PositiveLaw; By Shawn Alexander Attorney-at-Law
What will make you happy? is legal action necessary?
This is a website intended to help people resolve issues using the common sense that seems to be in short supply.
Shawn Alexander 360-376-6820
Subscribe To RSS
Like This Post? Share It
These are the titles to unpcomming posts
1. INTRODUCTION 1-6
2. WHAT WILL MAKE YOU HAPPY 2-8
3. GET IT IN WRITING WHILE YOU ARE IN LOVE. 3-14
4. IF SOMEONE SAYS THERE IS NO TIME, STEAL SOME FOR YOURSELF. 4-22
5. NEVER DENY ANOTHER MAN OR WOMAN THEIR SCAM FOR THEY MAY DENY YOU YOURS 5-24
6. MY SIMPLE FLOW CHART FOR LEGAL ADVICE 6-25
7. FIND THE RULES AND READ THEM OR GET SOMEONE WHO CAN 7-25
8. DON’T BELIVE EVERY THING YOU THINK 8-27
9. THAT IS WHAT INSURANCE IS FOR DUMMY 9-28
10. ALWAYS CONSIDER THE SOURCE & CAREFULLY CONSIDER YOUR AUDIENCE 10-29
11. INSURANCE COMPANIES MAKE THEIR MONEY BY LOOKING YOU IN THE EYE AND TELLING YOU NOTHING BAD WILL HAPPEN, AND THEN PUTTING THE MONEY INTO A DRAWER AND KEEPING IT CLOSED. 11-29
12. NEVER KICK A PERSON IN A BLACK ROBE 12-30
13. IF YOU ARE NERVOUS IT WILL SHOW OR IN OTHER WORDS THE PENALTY FOR LYING IN COURT IS WORSE THAN ACIDENTALLY KILLING YOUR EX 13-31
14. DON’T BREAK THE RULES DUMMY 14-33
15. YOU CAN TALK YOUR WAY INTO TROUBLE, BUT YOU CAN’T TALK YOUR WAY OUT 15-34
16. ARE YOU ALWAYS THIS STUPID? 16-36
17. DON’T LEND MONEY UNLESS YOU CAN LIVE WITHOUT IT. 17-36
18. YOU CAN FIGHT CITY HALL AND YOU CAN LOSE. 18-36
19. YOU HAVE TO PAY TO PLAY AND THE HOUSE ALWAYS WINS, LOOK AROUND 19-39
20. CON ARTISTS CAN ONLY GET YOUR MONEY WHEN YOU GIVE IT TO THEM 20-40
21. NEVER BELIVE A PROMISE, VERIFY THEN TRUST 21-41
22. IT IS NOT ILLEAGAL TO LIE, USUALLY 22-43
23. NOTHING WILL WAKE YOU UP LIKE A BELIVABLE THREAT 23-44
24. AN IMAGINED RESULT IS ALWAYS MORE THREATING THAT AN OVERSTATED THREAT 24-44
25. DELIVERY IS HALF OF THE MESSAGE 25-44
26. WHEN IT SEEMS LIKE SHOOTING DUCKS IN BARREL LOOK OUT FOR BAZOOKAS, GERNADES, AND LAND MINES 26-45
27. TIME IS GOING BY ANYWAY SO GO FOR IT 27-45
28. GREEDY PEOPLE ARE EASY TO READ 28-46
29. BY DEFINITION A RATIONAL MIND CANNOT UNDERSTAND AN IRRATIONIOAL THOUGHT 29-46
30. A SURE BET IS, YOU WILL GET WET WHEN IT RAINS 30-50
31. REMEMBER UNLESS YOU SCREWED THEM ALL THEY REALLY WANT IS MONEY 31-51
32. WHEN SOMEONE SCREAMS IT TAKES YOUR ATTENTION AWAY 32-52
33. YOU WILL ALWAYS REMEMBER THE RESTURANT WHERE YOU GOT FOOD POISONING 33-53
34. NEVER CHEAT THE TAX MAN, BUT HEY, YOU CAN WORK SOMETHING OUT 34-56
35. LIFE IS TOUGH SHUT UP AND TAKE YOUR LUMPS 35-59
36. TIMING IS EVERYTHING 36-59
37. YOU HAVE TO FOLLOW SOCIETIES’S RULES OR YOU WILL GET A TIME OUT 37-60
38. GRAVITY ALWAYS WINS OR DARWIN WAS RIGHT 38-61
39. IF YOU DO SOMETHING WRONG LONG ENOUGH IT BECOMES RIGHT 39-61
40. IT NEVER HURTS TO OFFER LESS 40-61
41. PUT THE BLINDERS ON THEM OR TAKE THEM OFF OF YOURSELF 41-61
42. DO GOOD FIRST, THEN DO WELL 42-62
43. CLEANING UP MAKES YOU HAPPY 43-62
44. IF IT FLYS, FORNICATES, OR FLOATS RENT IT 44-62
45. SOME PEOPLE SHOULD BE LEFT ALONE 45-62
46. WHAT WOULD YOUR DOG DO? 46-62
Helpful tips from NOLO press
Legal Encyclopedia Table of Contents
Start Your Own Business: 50 Things You’ll Need to Do
Get a House Inspection Before Buying
How Foreclosure Works
What Bankruptcy Can and Cannot Do
When Should You Sue?
Legal FAQ Table of Contents
Trees and Neighbors FAQ
