Grandfathering Under the ADA Is Not A Thing

100 Year old BuildingFor all of you businesses in cool brick lofts, I’ve got some bad news for you. Grandfathering under the ADA is not a thing.

Everyone thinks it is, though. It’s a persistent rumor leading to poor decisions. I hear the grandfathering rumor all the time. All. The. Time.

So I feel the need to say it again. Just because the building is old doesn’t mean that your business doesn’t have to comply with the ADA. Grandfathering under the ADA does not exist.

Most California businesses find this out the hard way.

In California, a disabled plaintiff can get damages and attorneys’  fees for going to a business that is not to code under the ADA. So these suits are rampant and entire law firms exist just to bring them.

In other states, the availability of damages varies. So the attractiveness of a lawsuit to lawyers also varies. But, that doesn’t mean the businesses can’t or won’t get sued.

And if you are a commercial tenant, you probably won’t be able to blame it on the landlord. Quite the opposite: your landlord will also get sued and you’ll be required to indemnify him.

So beware. This is a trap for those who live in old towns, like our headquartered city of Saint Louis, Missouri.

Video Transcript:

Say your business is in a 100 year old brick warehouse.

Is it correct I’m grandfathered out of the Americans With Disabilities Act accessibility regulations?

Sorry. Grandfathering is a myth. It doesn’t exist under the ADA.

That means two things. First, you may not receive permits from the city to open or improve your business until you bring your building up to code.

Second, you could get sued.

The ADA is what’s called a “complaints driven” law. So someone who notices your building isn’t ADA accessible has the right to sue you.

However, in many states the plaintiff won’t be entitled to damages even if they win because the state has to make an extra law to create damages.

California is an example of a state that gives a plaintiff damages for bringing an ADA accessibility case.

But in all states, a lawsuit can result in a court order requiring you to bring your building into ADA compliance, even if it is expensive.

Confused about possible risks or liabilities in your business? Get peace of mind by having us on call for less than $5 per day. Call us and ask about our Peace of Mind Plan at 800-449-8992 or visit http://peaceplan.biz for details.

Am I Liable If My Employee Gets Into A Car Accident Driving Home From Work?

Accident Leaving Work I recently had a very annoying experience.

I was sued.

I own a business, so I might as well have a target on my back that says, “SUE ME.”

It is seriously ridiculous. The lawyer part of me says, “why does anyone own a business?” The entrepreneur part of me says, “screw those guys, they aren’t taking me down!”

But I digress. I was sued. Why? Because I was driving a car when someone broadsided me in an intersection. As the insurance company dawdled on settlement, the woman who hit me learned that I owned a business (through the magic of Google, I presume). She thought she could threaten me and my business insurances and assets.

You see, if you or your employees are driving within the scope of business or employment, then the business can be liable if you cause an accident.

I wasn’t driving anywhere on business nor was I at fault, but those details didn’t seem to matter to her. Fortunately, I own a law firm, so her lawsuit did not last very long.

Still, it made me think about the employer liability rules for employees. Do you have a company car? Or do your employees sometimes go on errands, drive to see clients or take pit stops from lunch or work? Do they go to more than one office?

If so, you have some risk as a business and business owner if they get in an accident. (Uber’s strategy to avoid this is to classify everyone as independent contractors. It won’t work in the end and is not recommended. Uber has a lot of money to spare for legal fees so that they can delay and game the system; but most businesses don’t and this strategy will make things worse for them.)

Here’s a little video outlining some of the things you should consider when it comes to employees driving. Get insurance accordingly. And talk to your lawyer about ways to keep you lawsuit-free.

Video Transcription:

Say your employee got into a car accident driving home from work. Can you get sued or be held liable for the accident?

Like many questions in law, the answer depends on the facts.

The answer is “yes” if the employee was driving a company vehicle.

The answer is “no” if the employee was driving their own vehicle as part of their daily commute.

The answer is complicated when the employee sometimes uses his or her car for work during business hours.

Or if the employee is not commuting at the time of the accident.

