There’s a lot more to the arrangement that involves significant negotiation about access, security, personal injury, property damage, master leases, etc. that I won’t go into. It’s just food for thought. Next time you’re driving Broadway into downtown, check out the rooftops and see for yourself the burgeoning field of this kind of lease and the money sitting up there for the landlord.
I try and bring you information on some quirky, new, developing area starting to keep us real estate attorneys on our toes. So, here’s my latest “pay attention Jill” topic: ROOFTOP LEASES! Yep, it seems anyone and everyone who owns a building with some height and a flat roof can now make money leasing space on the rooftop to companies needing satellite dishes and antenna placements and to tenants who want their own communication equipment on the roof. What used to be empty unusable space is now incredibly valuable. There’s almost nothing the landlord has to do, beyond making sure the installation of the equipment doesn’t damage the roof (for which he makes the tenant liable) and provide a 60 amp electrical outlet. In return, tenants in Denver are paying an average of $1300-$1800, and up to $3,000, per month per cellular antenna. At the average rate, that’s an extra $15-$21,000 per year for landlords leasing what used to be empty space.
There’s a lot more to the arrangement that involves significant negotiation about access, security, personal injury, property damage, master leases, etc. that I won’t go into. It’s just food for thought. Next time you’re driving Broadway into downtown, check out the rooftops and see for yourself the burgeoning field of this kind of lease and the money sitting up there for the landlord.
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In today’s society entering into financial marital agreements prior to marriage is becoming pretty common. I’ve heard friends and clients say that they find the idea of entering into such an agreement contrary to a loving relationship. That is just not so. To me, that’s like comparing apples and broccoli. The divorce rate in the United States is 50%. Everyone reading this has as likely a chance of going through a divorce as they do staying in a marriage for life. And how many of us out there are already on our second marriage? A financial agreement has nothing to do with how much you love someone at the moment; it has everything to do with where, and to whom, you want your assets to go in the event of your death or divorce. Sometimes called a “pre-nuptial (before marriage) or post-nuptial (after marriage) agreement, both agreements have one thing in common – a wide belief that they do not work. Oh, but they do. You have heard about famous people for whom the martial agreement failed to help the spouse with assets. That is invariably because that same spouse concealed certain assets from their future husband or wife. If a signor of a marital agreement “forgets” about his $5 Million ranch in Idaho, the agreement is subject to being broken. Failure to fully disclose is the kiss of death. But if both parties are legally capable of agreeing and disclose everything about their finances to the other, such agreements are fully enforceable.
Marital agreements are commonly used in two situations. 1.) One person has significantly more assets than the other and wants to protect them, 2). In second (or more) marriages, one or both people want to be sure that their children from a prior marriage receive the bulk of their estate and not the new spouse. Marital agreements can be written so that property/income divisions are determined in the event of the death of a spouse or the couple’s divorce. Some are based on splitting assets depending on the length of the marriage. They can allow for some reallocation of assets or a total “I keep mine/you keep yours” result. Obviously the latter becomes more difficult the longer the parties are married. While post-marital (after marriage) agreements are legal in Colorado, they are not legal in every state. The objection that these agreements are not “romantic” -that it takes some of the bloom off the rose of marriage to already be discussing divorce may be true, but the ugly prolonged divorce or, maybe worse, the ugly prolonged probate contest between your children and your second spouse is not exactly “moonlight and magnolias” . We sign Wills every day that accomplish the exact same purpose or a pre-nuptual or post-nuptual without guilt or belief it belittles our relationship with our spouse and family. How is a marriage agreement really so different? Finally, the best advice if you really want to keep the “bloom on the rose” and focus on the loving relationship is to sign the agreement weeks, not hours, before the wedding. You’d be surprised how many individuals leave it to the last minute when it can all be dealt with calmly long before that walk down the aisle. The Colorado Living Will (Advance Health Care Directive) is not about you. Living Wills are about one and only one thing, and that is guilt relief. A Living Will is about placing the burden of when to take you off of life support exactly where it belongs, on you. Yes, you make the decision but it is not about you. You are already gone. It is about not making your family decide when to end your body’s time on Earth.