Start Your Own Business: 50 Things You’ll Need to Do
From insurance to accounting to taxes, here’s what you need to do to start a business.
Thinking about starting a business? You’re not alone. Every year, thousands of Americans catch the entrepreneurial spirit, launching small businesses to sell their products or services. Some businesses thrive; many fail. The more you know about starting a business, the more power you have to form an organization that develops into a lasting source of income and satisfaction. For help with the beginning stages of operating a business, the following checklist is a great place to start.
Evaluate and Develop Your Business Idea
1. Determine if the type of business suits you.
2. Use a break-even analysis to determine if your idea can make money.
3. Write a business plan, including a profit/loss forecast and a cash flow analysis.
4. Find sources of start-up financing.
5. Set up a basic marketing plan.
Decide on a Legal Structure for Your Business
6. Identify the number of owners of your business.
7. Decide how much protection from personal liability you’ll need, which depends on your business’s risks.
8. Decide how you’d like the business to be taxed.
9. Consider whether your business would benefit from being able to sell stock.
10. Research the various types of ownership structures:
11. Get more in-depth information from a self-help resource or a lawyer, if necessary, before you settle on a structure.
Choose a Name for Your Business
12. Think of several business names that might suit your company and its products or services.
13. If you will do business online, check if your proposed business names are available as domain names.
14. Check with your county clerk’s office to see whether your proposed names are on the list of fictitious or assumed business names in your county.
15. For corporations and LLCs: check the availability of your proposed names with the Secretary of State or other corporate filing office.
16. Do a federal or state trademark search of the proposed names still on your list. If a proposed name is being used as a trademark, eliminate it if your use of the name would confuse customers or if the name is already famous.
17. Choose between the proposed names that are still on your list.
Register Your Business Name
18. Register your business name with your county clerk as a fictitious or assumed business name, if necessary.
19. Register your business name as a federal or state trademark if you’ll do business regionally or nationally and will use your business name to identify a product or service.
20. Register your business name as a domain name if you’ll use the name as a Web address too.
Prepare Organizational Paperwork
Buyout agreement (also known as a buy-sell agreement)
Articles of organization
Buyout agreement (also known as a buy-sell agreement)
23. C Corporations:
Articles of incorporation
Buyout agreement (also known as a buy-sell agreement or stock agreement)
24. S Corporations:
Articles of incorporation
Buyout agreement (also known as a buy-sell agreement or stock agreement)
File IRS Form 2553, Election by a Small Business Corporation
Find a Business Location
25. Identify the features and fixtures your business will need.
26. Determine how much rent you can afford.
27. Decide what neighborhood would be best for your business and find out what the average rents are in those neighborhoods.
