Taking Title as a Married Couple

What is a marriage?  A contract.  You do not necessarily think about the legal ramifications at the wedding, but who inherits the house if one of you dies, or who gets the house in the case of a divorce?  You can fix that with a prenuptial agreement, you can fix the contract.    However, just because it is a contract does not mean it is enforceable.  Talk to an attorney and figure out how to make it enforceable. Getting married can change your life.  It can also change how you hold property title.  So you and your boyfriend bought a house together and took title as Tenants in Common.  The only unity there is the Unity of Possession.  Either one of you can sell your interest in the house without notice to the other owner.  But if you get married, neither of you can break the tenancy nor otherwise convey the property without consent of the spouse. Married couples hold title as Tenants by Entirety.  This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that a married couple is one entity.  You cannot disinherit your spouse.  Your wife […] Read More

Florida’s Construction Lien Law

If you paid a contractor to build a sandcastle and he does not show up, what did you actually agree to?  Are you buying the goods or the service?  What was the timeframe?  And did the contractor pay the subcontractors and material suppliers? The word “lien” sometimes terrifies people.  Construction Lien Law protects artisans, laborers, materials suppliers, subcontractors and other professionals doing work on your property or supplying material for it.  Even if you have paid your contractor in full, if the subcontractors and material suppliers do not get paid, they could file a lien against your property. The Florida Department of Business Professional Regulation has a summary of Florida Construction Lien Law written in plain language available online at http://www.myfloridalicense.com/dbpr/pro/elboard/documents/florida_lien_law.pdf.  For specific questions, seek competent legal counsel.   Read More

NBD & Contract Law

Last summer the band I am in OE-2-KB (“Old Enough-2-Know Better”) played an outdoor venue on the St. Johns River.  We were worried about rain, but that was not the problem.  We just happened to be there the one night a million blind mosquitoes hatched.  It was no big deal—or in text-speak “NBD”—except we could not continue playing.  The blind mosquitoes did not bite, but I had a page of my music stuck together with dead bug bodies.  We had bugs in our music, in our mouths, and in our instruments.  Similarly, in an agreement between friends, what seems like NBD, can become a bigger deal than expected. It is no big deal…until it is.   You do not go into business with someone you think you are going to have to sue, but misunderstanding is a quick remedy to friendship, especially with a spoken contract.  If you are doing business with someone, go ahead and write it down.  Then you both have a record to refer back to, and specified remedies if there is a breach of contract. Contracts take the mystery out of a situation.  They specify an action for every event.  In other words, they are made to […] Read More

Why Write a Contract?

There are a couple of reasons to write a contract:  One is that you may have to, and the other is that it is often a good idea. A contract requires four things:  an offer, an acceptance, consideration, and legality (do not make a contract to do something illegal). The Statute of Frauds requires that certain kinds of contracts be in written form and signed by those bound by the contract in order to be enforced.  These include:  marriage, contracts that cannot be completed in one year, land transactions (real estate contracts), executor contracts, goods, and surety.  (They can be remembered with the mnemonic MY LEGS.) Just because a situation does not require a written contract, you may want to have one anyway.   If you are shooting the breeze about doing business together with someone, go ahead and write it down.  Then you both have a record to refer back to, and specified remedies if there is a breach of contract. Furthermore, if you do not understand the terms of a contract, find an attorney who does, and who can explain them to you.  Do not just rely on the other party’s lawyer, but get your own legal counsel who […] Read More

An Enforceable Lease

Not all contracts have to be written in order to be enforceable, but some do.  Real estate contracts and any contract that cannot be performed within one year (like a lease of more than a year) must have written contracts. Real estate agents are allowed to do a lease up to a year using pre-made legal forms.  These forms have been prepared by attorneys, and the real estate agent uses the check boxes to tailor the agreement.  Also, a lease of a year or less does not need witnesses to be enforceable. When in doubt, seek competent legal counsel.   Attorneys do not have to be expensive and they do not have to be obnoxious.  Furthermore, an attorney can be the difference between an enforceable lease, and a useless piece of paper.   Read More

Where Is Your Contractor?

