What does it mean to be joint tenants?

My current focus will be talking about types of interest that people can have in real property.  The next series of blog entries will explore ownership of real property by people at the same time. 

If you purchase a house with two or more persons your ownership is by tenants in common and not joint tenancy, unless expressly declared to be a joint tenancy.  This declaration is usually done in the conveying deed.  This is important because under a joint tenancy, if one of the joint tenants dies that person’s ownership interest in the house passes to the surviving joint tenants.  For example, if John, his wife Sarah, his brother Jim and his wife Rebbecca own a cabin in Brainerd as joint tenants.  Just recently John passed away.  Because the ownership of the cabin is in joint tenancy, John’s ownership passes to the remaining owners.  If the ownership was as tenants in common, John’s ownership would have been as asset that he could bequeath to another under his Will.  It should be noted that a joint tenancy does not exist in Minnesota between a husband and wife solely by virtue of the marital relationship, but it may exist by virtue of express grant or devise.  Wilson v. Wilson, 43 Minn. 398, 45 N.W. 710 (1890).  However, in Minnesota, a surviving spouse does have certain protections in homestead property regardless of joint tenancy.  I will be exploring this issue in later blog entries.

What happens to life insurance and retirement benefits when I die?

If you have a Will, certain property or benefits may be distributed to your spouse or others even though it is not mentioned in the Will.  Typically, life insurance, retirement benefits, joint tenancy property, and property in a “living trust” are distributed directly to the beneficiaries named in the policy, plan, or trust.  If you own certain property specifically as a “joint tenant” with others, that property will go directly to the other joint tenants who are alive after your death, without regard to how you have distributed your estate in a Will.

 

Take care of your property or it may cost you

Minn. Stat §429.101 grants the government the ability to collect unpaid special/service charges as a special assessment against the property benefited for all or any part of the cost of:

(1) snow, ice, or rubbish removal from sidewalks;

(2) weed elimination from streets or private property;

(3) removal or elimination of public health or safety hazards from private property;

(4) installation or repair of water service lines, street sprinkling or other dust treatment of streets;

(5) the trimming and care of trees and the removal of unsound trees from any street;

(6) the treatment and removal of insect infested or diseased trees on private property, the repair of sidewalks and alleys;

(7) the operation of a street lighting system;

           

(8) the operation and maintenance of a fire protection or a pedestrian skyway
             system;

(9) inspections relating to a municipal housing maintenance code violation;

(10) the recovery of disbursements for payment of utility bills and other services, even if provided by a third party, necessary to remedy violations; or

(11) the recovery of delinquent vacant building registration fees under a municipal program designed to identify and register vacant buildings.

This means, for example, if you allow weeds to grow in your lawn in violation of city code the city can specially assess your property for the cost of the removal.

Laws change. Make sure you review your Will.

Once your estate plan is completed you should review it every couple of years to make sure you are getting the maximum benefit in light of changed laws.  Further, you should also review the document when there is some major change in your life.  There are reasons to have an estate plan above the care of your children and making sure that your things are given to specific people.  One reason is to lessen the estate tax burden.  Contact me whether you are at the initial stage of estate planning or need a review of your current estate plan. 

So I've got a Will, but what if circumstances change?

A Will remains effective until it is changed or revoked.  I recommend if you have a Will that you periodically review the Will to ensure it provides for your family as planned or to address new or changed circumstances.  If your Will does not include changes in your life that occurred after the Will was created, the Will may not accurately reflect how you would want those circumstances addressed at your death.  You should consider reviewing and changing your Will when you marry or divorce, if there is a birth or death in the family, a named guardian for you children dies or is no longer available, the value or type of your property changes significantly, or you move to another state.

The Minnesota Government Shutdown

As you may know in Minnesota, the Republican led Legislature and the Democrat-Farmer-Labor Governor have not been able to agree on a 2-year budget.  The deadline is today, June 30, 2011 for an agreement to be made.  If it is not made by this deadline Minnesota is facing a government shutdown. 