28. Make sure any space you’re considering is or can be properly zoned for your business. (If working from home, make sure your business activities won’t violate any zoning restrictions on home offices.)
29. Before signing a commercial lease, examine it carefully and negotiate the best deal.
File for Licenses and Permits
30. Obtain a federal employment identification number by filing IRS Form SS-4 (unless you are a sole proprietorship or single-member limited liability company without employees).
31. Obtain a seller’s permit from your state if you will sell retail goods.
32. Obtain state licenses, such as specialized vocation-related licenses or environmental permits, if necessary.
33. Obtain a local tax registration certificate, a.k.a. business license.
34. Obtain local permits, if required, such as a conditional use permit or zoning variance.
35. Determine what business property requires coverage.
36. Contact an insurance agent or broker to answer questions and give you policy quotes.
37. Obtain liability insurance on vehicles used in your business, including personal cars of employees used for business.
38. Obtain liability insurance for your premises if customers or clients will be visiting.
39. Obtain product liability insurance if you will manufacture hazardous products.
40. If you will be working from your home, make sure your homeowner’s insurance covers damage to or theft of your business assets as well as liability for business-related injuries.
41. Consider health & disability insurance for yourself and your employees.
Set Up Your Books
42. Decide whether to use the cash or accrual system of accounting.
43. Choose a fiscal year if your natural business cycle does not follow the calendar year (if your business qualifies).
44. Set up a recordkeeping system for all payments to and from your business.
45. Consider hiring a bookkeeper or accountant to help you get set up.
46. Purchase Quicken Home and Business (Intuit), QuickBooks (Intuit) or similar small business accounting software.
Set Up Tax Reporting
47. Familiarize yourself with the general tax scheme for your business structure. (See Tax Savvy for Small Business, by attorney Frederick Daily.)
48. Familiarize yourself with common business deductions and depreciation. (See Deduct It! Lower Your Small Business Taxes, by attorney Stephen Fishman.)
49. Obtain IRS Publications 334, Tax Guide for Small Business, and 583, Taxpayers Starting a Business.
50. Obtain the IRS’s Tax Calendar for Small Businesses.
As you can see, starting a business involves making quite a few initial decisions and getting policies and paperwork in place. For more information about and help with starting a business, consult the following Nolo resources: Legal Guide for Starting and Running a Small Business, by attorney Fred Steingold; Wow! I’m in Business, by attorneys Richard Stim and Lisa Guerin; or Quicken Legal Business Pro (software).
© 2009 Nolo
Before you finalize your house purchase, be sure the house is in good condition. The best way is to have a professional inspection.
Inspecting the physical condition of a house is an important part of the home-buying process, and should be a condition of closing the sale. One or more professional inspectors should look for defects or malfunctions in the building’s structure, such as the roof, plumbing, or foundation, and detect pest infestations or dry rot and similar damage. Even if the seller provides you an inspection report, it’s best not to rely on this alone — the seller may have chosen an inspector who’s not known for rooting out problems.
Ask for disclosures before you get an inspection. In some states, such as California, sellers are required to disclose considerable information about the condition of the house itself and potential hazards to the property. But this is just the beginning — not all sellers know about problems with the house, or honestly disclose them.
When to Have the Property Inspected
Most buyers get professional inspections only after they’re in contract to buy the property. The deal is commonly made contingent on the buyers’ approving the results of one or more inspections. The buyer arranges and schedules the inspections.
Before paying for a professional inspection, you can conduct your own informal inspection. The best time to do this is before you make an offer, so that you can save yourself the trouble should you find serious problems. You’ll find a checklist and further instructions in Nolo’s Essential Guide to Buying Your First Home, by attorney Ilona Bray, attorney Alayna Schroeder, and Marcia Stewart.