I went to the Elder Law Symposium late this summer and came back with the new, updated Living Will form. The Living Will laws and forms changed recently for the better. Now there is no minimum time before the plug can be pulled and you can list the friends or family who can talk to the attending physician. One more thing. Do not confuse a Living Will with a Do Not Resuscitate. The first takes you off life support while the second keeps you from being put on it. Only a physician can issue a DNR, not an attorney. In either case, don’t forget; it’s not about you, it’s about your family. Taking care of an elderly, or otherwise home-bound, individual is becoming more and more common these days. Most of us are familiar with the term “sandwich generation” and what it entails for an entire family. Within our practice we are also observing more often, a generation of adults without any family to care for them. There is a burgeoning area of law dealing with the elderly, or “elder law”. It encompasses providing care, financial management and supervision for the elderly when there is no “sandwich”. We have been asked to serve as power of attorney (POA) for some of our clients. They tell us they literally have no one close to them who could serve in that capacity. We are a society where people are out-living their spouses, children and friends. They end up alone. If you currently help an older individual, who is not a family member, don’t be surprised if they rely on you more and more as they realize they can no longer do everything on their own and have no one else to turn to.
If you are ever in that position, take a deep breath, have the proper legal documents drafted and discuss right up front what time you can allocate and when you’ll be spending their money to hire outside help. I take care of a lovely 85 year old lady. I also have a family and a business to run. I don’t have time to go shopping for new nightgowns, shirts and groceries for her myself, but I do have a wonderful licensed, bonded, kind woman who make’s it her business to do just that. These days businesses exist to fill the need of home companions, errand runners and task masters for all the issues required in caring for a home-bound individual. They fill the “sandwich”, so to speak. When I needed to move my friend from independent living to assisted living, I couldn’t afford the time it would take to do it myself. Nor did I want to. But Debra had no problem with that! She packed up the old apartment, got rid of what my friend no longer wanted or needed and unpacked everything exactly how my friend wanted it in her new place. Don’t feel guilty, you can’t do everything yourself but, with permission, you can find proper, reasonably priced assistance. Hillary Clinton was right. It does take a village….. If you need help with errands, companion time or shopping, call Debra at Just a Little Assistance 303-903-5895 As many of you know, David is on the board of directors of Bethesda Lutheran Communities. For those of you who are not familiar with the work of the organization, Bethesda provides housing and services for the developmentally disabled. A few years ago Bethesda started reaching outside the United States and has created group homes and orphanages in other countries. You see, in many cultures if a child is born with developmental or intellectual disabilities they are abandoned by their family. David just returned from a board meeting in the Dominican Republic where Bethesda has adult group homes and supports an orphanage in Santo Domingo. It wasn’t enough that it was an orphanage; it was an orphanage of disabled kids between the ages of 4 and 12. He described the trip as “life changing” and was so thankful to meet so many kind, caring individuals who live and work in the middle of extreme poverty helping those left behind. David emptied his pockets at the orphanage with all the money he had and had to borrow $100 bucks from a friend for traveling back home.
Bethesda may not be where your interests lie, but there are so many needs in so many places, it’s easy to find a charity you can believe in and become an active participant in changing lives in the United States or elsewhere in the world. If you’re feeling poor, or sorry for yourself, just travel to a 3rd world country. Nothing makes an American realize how rich and blessed they are faster. So often, owners of closely held corporations (Sub S or C) or LLC’s are excellent at running their business but fail to keep up on the paperwork required by their own by-laws or by state law. Every corporation we have created has a set of by-laws requiring an annual meeting of the directors and shareholders. The meeting has to include new election of officers and directors and should memorialize major purchases, expenditures or decisions the CEO and/or board has made in the past year.
OK, at this point you’re probably saying why? I’m a one (or two, or three) person business and I just incorporated to establish a legal business identity. Well, here’s why. If you want to enjoy the legal immunity a corporation provides you, you need to act like a corporation. That includes written minutes of an Annual Meeting. Look at your by-laws. They should spell out exactly what business you need to conduct and what needs to be written down as Minutes of the meeting. Additionally, if you ever want to sell your business, get a loan or have to deal with the IRS, they are all going to ask to see your corporate record book. So, take a minute and create annual Minutes. You’ll be glad you did. Just as politicians frequently find themselves in more trouble for lying about their conduct than the conduct itself, the average person may find that he gets in trouble more often for confessing conduct, rather than remaining mum. One can only imagine the depth and breadth of historical government abuses by even so-called civilized governments that prompted Mr. Jefferson to include the right against self-incrimination in the Fifth Amendment. Yet, I have found time and again that the defendant might have gone free, been found guilty of a lesser charge, received a lighter punishment or not had judgment entered against him had he simply kept his mouth shut. This is true both in criminal and civil cases. There is a reason that every time you have ever been stopped for a traffic violation, the first thing the police officer asks is, “Do you know why I stopped you?” Let the confessing begin. I wonder why the legal profession worries about current attempts to restrict the Miranda warning. Most defendants ignore it anyway.
