Living Trusts and Estate Planning

    





    

 
Helps with homework, projects & tests

    


There are many ways to protect assets for your loved ones. One way is to use a living trust. Living Trusts are routinely used by average persons, not just the wealthy, to avoid the high cost, publicity and inconvenience of probate. Property placed in an irrevocable trust will be excluded from your financial picture, for Medicaid purposes. If you name a proper beneficiary, the principal that you deposit into the trust (and possibly any income generate d) will be sheltered from the state and can be preserved for your heirs. Typically, though, the trust must be in place and funded for a specific period of time for this strategy to be an effective Medicaid planning tool. For information about Medicaid planning trusts, consult an experienced attorney.
A trust has three parties - a donor, trustee and beneficiary. The donor sets up the trust, the trustee manages the property in the trust, and the beneficiary gets the use and enjoyment of the property. A person who sets up a living trust wears all three hats, donor, trustee, and beneficiary.
After a living trust is set up, it must be "funded". This involves changing the title of your assets, such as your home and your bank accounts, into the name of the trust. You maintain complete control over the money and the property in the trust. You can buy, sell, trade, or do whatever you want with your property, just as if the trust did not exist.
A living trust can be easily changed to meet the needs and goals of you and your family. In addition, the trust can provide for management of your assets in the event you become ill or incapacitated during your life. When used together or with a durable and health care power of attorney, it can help completely avoid expensive guardianship proceedings.
Upon your death, the person you have designated as "successor trustee," usually a child, automatically takes over management of your assets. Your successor trustee settles your affairs, and then distributes your money and property to your heirs.
Although the purpose of a trust, avoiding probate is simple, a trust is a complex legal document. There may be tax issues involved, and the terms of the trust must be thought through and drafted with great care and skill. Therefore, a trust should only be prepared by an attorney who is experienced in the field of estate planning, and who will stand behind his or her work. Those who purchase mail order trust kits advertised in the back of magazines, or who utilize the services of non-attorney door-to-doo r salesmen, are taking great perils with one of the most important documents of their life. On the other hand, a properly drafted living trust will lighten the burden that death places on your family, and will greatly simplify the process of transferring your assets.
Copyright 2006 Ronald Hudkins

About The Author

Ronald E. Hudkins agressively coordinates with government agencies and organizations to compile information to help consumers avoid deceptive business practices. A description of his education and experience can be found at http://www.AssetProtectNow.com.

    



    

Lemon Law Case AssistanceHow to Fight and Win

    





    

 
Helps with homework, projects & tests

    


Some consumers make the assumption that handling their Lemon Law claim themselves saves them money. Before you decide to "go it alone", here are three things that are important to know.
1. Lemon Law Claims are complicated and you will waste much of your time and create unnecessary headaches for yourself.
Trying to research your rights and write threatening letters will usually cause you more frustration than it's worth. Further, if you fail on your own, you will have wasted precious time. Or worse, what if you accept an offer and sign a release which you will regret later (including losing your Legal rights).
2. Consumers have virtually no negotiating power with the manufacturer. They can't cause the economic pain and publicity that a lawsuit can for the Manufacturer.
Knowing the state and federal Lemon Laws does not mean that you will be treated with respect. The car companies still play games, much like insurance companies. If you represent yourself, the manufacturer will likely drag out the case in hopes that you will either go away or take little or nothing to settle.
When you hire an experienced attorney, there are no games. Cases get resolved quickly and the compensation you receive is fair.
3. Consumers get less money!
For the above reasons, attorney negotiated settlements are normally substantially higher than one's negotiated by consumer's alone. Chances are your recovery will be worth substantially less if you represent yourself (and you will have done all the work). Some consumers have been known to accept a month's payment, when they are really entitled to all their money back! If you select a law office that has substantial Lemon Law experience, the manufacturer will already know your Law Firm and what the expec ted compensation will need to be to settle the claim.