Hire a Professional Inspector
Hire a general contractor or home inspector to inspect all major house systems, from top to bottom, including the roof, plumbing, electrical and heating systems, foundation, and drainage. This will take two or three hours and cost you from $200 to $500, depending on the location, size, age, and type of home. Accompany the inspector during the examination, so that you can learn more about the maintenance and preservation of the house, ask questions, and get a real sense of which problems are serious and which are relatively minor.
Tips on Choosing a Home Inspector
As the buyer, you want someone who will be thorough and tough. This may not be the inspector your real estate agent recommends — the agent has a financial interest in your deal going through, and may recommend an inspector who is not overly persnickety. Ask homeowning friends for recommendations, or check with the American Society of Home Inspectors (ASHI) at http://www.ashi.com.
Get a Pest Report
In addition to the general inspector, it’s wise to hire a licensed structural pest control inspector, who will create a special pest report on the property (unless the seller has already commissioned one — pest inspectors, unlike general inspectors, traditionally accept work on properties they’ve inspected, so they have every interest in finding problems.) The pest inspector will look for infestation by wood-boring insects such as termites and flying beetles, as well as evidence of dry rot and other fungal conditions. Some general contractors are also licensed pest control inspectors, but they will normally charge extra for doing double duty. Be sure you get a written report of all inspections.
Consider Special Inspections
Depending on the property and your personal sensitivities, you may want to arrange specialized inspections for hazards from floods, earthquakes, and other natural disasters. The same goes for environmental health hazards such as mold, asbestos, and lead. And if the general inspection revealed problems with the roof, foundation, or other areas that are hard to access or potentially expensive to repair, you may also want to hire a specialized inspector.
After the Inspections Are Completed
If the inspection reports show the house is in good shape, you can proceed with the purchase, knowing that you’re getting what you paid for.
If the inspections bring problems to light — such as an antiquated plumbing system or major termite damage — you can negotiate to have the seller pay for necessary repairs or to lower the purchase price, or you can back out of the deal, assuming your contract is written to allow you to do so.
To learn how to include an inspection contingency in your real estate purchase contract, see Contingencies to Include in Your House Purchase Contract.
How Foreclosure Works
by Attorney Stephen R. Elias
How foreclosure procedures work, in both judicial and non-judicial foreclosure states.
Foreclosure happens when you fall behind on your house payments and your lender uses state procedures to sell your house. Foreclosure works differently in different states. In some states, the lender has to file a lawsuit to foreclose (judicial foreclosure), while in others, it can foreclose without going to court (non-judicial foreclosure).
Here’s a rundown of the basic procedures for each type of foreclosure.
In a judicial foreclosure, the lender must go to court to get the foreclosure started. A judicial foreclosure typically takes several months or more, giving you time to look for another place to live, and to save some money for the future. Another advantage is that you can raise in court any legal defenses you may have to the foreclosure (without having to file your own lawsuit).
States Using Judicial Foreclosure
With some exceptions, foreclosures go through court in these states:
Procedures in a Judicial Foreclosure
Here’s how a typical judicial foreclosure might proceed.
You get behind in your mortgage payments. A mortgage holder can begin foreclosure procedures if you miss just one payment, but usually will wait longer — much longer in many states.
The lender sends a notice of intent to begin foreclosure. In many states, the lender sends a ten-day notice of intent to begin foreclosure proceedings. The notice informs you that the proceedings can be avoided if you make up the missed payments, plus costs and interest.
The lender files a lawsuit. If you don’t make up the missed payments, the lender will then go to court and file a lawsuit.
The lender gives you notice of the lawsuit. The lender does this by delivering a Summons and Complaint to you (called “serving you with” a Summons and Complaint in legalese).
You have a chance to respond. The Summons and Complaint give you a period of time within which you must respond if you choose to contest or argue the lawsuit (usually between 15 and 30 days). Whether or not you file a response is up to you. Either way, your lender will have the burden of proving to the judge that the foreclosure is justified under the terms of the mortgage.
If you don’t respond, the chances are excellent that the foreclosure will go through. The court will issue a default judgment that authorizes the lender to sell your home.
