Articles Posted in Uncategorized
COVID -19 Response from a Legal and Estate Planning Perspective- Protect your Family.
(Nyack, New York- April 3, 2020) We all hear the horrible, and getting worse, stories of loved ones sick, suddenly finding themselves in the hospital, incapacitated, and no longer in touch with their family members, unable to pay their own bills, manage assets, or even make medical decisions. With the outbreak of Coronavirus (COVID-19), this scenario is a growing concern, and unfortunately, a growing reality for many.
What are common issues families face when a loved one is incapacitated and what Estate Planning documents might give all a piece of mind:
* No power to make medical decisions if you are unable to communicate your medical wishes;
Privacy and Social Media: How Your “Private” Content is Still Discoverable in a Lawsuit.
With all of the “fake news” making history in our world, it is important to remember that, as ubiquitous as Facebook may be, what you post may not be so “fake” when it comes to your personal litigation position. If you have a lawsuit, whether it involves claims for personal injuries, or adverse possession, your postings on Facebook may become more public than you think.
Many social media users change their Facebook to “private,” in the erroneous attempt to remain “private,” assuming that their posts are private, viewable by themselves and selected “friends.” The same goes for “private” messages shared over Facebook messenger and their selected recipient.
In today’s social media frenzied world, however, Facebook posts and messages may not be so “private” if they tend to prove or disprove claims you make in a court case. In that regard, New York State’s highest appellate court recently ruled that “private” social media posts, particularly Facebook posts can be requested and made available to a court in “discovery,” the pre-trial procedure where each party requests evidence from the other.
Think before you as “siri” or “alexa”– Ramifications of the New Smart Home.
Technology has revolutionized our lives, from the way we communicate with each other to the way we conduct business, it permeates our lives at home, in the car, everywhere. With the advent of smartphones , personal computing technology has is faster, smarter, and more pervasive than you think. From black boxes in cars, tracking software in phones, technology firms incorporate privacy invaders in cars, weather stations, and now homes. With the huge popularity of Google Home and Amazon Echo, devices that engage with users to do tasks at their bidding, many aspects of our daily lives are being recorded for various benign and, less than benign reasons. Simple tasks like checking the weather, turning on and off lights, or locking your car, speeding down the local street, all leave electronic trails, some more clear than others. According to the Seattle Times, “in a bid to spread the gospel of home automation, Amazon.com has rolled out free consultations from in-house experts that help customers build out a connected home. The Smart Home Consultation advisers come to consumers’ homes to demonstrate smart home products, and make personalized recommendations on what gadgets to buy.” The “smart home” sales grew 57% from 2015 to 2016, showing the explosive popularity, but how often do you consider the other side of the data– the intrusion into your personal space. These machines, particularly Google Home, know everything about you.
For example, in homes, control panels regulate shade controls, televisions, temperature, security systems, lighting, speakers, music, and countless other functions. The control panel collects data which may actually track the occupant’s comings and goings, especially if the smart appliances are activated by voice control. Much of the time the automation of daily life functions means that homes are more efficient and cheaper to manage, energy-wise, because it’s easier to quantify and control your usage.
But, have you considered the impact of this data on insurance claims? According to the Claims Journal, data collected from smart devices will improve first notice of loss, settlement and subrogation – several steps of claims processing. Yes, at some level, an insurance company for a smart home equipped property, could look at each stage of the insurance value chain, beginning with customer engagement all the way through pricing and underwriting, and ultimately, claim settlement, the data from connected home devices has the potential to improve each stage.
Tenants by the Entirety as a form of Ownership– More Nuanced Than Simply being Married.
