Wednesday, November 13, 2013

Do You Have A Written Partnership Agreement? - Some Things to Think About

While a written partnership agreement is not legally required in order to establish a partnership, a well-drafted partnership agreement will allow you and your partners to decide in advance how you would like to handle certain situations when they arise.

Some items that should be covered in your written partnership agreement are:

1.              Each partner’s contribution to the partnership (i.e. time, money or skill);
2.              The allocation of profits, losses, and draws;
3.              Each partners’ authority and management duties;
4.              How to admit new partners;
5.              What happens if there is a bankruptcy, withdrawal, or death of a partner, and
6.              How to resolve disputes such as by arbitration, mediation or in a courtroom.

By having a written partnership agreement, you help to avoid misunderstandings which may occur during the course of your business relationship.  And remember, your partnership agreement does not have to be set in stone, it can always be amended and revised at a later date should events change.

Tuesday, November 5, 2013

Tuesday's Tip - What is a "No Waiver Clause"?

A “No Waiver” (or “Waiver”) clause is a provision in an agreement which aims to ensure that a party’s failure to enforce its contractual rights, whether intentionally or by oversight, does not result in a waiver of those rights or remedies for their breach.

Tuesday, October 1, 2013

Tuesday Tip: Subsidiary

A subsidiary is an entity in which another, generally larger company or corporation, known as the parent corporation, owns all or at least a majority of the shares

Saturday, August 3, 2013

Emotional Support Animals – A Snapshot of What You Should Know

“Emotional support animals” also sometimes called “service animals” is a topic that has received quite a bit of attention lately. Assistance animals are not pets but rather, animals that work, provide assistance, or provide emotional support to individuals and alleviate the symptoms of his/her disability. Therefore, housing providers should consider two questions after receiving a request for an emotional support animal: 1. Does the person seeking to use and live with the animal have a disability (i.e. a physical or mental impairment that substantially limits one or more major life activities? and 2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? If the answers to questions 1 and 2 are yes, the housing provider is required to modify or provide an exception to the “no pets” rule. Further, a housing provider should not deny a request for a service animal if it is unsure if the person has a disability. Instead, if the disability is not readily apparent or known to the housing provider, the housing providers may ask the applicant to submit reliable documentation of their disability and the related need for an assistance animal, including documentation from a treating mental health professional. However, if the disability is readily known or apparent, the housing provider should not ask the individual for documentation of their disability (i.e. persons who are blind requesting an accommodation for their guide dog). In sum, the above is just a brief overview of what you should know about emotional support/service animal requests. In fact, certain housing providers will be subject to both the service animal requirements under the ADA and the Fair Housing Act. There are also other complexities associated with emotional support animals, including if and when a housing provider can deny such a request and what restrictions, if any, a housing provider can apply. If in doubt, you can refer to the memorandum of interest published on April 25, 2013 by the U.S. Department of Housing and Urban Development, which serves as a guide for housing providers and individuals.

Tuesday, July 30, 2013

Tuesday's Tip: Garnishment

Garnishment is a remedy by which a creditor can reach money in a debtor’s bank account.

Wednesday, June 19, 2013

Arbitration is....

When an arbitrator reviews evidence and imposes a decision that is legally binding for both sides and is enforceable.

Tuesday, June 11, 2013

Monday, May 20, 2013

What is a CAM Fee?

Common Area Maintenance or “CAM” is a provision found in almost every commercial lease. Typically, Landlords require tenants to pay a portion of CAM fees. There are two basic calculations for CAM fees: (1) Variable CAM fees, in which the amount a tenant is required to contribute increases based on a number of factors; and (2) flat CAM fees where the fees are a fixed amount. CAM fees can be complicated, expensive, and include a wide range of expenses such as repairs, insurance, property maintenance, and in some instances, salaries of administrative staff who operate a business park.

Tuesday, May 14, 2013

Tuesday's Tip: Fictitious Names

Before you decide to use a fictitious name, check with the Department of State to make sure someone else hasn’t already registered it.

Tuesday, April 30, 2013

Tuesday's Tip: Can a Company Represent Itself in Court?