If you do respond, you’ll have the opportunity to tell a judge just why you think you have a legal right to keep your house and that foreclosure is not warranted. The better your defenses, the longer the process will drag out in court. Even if you win, however, it may be a temporary victory if the lender can fix whatever problem caused it to lose this time.
The lender sends a notice of intent to sell. Once the judge issues a judgment, the lender typically will send you a ten-day notice of intent to sell the property. At this point, in many states you can avoid the foreclosure sale if somehow you can “redeem” the mortgage (pay it off in full, as well as the foreclosure costs and attorney’s fees).
The auction is held. If no one buys your home at the auction, ownership goes to the lender. Up to this point, the entire process, from the first notice to the auction, typically takes three months — more, if you file a response to the Summons and Complaint.
You are allowed to stay or get evicted. Even when you lose ownership of your home, most state laws don’t require you to move out right away. The lender may just let the house sit, waiting for the market to improve. You can remain in the home payment-free until you receive an official, written eviction notice.
If you live in a non-judicial foreclosure state, your lender does not have to go to court in order to foreclose on your home. This means that the foreclosure can proceed more quickly.
If your property is in one of these states, you most likely signed two core documents when you bought or refinanced your home: a promissory note and a deed of trust. The deed of trust turns the promissory note into a debt secured by a lien (legal claim) on your home. The deed of trust authorizes the lender to foreclose on the property if you default. The deed of trust typically allows the foreclosure to proceed outside of court, under state law.
States Using Non-Judicial Foreclosure
New Mexico (sometimes)
Oklahoma (unless homeowner requests judicial forclosure)
District of Columbia
South Dakota (unless homeowner requests judicial foreclosure)
West Virginia (sometimes)
The Non-Judicial Foreclosure Process
Your state’s law sets out the specifics of the foreclosure procedure, including how much notice you get, how the property will be sold (typically at a public auction), and what rights (if any) you have to reinstate the loan before the foreclosure date or recover title to the property after it’s sold.
Time may be short. You have to be on your toes when a foreclosure looms in a non-judicial state. That’s because you’ll be given very little notice of the foreclosure sale, and once it happens, you may be permanently out of luck.
Notice of sale. In most states, your first notice of the proceeding will be the notice of sale. Depending on the state, this notice will be either served on you personally, published in the local newspaper, posted in the courthouse and on the property itself, or by some combination of the above.
Notice of default and notice of sale. Some states provide you with two notices — a formal written notice that you are in default (usually about 30 days, but sometimes more and sometimes less) and another formal notice that your house will be sold at auction (again, usually about a month, but it can be as little as 15 days — in Georgia, for example, and a few other states).
Right to reinstate. Between the notice of default and notice of sale, you typically are allowed to reinstate the mortgage by paying off what you owe, plus fees and costs (which can be very high). With a couple of exceptions, however, once the sale occurs, your house is gone.
The auction is held. If you don’t reinstate the mortgage, the home will be sold at auction. As with judicial foreclosures, if no one meets the minimum bid, the property goes to the lender.
Right to redeem. A few states give you some time after the foreclosure auction to redeem the property (to recover ownership of the property by paying off the successful bidder).
Challenging a Non-Judicial Foreclosure in Court
Because you don’t have the opportunity to raise defenses to the foreclosure in a non-judicial foreclosure, if you wish to contest the foreclosure, you will have to file a lawsuit yourself. When you do this, you ask the court to temporarily stop the foreclosure so that you can resolve the legal issues in court (and possibly at trial). Once you are in court, you can raise the same defenses you would have raised in a judicial foreclosure proceeding.
In these lawsuits, you typically ask the court for three things, in the following order:
a temporary restraining order (which lasts about ten days)
a preliminary injunction (which, in foreclosure actions, will last until the court decides the case), and
a permanent injunction (which will be issued if the judge decides in your favor).
To learn more about the ins and outs of foreclosure, both judicial and non-judicial, see Nolo’s Bankruptcy and Foreclosure Blog or the bestselling Foreclosure Survival Guide, now available online at no charge. Both are written by practicing attorney Stephen R. Elias, president of the National Bankruptcy Law Project.