So you decided you wanted a new driveway and you paid a guy with a pickup truck to put in some pavers.  Did you sign a written document stating what was going to be done and when and for how much?  What do you call a contractor without a contract?  Gone. As the name implies, a ‘contractor’ is someone closely associated with a ‘contract.’  ‘Contractor’ is not just a trendy name for a glorified handyman. Contracts take the mystery out of a situation.  They specify an action for every event.  In other words, they are made to be broken.  And they are made to be kept. A contract is going to end in one of three ways: Completed. Breached by one party. Breached by both parties. (If you answered ‘All of the Above,’ you are incorrect.)  Regardless of how the contract terminates, there are provisions for each of the scenarios. If you paid a contractor to build a sandcastle and he does not show up, what did you actually agree to?  Are you buying the goods or the service?  What was the time frame?  It all comes back to the contract…if you have no written contract, then you proceed at […] Read More

Ink & Contracts

Not all contracts have to be written.  A contract requires an offer, acceptance, consideration, and legality.  If the existence of these elements can be proved (as by secondary documents such as emails or checks) then there is a contract…though it may be more difficult (or impossible) to determine what all the terms of that contract are (or were). According to the Statute of Frauds, certain contracts must be in writing.  Those include:  real estate contracts, any contract that cannot be performed within one year, a lease of more than a year, if you take someone else’s debt, and for a sale of goods for more than $500. Just because you may be in a situation that does not require a written contract, you may want to have one anyway.  If you are shooting the breeze about doing business together with someone, go ahead and write it down.  Then you both have a record to refer back to, and specified remedies if there is a breach of contract. Furthermore, if you do not understand the terms of a contract, find an attorney who does, and who can explain them to you.  Do not just rely on the other party’s lawyer, but […] Read More

Birds & Bees of Contract Law

Burt Shavitz and Roxanne Quimbly went into beeswax together, and eventually she bought out Burt for about $130,000.  Quimbly then sold the business for $913 million to Clorox.  Both sales had all four components of a contract:  offer, acceptance, consideration, and legality—only Quimbly made quite a bit more.  Burt, however, continues to lend his image as the logo for Burt’s Bees. It takes two parties to make a contract, and there are three possible offspring: 1. Completed Contract. 2. Breach by one party. 3. Breach by both parties. You do not go into business with someone you think you are going to have to sue (or who is going to take the company you built and sell it for millions more than you made).  Keep your friends close and your friends-you-have-contracts-with even closer.  Contracts take the mystery out of a situation by giving a specified action for every event.  Not only do contracts provide a record to refer to, they also provide remedies if there is a breach of contract. Read More

What Makes a Contract?

A contract requires four things: 1. Offer 2. Acceptance 3. Consideration 4. Legality (do not make a contract to do something illegal) A lot of spoken contracts are valid; however, in Florida certain contacts have to be written down, including: * Real Estate * Marriage * Contracts that cannot be fulfilled in on year * Sales over $500 The problems with spoken contracts are knowledge of the terms and proof that it exists.  In some cases, if you have five documents of communication about the agreement, then you can find a written contract within them.  However, though you may be able thus to prove that a deal exists, you may not know what the terms are. You do not go into business with someone you think you are going to have to sue, but misunderstanding is a quick remedy to friendship, especially with a spoken contract.  If you are doing business with someone, go ahead and write it down.  Then you both have a record to refer back to, and specified remedies if there is a breach of contract. Keep your friends close and your friends-you-have-contracts-with even closer! Read More

Once Upon a Contract

Once upon a real estate deal the Big Bad Wolf was going to put a $10,000 deposit on the Three Bears’ house…or so they thought.  The Wolf, however, only made out the check for $1,000.  When the Wolf decided he would rather have the Three Pigs’ brick estate, the Bears wanted the $9,000 balance of the deposit—question is, was there a contract for the deposit? In most cases you want a contract with its four elements:  offer, acceptance, consideration, and legality.  The contract states what the deal is supposed to be and what happens if the deal does not turn out that way (or at all). Upon closer inspection, the Three Bears realized that though they had asked for $10,000 in earnest money, the Wolf had never initialed, and thus had not accepted their offer.  In reality, his counter is a rejection of the first offer.  What he is really saying is, “No, but I make this offer instead.”  Another reality is the professional risk.  Where professionals are involved, professional liability is at stake, and in this case, a real estate agent may have a problem. Beware of Wolves writing small checks and of real estate agents negligent in their […] Read More