According to the Business Insider, the impasse centers around how to close a $5 billion two-year budget deficit.  The Governor's position has been to increase taxes on the wealthiest 2% and the Legislature's plan has been to balance the budget entirely with cuts.  Although both sides have been meeting, no agreement appears on the horizon.  MinnPost.com takes a look at this problem and the problems facing the other states.

If I have a Will, does my family avoid probate?

Not necessarily.  Probate is a court proceeding that manages and settles your estate.  If there is property to be administered or taxes to be paid, the existence of a Will does not necessarily avoid probate nor does it increase the expense of the probate process.  A Will is basically a road map or set of instructions for the court.  However, if all of your property is held jointly or in trust probate may not be necessary after your death.  Probate is not necessarily a process to avoid. 

Don't be surprised by a Homeowner's Association

Did you know that if you fail to pay a homeowner’s association (“HOA”) monthly dues the amount owing becomes a lien on your property.  As a lien, the HOA has the right to foreclose in the same manner as a mortgage.  The HOA does not need court approval to start the foreclosure. The HOA lien is superior to all other liens except:

1.         any document recorded against the property before the HOA declaration was recorded (this is the document creating the HOA);

2.         liens for real estate taxes; and

3.         a recorded first mortgage. 

So, if you fail to pay even 1 month of dues the HOA has the right to commence a foreclosure be serving papers and proceeding to a sheriff’s sale.  Also, similar to a mortgage, the unit owner is personally liable to the HOA for payment of the dues.  This means the HOA can also bring a court action for recovery of the money - they can sue you.  The HOA can choose to foreclose, bring a lawsuit or both.  Also, just because the HOA picks only one method of recovery does not mean it is barred from pursuing the other method at a later date. 

Only Good Things Happen When Parties Agree

In Minnesota only about 2 percent of all cases filed proceed to trial.  The remainder are settled between the parties, by default judgment or adjudicated by the court prior to trial.  From my experience, the best resolution is when the parties come to an agreement.  Although one may not be overly happy with a settlement agreement, it takes away the uncertainty of a decision being made by a jury or judge.  When a lawsuit is initiated an early mediation can help bring the parties to an agreement to settle the matter.

Tenant Issues Can Be a Minefield, Don’t Go It Alone

The 4 corners of a contract prevailed this past Monday.  A landlord had entered into a settlement agreement with a tenant.  The court upheld an eviction based on a breach of the settlement agreement.  Don't go it alone if you are a landlord with tenant issues.  I can guide you through the intricacies of landlord/tenant law. 

In the case of Kleinman Realty Co. v. Talbot, 2011 WL 1938184 (Minn. Ct. App. May 23, 2011), the Court of Appeals determined that, in a landlord/tenant situation, the express words of a settlement agreement govern.  This is in spite of the Court's sympathies to the tenant for her situation and recognition that the district court approached this case in a spirit of charity.  The Court stated:

It is awkward for us to describe the district court's abundance of compassion with the usual legal tags of "erroneous" or "abuse of discretion."  But our mandate is to correct legal errors, and we are bound here to conclude that the district court made a decision more generous toward a tenant than the law allows.

If you rent make sure you have your license

Certain cities require a license if you desire to rent all or part of your property.  For those cities that require a license the property must continually meet the conditions of the license.  If you rent your property and do not have a required license you could be subject to criminal prosecution and a civil lawsuit.  Call me if you intend to or do rent your property and I can assist in determining that you are in compliance with local, state and federal regulations.

The variance rollercoaster ride may be at an end

Cities have the authority to adopt zoning ordinances that regulate the use of land within the city.  This means that a city can regulate, among other things, the size and location of structures.  Sometimes a property owner wants to make improvements that are not allowed by a city's regulations, e.g., making a deck of a house bigger.  If the zoning code does not allow the deck to be any bigger a variance is needed (a variance requires City Council approval).  In the last year the laws that govern when a variance can be granted have been on a wild rollercoaster ride and that ride may have finally come to an end.

