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.

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]

Or book a Business Risk Review right now: Find Out More

Mechanic’s Lien Lawyer

MECHANIC'S LIEN LAWYER

Mechanic’s liens are designed to help certain types of professionals who have rendered services to a property owner and not received payment recover fair compensation.  However, while mechanics liens can be an effective and reliable method of securing delinquent debts, the process of acquiring and attaching an enforceable lien can be daunting.  Mechanic’s liens are subject to complex and demanding legal requirements under the California Civil Code, and a single missed deadline or forgotten document could negatively impact the strength of your claim.

cranes over buildings at sunset

If you’re considering filing a mechanic’s lien in California, let the experienced business attorneys of Bellatrix PC guide you through the process.  Our knowledgeable legal team is well-versed in labor laws and matters pertaining to breach of contract, and we are prepared to aggressively defend creditors’ rights to ensure they receive fair payment for the labor and materials they supplied.  Our attorneys work closely with our clients to provide dependable legal advice and strategic representation at every stage of the lien acquisition, filing, and debt collection process.

To arrange for a private legal consultation with an experienced mechanic’s lien attorney, call the law offices of Bellatrix PC at (800) 449-8992 today.

What Are Mechanic’s Liens?

There are many different types of liens, including but not limited to tax liens, judgment liens, possessory liens, and child support liens. A lien restrains and limits what a debtor can do with the liened property. For example, a debtor with a lien on their property may be unable to sell the property until the lien is paid off and removed. From a creditor’s perspective, property liens are a reliable strategy for securing repayment from debtors who fall behind on their payment obligations, as the creditor effectively holds possession over the property until the debt is discharged.

One of the most common types of lien is the mechanic’s lien. Contrary to what the term implies, mechanic’s liens are not a remedy solely available to mechanics. There are profession-specific liens, such as design professional’s liens, which are intended for use by engineers, surveyors, and architects. However, mechanics liens are used by a wide variety of professionals.  In fact, Article XIV, Section 3 of the California Constitution grants mechanic’s liens rights to “mechanics, materialmen, artisans, and laborers of every class.”  This provision extends to a variety of suppliers and independent contractors, including both prime contractors and subcontractors.

Mechanic’s liens are used in situations where a supplier or contractor does not receive payment for improving a property.  The lien is intended to ensure compensation to the unpaid supplier or contractor for expenses stemming from repairs, materials, labor, storage, or a combination thereof.  If a lien goes unpaid, the property to which the lien is attached can even be foreclosed to satisfy the debt.

California Lien Filing Requirements: Forms, Documents, and Time Limits

Provided that you have the right to file a mechanic’s lien in the state of California in accordance with the provisions of Article XIV, Section 3 of the California Constitution, you must comply all of the filing deadlines and documentation requirements.

Filing deadlines are impacted by the professional role of the party seeking to file the lien.  The state of California imposes the following time limits:

  • Prime Contractors — You must file the lien within 60 days of filing your Notice of Completion or Notice of Cessation.  If neither of these notices have been filed, you must file the lien within 90 days of the project being completed.
  • Subcontractors and Laborers — You must file the lien within 30 days of filing your Notice of Completion or Notice of Cessation.  Once again, if neither of these notices have been filed, then you must file the lien within 90 days of the project’s completion.
  • Suppliers — See above time limits for laborers and subcontractors.

With the exception of prime contractors, all parties seeking to file a mechanic’s lien in California are first required to send a 20-Day Preliminary Notice to (1) the property owner, (2) the prime contractor, and (3) the lender.

In accordance with Cal. Civ. Code § 8416(a), in order to obtain a mechanic’s lien in California you must prepare and submit a written claim of mechanic’s lien, which must be signed by the claimant.  This written claim must include all of the following elements:

  • The name of the property owner (if known).
  • The name of the claimant’s employer or the party who hired the claimant.
  • A description of the work site which is “sufficient for identification.”
  • A statement describing the nature of the work that was performed.
  • A statement detailing the amount you are seeking “after deducting all just credits and offsets.”
  • A proof of service affidavit, which must:
    • Be signed by the person who serves the claim.
    • List the name and address of the property owner whom the claim was served on.
    • Indicate the “date, place, and manner of service,” supported by “facts showing that the service was made in accordance with [Cal. Civ. Code § 8416].”
  • A Notice of Mechanics Lien, which must include very specific copy, formatted in a very specific manner, precisely as described by Cal. Civ. Code § 8416(a)(8).

