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Landlord Seminar
"Landlord Legal Survival" will be presented by attorney/author
Robert Friedman from 6:00 to 9:30 p.m. on Thursday, February 6, 2003
and Thursday, May 1, 2003 at Clarence High School, 9625 Main Street,
Clarence, New York. Mr. Friedman will discuss evictions, leases, Small
Claims Court, discrimination laws, civil liability, insurance, security
deposits, elderly tenants, drugs, debt collection and lead paint
regulations. There is a registration and book fee. To register, call
Clarence Community Education at (716) 759-0403.
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Robert Friedman’s Books Published By West, USA Today and Business Week
How to Survive Legally as a Landlord by
Robert Friedman has been published in West’s Am Jur® Trials.
The book explains how landlords can draft leases, evict tenants, win
and collect in Small Claims Court, avoid lawsuits by tenants, save
legal costs and buy and sell rental property. Authored by a virtual
“Who’s Who” of the American trial bar, Am Jur® Trials shares
the techniques and strategies that spelled success in the actual cases
of more than three hundred prominent trial attorneys, judges and other
legal experts. The Upstart Small Business Legal
Guide has been published on the websites of USA
Today, Business Week, West, CBS-TV, Fox TV and the
LA Daily News. The guide has information, forms, checklists
and resources for starting and running a small business including
corporate formation, taxes, real estate and human resources. Mr.
Friedman’s books can be ordered at our bookstore.
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What’s New in Landlord/Tenant Law?
“Innocent” tenants evicted for drug-related activity. The
U.S. Supreme Court upheld a statute that permits public housing authorities
to enforce lease provisions that provide: “any drug-related criminal
activity, on or off premises, engaged in by a public housing tenant, any
member of the tenant’s household, or any guest or other person under the
tenant’s control, shall be cause for termination of tenancy.” Under U.S.
Department of Housing and Urban Development (HUD) regulations, the Oakland
California Housing Authority was authorized to evict, based on drug-related
activity even if the tenant did not know, could not foresee, or could not
control behavior by the other occupants.
Landlords jailed and fined for not disclosing lead paint.
Before renting or selling most pre-1978 housing, landlords must disclose
the presence of known lead-based paint and/or lead-based paint
hazards. Tenants must also be given a federally-approved pamphlet on lead
poisoning prevention. Two landlords were jailed in the first prosecutions
under the federal Residential Lead-Based Paint Hazard Reduction Act of
1992. A Washington, D.C.-area landlord was sentenced to two years in jail
and received a $50,000 fine. He admitted making false statements during a
HUD investigation of his properties and failing to notify his tenants of
the presence and hazards of lead-based paint. A Manchester, N.H. rental
property manager received a fifteen-month sentence and a $40,000 fine on
similar charges. The most egregious allegation against him was failure to
warn the family of a two-year-old girl who died from allegedly ingesting
lead paint. A Denver-based property management firm agreed to test and
clean-up its apartment units and pay a $129,580 penalty after being charged
with failure to warn tenants that their apartments may contain lead-based
paint.
Landlord’s attorney must comply with the Fair Debt Collection
Practices Act (FDCPA). Attorneys for landlords who bring
non-payment actions are considered “debt collectors” under the FDCPA. Debt
collectors must send a special notice with their first communication to a
debtor containing: (1) the amount of the debt; (2) the name of the creditor;
(3) a statement that unless the debtor, within thirty days after receipt of
the notice, disputes the validity of the debt, or any portion thereof, the
debt will be assumed to be valid; (4) a statement that if the debtor
notifies the debt collector in writing within the thirty-day period that
the debt, or any portion thereof, is disputed, the debt collector will mail
to the debtor verification of the debt or a copy of a judgment against the
debtor; and (5) a statement that, upon the debtor’s written request within
the thirty-day period, the debt collector will provide him or her with the
name and address of the original creditor if different from the current
creditor. The thirty-day notice does not stop any other proceedings. Attorneys
can send the three-day demand for rent and the thirty-day notice
simultaneously. If the tenant disputes the debt in writing, any proceedings
will be delayed fr only as long as it takes for the attorney to mail
verification of the debt to the tenant. Attorneys must comply with the
notice provisions even though they only prepare the notice for the landlord
and their firm name does not appear on the notice (U.S. District Court,
Southern District of New York).
