Thu, 18 Apr 2024 08:47:24 -0700WeeblyFri, 12 Nov 2021 08:00:00 GMThttp://klanckecook.com/blog/dont-drunk-dialthe-policeDuring the holidays any number of stressors can make us a little, ummm, crazy.  As family gathers, parties commence and everyone imbibes in the name of being thankful, altercations and calls to the police increase.  Neighbors call the police on neighbors, and family on family, regarding fighting, noise, parking, perceived insults and slights, any manner of personal affront to them or their property.  Well, here’s some free legal advice from David and Jill: Calling the police over non-life threatening situations this holiday may only make things worse, not better.   Take three deep breaths, set the alcohol and emotions aside, and really think if you want an officer in your home at that moment.  In fact please think twice before reaching for the phone.

 Think twice because:

If the police arrive and decide that the “callee” rather than the “caller” has the more reasonable point of view, or has done nothing illegal, the caller looks foolish and has unwittingly scored a victory for his opponent.  Further, if you wrongfully embarrass someone or misspeak about them, you may give him a lawsuit against you.

Regardless of the outcome, whenever you call the police on someone you have made an enemy for life – of him, his family, his friends and your other neighbors who may take his side.  Your relationship with the neighborhood will never be the same.

Self examine.  If your expectation of the police is that they will sweep down and right your personal wrong, you may be disappointed.  First, the most likely outcome, if the police officer agrees with you, is a ticket for your neighbor and a future court date for both of you.  Second, if you show that disappointment by becoming upset or confrontative with the officer because she has not lived up to your standards. you could end up the one in trouble.

Self examine once more.  Reconsider calling if all you are trying to do is beat the other person to the punch because you think they are going to call.

Finally, don’t think twice, think five times before calling if you have been drinking alcohol or you are not entirely clear and cogent.  If you still call, once the police arrive, listen much more than you speak.

Best of all, if you can do so comfortably, think twice, be patient and call your lawyer in the morning.  She can best advise you as to whether your situation is criminal, civil or mental.
]]>Mon, 11 Oct 2021 07:00:00 GMThttp://klanckecook.com/blog/new-or-usedBuying a home is always stressful. Sometimes we’re conscious about the stress and sometimes we are aware of it only after closing and everyone breathes a sign of relief. Buying a new, just being built, home can be overwhelming. You’ve only seen the model home, you have no idea if the fixtures, paint and carpet colors are really going to work and many events can interfere to delay closing. One solution is to purchase your new home used, even if just by a year or two.

Opening lines to conversations you might avoid by purchasing used:
“That’s standard landscaping? It looks nothing like the model”
“Tell me again about expansive soil”
“I thought the deck was going to be larger … smaller … drain away from the house.”
“When does normal settling stop?”
“You believe this workmanship meets industry standard? ”
“I know I sound like I’m whining, but…..”
“What do you mean that this brand of fixture is just as good as the one I picked out? ”
“What is a bad batch of concrete?”
“Sump pump? When did we talk about sump pump?”
And our personal favorite (yes, we really dealt with this situation), “You never mentioned there would be a fireplug in my front yard.”

In fairness to builders, many buyers equate new with “perfect” and “dream home” which is generally not the way we think when buying a previously lived in home. Unrealistically high expectations of a brand new home can cause issues that are really not the builder’s fault. On the other hand, this article is not about allocation of blame; it is about avoiding stress regardless of the source.

Conflict with a builder, or their agent, can be a frustrating, unproductive process. When you buy from a builder you invariably buy from a corporation. There is no individual liability. Additionally if the builder creates a new corporation for each house or development, his liability is limited to the assets of that single corporation. Minor problems may not be worth going to court over and most developers really do try their best to make the purchaser happy. However, sometimes even they are surprised with cracks in the walls or poor trim work. With major problems, the builder points to the engineer who did the soil work, the engineer points to the builder who had the soils report and everybody points to the real estate broker who was just trying to make their client happy. Unfortunately, nobody wants to pay the purchaser or agree what’s a fair amount for the unsolvable problems.

