THE CONTRACTUAL DEFENSE OF FORCE MAJEURE MAY BE BACK IN VOGUE
An act of God may sound biblical and it may even be biblical, but for lawyers, it has a very contractual meaning. It is generally found in the “Force Majeure” escape clause in some contracts. It is rarely used. In Indiana there are only a handful of cases that even deal with the topic, so finding a way to apply it to our lives in January of 2020 might seem out of place. But in March of 2020, less than two months after the first confirmed case of Coronavirus (Covid-19) was documented in Washington State, we are living in a whole new world.
A “Force Majeure” clause is a contractual provision found in many contracts, typically in commercial leases, that sets forth the criteria by which one or more parties may be relieved of their obligations to perform under the lease in the event something overwhelming prevents a party from performing. Of course, not just any event will be sufficient, it will generally require that the event be so overwhelming as to render performance impossible and not merely inconvenient.
A typical force majeure clause might look like this:
“Force majeure” is defined as any unforseeable causes beyond the control and without fault or negligence of the party affected thereby, such as Acts of God, acts of the public enemy, insurrections, riots, labor disputes, labor or material shortages, fires, explosions, floods, breakdowns of or damage to plants, equipment or facilities, interruptions to transportation, river freeze-ups, embargoes, orders or acts of civil or military authority, or other causes of a similar nature which wholly or partly prevent the mining, delivery and/or loading of coal by the Seller, or the receiving, transportation and/or delivery of the coal by (insert company here), or the accepting, utilizing and/or unloading of the coal by (insert other company here).
In the weeks and months ahead, governments, Federal, State and local, will be forced to issue public safety orders that will make operating some businesses impossible. Those orders coupled with the economic disaster and the need for social distancing may very well cause a great many businesses and individuals to seek some sort of relief from their contractual obligations. In the shadow of this pandemic, the “force majeure” defense will be a hot topic.
As of March 16, 2020, it is clear America is in the fight of its life against an invisible foe known as Covid-19 aka the coronavirus. This foreign invader grows faster than compound interest. It is a true monster with exponential superpowers. In the course of 55 days (the number of days since the first American was confirmed to have this virus to now), this virus caused one of the strongest bull markets in stock market history to lose three years of gains and send a thriving economy into a recession.
With no cure or vaccine to fight it, self-imposed quarantining is the only way to slow its spread. Scientists do not even talk in terms of “stopping it”, their best hope is to merely slow it down while an under prepared healthcare system struggles to catch up. This is what has been described as flattening the curve. While older citizens with chronic health problems are believed to be the most vulnerable, young healthy people can spread the virus and that makes this a battle that everyone must join. It requires nearly complete cooperation.
The businesses most immediately impacted by this pandemic are those that rely on crowds to gather in their restaurants, gyms, and theaters, or at their stadiums, convention halls, or theme parks. If not now, sometime soon, even businesses who don’t depend upon crowds will feel the pressure of this pandemic as they depend on other businesses or those businesses employees to sustain their cash flow.
Some businesses will continue to operate as their employees work from home or work in isolation zones within the business itself. In the end, everyone will be negatively impacted. “What should we do”, you ask? There are certainly some very fundamental things all Americans must do now.
1. Get informed and stay informed. Listen to credible sources of news and information. Avoid unreliable sources. Currently, the Centers for Disease Control (CDC) is deemed a reliable source.
2. Honor the Federal, State, and local governments mandates on travel restrictions, business closures, and self-quarantine.
3. Be prepared, if necessary, to reinvent yourself. It may turn out that unemployed workers, such as waitresses and bar tenders or even out-of-work lawyers (for example), will need to be trained to work in special coronavirus wards to help fight this pandemic.
4. Prioritize your spending, if you have limited resources.
5. Be part of the solution by thinking of ways you can help keep businesses moving while protecting patrons. (I have a vision of a movie theater full of movie goers in hazmat suits).
6. Help those who need help. Give of yourself.
BUT WHAT ABOUT MY CASE?
Yes, indeed, you have legal issues and you may be wondering what all this means for your particular case. Most law offices are prepared with a continuity plan for emergencies like this. Lawyers can do much of what they do from home. They can continue to work on your case, generally, without the need to meet with you in person or to leave home, as long as they have a computer and a link to the internet.