The risks of saying too much too soon are: 1. Persuading the plaintiff or prosecution that they have a case against you; 2. Confessing to crimes or conduct not yet suspected (frequently this happens while the defendant believes he is actually improving the situation); 3. Lying to the police – this one is really no help at sentencing; 4. Becoming legitimately confused in your story and thus wrongly giving the impression of lying; 5. Incriminating others either wrongly, or even correctly but receiving no concessions in return; and, 6. Generally facilitating and encouraging the thought that you can, “talk your way out of this.” You normally can not. You normally only talk yourself in deeper. Your interrogators are professionals. You are, at best, a well practiced amateur. There is a generalized belief that if I am “nice” to the police or plaintiff’s attorney we can get this over with and they will be “nice” to me. They will not. I repeat, they will not. It simply is not their job, nor in their interest. Remember, government, and all of its various criminal and civil strata, are legal authorities, not moral authorities. If you have a burning desire to confess, go to your house of worship and at least get absolution in return. You may say that the confessions of the guilty are good for the system, good for society, and possibly on some level good for the defendant. I agree. But then at least let that confession occur after a private discussion with an attorney, not before. So often we hear individuals say that they don’t have to have an estate plan because they really don’t own very much and their family will know what to do. Let me state this right up front: YOU DON’T HAVE AN ESTATE PLAN FOR YOURSELF, BUT FOR THE PEOPLE YOU LEAVE BEHIND.
Estate documents are so much more than just passing money and material items along. Living Wills, Powers of Attorney and Personal Property Memorandums are profoundly important for the emotional well-being of your loved ones. Living Wills come into play when you are brain dead or permanently unconscious with no hope of recovery. The purpose of a Living Will is to prevent those individuals you love, particularly your partner, spouse or children, from making the decision whether to terminate your earthly existence. Think of all the potential for conflict and guilt that making such a decision can entail. We’ve actually had a client tell us that “I killed Mom” because he had to make the decision to take her off life support. That is exactly the situation we are trying avoid. A Living Will uses no middle person to make the ultimate life/death decision – you make it in advance and remove all the responsibility of such an emotional situation from those you love. Some people say that a Medical Power of Attorney already does the same thing as a Living Will, so a separate Living Will is unnecessary. They are mistaken. Powers of Attorney, by definition, give authority to another person to make decisions for you. Living Wills are designed to remove such decision making. Powers of Attorney serve a different but also very important purpose in estate planning. They are necessary while you are still alive but unable to make decisions for yourself or conduct your own business affairs. A Power of Attorney will lose all authority upon an individual’s death, but it does allow your friend or loved one to make decisions for you when you do need help. Today you cannot be admitted to most rehab or assisted living/nursing facilities without producing a Power of Attorney. And be aware, there are two types of Powers of Attorney; financial and medical. They are two completely different documents and serve two completely different purposes. Finally, an estate plan is necessary to stop fighting or a sense of injustice from occurring with the distribution of your material possessions. Estate attorneys can cut up bank accounts and financial holdings all day long. What we can’t do is decide who gets Mom or Dad’s wedding ring, the family portrait that’s hung over the fireplace for years, or the kitchen china that was a part of every family dinner. You must do that dividing while alive and well, and state who gets what within a Personal Property Memorandum that is a part of a Will. We cannot tell you the hundreds (literally) of stories we’ve heard about siblings never speaking to each other again because of who got what material item when a parent died. And, worse, often the item had NO economic value. It’s almost always a matter of sentimental value. So you see, it really doesn’t matter what the size of your “estate” is. Estate planning is an act of kindness you do for your family and friends. You make the life/death decisions, you appoint the proper people to act on your behalf and you divide your possessions so no one’s left making those hard choices for you. It’s just something you do for those you love. Last week, a business associate of mine very kindly gave my name to someone who had posted on Facebook and was looking for “a good and honest lawyer” because they needed Wills. Lucky for me, it was posted, with my name referenced, so I could follow the string of comments. What a HUGE learning opportunity it became. First off, three separate parties made a joke of “honest” and “lawyer” in the same sentence (no surprise). Second, I was literally shocked at suggestions that included “just write something up, have it notarized and it’s as valid as an actual Will”, get a Suze Orman’s do-it-yourself kit, try Legal Zoom and “go to Staples and see what they have”. I never realized how naïve I am. And now, I must admit, I’m a little concerned too.