For example, the employee is driving home from a different office or job site than usual.

Or from a side errand run for the employer.

In these scenarios, the employer may get sued, but may win at trial anyway.

Confused about possible risks or liabilities in your business? To get peace of mind, call us for a Business Risk Review at 800-449-8992 or email us at [email protected].

Overnight Guest or Unwanted Tenant: Invited Guests Who Overstay Their Welcome Can Become Your Costly Legal Problem

When Guests Become Trespassers

House Guests are Like Fish

A few weeks ago, a friend of mine offered to let me use his lake house for a weekend getaway.

I was blown away by the generosity of the offer. As I talked to him about it, he told me that he often lets friends and acquaintances use the property (nice guy right!). He was also considering using a vacation rental website called airbnb.com to make extra money.

As lawyers, we are trained to always worry about the potential problems the best laid plans can bring. This time was no different. What if someone he let use the place stole things from the property? What if the person he invited in refused to leave on time?

The truth is that he hadn’t thought about what would happen if things went wrong. When pressed on the issue, he said that he would just call the police and let them handle it.

Unfortunately, when dealing with a once invited guest, the police will often not intervene. You see, once you invite someone on to your property, the police see the issue as a civil one, rather than a criminal trespass (like a robbery).

This is especially the case for an overnight or multiple night visit, a guest can argue that they are tenant and must be afforded the protections of state tenant laws.

Law enforcement officers are trained to be aware of tenant rights and so are wary of getting involved in what may be a landlord-tenant dispute.

With companies like airbnb.com and couchsurfing.com becoming common place, there has been a boom in these types of incidents around the country.

If you find yourself in a situation where an invited houseguest has become an unwelcome intruder, several legal principles come into play.

Trespass:

If you can convince law enforcement officials that the unwanted guest is not a tenant, you can have them removed from the premises as a trespasser.

Police will often consider a variety of factors in determining whether someone may have tenant rights. For instance: has the intruder brought personal property there (like clothes, furniture or other possessions)? Do they have personal care products, such as a toothbrush, there? Have they paid rent or bought groceries?

The length of the stay is a factor, but it is not conclusive.

If the police will not arrest them and they will not leave voluntarily, you may have to bring a lawsuit to get a court order for ejectment. Ejectment is when the court orders the sheriff to physically remove someone from a property and to lock them out. That is usually the remedy if someone is a squatter or trespasser, rather than a tenant who has overstayed their lease.

Once they are removed from the premises you can also bring a claim for civil trespass to recover for any damage that was caused by the unwelcome intruder. To state a successful claim for civil trespass, you will have to show:

(1) your lawful possession or right to the property;

(2) defendant’s wrongful act of trespass on the property; and

(3) damages caused by the trespass.

Unlawful Detainer / Eviction:

If someone is considered a tenant, you may have to seek a court order in unlawful detainer or eviction. The legal proceeding is sometimes called different things in different states. Remember that someone can be considered a tenant even by an oral agreement and you do not always need a written lease. If you can’t get rid of a house guest to the point that you need to take legal action, you should call a lawyer.

Unlawful detainers are court proceedings that can be time consuming and technical in nature. An unlawful detainer proceeding is usually initiated by serving a notice to quit (to get out) with a mandatory grace period. The Notice to Quit period can be anywhere from three to sixty days, depending on the situation.

Statutory requirements for service of the notice to quit must be strictly complied with.

Next, like civil actions generally, unlawful detainer actions are initiated by the filing of a complaint, issuance of a summons, and service of the complaint and summons on the defendant. The “tenant” will than have an opportunity to respond and a hearing will be held to determine whether eviction is appropriate.

If you find yourself in this situation, it’s best to consult with an attorney who is aware of all the statutes and ordinances applicable to unlawful detainer proceeding in your state. If you do it wrong, you can lose rights.

You may be able to use a paralegal or eviction processor for less than a lawyer. But those companies are best when you have a written lease and the tenant failed to pay rent. Other situations have trickier laws.