If you still want your new dream home, great! Carefully look for a really good builder or housing development. Forget about the references of satisfied customers in homes already completed. Ask for a list of the names and phone numbers of buyers for all of the developer’s homes that have closed in the last six months. Take your time when looking at new homes and ask to see homes within the development that have been built a year or so earlier. See what those houses look like and what those folks have to say about issues and solutions they’ve encountered. We find that people who live within developments or who have worked with the developer in the past are a great source of honest feedback. If they’re happy, they’ll let you know. If they’re unhappy, they’ll really let you know.

Another option, work with an agent and find your perfect, slightly used home. After all, buying your new home used may mean someone’s already had those conversations mentioned above.]]>Mon, 15 Jun 2015 02:22:15 GMThttp://klanckecook.com/blog/new-home-or-usedWhether you know it or not, buying a home is always stressful.  Buying a new home from the wrong developer can be overwhelming.  One solution is to purchase your new home used, even if just by a year or two.

Opening lines to conversations you might avoid by purchasing used:

• “Tell me again about expansive soil”
• “I thought the deck was going to be larger … smaller … drain away from the house.”
• “When does normal settling stop?”
• “I know I sound like I’m whining, but…..”
• “What do you mean that this brand of fixture is just as good as the one I picked out? “
• “What is a bad batch of concrete?
• “Sump pump?  When did we talk about sump pump?” and my personal favorite,
•  “You never mentioned there would be a fireplug in my front yard (really happened).”

In fairness to builders, many buyers equate new with “perfect” and “dream home” which is generally not the way we think when buying used. Unrealistically high expectations of a new home can cause issues that are really not the builder’s fault. On the other hand, this Tip is not about allocation of blame; it is about avoiding stress regardless of the source.

Conflict with a builder, can be a frustrating, unproductive process.  When you buy from a builder you invariably buy from a corporation.  There is no individual liability.  Additionally if the builder creates a new corporation for each house, his liability is limited to the assets of that single corporation.  Minor problems may not be worth going to court over.  With major problems, the builder points to the engineer, the engineer points to the builder and everybody points to the real estate broker.  But nobody wants to pay you.

If you still want your new dream home, carefully look for a really good builder.  Forget about his list of references to satisfied customers in homes already completed.  The builder can pick and choose those.  Ask for a list of the names and phone numbers of buyers for all of his homes currently under construction, or that have closed in the last six months.  See what those folks have to say.  Otherwise, consider buying your new home used.
]]>Mon, 15 Jun 2015 02:21:56 GMThttp://klanckecook.com/blog/update-from-colorado-real-estate-symposium-quirks-and-moreOK, here I am, back from my annual Real Estate Symposium and feeling pretty current on case law, legislative updates and changes to the Colorado real estate commission forms.  That is all well and good, right, but what about the quirky stuff, you say?  Well, how about this:

1.  In 1861, before Colorado was even a state, the First Session of the Legislative Assembly of the Territory of Colorado passed a set of real estate laws.  The laws covered the most basic issues of conveyance, dower, joint tenancy, acknowledgments, fraudulent conveyances and, of course, real estate taxes.

In 1927, six legislators, who all had interests in real estate in the Denver area, and members of the Twenty Sixth Session of the Colorado General Assembly, persuaded their fellow legislators to repeal sixteen sections of the existing law and enact fifty new sections.   To date, thirty of those fifty real estate laws still stand.  Oh sure, over time we’ve filled in with Homeowner’s Association laws, alternative dispute provisions, tinkered with foreclosure law and common interest communities but think about it, in general, we are still buying, selling, leasing, developing  and suing using laws that were either written pre civil war (1861) or “modernized” in 1927, over 87 years ago.

No wonder real estate litigation, and appellate cases are abundant.  We’re functioning in the 21st century with 19th and early 20th century real estate laws still controlling the land. (No pun intended.)

1.  If you are the developer of a one hundred plus unit condominium project, guess what your chance is of being sued?  15% 25% 50%?  Nope. It’s a whopping 85%!!   Unlike other types of construction in Colorado, residential construction is subject to claims of negligence, implied warranty of habitability and deceptive trade practices.