If you’re struggling to secure a payment for services your business rendered, our business lawyers can help you resolve your dispute and recover the compensation which you are owed.  To arrange for a confidential legal consultation, call the law offices of Bellatrix PC right away at (800) 449-8992.

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.

Real Property Purchases

REAL PROPERTY PURCHASES

Despite the increasing prevalence of online shops and virtual storefronts, real property continues to play a vital role in the life cycles of most businesses. Indeed, the purchase and leveraging of real estate can be a lucrative business in itself. Real property is an extremely broad term which encompasses not only lands and buildings themselves, but also items and equipment which are attached to or beneath the land, including valuable natural resources like natural gas, minerals, and oil. In the context of commerce and real estate, the term “real property” typically refers to warehouses, factories, plants and refineries, office buildings, storage facilities, land, investment rental properties and other structures or properties which are owned by a company.

House sold!

While acquiring real property often proves a tremendous boon, enabling businesses to expand or diversify operations, these transactions can also be difficult to navigate successfully. Unlike private residential leases, which tend to be fairly straightforward, commercial leases and the surrounding transactions are often extremely complex, involving factors like zoning laws, building permits, detailed property inspections, and industrial regulations. When third parties or ambiguous contractual clauses enter the picture, the legal and financial considerations for the company making the acquisition become even more delicate.

Don’t rush into a deal that doesn’t benefit your business as well as it could: get trusted legal advice from the experienced real property lawyers of Bellatrix PC first. To schedule a private consultation, call our law offices at (800) 449-8992 today.

Due Diligence Checklist for Businesses Purchasing Property

Real property benefits your company only if all aspects of that property — including both paper documentation and physical integrity — comply with regulations and meet your expectations. It is therefore critical to perform due diligence, carefully investigating matters such as zoning, financing, surveys, titles, building inspections, environmental inspections, and currently existing leases. For example, consider the following questions:

  • Has your building passed inspections completely? Are there any issues with the fire suppression system, HVAC system, or structural integrity?
  • Will any title endorsements be necessary?
  • Are there any pending changes to zoning?
  • Do you and the seller both clearly understand your rights and responsibilities with regard to maintenance?
  • Do you need to obtain a liquor license, outdoor entertaining license, or entertainment license?
  • What sort of property tax obligations is the property subject to? Is a dramatic increase in tax foreseeable?
  • Does your property violate or have the potential to violate any environmental regulations?
  • If there are currently existing leases, have you familiarized yourself with the tenants’ rights?
  • Are there any climate- or weather-related concerns that could lead to unforeseen expenses?
  • Have you considered factors such as drainage, parking, and wheelchair accessibility? Does the deal satisfactorily accommodate these issues?
  • Is there a history of liens against the property?
  • Does the purchase make sense in the long-term? For example, is the lot you are purchasing large enough to safely contain the structures and employee workforce you envision 10, 15, or 20 years into the future?

During the real property acquisition process, our skilled attorneys will draft or review the purchasing agreement and offer recommendations as to what should be revised and negotiated. We will deliver imaginative, yet practical and cost-effective solutions to any concerns that we may come across during the review process. We also review all title work for your transaction, ensuring that there are no liens or encumbrances that will interfere with the clear transfer of title.

After you consent to proceed with the transaction, our attorneys will handle all of the documentation and paperwork necessary to officially complete the deal. This documentation generally includes mortgage notes, buy-sell agreements, easements, deeds, and restrictive covenants. As the process concludes, our legal team will examine the closing documents and represent you during closing.

Contact Our Commercial Real Estate Attorneys

Before you sign a lease, approve a transaction, or make a major acquisition, it is in your company’s best interests to consult with a respected law firm. The seasoned attorneys of Bellatrix PC work with individual entrepreneurs and group organizations throughout all stages of the real property acquisition transaction process, from the letter of intent all the way through any post-closing concerns. We will meet with your team to get a full understanding of your objectives and risk profile, and provide you with efficient and tailored representation.

It is important to remember that neither your real estate agent nor the title company takes an unbiased interest in your financial well-being — only your attorney will. If you are considering purchasing real property, call Bellatrix PC at (800) 449-8992 to set up a private legal consultation.