About The Author

Scott Hallman
The American Lemon Law Center was established with you, the consumer in mind, and provides all of the information you need to make your Lemon Law case as strong as possible. If you need further information about Lemon Laws, visit our Web site at http://www.americanlemonlawcenter.com.
info@americanlemonlawcenter.com


    



    

Landlords Corner Unauthorized Entry and ORC 532104 and 532105

    





    

 
Helps with homework, projects & tests

    

Landlord's Corner - Unauthorized Entry and ORC 5321.04 and 5321.05
There are some landlords out there who feel that they can enter upon property they have rented to another without taking any steps to alert the renter or seek the renter????'s permission. Even before enactment of Ohio's Landlord Tenant Act of 1974, this was a fallacious belief.
At common law, when the owner of real property signed a lease agreement to rent it out to another, he gave up, via the lease agreement, his right to possession of that property. The owner still retained ownership, but one of the important rights of ownership, the right to possession, was signed away. Some leases did allow the owners a limited right of access, but if such a thing was not in the lease agreement, the owner could get into trouble for going on to his own land. That kind of trouble came from the common law action of trespass. Since trespass is an intentional tort, a court's finding that the owner trespassed upon the rented property subjected the owner to civil liability for actual damages, attorneys fees, and even punitive damages. Further, the owner could face criminal charges as well.
In 1974, Ohio passed the Landlord Tenant Act of 1974. Part of that Act, Ohio Revised Code Section 5321.04 describes the landlord's duties to the tenant in any rental relationship. Specifically, R.C. 5321.04(A)(8) states that the landlord must: "Except in the case of emergency or if it is impracticable to do so, give the tenant reasonable notice of his intent to enter and enter only at reasonable times. Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary."
The law also imposes upon the tenant a duty to be reasonable in granting access to the landlord when the landlord makes a request to enter. Ohio Revised Code 5321.05 states that: The tenant shall not unreasonably withhold consent for the landlord to enter into the dwelling unit in order to inspect the premises, make ordinary, necessary, or agreed repairs, decorations, alterations, or improvements, deliver parcels that are too large for the tenant's mail facilities, supply necessary or agreed services, o r exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.
t is clear then that under the statute, the landlord must give reasonable notice to the tenant of his intent to enter, and work with the tenant concerning setting up a mutually acceptable time. The tenant is required to work with the landlord to assure that the landlord can access the premises. A violation of either's duty to the other in this regard is a violation of the law.
It is important to note that while the statute mentions 24 hours as being presumed to be reasonable notice, it is a presumption only. A legal presumption is one of those rare instances where the court is entitled by law to start of with a predisposition about a case. In this example, the court will start off with the thought in its head that 24 hours notice is sufficient notice to the tenant. But the tenant is entitled to bring in evidence to rebut this presumption.
Here's an example of how 24 hours notice might not be sufficient. The tenant is a firefighter, and he works a shift which is 48 hours on and the rest of the week off. The tenant has informed the landlord about this and the landlord knows that the tenant works from Monday morning at 7:00 a.m. until Wednesday morning at 7:00 a.m. The landlord wants to inspect the rented premises and on Monday at noon places a note on the door informing the tenant that they wish to come in on Tuesday at 4:00 p.m. to inspec t.
The tenant will never get this note in time, and will be unaware of the landlord's plans. If the matter ever goes to court, the landlord will argue that he gave more than 24 hours notice of his intent to enter, and the tenant will argue that because of his schedule (which the landlord knew about), the notice was insufficient.
Who the court will determine is right and wrong in this matter is less important than the fact that the landlord is now in the middle of a court case and is bleeding attorney fees when it all could have been prevented by knowing what the law is and how to remain on the side of compliance with it.