Bankruptcy is a powerful tool for debtors, but some kinds of debts can’t be wiped out in bankruptcy.
Bankruptcy is good at wiping out credit card debt, but you may have trouble eliminating some other kinds of debts, including child support, alimony, most tax debts, student loans, and secured debts.
What Bankruptcy Can Do
If you are facing serious debt problems, bankruptcy may offer a powerful remedy. Here are some of the things filing for bankruptcy can do:
Wipe out credit card debt and other unsecured debts. Bankruptcy is very good at wiping out credit card debt. Unless you have a special “secured” credit card, your credit card balance is an unsecured debt — that is, the creditor does not have a lien on any of your property and cannot repossess any items if you fail to pay the debt. This is precisely the kind of debt that bankruptcy is designed to eliminate. Besides credit card debt, you may have other unsecured debts, and bankruptcy can wipe these out as well.
If you file for Chapter 13 rather than Chapter 7, you may have to pay back some portion of your unsecured debts. However, any unsecured debts that remain once your repayment plan is complete will be discharged.
Stop creditor harassment and collection activities. Bankruptcy can stop creditor harassment, but if the “harassment”‘ is simply phone calls and letters, there are simpler ways to stop it; . If the harassment is more serious — for instance, if the creditor is about to repossess your car or foreclose your mortgage — bankruptcy can help; .
Eliminate certain kinds of liens. A lien is a creditor’s right to take some or all of your property and will survive bankruptcy unless you invoke certain procedures during your bankruptcy case. For more information, see How to File for Chapter 7 Bankruptcy, by attorney Stephen Elias, attorney Albin Renauer, and Robin Leonard, J.D. (Nolo).
What Bankruptcy Can’t Do
Here’s what bankruptcy cannot do for you:
Prevent a secured creditor from repossessing property. A bankruptcy discharge eliminates debts, but it does not eliminate liens. So, if you have a secured debt (a debt where the creditor has a lien on your property and can repossess it if you don’t pay the debt), bankruptcy can eliminate the debt, but it does not prevent the creditor from repossessing the property.
Eliminate child support and alimony obligations. Child support and alimony obligations survive bankruptcy — you will continue to owe these debts in full, just as if you had never filed for bankruptcy. And if you use Chapter 13, your plan will have to provide for these debts to be repaid in full.
Wipe out student loans, except in very limited circumstances. Student loans can be discharged in bankruptcy only if you can show that repaying the loan would cause you “undue hardship,” a very tough standard to meet. You must be able to show not only that you cannot afford to pay your loans now, but also that you have very little likelihood of being able to pay your loans in the future.
Eliminate most tax debts. Eliminating tax debt in bankruptcy is not easy, but it is sometimes possible for older debts for unpaid income taxes. There are many requirements to be met, however.
Eliminate other nondischargeable debts. The following debts are not dischargeable under either Chapter 7 or Chapter 13 bankruptcy:
debts you forget to list in your bankruptcy papers, unless the creditor learns of your bankruptcy case
debts for personal injury or death caused by your intoxicated driving, and
fines and penalties imposed for violating the law, such as traffic tickets and criminal restitution.
If you file for Chapter 7, these debts will remain when your case is over. If you file for Chapter 13, these debts will have to be paid in full during your repayment plan. If they are not repaid in full, the balance will remain at the end of your case.
In addition, some types of debts may not be discharged if the creditor convinces the judge that they should survive your bankruptcy. These include debts incurred through fraud, such as lying on a credit application or passing off borrowed property as your own to use as collateral for a loan.
What Only Chapter 13 Bankruptcy Can Do
Chapter 7 can’t help you with these situations, but Chapter 13 can:
Stop a mortgage foreclosure. Filing for Chapter 13 bankruptcy will stop a foreclosure and force the lender to accept a plan where you make up the missed payments over time while staying current on your regular monthly payments. To make this plan work, you must be able to demonstrate that you will have enough income in the future to support such a repayment plan.
