company in the trust of those who it has named, whether it is the President/CEO or Manager.

A big problem occurs when the Board instills its own judgment into the decision making process of issues left under the authority/responsibility of the CEO.

 

Does your board, whether for-profit or not-for-profit, have the tools to understand their proper roles?

 

If not, you may be opening your company up to instances where legal duties/roles are breached.

 

Questions? Comments?

 

Email me: Jeshua@dwlawpc.com

http://www.dwlawpc.com

 

 

 

Categories: business