Conversion:

If the unwelcome guest leaves with any of your personal property, you may also have a claim for civil conversion. The easy way to understand conversion is that it is the civil damages claim for someone who stole your property and won’t give it back.

The legal definition of Civil conversion is: the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s rights. In other words, they took your property without your consent, or kept it after you withdrew your consent, and then they refused to return it when you asked for it back.

To win a claim for civil conversion, you will have to show:

(1) your ownership or right to possession of the property;

(2) the defendant’s conversion by wrongful act inconsistent with your property rights; and

(3) damages (more often than not, this is the value of the property taken).

Ultimately, allowing someone to use your property for any period of time has risk, particularly if you allow them to stay for an extended period. Before you start letting acquaintances use your property, or before you turn to companies like airbnb.com or couchsurfing.com to make some extra money, make sure aware of the risks so that you can make an informed decision. One squatter can cause substantial headaches, both financial and otherwise.

And that’s not even scratching the surface of what happens if someone gets hurt or victimized while staying at your place…. But that’s another blog post.

If My Office Isn’t Up To Code, Can I Make My Landlord Fix It?

Landlord Fix BuildingA few years ago, I had a problem with my office. I occupied a two story unit in a mid-rise downtown.

The problem was that I was on the bottom floor. And at night, we were regularly burglarized.

With the burglaries came broken and vandalized windows, broken doors, lost property, and damage to the store front.

When I first leased the office, the landlord agreed to put up gates around the property and provide security. This was an unusual thing to contract for — and lucky. When the landlord failed to keep its promise, it had to repair the damage.

And, after a year, when the problems continued, I was able to break the lease and move out without any hard feelings or damages.

Normally commercial leases have few protections for the tenant.

You get only those you negotiate.

But what about structural problems like mold, plumbing, a leaky roof or the electricity? Are landlords required to keep up the building in good working order? Watch this video to find out.

Video Transcript:

My office building isn’t up to code. Can I make the landlord fix it?

Maybe. It depends on what the lease says.

When you rent a house or an apartment for residential use, most states have laws that protect you from slumlords forcing you to live in dangerous conditions.

But that is not the case with commercial leases.

Commercial leases lack protections most of us have come to expect from our experience with residential leases. A commercial landlord doesn’t have to provide you with a building that is up to code unless that is what you negotiated for in your lease.

A leaky roof, bad wiring or mold may be your problem and not the landlord’s. Many commercial leases require the tenant to be responsible for building maintenance, property taxes and insurance.

When you rent a space for your business, you need to be aware of the real costs of what you are signing up for.

Do you know what your legal documents say? Sign up for a Business Risk Review with Bellatrix PC to find out. For a consultation call 800-449-8992 or email us at [email protected]

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What Should I Know Before Signing A Lease For My Business?

5 Questions To Ask Before Signing A Lease.I was once subleasing from another lawyer who asked me to look at his lease because the landlord was charging for common area maintenance. Even though he was a lawyer, he was shocked when I told him this is common in commercial leases.

Most people have experience with residential leases. Virtually all of us have rented an apartment at some point in our lives.

So we know that the landlord is required to keep certain standards of maintenance. He fixes the leaking roof and pays the property taxes, for example.

And if your landlord doesn’t do that and your place becomes unfit for human habitation, you can refuse to pay rent, withhold rent for repairs or even move out (depending on the circumstances).

So many people just do not realize, when signing a commercial lease, that no such protections apply.

What should you know before signing a lease for your business? Watch to find out:

Video Transcript:

What should I know before signing a lease for my business?

Here’s what you should know before signing a lease for your business. Commercial leases are very different than residential leases. There are fewer restrictions on the landlord or protections for the tenant. Here are five questions you should ask yourself before signing. 1. What are the total costs? For instance, are you paying for common areas? Building maintenance? Are you sharing a portion of your profits with the landlord? 2. Am I required to carry insurance, and if so, what insurance? 3. Am I personally liable for my lease instead of my business/corporation? 4. Is this building ADA compliant? And if I get sued for an ADA violation, does my landlord have to pay for it? 5. Who is liable if someone gets hurt on the premises or if the building gets damaged? Not knowing the answers to these questions can spell trouble later. Got more questions? Visit us at bellatrixlaw.com to schedule a consultation.