Allow you to keep nonexempt property. You don’t have to give up any property in Chapter 13 because you use your income to fund your repayment plan.
“Cram down” secured debts that are worth more than the property that secures them. You can sometimes use Chapter 13 to reduce a debt to the replacement value of the property securing it, then pay off that debt through your plan. For example, if you owe $10,000 on a car loan and the car is worth only $6,000, you can propose a plan that pays the creditor $6,000 and have the rest of the loan discharged. However, under the new bankruptcy law, you can’t cram down a car debt if you purchased the car during the 30-month period before you filed for bankruptcy. For other types of personal property, you can’t cram down a secured debt if you purchased the property within one year of filing for bankruptcy.
For more information on Chapter 13 bankruptcy, see Chapter 13 Bankruptcy: Repay Your Debts, by attorney Stephen Elias and Robin Leonard, J.D. (Nolo).
Before you file a lawsuit, you need to decide a few things about your potential case.
You need to answer three fundamental — and fairly obvious — questions as part of deciding whether it’s worthwhile to bring a lawsuit to court:
Do I have a good case?
Am I comfortable with the idea of a compromise settlement or going to mediation?
Assuming a lawsuit is my best or only option, can I collect if I win?
If the answer to any of these questions is no, you probably won’t want to sue.
Do I Have a Good Case?
To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit (“cause of action” in attorney-speak) into a short list of legally required elements. It follows that as long as you know what the elements are for your type of lawsuit, it’s usually fairly easy to determine whether you have a good case. For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (because the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are as follows:
Contract formation. You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.
Performance. You must prove that you did what was required of you under the terms of the contract. Assuming you have made agreed-on payments and otherwise cooperated, you should have no problem with this element.
Breach. You must show that the party you plan to sue failed to meet his or her contractual obligations (“breach of contract” in legalese). This is usually the heart of the case — you’ll need to prove that the contractor failed to do agreed-on work or did work of unacceptably poor quality.
Damages. You must show that you suffered an economic loss as a result of the other party’s breach of contract. Assuming the work must be redone or finished, this element should also be relatively straightforward to prove.
The legal elements for other types of lawsuits are different. You can find outlines for most in Represent Yourself in Court: How to Prepare & Try a Winning Case, by attorneys Paul Bergman and Sara Berman-Barrett (Nolo).
Is There an Alternative?
Even if you decide you have a good case, don’t rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court. You can talk directly with your opponent and try to negotiate a mutually beneficial compromise. Or you can hire a mediator — a neutral third person who will help you and your opponent evaluate your goals and options in order to find a solution that works for everyone. Also, and especially if your contract provides for it, you may be able to submit your dispute to binding arbitration.
Can I Collect if I Win?
Your answer to the third question is incredibly important. There is no point in getting a court judgment against a deadbeat. While most reputable businesses and individuals will pay you what they owe, if they don’t have it, they can’t pay you. If your opponent tries to stiff you, you may be in for a struggle. Unfortunately, the court won’t collect your money for you or even provide much help; it will be up to you to identify the assets you can grab.
Normally, if an individual is working or owns valuable property — such as land or investments — collection is not too difficult. You can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish that person’s wages or attach his or her non-exempt property.
For a successful business, especially one that receives cash directly from customers, you can authorize your local sheriff or marshal to collect your judgment right out of the cash register. And in many states, if you are suing a contractor or other businessperson with a state license, you can apply to have the license suspended until the judgment is paid.
However, if you can’t identify any collection source — for example, if you’re dealing with an unlicensed contractor of highly doubtful solvency — think twice before suing. A judgment will be of no value to you if the business or individual is insolvent, goes bankrupt, or disappears.
Trees and Neighbors FAQ
Frequently asked questions to help you deal with troublesome trees.
Can I trim the branches of the neighbor’s tree that hang over my yard?
Most of a big oak tree hangs over my yard, but the trunk is on the neighbor’s property. Who owns the tree?