The “economic loss” rule applied in most commercial development does not apply.  Most commercial construction defects are assessed on an economic level – how much money was lost, or kept from being gained, due to construction defects?  The Homeowner Protection Act of 2007 voids, as against public policy, any express waiver or limitation of rights, remedies or damages regarding residential property owners right or residential property. In other words, even if a homeowner suffers no economic loss, they are still entitled to damages for the defect.  How often do you see that in a commercial lease or sale?  Quite simply, never.
]]>Mon, 15 Jun 2015 02:21:37 GMThttp://klanckecook.com/blog/look-up-and-see-the-viewDavid and I just got back from hiking in Utah.  October is truly a beautiful time of year to drive westward across Colorado.  The trees along the Colorado River were stunning in their yellow and reds, the river itself was crystal clear and we had 4 days of perfect blue skies.  Holy cow, what a great state we live in!  The four corners area of Utah was no slouch, either.  Same great foliage and clear, warm days for exploring.

I am often surprised at how I spend my time at work, in the car or even hiking, with my head down, purpose driven.  Yet, you have to look up and out to see the view!  So often, when we’re in the middle of spectacular scenery, that we’ve worked REALLY hard to get to, David and I spend our time staring at our hiking boots and the ground we’re traveling, and not the scenery around us.  Only when we stop to rest does our vision move beyond our immediate environment and take in the fact we’re smack in the middle of some stunning beauty.

Such a metaphor for life.  Head down, plowing through, work, home, work, home, work, home.  We all need to vow to stop looking down at our feet, or desk, or computer and start looking up and out at the great, grand beauty of life that surrounds us.  The big picture is pretty fine and the long view can be quite beautiful.

]]>Mon, 15 Jun 2015 02:21:16 GMThttp://klanckecook.com/blog/whats-in-control-anywayWhy do we execute a Medical Power of Attorney and an Advance Care Directive?  Executing a Medical Durable Power of Attorney gives your agent the authority to make all but one medical decision for you, when you are incapable of making such decisions for yourself.  That one remaining decision is the end-of-life decision (stop feeding me; take me off life support).  That decision is, and should be, made only by you, using an Advance Care Directive, more commonly known as a Living Will.  But when does the Living Will take effect?  The answer is when two doctors state in writing that you are comatose with an irreversible medical condition and you have directed that life sustaining procedures be removed.  At that point the Medical Power of Attorney no longer has authority and the Living Will takes over. Most Medical Powers of Attorney state that in the event of conflict with the Living Will, the Living Will prevails. You have the last word.

]]>Mon, 15 Jun 2015 02:20:36 GMThttp://klanckecook.com/blog/innocent-or-whatThere has been much outrage and heated conversation of late about a couple of high profile criminal defendants pleading “not guilty”.  People have asked us “How can they plead not guilty when they’ve been caught red handed, with ample evidence against them”?   Additionally, we’re often asked “How could you defend someone you knew was guilty?” The reply is that it is an attorney’s job to speak for those whom no one else will speak for and to make sure our legal system follows the rules and constitutional protections afforded its citizens.  The majority of Americans agree with that concept as part of our general understanding of democracy but choke on it when it applies specifically to someone who has clearly committed a heinous crime. Most of us, having heard the principal “innocent until proven guilty” think of the question as, “How can how can you plead innocent on behalf of someone when they are clearly guilty?” The answer is very straight forward: We don’t. Newspapers and televisions will tell you that someone pleaded, “Innocent” to a crime, but it is not true.No one in this country has ever pleaded “Innocent” to any criminal charge.  There is no such option.  Innocent, or not, is a moral issue between you and a higher being.  In this life the plea is, “Not guilty.”   Literally translated that means, “I stand on my right not to condemn myself from my own mouth and on my right to be tried by a jury, to a standard of guilt beyond a reasonable doubt.”  It does not mean, “I categorically deny doing the thing I am accused of.”  The law does not require that its citizens be innocent to go free.  They need only be “not guilty.”