Property ownership comes in all shapes and sizes. An interesting and seldom discussed form of ownership is the idea of “tenancy by the entirety.” In the 1940s, many states abolished tenancy by the entirety, viewing it as unequal in terms of women’s rights. In England, tenancy by the entirety was outlawed by the Married Women’s Property Act of 1882 because “the English judges held that the statute abolished this estate in conveyances executed subsequent to its effective date.” An article by George Walter Klorfein in 1963 argued that “there need not necessarily be a conflict between this form of tenancy and the acquisition of equal property rights by married women [since] New York considers that the chief characteristic distinguishing this form of ownership from other classes of concurrent ownership, namely, the impossibility of either spouse defeating the right of survivorship of the other, is worth preservation.” In New York State, tenancy by the entirety is very common form of home ownership.
To determine whether two people own the home as “Tenants by the Entirety,” it is first necessary to know whether the owners are legally married. Sometimes this is plain from the language of the deed that refers to the owners as Mr. and Mrs. John Doe, husband and wife, or something indicating legal marriage. If the owners are legally married, then Tenancy by the Entirety is presumed; and, if the spouses want a different arrangement, it must be specified to say tenancy with right of survivorship (when one co-owner dies his share of property goes to his spouse) or tenants in common (when one or more people live on a property they each get a share of the property and this share is transferred to the estate after the death).
Under the customary arrangement of tenancy of the entirety, each spouse possesses one hundred percent of the property and, upon the death of the spouse, the other owns the property completely. Tenancy by the entirety implies that if one spouse tries to sell his share of the property, the owner cannot force the other spouse to sell or “partition” the property, and has no right to separate the property. Spouses are prohibited from disinheriting the other by gifting it to a beneficiary in their wills, so a will that leaves a husband’s share to his son is invalid if the wife is still alive.
Temporary Residences, SRO, or a Hotel- Local Governments Cracking Down on Non-traditional Tenants.
Technology has revolutionized the way we live. We order rides on Uber, rent cars through Turo, and stay at a person’s home though AirBnB rentals. The rise of the sharing economy pervades every sector of the economy, and our lives, with the idea that we can “share” our possessions – homes, cars, time – and rent them.
Sometimes its cheaper for the individual, but not the community. Like the car share rented through Uber, Airbnb allows our neighbors a platform to rent their homes and apartments to people for short periods of time, mimicking (some say replacing) hotel rooms.
Just as with any new approach to living, driving and shopping, our old laws may not adequately address or comply with how others in that industry, or that community want to enforce those laws.
Protect Yourself from Internet Trolls Looking For an Easy Payday.
In today’s world of e-commerce, various forms of internet and email scams have arisen because large sums of money swap hands on digital platforms, through insecure communications. In real estate, and everyday communication, be wary that criminals often divert large sums of money by spoofing, phishing, or otherwise diverting your personal information for their own personal gain.
For example, in Minnesota the Boys and Girls Club of the Twin Cities, fraudsters posed as the charitable organization to get donations, frequently using kids on street corners to gain the sympathy of passersby. In England, according to this article, there have been several instances of fraud.
To avoid these tragedies, there are ways for you to protect yourself when conducting real estate business online. One key step is to verify that the website is properly secured. One way to know that is if the website starts with HTTPS (“s” means secure). Personally ask the lawyer or the law firm assistant or other contact what kind of security features are observed both with the computer and with the maintenance of private information. Be careful if the internet web-site you are using is not secured. Be wary about what information you send by email communication, being sure there is a secure, encrypted connection before sending any sensitive materials or information like bank account numbers or social security numbers.
Have you ever considered the Legal Issues and Financial Issues Arising from the Installation of Solar Panels on your Home in New York?
People generally view the advent of solar panels positively because the beneficial impact on the environment and expected savings from lower electricity bills. Traditionally, homeowners have two options: buying or leasing solar panels. Buying solar panels is often prohibitively expensive for the average American; so many homeowners now consider leasing solar panels instead. While initially seeming like the more attractive option, solar panel leases often complicate homeowners’ lives due to hidden problems that many do not consider when initially signing the leases.
To begin with, as mentioned in this article, there are many unanticipated costs that may arise when undertaking a solar panel lease as a homeowner. Before installation, homeowners might incur roof repair costs because solar panel leases last for, sometimes, longer than twenty years, while roofs last only thirty years. Leasing often means that the homeowner does not get the benefits often available to owners because they are only the lessee of the panels.