Further, it should be well understood by landlords that Ohio Revised Code Section 5321.04(A)(8) does not replace the common law structure referred to above, but rather supplements it. This means that in addition to suing the landlord for violation of Ohio Revised Code Section 5321.04(A)(8), the tenant can also sue upon the common law action of trespass (with its possibility of recovery of punitive damages and attorneys fees). Further, a later part of the statute, R.C. 5321.04(B) authorizes the tenant to terminate the lease agreement if the landlord violates the statute. So the careful landlord will get the tenant's permission in writing to enter the premises.
Let's look at some cases where the landlord spent a great deal of money fighting over this issue and then lost in the end. In the case of Limage v. Citiscene Apartments, 1992 Ohio App. LEXIS 3055 (June 9, 1992) Franklin Co. App. No. 92AP-190, unreported an agent of the landlord entered into the apartment. The agent's efforts to notify the tenants beforehand consisted of a telephone call on the same date the entry occurred and knocking on the door shortly before entry. The Tenth District Court of Appeals held that this entry occurred in violation of Ohio Revised Code Section 5321.04(A)(8) and reasoned that:
"Since the telephone was unanswered and the knocking elicited no response, the rental agent certainly knew no notice had been received by the tenants. Giving reasonable notice to tenants for purposes of R.C. 5321.04(A)(8) implies that some sort of notice is received." Limage at 4.
In this case, the tenants were allowed to terminate the agreement because of the landlord's unauthorized entry, even though the tenants were not home at the time of the entry. So the landlord got stuck with a lot of legal bills and a piece of vacant property.
Landlords often look upon a request by the tenant to repair something as a carte blanche invitation to enter to fix the problem. This is not the case. In the case of T.K.D. Enterprises v. Zimmerman, 1998 Ohio App. LEXIS 3167 (July 2, 1998) Athens Co. App. No. 97CA44, unreported, the Fourth District Court of Appeals dealt with a case wherein a landlord's agents entered the rented property after the tenant sent a letter listing repairs to be made. The Trial Court held that this was permissible, but the Fo urth District Court of Appeals reversed this finding, holding that "Following T.K.D's unauthorized and repetitive entries, Zimmermann had a statutory right to terminate the tenancy on written notice. She gave notice of her termination and vacated the premises within a reasonable time after the improper entries." Zimmerman at 13.
Landlords would also be unwise to rely upon provisions in a lease which allow for unlimited rights of access to the rented property. The Court in Zimmerman also held that:
R.C. 5321.13(A) generally provides no statutory provision of the Landlord/Tenant Act may be waived or modified by the parties' agreement, except in prescribed limited circumstances which do not apply here. Thus, even if the parties' written lease agreement had permitted unannounced entries by the landlord, their written agreement could not supersede Ohio's statutory mandates. Zimmerman at 9 and 10.
In both of the foregoing cases, the landlords spent a great deal of money on attorneys fees at trial, and then a great deal of money on the appeal of each case. In both cases, the landlords lost on appeal, and in both cases they ended up with unrented property.
So the wise landlord is very careful about entry into the rented premises. Even relying upon a tenant's verbal okay is a risky proposition. If the tenant later claims that he gave no such consent, the landlord is in a 50/50 situation when it comes to court. If the court believes the tenant's version of the events, then things are going to get really sticky really fast. It is a good practice to send out a letter to the tenant well before any access to the tenant's property.
It is fine to state in the letter an intention to enter at a certain date and time, and then request that the tenant contact the landlord if that date is going to be a problem, but even this leaves the landlord open to allegations that the tenant did not get the letter. To be completely safe, the landlord should have the tenant sign and return a note confirming that the planned entry is okay.
Tenants who are aware of their rights regarding a landlord's access to the rented premises are growing in number as the Internet provides greater and greater access to information. Landlords should be very careful when making entries into rented property.