In daily life we regularly see parent defend child, brother defend sister and friend defend friend when the person being defended is obviously guilty of the accusation, or some form thereof.  Objection to defending someone who is guilty appears not so much a matter of principle, but a matter of how far out of our personal relationships we extend its benefits.  And the further we go outside our own frame of reference the easier it is to make judgments about another’s “innocence” or “guilt”.  In the last several years many individuals have been released from prison, after having been found guilty, to be found  not  guilty through DNA samples.  In light of such events, perhaps it is best to make the justice system prove the guilt and not the individual charged prove innocence.

We would suggest to you that many people you know have done things in their life they’re not proud of, and however ugly, at the moment they did it thought they had a good reason/excuse for doing it. They may have simultaneously realized that it was “wrong,” but they still thought they had a reason for the behavior.  When it is a crime, the attorney’s job is to give that person the opportunity to explain their reasoning to the jury or at least make the government prove its case…..the opportunity to be not guilty, until found so beyond a reasonable doubt.  As much as we may not like this concept when a terrible crime has been committed, this very requirement is what separates our legal system from the majority of other legal systems around the globe and makes it truly one of the best in the world.
]]>Mon, 15 Jun 2015 02:20:02 GMThttp://klanckecook.com/blog/keep-it-simple-stupidWhenever I’m striving to solve a problem or come up with a solution to a situation, I remember to KISS -Keep It Simple, Stupid!  How often do we, in true human fashion, tend to over-think or over complicate situations?  This is not only true in our personal and work lives but is also true in our legal interests.  While I won’t presume to write about simplifying your personal or work world, here is a way to KISS when dealing with passing your home on after death AND that is beautifully simple for what it accomplishes. In Colorado, real estate may be conveyed to third parties today, but so long as the Deed is not recorded, no conveyance has taken place.

The best way to make this work is to use a Special Warranty Deed. For example, you sign a deed to your home (or other Colorado real estate) conveying it from you, as parent(s), to your child or children.  The Deed then gets safely tucked away with all your other original estate planning documents.  Only after the death of the home owning parent(s) does the Deed then get recorded. With the simple act of recording the Deed, even if signed 20 years earlier, the home passes to the children and completely avoids probate. All with a simple unrecorded Special Warranty Deed sitting in your drawer.

Some attorneys will advise their clients to sign and record a Beneficiary Deed.  This works too, but has problems, starting with the fact that is has to be recorded while the Grantor (e.g. parent) is alive.  Once recorded, what if you change your mind about who gets your house?  Once recorded with the county Clerk and Recorder, a Beneficiary Deed requires additional work -and lawyering- to undo.  With an unrecorded Special Warranty Deed you can change your mind.  There is nothing of public record to interfere with those actions.  Want to sell the real estate?  Just go to where you keep your original estate planning documents, find the Special Warranty Deed, AND TEAR IT UP.  Bam!  The conveyance is undone without any further action required.

One caveat: Not every state has the same conveyance and recording laws, so for any property you own outside of Colorado, you must check with a local attorney practicing in the state in question to see what you can do.  We’re just lucky Colorado makes it so easy.  Apparently our state believes in KISS too!
]]>Mon, 15 Jun 2015 02:19:17 GMThttp://klanckecook.com/blog/whats-in-that-drinkIn the past David has joked, “When I die, I want my body cremated. Thereafter, the “cremains” (let me guess-a mortician made that one up) are to be mixed into 50 gallons of Cuervo Gold. Then you are to hold a party so all of my friends can drink me.”   Can you imagine if your spouse/partner said something like that to you? Oh, yes, ashes in rivers, lakes, on mountains and fields, all pretty normal requests and easy to honor. What about the requests that are crazy to some but important to you? From the look on Jill’s face each time David has given these directions, it’s likely she may not intend to respect his final wishes. So, how do you insure that your final requests, like David’s, will be honored?