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What’s New in Family Law?
Most grandparent visitation laws are constitutional. A
grandparent-visitation statute that applies only when the family is no
longer intact is constitutional if there is a showing that the lack of
visitation would harm the child. The Massachusetts Supreme Justice Court
applied the U.S. Supreme Court case of Troxel vs. Granville which
suggested that broad visitation laws for grandparents and others could
infringe parental rights. That led trial courts in California, Florida,
Maryland, Michigan, New Jersey and Oklahoma to find their state laws
unconstitutional. However, the statutes of the following states have been
found to be constitutional: Alabama, Arizona, Illinois, Kansas, Louisiana,
Main, Mississippi, Missouri, Ohio, Oregon, Texas, West Virginia and
Wisconsin. The Massachusetts plaintiff was the maternal grandmother of
a nine-year-old boy. After a family argument, the boy’s parents, who never
married but shared custody of their son, decided to bar the grandparents
from visiting him. The grandparents sought visitation under a Massachusetts
statute which states that if the parents of an unmarried minor child are
divorced or if the child was born out of wedlock and the parents do not
reside together, the grandparents may be granted reasonable visitation
rights upon a written finding that such visitation rights would be in the
best interest of the child. The court held that the grandparents must
allege and prove that the failure to grant visitation will cause the child
significant harm by adversely affecting the child’s health, safety or
welfare.
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What's New in Employment Law?
Employee can work for competitor. The vice president for
sales of a company that manufactured and sold locks left to work for a
competing lock manufacturer. He handled the same major customer accounts as
he had for his old employer. He had signed a confidentiality agreement with
his old employer, but not a covenant not to compete. The employer sought an
injunction to prevent its former employee from working for the
competitor. It argued that he possessed trade secrets that he would
inevitably have to rely on in his new position at the competing
company. This doctrine of “inevitable disclosure” runs counter to the
strong public policy of favoring employee mobility. Since the employer and
its former employee did not agree upon a covenant not to compete, the court
declined to impose one, sighting similar decisions from U.S. District
Courts in Florida and New York as well as a Virginia State Court. (California
Court of Appeal, 4th District).
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What's New in Municipal Law?
Town must allow a cell tower. The Federal Telecommunications
Act was violated by a town that refused to grant a zoning variance allowing
a communications company to build a 150-foot cell phone tower. Although the
land on which it planned to build the tower was zoned for “light industrial”
use, the plot didn’t meet the minimum size requirements for that designation
and the permit was denied. The company applied for a variance, but their
request was denied because of aesthetic issues and safety concerns regarding
electromagnetic emissions. Under the Act, such denials must be in writing
and supported by substantial evidence which must be a separate written
record, describe the reasons for the denial and contain a sufficient
explanation of the reasons for the denial, to allow a reviewing court to
evaluate the evidence in the record that supports those reasons. In this
case, the zoning board’s order denying the company’s variance request was
separate from the written record but it did not contain any explanation of
the reasons for the denial. (U.S. Court of Appeals, 6th Circuit).
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What's New in Tax Law?
IRS settlements are easier for taxpayers to negotiate. The
IRS’s decision to accept or reject an “offer in compromise” now depends on
a taxpayer’s individual circumstances. A taxpayer is eligible for a
compromise where collection of the entire tax debt would create economic
hardship or make voluntary compliance more difficult, based on the
taxpayer’s history of tax payment. It is evidence of hardship if a taxpayer
can not: 1) earn a living due to a long-term illness or disability, and its
foreseeable that his or her resources will be exhausted; 2) pay basic
living expenses if assets are liquidated to pay the tax debt; or 3) borrow
against equity in his or her assets, and seizure or sale could make it
difficult for the IRS to enforce collection. Taxpayers may also be able to
compromise if all available funds are being used to support dependents.