About The Author

Eric E. Willison and Andrew J. Ruzicho II
All contents of article copyright 2006 www.ohiolandlordtenant.com. Eric Willison and Andrew J. Ruzicho II began their Ohio tenant's rights web site in 1999.

    



    

Landlords Corner Ohio Law and Self Help Evictions

    





    

 
Helps with homework, projects & tests

    


There comes a time when an Ohio landlord may wish to regain possession of a residential apartment he has rented to a tenant. The only proper way to do this if the tenant refuses to leave is to file a statutory eviction action pursuant to Ohio Revised Code Section 1923.04. But some landlords take grave risks by trying to force the tenant out without the required legal process.
A "self help" eviction occurs when a landlord takes back possession of the rented premises without the permission of the tenant, and without resorting to the required legal processes. Where residential rental housing is concerned, self help evictions are illegal, pursuant to Ohio Revised Code Section 5321.15. Thus you cannot simply change the locks while the tenant is gone and throw all of his stuff into the dumpster behind the building. If a tenant can prove that you violated Ohio Revised Code Section 5321.15, you can be subject to a lawsuit for the tenant's actual damages and attorneys fees.
The statute also prohibits a landlord from shutting off utilities in an effort to make the tenant leave, even if you don't lock the tenant out. Some landlords make the mistake of turning off the water at the main or shutting off the power and assuming that since they have not actually excluded the tenant from the premises by locking him out, they are in the clear. But the statute specifically prohibits shutting off utilities in order to force a tenant out.
Further, a landlord cannot even threaten to lock the tenant out or shut off utilities. The statute clearly states that threats of a self help eviction are a violation of Ohio Revised Code Section 5321.15.
Further, the statute prohibiting self help evictions applies to tenants who have the right to occupy the premises and to tenants who no longer have the right to possession. So it is no defense to go to court on a 5321.15 lawsuit and tell the judge that the tenants were behind on the rent. If the tenant is in possession of the premises, you want him out, and he won't leave, you have to go through the statutory eviction process.
What is a tenant likely to recover if you violate this section of the law? The Court may award the value of the tenant's belongings (this could be tens of thousands of dollars if the Judge believes the tenant on what was removed). Judges will often not require a great deal of proof of the value of the lost items from the tenant because things like receipts and other proof would have been thrown out in the lock out.
You should also keep in mind that a claim for relief for violation of Ohio Revised Code Section 5321.15 may not be the only claim for relief in the lawsuit against you. You can also be sued for the common law intentional torts of conversion (the exercise of control over an item in a manner inconsistent with the rights of its owner which permanently deprives the owner of its value); trespass to chattels (the exercise of control over an item in a manner inconsistent with the rights of its owner which temp orarily deprives the owner of its value); and trespass (the unlawful entry upon the property of another enjoying right to possession). Since these claims for relief are intentional torts, if the court finds liability and awards any actual (or even nominal) damages, the court may award punitive damages to the tenant as well as attorneys fees.
If you are the owner of property managed by another, you should also keep in mind that you can be held responsible for what your employees do if they are acting within the scope of your business. Thus if your rental manager robs a bank, you will not be responsible for that, but if your employee locks out a tenant and throws her stuff in the dumpster, you, as the owner of the property and the boss of the rental manager, will be a co-defendant in any litigation that the tenant brings.
To give you an idea of the damages which can ensue from violations of this sort, we need look no further than the case of Gordon v. Morris, 2001 Ohio App. LEXIS 338 (February 2, 2001) Greene Co. App. 2000-CA-69, unreported, a landlord changed the locks just before the end of the month upon learning that the tenants had shut off the utilities and removed most of their belongings. The trial court awarded the tenants only $ 96.77 in actual damages (they had paid rent through the end of the month but were d eprived of the use of the apartment, and this was the prorated amount). But the trial court further awarded $1,000.00 in punitive damages and $1,462.00 in attorneys fees.
Ohio's Second District Court of Appeals upheld the trial court's findings. So the landlord in this case got taken for a $2,559.27 ride through the legal system, and this does not count the costs of the landlord's attorney. The next time you are thinking of trying to save a little money and time by not going through the statutory eviction process, think of Mr. Morris and the money he spent to lose his case.
In the case of Hall v. Lacheta, 1992 Ohio App. LEXIS 5945 (November 18, 1992) Tuscarawas App. No. 92AP020013, the landlord first threatened to lock out the tenant, and then, after receiveing a letter from a lawyer telling him that this was and would be a violation of Ohio Revised Code Section 5321.15, he actually did lock out the tenant without an eviction. When the police forced the landlord to leave, he returned shortly thereafter and placed a large sign in the yard informing the public that the tenan t was on welfare and was not paying rent.
The trial court awarded the tenant $3,000.00 in actual damages and another $3632.00 in attorneys fees. But Ohio's Fifth District Court of Appeals decided that this was not enough where attorneys fees were concerned, and that the testimony at trial justified a higher award to be based upon $75.00 per hour, rather than $40.00 per hour. Further, the Court allowed the tenant to recover for time spent at the hearing to determine the proper amount of attorneys fees and upon attorneys fees expended in collecti on activities. These amounts do not take into account the money spent by the landlord on his attorney. So it was an expensive afternoon's work locking out that particular tenant.
You should note that Ohio Revised Code Section 5321.15 applies only to residential rental property, and not to property rented to a commercial tenant. Landlord's renting out commercial property may make use of self help evictions to get back possession of their property if they can do so without a disturbance of the peace. But you still take chances here because a tenant may sue you for the common law torts I mentioned above, and if a court later determines that the tenant should not have been locked ou t, you will have trouble.
The wise landlord will always opt for a statutory eviction process when trying to get rid of a tenant who will not leave. It may take a little longer, and it may cost a bit in filing fees, but it brings certainty and insulates the landlord from the above claims. The same is true of tenants who have left you with an apartment in a condition such that you are not sure if they are going to return. If you have any doubts, just do the statutory eviction and sleep better at night.