First, do what he did. Tell the person most likely to be in charge what you want and see if it is agreeable. Additionally, tell anyone likely to complain and discuss it right up front. For example, if your spouse is OK with cremation but you are not sure about your other family members, talk to them. Explain why it’s important to you. Don’t let them be surprised after your death when it’s too late for the conversation. If everyone agrees, then it is probably settled. If someone important (e.g. your parent or child) disagrees, tell him or her you truly hope and expect them to honor your wishes whether they like it or not. If you think the person is still going to cause trouble, or if that person is your spouse, you have two choices.

1. Forget about it or at least modify the wish – the post-mortem family strife might be just too divisive; and hey, on some level, it’s not about you. Or, ask for the party, request lots of tequila be consumed in your name but don’t make your family ask people to drink your ashes (or fill in the blank for your “unique” request);

2. Find a Personal Representative (Executor) who will enforce your wishes, whatever your family thinks, and then write those wishes clearly and expressly in your Will, or in a stand-alone “Declaration of Disposition of Last Remains” and write a “To whom it may concern” letter and give the letter to your executor so that he/she will have it immediately available upon your demise.

3. Finally, if your wishes are fairly normal, help your family and lay them out (no pun intended) while you’re alive and well. Some individuals will even visit a funeral home and pre-pay for the whole package.

Now, back to David. Most of his friends and family are women. Wouldn’t 50 gallons of Malbec be more appropriate?
]]>Mon, 15 Jun 2015 02:18:51 GMThttp://klanckecook.com/blog/a-legal-shield“David, I am a one person business and I have thought about becoming a limited liability company or a corporation for liability protection, but people have told me that even after forming such an entity I could still be sued personally and personally liable, so why bother?”

Well, let’s start at the beginning. Corporations and LLC’s are designed to protect the personal assets of the owners of that entity under the concept of “limited liability” – i.e. that any legal liability that may arise within the business, attaches only to the business assets. So, say there is a successful lawsuit against the business, only the assets of the business can be used to pay the lawsuit. The personal assets of those individuals who have invested in the company are safe so long as they acted in good faith on behalf of the business entity. However, take a situation, for example, where a drunken limo driver injures someone, both the limousine company and the driver are going to be sued. How could he not be personally liable when he’s drunk and driving? Now if the “driver” is also the owner of the company, yes he is going to be sued for his personal wrongful acts, even if the limo company is a corporation or LLC. The long and the short of it is that gross negligence, fraud, theft and other unlawful behavior is never protected. Otherwise, forming a corporation or LLC would literally be a license to steal.

Now, if the limo driver was completely sober, didn’t break any laws and had a client, on their own, decide to exit the car while it was still moving and such client was subsequently injured, would there be personal liability on the driver? Probably not. In that case only the corporation or LLC assets could be attached if a judge or jury found in favor of the limo client.

Beyond the obvious scenario above, you might still ask why bother? Here are several more reasons:

1. Limited liability will protect against creditors (where you the owner have not guaranteed the debt personally or signed personally) if the business goes under;

2. The court may decide that, even in a lawsuit for injury, the conduct was purely “business” conduct and not the conduct of you the owner, as an individual, and therefor worthy of limited liability protection;

3. There are certain tax advantages allocated to corporations and LLCs, especially Sub S corporations. You may actually save money by establishing a legal entity and allow your CPA to take advantage of the tax code and,

4. In truly negative legal situations, it gives your defense council a negotiating position. If the business is just you, or you doing business as (dba) another entity, then everything you have is at risk. EVERYTHING. Your house, your bank accounts, your investments, your personal property, etc.

But if you are a corporation or LLC, then your lawyer can argue, negotiate and settle the case based upon the position that the other side may lose if it tries to go after you personally. If you are not a corporation or LLC, you take away a very important negotiating tool and legal argument from your lawyer, and yourself, if things go wrong.

One final thought. Having said all of that about why you should create an independent legal entity from yourself, never forget that in business the liability protection of a corporate type entity is a line of defense, but not the best. It is what you turn to when all else has not worked. Your first line of defense is insurance for your business, officers and directors.




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