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What's New in Health Law?
Nursing home patient attacked by ants awarded $5.35 million. A
79-year-old nursing home resident suffered from a horrifying fire ant
attack. She developed a staph infection and spent 84 days in the hospital.
Although she was mobile, she did not try to avoid the ants or call for
help because she suffers from mental illness. Employees testified
that they had complained about the ant problem but nothing had been
done about it. Both the nursing home and the pest control company were
sued. (Alabama 23rd Judicial Circuit Court, Madison County).
$20 million awarded against allergy drug manufacturer. A
42-year-old business woman suffered a stroke after taking non-prescription
allergy medicine containing phenylpropanolamine (PPA) which is a
decongestant formerly used in a number of common cold, allergy and diet
medications. A study sponsored by the pharmaceutical industry suggested PPA
increases the risk of hemorrhagic strokes. A day after she had taken an
over-the-counter allergy medicine, her husband found her unconscious from
a hemorrhagic stroke which involved bleeding in her brain. After surgery
to stop the bleeding and swelling, she had a portion of her brain
removed. She remained in a coma for the next three weeks and is totally
disabled. The plaintiff and her husband sued the drug manufacturer, claiming
the company was strictly liable for selling a dangerous product, provided
inadequate warnings and violated state consumer protection statutes. (Superior
Court of Washington, King County).
Yellow Pages sued for misrepresenting doctor’s
qualifications. A woman who was injured by a negligently performed
liposuction can sue the local yellow pages for publishing a misleading
advertisement about the doctor. The doctor was a board certified
dermatologist with some training in performing liposuction. He was listed
under the category of dermatology in the yellow pages. When he told the
yellow pages representative that he performed liposuction, the
representative recommended that he also be listed under the category of
plastic and reconstructive surgeons. The advertisement stated that he was
“board certified”, even though his only board certification was in
dermatology. The plaintiff claimed that the yellow pages publisher
negligently lead her to believe that the doctor was board certified in
plastic surgery. The court found that although the yellow pages included
a disclaimer, it also contained statements that the yellow pages provided
“the most complete information about all the businesses and stores in
your area” and that the yellow pages “made it easy for you to select
the one who can serve you the best.” (Oregon Court of Appeals).
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What's New in Personal Injury Law?
$400K verdict against owner of gun used in murder. A
35-year-old man was killed in his home by his brother who was charged
with first-degree murder after police searched his room in his parents’
home and found .38 gun casings. A jury found him not guilty by reason
of mental disease or defect. He was committed to the state mental
hospital. He lived with his parents for over one year before the
shooting because of depression. His father purchased the gun and took
him to a shooting range six weeks before he killed his brother. To
show that the parents were aware of their son’s mental illness, the
plaintiff’s attorney produced police evidence that prescription bottles
of Prozac and Lithium were on the refrigerator in the family kitchen. The
parents told the son’s ex-wife that they bought the gun for him because
he was afraid of drug dealers. (Jefferson County Circuit Court of
Missouri).
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What's New in Toxic Tort Law?
Tenant’s toxic mold case settles for $900,000. A tenant
and her three sons sued the property manager, landlord, the previous owners
of the apartment complex and the contractor called in to abate the mold
after the property manager failed to clean up mold in spite of numerous
complaints. The tenant suffered from a range of health problems, including
a rash all over her body that doctors were unable to identify. Over a
six-month period, she was diagnosed with a series of illnesses that she
never really had, including lupus, AIDS and other sexually transmitted
diseases. She and her sons also suffered various respiratory ailments
including asthma. The tenant noticed a black substance growing on the walls
of their apartment, as well as some water damage on the living room
carpet. After she called the property manager a few times, he sent a
contractor who either sprayed down the molding areas with bleach and paint
or cut out the damaged part of the dry wall. However, he did not search
for the water source that was causing the problem. The contractor replaced
the carpet and padding. The tenant noticed a musty odor in varying
degrees. Although the property manager informed the tenant the substance
was mold, he did not indicate that mold could be harmful or that an outside
water intrusion could be the cause of the mold. One source of the water
leak was later found to be a bathroom in the apartment above. (Orange
County, California Superior Court).