You can see more of Alicia Dearn’s videos on her YouTube channel here, and find out more information on real estate law from our attorneys at Bellatrix PC.

A Comparison of Buying vs. Leasing a Car

yellow porche and leasing a carI hear a lot that businessowners should lease cars for tax purposes. The tax treatments of leased versus owned cars for businesses and entrepreneurs is, unsurprisingly, confusing. I’m not a tax expert, even though taxes touch everything I do as an entreprenuer. But here’s a link to the best explanation I could find on how the deductions work, by an actual tax expert (or so she says… I don’t personally know her). She basically recommends buying over leasing.

The other day, I counted and learned that I have owned 10 cars and leased 1. I far prefer to buy (even though my lease was my best car ever). Like most Libertarians, I like tangible assets and don’t trust banks. But there are some definite perks to leasing.

The conclusion I made after going through more than a dozen car transactions in my life (I also help family members buy cars) is that buying is more financially sound but also more austere. A friend of mine recently said that he wanted a Tesla (and test drove one) but paid down his mortgage instead. He said “future me will appreciate that decision more than current me.” That’s what the buy vs. lease decision boils down to: you have to balance future and current happiness factors.

Advantages to Leasing

  1. No depreciation

For most people, buying a new car stands as the second largest financial decision they make.  Only the purchase of a home tends to rank higher than buying a car. The bottom line is that new cars do depreciate instantly once they are driven off the lot; this fact is not a myth. Opting to buy a used car to avoid depreciation may be a savvy financial decision, but is not nearly as much fun. Leasing negates this issue.

  1. No worries about maintenance

You don’t have to worry about maintenance when you lease a car (well, some contracts have you pay for oil changes and tires). There’s definitely a pampered feeling when you go to the dealer and drop the car off and they give you a loaner of some really high-end car — it’s a different experience than my normal Jiffy Lube run. And the car is under warranty the whole time. When the warranty runs out, poof, new car time.

  1. Always have a new car

Do you love the look, smell and feel of a brand new car? With leasing, you’ll never have to worry about driving a car that feels outdated. This also means you’ll always be able to benefit from the newest safety features and technological innovations.

  1. Change cars as your needs in life change

The one time I leased, I did so because I wanted a big firm lawyer car without the long term commitment. I planned someday to have a family, and so my sporty little Mercedes wasn’t going to cut it. Three years was the perfect amount of time to enjoy it. By then, I got a sporty husband and a sporty dog, and a truck became necessary.

With leasing, you don’t have to worry about making a huge mistake by picking the wrong make or model. If you end up selecting a car that you don’t like for one reason or another, your lease will simply run out and you will not be stuck with the car.

Advantages to Buying

  1. No mileage restrictions

Regardless of whether you opt for a new car or used car, the bottom line is that mileage matters.  If you know that you will be driving your car many miles on an annual basis, then buying is likely to be the superior option.

Leases have mile restrictions, which tend to be 9000, 12,000 or 15,000 miles a year. They charge overage if you go over these amounts. This factor can quickly turn leasing into a losing proposition.

2.  Free yourself from car payments

If you are hoping to some day be without a car payment, then buying is the way to go. I haven’t had a car payment (or a mortgage payment) for years and that gives me a lot of happiness. I highly recommend it.

  1. No wear and tear fees

Leasing can be stressful if you are prone to accidents or you want to put a spoiler or racing stripes on your car. If you spill your coffee or degrade the inside of the car, you’ll be charged fees to clean it up. That’s why people with small children or pets should probably buy. You can also be charged high fees for small dings and dents in your vehicle.

In the end, both options have their advantages, and the right pick depends on your needs, lifestyle and financial goals. If you do decide to lease, be sure to read the fine print in your contract to make sure you thoroughly understand the terms.