About The Author

Eric E. Willison and Andrew J. Ruzicho II
All article contents copyright 2006 http://www.ohiolandlordtenant.com/self_help_eviction.html.
    



    

Landlords Corner Late Fees in Ohio

    





    

 
Helps with homework, projects & tests

    

A. Limits As To Amounts
There are two lines of cases in Ohio which deal with whether courts will enforce lease provisions allowing a landlord to charge tenants for late fees. These lines of cases come to slightly different conclusions, but the bottom line is that landlords need to be very careful in charging tenants for late fees.
The first line of cases comes to us from the Eighth Appellate District. In the case of Siara Management v. Nedley, 1992 Ohio App. LEXIS 5265 (Oct. 15, 1992) Cuyahoga App. No. 61433, unreported, the lease called for the tenant to pay $30.00 in late fees if he was late five days, and $70.00 more if he were late ten days. The landlord tried to charge these amounts to the tenant and litigation ensued.
The Eighth Appellate District held that there is distinction between liquidated damages (allowable) and penalty clauses (not allowable) and that the court would use a three part test to distinguish between the two. Late fees would be allowable as liquidated damages if they were designed to compensate the landlord for damages which were:
(1) uncertain as to amount and difficult of proof, (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof.
In Nedley, the landlord did not make it past the first hurdle of the test. All that the landlord argued in court was that the late payment by tenants led to late payment charges assessed to the landlord by his creditors. The Court reasoned that "Any party due money could claim that the resultant decrease in cash flow might result in late charges against it. That is unduly speculative." Had the landlord come to the court with evidence that the tenant's late payment had caused him to incur damages in spec ific amounts, then those specific amounts might have been recoverable.
The Eighth District Court of Appeals also came to a similar conclusion in 200 W. Apartments v. Foreman, 1994 Ohio App. LEXIS 4081 (September 15, 1994), Cuyahoga Co. App. No. 66107 regarding a late fee of only $2.00 per day. In that case the court also found it significant that the landlord had shown no proof of its actual damages.
However, another of Ohio's appellate district treated the matter very differently. In the case of Calabria v. Green, 1995 Ohio App. LEXIS 3903 (September 8, 1995), Trumbull Co. App. No. 95-T-5181, the Eleventh Appellate District Court held that while late charges of $10.00 per day (for 38 days) was not enforceable, "an agreed upon, one-time late fee, that is reasonable in proportion to the rental rate, and that has a rationale basis supporting the imposition of the charge, is proper."
The Eleventh District Court of Appeals again came to the same conclusion in the case of Wadsworth v. Starcher, 1998 Ohio App. LEXIS 2909 (June 26, 1998) Trumbull Co. App. No. 97-A-0054. In Wadsworth, the Court agreed with the trial court that $5.00 per day in late charges over 92 days was not enforceable, and that the trial court's reduction of the late fees to $100.00 was proper.
It is clear that "parties to a lease agreement can agree to anything they wish within the limits of the law." Village Station Assoc. v. Geauga Co. (1992), 84 Ohio App.3d 448 at 451. The real question is: what are "the limits of the law"? R.C. 5321.14 prohibits parties to a lease from agreeing on illegal or unconscionable terms.
B. No Late Fees Under Oral Contracts
Where there is only an oral contract between the landlord and the tenant, at least one Ohio Court has held that no late fees can be assessed. Neubauer v. Patzkowsky, 1992 Ohio App. LEXIS 2919 (June 2, 1992) Franklin Co. App. No. 91AP-1236.
C. Waiver of Late Fees