Insurance coverage for mold. Insurance companies are
eliminating coverage for mold claims, such as denying coverage unless the
mold is caused by a covered event such as a storm and putting a $5,000 cap
on claims. However, the Louisiana State Insurance Commissioner refused an
insurance company’s request to cap mold claims. A Texas judge upheld a $13
million jury verdict against an insurance company for bad faith in failing
to repair a leak that caused mold to spread. Mold is predominantly a problem
in hot weather states like California, Florida and Texas where hot, damp
weather combined with recent construction techniques have created ideal
conditions for increase in the growth of mold. Air conditioning and central
heating systems also contribute. California has created standards for
removing mold and requires that notification of mold problems be given in
all rentals and sales of residential, commercial and public building. To
avoid mold exclusions in homeowner’s policies, plaintiffs’ attorneys are
arguing that the mold is an ensuing loss that is covered so long as the
underlying event - a burst pipe or a leaky roof, for example - is a “covered
peril.” This argument has been accepted by some courts.
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Yes We Are Accepting New Clients
We are often asked if we have time to serve additional clients. We
appreciate your business, and we would also appreciate your referrals. We
are a growing firm so new clients are welcome. Please mention our name to
your friends, relatives and business associates for estate planning, real
estate, personal injury, probate, criminal, traffic, marital, family,
bankruptcy, business, municipal, corporate, debt collection,
landlord/tenant and elder law matters.
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Accident Victimes...Dignity
Have you been hurt in an accident? Are you worried what this may mean
to your family, your job, and your credit? Is the insurance company
pressuring you? Are you beginning to feel a bit confused? Since 1955,
the attorneys at Friedman & Ranzenhofer, P.C. have been helping
injured people. You have a lot of choices to make. We can help you
make the choices that will get you what you need quickly, honorably
and with your dignity intact.
We will help you to maximize your benefits, while protecting you and
your family. If you have questions about your responsibilities, your
legal remedies or just what the best thing is for you to do, call us
at (716) 631-9999 or (800) 729-4571. Our initial conversation costs
you nothing even if you choose not to have us represent you.
Our promise:
- To communicate with you in plain language that is easy to understand.
- To promptly return your telephone calls.
- To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
- To have your case personally handled by an attorney.
- To keep you informed of the progress of your case at all times.
- To show you the personal care, concern and attention which has been the hallmark f Friedman & Ranzenhofer, P.C. since 1955.
- To accommodate the needs of you and your family during the handling of your case.
- To vigorously protect your legal rights.
Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the Western New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.
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Disclaimer
While a great deal of care has been taken to provide accurate
and current information, the ideas, suggestions, general principles and
conclusions presented in this newsletter are subject to local, state and federal
laws and regulations, court cases and any revisions of same. The reader is
thus urged to consult legal counsel regarding any points of law - this
newsletter should not be used as a substitute for competent legal advice.
The purpose of this newsletter is to give the reader a general understanding
of the law - not to provide specific advice. Every effort has been made to
achieve accuracy. The law constantly changes and is subject to differing
interpretations. Always consult with your attorney and act only on his or
her advice. Legal Survival, LLC shall not be responsible for any damages
resulting from any inaccuracy or omission. This newsletter is designed to
provide accurate and authoritative information in regard to the subject
matter covered. If legal advice or other expert assistance is required, the
services of a competent professional person should be sought. Certain
portions of this newsletter may be applicable only to New York State law.
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