A property owner has a duty to use reasonable care to ensure the safety of guests

In the recent Minnesota Court of Appeals unpublished case of Pape v. Macks, LLC, 2011 WL 1466433 (Minn. Ct. App. April 19, 2011), the Court of Appeals reviewed whether a hotel owner is negligent for an injury to a guest.  In this case the guest was taking a shower when he slid the shower door, it cracked and the entire pane fell onto his foot.  The hotel owner indicated that its staff conducted routine checks of rooms after guest checkout and no defects or problems were noticed.  Further, the guest indicated that he had taken previous showers without noticing any defect.  The guest brought an action against the hotel owner for, among other things, negligence.  Although summary judgment is seldom granted on negligence issues, the District Court granted summary judgment in favor of the hotel owner.  The guest appealed.  The Court of Appeals found that in this instance the hotel owner was not negligent.

Be careful what you blog or post.

Words have consequences.  This is even more true in the digital age. 

Recently a nursing student posted a detailed blog post about her experience with an obstetric patient which “attempt at humor was an abject failure . . . Her observations on women, children, motherhood and the birthing process are for the most part, crass and uncouth." Yoder v. Univ. of Louisville, 2009 WL 2406235 (W.D. Ky Aug. 3, 2009).  Yoder was summarily dismissed from the nursing program because of her "internet postings regarding patient activities and identification as a University of Louisville School of Nursing student violates the nursing honor code which you pledged to uphold on September 7, 2008."  She eventually brought suit under 42 U.S.C. §1983 for violation of her First Amendment right to free speech.  She also argued that a confidentiality agreement she was subject to was unconstitutionally vague.  Further, she alleged that there was also a violation of her Fourteenth Amendment right to due process.  The District Court granted summary judgment in favor of the dismissed nursing student based on contract interpretation and did not make any determinations on the Constitutional issues.  Basically, the District Court ruled that the confidentiality agreement, code of conduct and standards of the nursing profession were either too vague or the facts of the case did not rise to the level of being a violation/breach.

Can you rely on Wikipedia as legal authority?

Is Wikipedia primary authority?  Is it reliable?  Should you rest an argument on what you find in Wikipedia?  If you answered “yes”, you better think again.  In United States v. Sypher, 2011 WL 579156 (W.D. Ky. Feb. 11, 2011), the Court had to remind the defense attorney that Wikipedia is not an acceptable source of legal authority in United States District Courts.  The court noted that the defense council cobbled much of his argument of law by cutting and pasting, without citation, from the Wikepedia web site:

What Instructions Can I Provide in my Will? Can I Refuse to Provide for Some Members of My Family?

You can provide little instruction or very detailed instructions in your Will.  Usually, though, a Will provides instructions for the care of any children and also names a "personal representative" to manage and distribute your estate after you die.  The personal representative, which can also be legal entity, gathers your property, pays any debts and taxes, and distributes the balance of your estate to the people or organizations you have named in your Will.

Specifically excluding a person from inheriting part of your estate is called "disinheriting."  A married person cannot disinherit a spouse without the spouse’s consent. You may specifically exclude or "disinherit" a child as long as you are clear about it in the Will so that the disinheritance does not appear to be a mistake.

What Happens if You Die without a Will?

If you die without a Will, Minnesota law determines who receives all or a portion of your estate. Though there are exceptions in the law, the balance of your estate would usually go to your spouse, if your spouse is still alive. If your spouse died before you died or you did not have a spouse, the balance of your estate would go to any children. Generally, if you are not survived by a spouse or children, Minnesota law would distribute the balance of your estate to your parents, siblings or cousins, though it depends upon who among your legal heirs are still alive at the time of your death.  If you have no surviving family and die without a Will, the balance from your estate would usually be paid to the State of Minnesota.

What is required to create a Will?

While each state may have different requirements for creating a valid Will, a valid Will in Minnesota must be a written document signed by a person who is at least 18 years old and of "sound mind." In addition, two witnesses must also sign the Will indicating that they witnessed the person's signature or were present when the person making the Will acknowledged that he or she signed the Will.  An attorney can assure that the requirements to make a valid Will are strictly followed.

What does a Will do?

A Will typically accomplishes two primary things.  First, it directs who will receive your "estate" after your death.  Second, it provides instructions about what should happen after your death, including who should care and provide for your children or dependents.  An "estate" includes furniture, jewelry, cars, bank accounts, business, property, and real estate that you own.  In a Will you can direct who is to receive a portion or all of your estate.