My neighbor dug up his yard, and in the process killed a tree that’s just on my side of the property line. Am I entitled to compensation for the tree?
My neighbor’s tree looks like it’s going to fall on my house any day now. What should I do?
Do I have to compensate my neighbors for damage to their septic tank caused by the spreading roots of a tree on my land?
If I have more questions about the trees on my property or my neighbor’s property, what should I do next?
You have the legal right to trim tree branches up to the property line. But you may not go onto the neighbor’s property or destroy the tree itself.
Deliberately Harming a Tree
In almost every state, a person who intentionally injures someone else’s tree is liable to the owner for two or three times the amount of actual monetary loss. These penalties protect tree owners by providing harsh deterrents to would-be loggers.
Back to top
Your neighbor. It is accepted law in all states that a tree whose trunk stands wholly on the land of one person belongs to that person.
If the trunk stands partly on the land of two or more people, it is called a boundary tree, and in most cases it belongs to all the property owners. All the owners are responsible for caring for the tree, and one co-owner may not remove a healthy tree without the other owners’ permission.
Yes. The basic rule is that someone who cuts down, removes, or hurts a tree without permission owes the tree’s owner money to compensate for the harm done. You can sue to enforce that right — but you probably won’t have to, once you tell your neighbor what the law is.
You can trim back branches to your property line, but that may not solve the problem if you’re worried about the whole tree coming down.
City governments often step in to take care of, or make the owner take care of, dangerous trees. Some cities have ordinances that prohibit maintaining any dangerous condition — including a hazardous tree — on private property. To enforce such an ordinance, the city can demand that the owner remove the tree or pay a fine. Some cities will even remove such a tree for the owner.
You might also get help from a utility company, if the tree threatens its equipment. For example, a phone company will trim a tree that hangs menacingly over its lines.
If you don’t get help from these sources, and the neighbor refuses to take action, you can sue. The legal theory is that the dangerous tree is a “nuisance” because it is unreasonable for the owner to keep it and it interferes with your use and enjoyment of your property. You can ask the court to order the owner to prune or remove the tree. You’ll probably have to sue in regular court (not small claims court) and have proof that the tree really does pose a danger to you.
Whether you are liable for damages to your neighbor’s property caused by the spreading roots of a tree on your property depends on what state you live in. In most situations, a neighbor who is bothered or worried by encroaching branches or roots of a healthy tree won’t be able to successfully sue the tree owner. Instead, the neighbor can go ahead and trim the tree himself. In some states, however, neighbors may sue under certain conditions, including:
If the tree encroaches onto the neighbor’s property, the neighbor may sue to make the owner cut the branches, even if no damage has been done.
If the invading roots or branches cause serious harm to the neighbor’s property or threaten to do so, the neighbor may sue. “Serious harm” generally means structural damage to property, for example damaged roofs or walls, crushed pipes, clogged sewers, or cracked foundations.
If a tree encroaches on neighboring property, the neighbor may sue if the tree was planted, not “wild.”
A neighbor may sue only if the tree is “noxious,” in other words if it both causes actual damage and is inherently dangerous or poisonous.
In many other states the law is unclear. In these states, a case might be successful if the tree:
does substantial damage to the neighbor’s property, or
seriously interferes with the neighbor’s ability to use and enjoy her property.
In addition to finding out what the laws are in your state, there are lots of other questions for you to answer in getting to the roots of this dilemma. What’s the cost of the damage to the neighbors’ septic system? Do you like these neighbors and want to keep a good relationship? How about splitting the cost? If you love your tree, how about your having the roots cut back professionally so that the neighbors don’t damage the tree if they exercise their right to trim back the roots to your property line?
Sometimes, no matter what the law dictates, it’s better to spend money to fix a situation instead of paying the same money to a lawyer and losing a neighbor.
First, find out what your state’s laws require or allow with regard to trees. A good place to start is Nolo’s Legal Research Center. And, if you still have questions, check out Nolo’s Neighbor Law: Fences, Trees, Boundaries & Noise, by Cora Jordan.
You must be logged in to post a comment.