For example, as mentioned in this article, Solar Panel leases can complicate the real estate transaction because solar panel companies place liens on homeowners’ properties to ensure payments are made. A lien can stall refinance and real estate transfers because they must be satisfied or transferred. In particular, when homeowners use property-assessed clean energy (PACE) loans to finance the use of solar panels at their properties, the company often requires a lien to secure the repayment of the loan. Another issue with solar panel leases is the difficulty in transferring ownership of the solar panel lease to buyers. If you cannot make the transfer of ownership, some states require the seller to pay any future solar panel expenses, as well as court fees associated thereof, according to the article. Solar panel leases have many unintended consequences for homeowners who might plan to sell their homes in the future.
Some Respite (and Protection) from the Allegedly Defamatory On-Line Review?
In a rare bi-partisan effort, the U.S. Senate passed a bipartisan bill called the Consumer Review Fairness Act, which should give on-line reviewers some respite from overreaching “terms of service” clauses, buried deep within the fine print of the internet, which purport to limit or preclude on-line reviews through “gag” orders.
Gone are the days were people rely solely on Consumer Reports to understand whether the service or good he is buying lives up to the claims. Since the rise of the internet, sites like Yelp, Trip Advisor, eBay, and others have allowed consumers to review all forms and types of sellers, restaurants, products and service providers. That said, in an effort to combat negative reviews, various service providers have used their “terms of service,” to threaten and retaliate against consumers who post “negative” reviews. The legislation arose from a series of cases like Palmer v. KlearGear, where the consumer posted a negative review and the company demanded thousands of dollars in fines because of the terms of service contained in the fine print of the terms of service. When she did not remove the review, the company notified debt collectors of an “outstanding debt” and torpedoed Palmer’s credit rating. In the end, the consumer won $306,750 in damages, but the case earned the ire of our elected officials.
Other examples of internet companies seeking “retribution” for on-line reviews and alleged “non-disparagement clauses” used to avoid negative online reviews led to the need for national legislation regulating the use of such “gag clauses.” The new bill makes it illegal to have terms of service that “disparage, restrict, or penalize poor customer reviews.” If companies do not abide by these terms, the Federal Trade Commission (FTC) can penalize the company and stop lawsuits based on negative reviews, according to this article. Notably, the law does not protect against libel or slander lawsuits by these vendors, but it is a landmark bill in protecting consumer rights, since the internet is considered the Wild West of the law with lack of government oversight in many cases. Sen. John Thune (R-ND), who chairs the Senate Commerce Committee, said in this article that “by ending gag clauses, this legislation supports consumer articles and the integrity of critical feedback about products and services sold online [the bill also protects offline reviews].”
Black Ops versus Tactical Ops-Beer Naming Becomes a Trademark Battle.
By the time the 1970s rolled around, there were about fifty breweries in the United States, according to The Economist. A slew of new laws promoting tax breaks for small microbreweries spurred an era of innovation and explosion of smaller, craft breweries. Today, there are over 3,000 breweries, making the industry both crowded and competitive.
One of the prominent issues that arises, according to this article from NPR.org, is the challenge of finding a name that is not already taken by another brewery. There is a dearth of names that have not already been trademarked by others that connote a positive association with beer. Consequently, there have been more legal issues popping up with name trademarks because so many designs and names infringe on others’ similar ideas.
With so many breweries around the country, people do not have malicious intention to copy others’ names and designs, but there is inevitable overlap with so much market saturation. Frequent legal issues emerge because there are public misconceptions about the fact that merely providing state registrations and ownership of domain names ensure ownership of the copyright/trademark; but that is not always the case. A trademark attorney navigates murky waters where there is no national database of beer brands/trademarks, and conducts common law and internet searches – to see if there are overlapping images or names of other breweries. Intellectual property is vital to creating a strong business, and this web of legal issues associated with craft breweries’ trademarks illustrates that.