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Q: The Seller terminated the contract and delivered a Cancellation of Contract, Release of Deposit and Joint Escrow Instructions (CC) to the Buyer, providing that the earnest money deposit (EMD) be released to the Seller.  Buyer refuses to sign it. Seller believes that the Seller is entitled to the EMD.  Why wont the escrow officer release the EMD without a CC signed by both parties?

A: An escrow agent is a neutral third party in the transaction and cannot act upon a unilateral request by either a seller or a buyer to release the EMD. Since the escrow agent is a neutral third party, the escrow agent cannot decide who is entitled to receive the EMD. Neither the Residential Purchase Agreement and Joint Escrow Instructions (“RPA”) nor California law give an escrow agent the authority to become a judge and listen to each paterms-and-conditionsrty’s side of the story and determine who is entitled to receive the EMD. If an escrow agent did make such a factual and legal determination, that escrow agent would have breached their fiduciary duties and could be subject to a “breach of fiduciary duty” lawsuit by the party who lost the EMD.

Q: Now the Buyer has delivered a CC to the Seller.  The CC states that Buyer should receive back his EMD.  The Seller refuses to sign this version and everyone is arguing with one another.  What should a Buyer or Seller do?

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Kristina Michelle Reed has been selected to the Northern California Super Lawyers list for the 5th year in a row. Each year, no more than five percent of the lawyers in the state are selected to receive this honor.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.

Bar associations and courts across the country have recognized the legitimacy of the Super Lawyers selection process. Most recently, the New Jersey Supreme Court upheld the findings of a Special Master assigned by the court to, among other things, examine the details of the Super Lawyers’ process. In his July 2008 report, the Special Master lauded Super Lawyers’ lawyer-rating process, stating:

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DO

  • Fully, completely and truthfully complete the Transfer Disclosure Statement (“TDS”) and the Seller Property Questionnaire (“SPQ”).  As a general rule, all sellers of residential real estate property containing one to four dwelling units must complete and provide writteReal-estate-seller-disclosuren disclosures to the Buyer. There are a few exceptions, such as properties that are transferred by court order or from one co-owner to another. But if the Seller is offering their home to the public for sale, count on this requirement applying. (California Civil Code Sections 1102, 1102.2, 1102.3)  The benefit to you as the Seller is that by thoroughly disclosing more information to the Buyer, it becomes more difficult for the Buyer to later complain that you withheld material information about the property.
  • Review the TDS and SPQ to ensure that each question is completely answered. Review the TDS and SPQ with a critical eye of the average buyer.  Make sure that you checked either “yes” or “no” to each question and provided explanations for each item checked “yes.”  Providing the Buyer with an incomplete TDS or SPQ can create a new right for the Buyer to cancel when you provide more information in response to a Buyer’s follow-up questions do to an incomplete response.
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California is falling into line with Congress’ attempt to put an end to the gag clause associated with a number of consumer contracts. Whether you are a consumer or a producer, you know the importance of reviews. Many people turn to quality review sites to better understand what they should expect for certain products or services. As a result, many businesses are including gag clauses in their consumer contracts to avoid potentially negative reviews. In September, California became the first state to outlaw such clauses. The reasoning was that this type of approach is unfair and keeps consumers unaware of the true quality of certain products.

A Need for Change

The reality is that many companies will do whatever it takes to avoid negative reviews about them. In their consumer contract they have been able to include language that not only forbids consumers from speaking out negatively, but also fines them for doing so. This creates a kind of hostage situation where the company controls the situation and will revoke the fine if the individual removes the negative comment. Creating an atmosphere where consumers cannot be truthful about their experience hinders the ability for the marketplace to adequately serve everybody involved. Likewise, the marketplace can no longer operate at a truly competitive rate if nobody is truthful about their experience. Essentially, consumers will hear only good news and all companies are considered to be on the same plane.

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The recent court case of Scafidi v. Hille No. 2014-CA-01261-SCT offers countless reminders for small business owners both experienced and novice about the importance of planning and documenting no matter what the relationship is between the parties involved. While there may be certain factors that may make it seem unnecessary to plan or develop managerial and operational strategies, this case highlights just how messy things can become no matter what the relationship is between the individuals. The overall message is to always plan ahead, document finances and other important information, and remember that when it comes to business, relationships should be set aside.

A Breakdown of the Case

Scafidi v. Hille centers on issues between a brother and sister who inherited a total of three family businesses. Due to the lack of proper planning, the funds were comingled, at one point one or both individuals were kept out of big decision-making processes, funds were not split properly and in the end this led to a huge upset between siblings and a lengthy court battle. The lack of formality in the operation of the business made the case complex and a battle that could have been completely avoided. In the end, each party was awarded a single business each and the third business was sold and funds were split. However, with some planning, not only could they both have been spared legal expenses and the stress associated with such a process, but they could have had three thriving businesses that each one could have benefited from. This case highlights the exact reasons why any business should hire a knowledgeable business attorney to assist with the process.