Some landlords will try to collect late fees which have piled up over months and months. In the case of Habegger v. Paul, 2004 Ohio App. LEXIS 1971 (April 30, 2004) Wood Co. App. No. WD-03-038, a landlord sued the tenant for late fees which accumulated over a 14 month period. The Sixth District Court of Appeals held that the landlord waived his right to collect the late fees upon eviction by continuing to accept the tenants' rent payments and not pursuing eviction until approximately 14 months after the first late payment. The Court reasoned that:
A party may voluntarily relinquish a known right through words or by conduct. State ex rel. Ford v. Cleveland Bd. Of Edn. (1943), 141 Ohio St. 124. In Galaxy Development Ltd. Partnership v. Quadax, Inc., 2000 Ohio App. LEXIS 4651 (October 5, 2000) Cuyahoga Co. App. No. 76769, the Eighth District Court of Appeals found that the landlord waived its right to collect holdover rent from the tenant by continuing to accept the original rental payments after expiration of the lease. The Galaxy court cited Finkb einer v. Lutz (1975), 44 Ohio App.2d 223, wherein lessees failed to make timely payments of rent on numerous occasions and lessors accepted the late payments. The Finkbeiner court held that the failure of the lessors to make timely objection to the late payment of rent amounted to a waiver.
Courts in Ohio will not allow a landlord to collect late fees which have piled up over a significant period of time.
D. Dangers for the Landlord
Where a landlord can get into trouble with late fees is in a dispute over a security deposit. Let's say the landlord has collected a security deposit in the amount of $500.00. The tenant leaves at the end of the lease term. The landlord finds $300.00 in damages at the apartment and also assesses $250.00 in late fees. Perhaps the landlord cannot show the court actual damages in the specific amount of $250.00. Maybe there was only an oral agreement between the landlord or the tenant. Perhaps the $250.00 i n fees resulted from the landlord's practice of letting the late fees pile up over time.
If any of these are the case, there is a good chance that even in the more landlord sympathetic appellate districts, the landlord will only be allowed to charge the tenant a greatly reduced amount if the facts fit the first example, and perhaps nothing at all if the facts fit the second or third examples.
This will leave $100.00 or more that should have been returned to the tenant, entitling the tenant to double damages and attorneys fees under Ohio Revised Code Section 5321.16. While double damages in the amount of $200.00 might not be all that big of a deal, wait until you get to the mandatory hearing on reasonable attorneys fees. Now we're talking real money.
If you are trying to evict a problem tenant and your only basis is a failure to pay late fees, then the arguments above may have a bearing upon the issue of who has the right to possession when you get to the F.E.D. hearing. If a tenant can show the court that he stood ready at all times to pay the late fees, but that the landlord was holding out for an unreasonable amount, or if the tenant can show that he and the landlord engaged in a pattern of conduct of acceptance of late payments without protest, this could defeat the eviction action.
E. Lessons to Be Learned
One of the lessons to be learned from all of this is that late fees are something of a minefield when it comes to using them to reduce the amount of the security deposit returned to a tenant. The same is true when we are talking about evictions based upon a failure of the tenant to pay late fees.
Landlords should be aware of the problems that may arise when late fees are argued. Informing your attorney of your past practices with regard to late fees can save you both a lot of embarrassment, and perhaps allow the attorney to alter course in his arguments to get around potential hurdles.
Find this and more information at http://www.ohiolandlordtenant.com

About The Author

Eric E. Willison and Andrew J. Ruzicho II are attorneys in Ohio working in the area of landlord tenant law. In 1999, they started the consumer rights web site: http://www.ohiolandlordtenant.com.