While individuals can represent themselves in lawsuits, companies cannot unless the amount in dispute is under $5K (small claims court).

Tuesday, April 16, 2013

Tuesday's Tip: Attorney's Fees

Tuesday's Tip: Attorney's Fees are usually awarded in a lawsuit when allowed by contract, statute, or court rule.

Tuesday, April 2, 2013

Tuesday’s Tip - What is a Civil Action?

A civil action is a lawsuit in which one person or entity (Plaintiff) claims to have been harmed by the actions of another person or entity (Defendant).  In the civil lawsuit, the Plaintiff requests that the court award him relief such as: (i) money; (ii) an injunction either to prevent or require the defendant to do something, and/or (iii) a declaratory judgment which asks the court to determine the parties’ rights under a contract or statute.

Most civil lawsuits start with filing a Complaint. The Complaint is a document that describes what the Plaintiff wants and why.  At the same time the Complaint is filed, the court clerk will issue a Summons. The Summons provides the Defendant with important information including the deadline to respond to the Complaint.

After the Plaintiff has filed the complaint and the clerk issues the summons, the Plaintiff must serve these documents on each person/entity being sued (defendants).  After the Defendants have been served, they typically have 20 days to respond.  If a response is not filed within the required time period, the Plaintiff can request the court to award a default judgment.  

Tuesday, March 26, 2013

The Benefits of "Outsourcing"

The business communities, including small businesses, are always looking for methods to become more efficient and as result, increase their profitability margins. “Outsourcing” is a creative option available to small business owners. Whether the goal is to remain self-sufficient or position your business for an eventual merger or acquisition, businesses must become smarter about where to cut costs. By “outsourcing” essential needs of your business, such as legal assistance, accounting, secretarial work, and marketing, a business owner is given the flexibility of having a job function fulfilled without the long-term cost of having an employee fill that position.

Wednesday, February 20, 2013

The Importance of Owners' Agreements

Although not required, it is extremely valuable for Owners' Agreements, such as Shareholder Agreements, LLC Agreements and Joint Venture Agreements to be in writing.  In closely held businesses, a shareholder dispute is what typically causes a Company to crumble. Shareholders and partners of privately held companies should protect themselves during the formation process and reduce oral agreements to writing.  Certain provisions to include provide for buy-sell methods, decision making ability, and deadlock and dispute resolution procedures.  Making sure that these types of clauses are  in writing before a problem arises could be the key to a Company's ultimate success.    

Thursday, February 7, 2013

How To Turn Your Final Judgment Into A Lien On Real And Personal Property

In order to obtain a lien on real property, a certified copy of the Final Judgment must be recorded in the public records of the County. In Florida, a lien is valid for an initial period of 10 years from the date of recording with the County.  The lien can be extended for an additional 10 years if the Creditor files an affidavit and a certified copy of the Final Judgment is re-recorded before the initial lien has expired. See Fla. Stat. Section 55.10.

As to personal property, the Creditor must file a Judgment Lien Certificate with the State of Florida.  In Florida, a lien on personal property is valid for 5 years from the date of filing.  Within 6 months before or after the expiration of the personal property lien, a Creditor can obtain a new Judgment Lien Certificate; however, the new lien is not a continuation of the first lien.  Instead, the second judgment lien permanently lapses after its 5-year period expires and no additional liens based on the original judgment can be acquired.  See Fla. Stat. Section 55.204.  

Friday, January 25, 2013

What Is A Derivative Action?

A derivative action seeks compensation for an injury suffered by the corporation or by stockholders generally, as a result of the actions of the Board of Directors. In a derivative action, the cause of action belongs to the corporation and not to the stockholders individually. The ability of individual shareholders to bring derivative actions for the corporation is codified in Florida’s Business Corporation Statute.  Fla. Stat. §607.07401.  Although Condominiums are not governed by this statute and instead are not-for-profit corporations, derivative actions could be applicable to Condominiums depending on the type of relief being sought by a unit owner.   It is also important to know that the relief being sought (whether money damages and/or other types of relief) goes to the corporation rather than to the actual plaintiff.