First, please forgive me if I sound whiney, but please bear with me as I get something off my chest. There’s no pleasure in being made fun of, because of your profession. David and I spent a lot of years in school, getting educated to help people. We have doctorate degrees (J.D.) and worked exceedingly hard to attain them. Within every profession there are extreme personalities. I don’t hear CPA, R.N, D.D.S. PhD. CFP, M.D. etc., etc., etc jokes, yet there are plenty of insensitive, greedy people within every field of professionals. I believe we help people every day we go to our office and answer our phones. The vast majority of attorneys are simply specially educated business people, trained to solve problems for their clients. As to the “do it yourself” idea: I don’t plumb my own house, suture my own stitches, fill my own prescriptions or rebuild my car’s transmission. Those aren’t my areas of expertise. In Colorado you can certainly write something up and have it treated as a holographic Will. In fact, in Colorado it doesn’t even need to be notarized. In the individual’s handwriting and signed by the individual will serve. Yes, there are kits out there available or Legal Zoom or these legal “benefits” companies where you pay monthly. But here’s what I have to ask myself. Why would I want to do something myself, that I have no knowledge or training in, or be required to work with someone I don’t know, over something important enough to have true legal consequences? If you screw up a Will, there is no “do over” – the person’s dead, there is no correcting. And if you make a mistake or incorrectly fill out a Power of Attorney, do you really want to find out it’s not correct and legal when the person who signed it needs you to be managing their affairs right then and there because they’re not able to? Every state has its own probate laws. How can the same kit sold in every office supply store across the country conform to Colorado law? How does one know what to include and what to exclude on the generic forms of legalese? Is it really not worth the money to have such an important set of documents done correctly, professionally, comporting to the laws of one’s state of residence and expertly drafted to carry out the specific wishes of the author? I can’t speak for you, but I much prefer to hire an honest professional to do that. Think twice before saying anything negative about your Ex, as a human being, to the children you have in common. In other words, “Your Dad is a half hour late to pick you up,” (Okay) – “Your Mom is the same irresponsible person as when we were together and once again she is late,” (Not Okay). Don’t restrain yourself like this for your Ex’s sake. Do this for purely selfish reasons. Do it for you – for your future relationship with your children.
You may inquire, “What if all that I do is calmly speak the unexaggerated truth?” It is that exact situation that this Tip is written to address. If you exaggerate about your Ex, or do not tell the whole truth (in other words, lie), I assume that you do not need a Tip to tell you to stop. But let’s be honest. “Truth” can be an excuse to vent to your kids. Unfortunately, when you criticize your Ex, your children are as likely to blame you as him or her, regardless of the “truth.” I am no therapist but I observe the following children’s views: – When Dad talks negatively about Mom, whether it is true or not, Child just wants him to stop. If he persists, Child begins to resent him. Haranguing is no more useful here than getting Child to keep her room clean. – Child’s relationship with Dad, on some level, is none of Mom’s business and Mom’s negative comments make child more protective of Dad and their relationship. – Child was a party to the divorce and knows that the complaining parent wasn’t exactly perfect themself. Child is willing to forgive both parents; why can’t they do the same? – And finally, and perhaps most powerfully, “That’s my Mother/Father you’re talking about, shut up.” I have seen children in their twenties, thirties and forties show respect and admiration for a divorced parent who never criticized the other parent to them – even if the other parent was truly deserving of criticism. I have seen children in their twenties, thirties and forties just shake their heads at the negative comments made by one parent about the other. They did not seem to care much about the “truth.” . They did seem to care about the indirect coercion of such criticism. If your Ex is a jerk, your children will figure that out on their own, normally much more quickly if they do not feel the need to rebel against your criticisms. If your children choose to ignore the evidence against your Ex, that is their prerogative. The bottom line is that you can only hurt your relationship with your child; it will never improve with the smack talk. |
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Write something about yourself. No need to be fancy, just an overview. ARCHIVES
November 2021
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