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New and established businesses are becoming more and more energy conscious as they create business plans and make decisions for the future. However, the costs associated with transforming a building into an energy-efficient hub can be great. With businesses trying to protect their bottom line, how can anyone expect them to be able to fully invest in costly energy-efficient building materials and improvements? Luckily, there are tax incentives to help ease the transition.

Recently, the president signed an extender bill called Protecting Americans from Tax Hikes Act of 2015. The bill itself is in response to some incentives and tax breaks associated with a pre-existing bill that expired at the end of 2014. The new extension creates some permanent incentives while extending other incentives through this year.

Energy-Related Tax Credits

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When people consider leasing commercial spaces for their office or business needs, sometimes they do not consider the potential complications that can occur during the negotiation process. While not all commercial leases are complicated and may only require one or two points of negotiation, some may have several points to be discussed. That is why it is critical to contact a real estate attorney to help you through the process. The following are a few examples of common issues associated with commercial leases and how they can potentially impact your business.

Subleasing

Many tenants want the opportunity to sublease their building in case there are big changes in their business. Sometimes financial changes may require that the business take a step back from the space in order to save money, or if the business is doing well, the company may need to move to a different location. However, many landlords see subleasing as a potential risk because the person who subleases the space may not be financially responsible and this could mean a monetary loss for the landlord. This is certainly a situation in which give and take must be considered so that both parties are accepting of the terms of the lease.

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Being a brand new startup is exciting, but is not exempt from challenges. One of the very first things you have to decide right away is what type of business you will be. This decision alone will greatly impact any other business decision you make. It is absolutely critical that you work with a seasoned business attorney to help you navigate the complicated process of being a brand new business. The three key areas that California businesses should consider are: partnerships, corporations, and limited liability companies (LLCs). The following offers a brief explanation of each entity.

Partnership

A partnership business is exactly what it sounds like. It is a business where there are at least two owners. Each owner has equal decision-making power and is involved in all aspects of the business functions. It is absolutely critical to discussion various aspects of the business including:

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Intellectual property is best described as the property of the mind. Typically, this includes ideas or designs that are sparked from an individual’s own thoughts and creative processes. For a fresh startup, intellectual property is certainly an important aspect of the business that sometimes gets overlooked during the early stages of development. However, make no mistake, intellectual property is absolutely critical and should be protected from the very beginning. It could make the difference between failure or success.

What Falls Under Intellectual Property?

As mentioned, intellectual property is generally a person’s innovative thoughts and ideas. Some things that can fall under intellectual property may include:

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Environmental consciousness is theory that has grown vastly over the years. From the rise in organic product use, to lobbying for full disclosure of products that contain GMOs, to the move of some states to mandate energy disclosures, environmental issues have come to forefront of many legislative sessions. It has been reported that the State of California emits greenhouse gas at an alarming rate every year. Due to the rapid growth in population in recent years, California is the second largest greenhouse gas emitting state in the US. Over 30% of that greenhouse gas release can be attributed to the production of electricity taking place in the state. In response to the harmful nature and after endless lobbying, Assembly Bill 802 was drafted. Assembly Bill 802 focuses on disclosure.

In an effort to closely monitor the problem and resolve the issue, mainly in commercial buildings, Assembly Bill 1103 was enacted in 2009. This bill requires those who own commercial properties to allow public utility companies to regularly collect energy consumption data. Additionally, the public utility companies disclose the data collected to potential purchasers, financial institutions providing loans, and even individuals looking to rent space in particular building. Although the bill was adopted in 2009, it did not go into effect until 2014 due to pushback. Response to the implementation of the new law was not positive, especially because there were no clear and concise guidelines or protocols regarding violations of the law.

Those who had been ordered to comply by disclosing information decided that the fine was worth disclosure. Disclosure of energy use could result in several adverse issues for the owner of the building. Due to the noncompliance of a majority of owners, Governor Brown introduced Assembly 802, a new piece of legislation that replaced AB 1103 and modified the process in which data was collected. Effective January 1, 2016, AB 802 provides that public utility companies will be tasked with maintaining energy consumption data for the last year for all buildings serviced by their company. The goal and purpose behind introduction of this new piece of legislation all lies with disclosure. Those who own buildings that produce energy at a high rate or fail to meet energy efficiency standards are given incentive to make the necessary repairs. By not doing so, they stand to lose potential buyers and tenants. With this new law their insufficiencies are public record and out there for anyone to assess.