For cases that are transactional in nature, such as preparing a Will or a Trust or a contract or forming a new business, lawyers are will suited to accomplish this work from their couch or home office. If your case is a matter pending before a court of law, then some work can be done outside of court by your lawyer working from home, but where hearings or trial are concerned, courts around the country are continuing trials and postponing everything on their calendars for the foreseeable future. This may be good, if you are a reluctant participant desiring to postpone the inevitable, but it may be bad, if you want your day in court so justice can prevail.
Some legal disputes avoid court all together where the parties agree to submit their dispute to an arbitrator or arbitration panel. These arrangements are typically worked out in advance by inserting these agreements into a contract. However, sometimes litigants make the decision to have an arbitrator decide their case after the dispute arises. This might be the case where they desire to have the matter decided quickly and avoid the long delays often forced upon traditional litigants in the trial courts.
The pandemic is changing the dynamics of everyday life in so many ways it is difficult to anticipate everything that will impact us. However, it is reasonable to expect many litigants who desire a quick resolution to their dispute to agree to submit their case to an arbitrator and therefore the demand for arbitration services is very likely to explode over the next few weeks and months. Where litigants are cash starved, they may actually benefit from these delays as it will permit them to modulate their cash flow with the circumstances impacting the court’s calendar. Being cash starved may also compel those who are desperate for cash to settle for less than they might otherwise accept under normal circumstances.
All litigants must take care to at least file their claims timely in order to avoid statutes of limitation and for that reason, even where cash or the lack of it is a concern, talking this point through with an attorney could enable them to anchor their claim now while delaying the progression of the procedural process. Some things just can’t wait.
If you are not impacted by cash flow and you have the means to bring or defend a case, you should know that most every lawyer in practice today will be able to assist you, provided they can work from home and have access to the internet. Hopefully, the coronavirus will not alter that in the future.
The term “land locked” refers to a parcel of real estate that has no direct access to a public road or highway due to being surrounded by parcels owned by other landowners. This situation is not common but does occur within the State of Indiana as well as all other states within the Union. Since the laws regarding property are specific to each state, this brief article will focus on the solutions to such problems under Indiana law.
In a perfect world every conveyance of land would result in a parcel to a new owner with access to a public road. However, that most generally occurs when the conveyance is intentional, voluntary, and accommodating to the necessity for ingress and egress. When a parcel is conveyed by other means, such as a tax sale deed, sheriff’s deed, or executor’s deed, access to public roads may not be assured.
Imagine owning a parcel of land that you cannot walk to or drive to. The only way to get to or from the land-locked parcel is by air. Such a limitation would render the property virtually useless to most people. Fortunately, Indiana law does have a solution in many cases.
The owner of a land-locked property should contact the owners of the neighboring properties and attempt to negotiate an easement over their land that will allow access to the land-locked property. This might be handled directly, or with the aid of a real estate agent or real estate attorney. A formal document drawn up describing an easement in terms of scope of use, location and dimensions can be negotiated to accomplish this. The party seeking an easement over the neighbor’s land generally pays for that right, just as if they were buying a parcel of real estate. If successful, the easement would be recorded in the county recorder’s office and referenced in all future deeds thereby giving notice to the world that a right of one landowner to cross the other landowners property in a designated spot is now permanent and will be conveyed to subsequent owners of both properties.
Neighboring landowners are not always willing to agree to such an arrangement, which almost always necessitates a lawsuit seeking the help of a Judge. Indiana law has given land-locked property owners the assistance they need for access to public roads by either declaring the existence of a public highway or an implied easement over the lands of a neighboring landowner.
Indiana courts have given a broad definition to the term “public highway” in limited circumstances. Where evidence is produced to demonstrate a path of common travel has been used for a period of twenty years prior to 1988 (when Indiana codified a more restrictive definition of public highway) Indiana courts have declared such a path to be a public highway. So, the use of the path must be shown to have been in use by 1968 or earlier. This use has few if any restrictions. Evidence of this use need not show any number of users. It need not show the frequency of the travel or its particular use. It need not be defined by structures or gravel, pavement or any other material. It also does not matter that the path terminates on the land-locked property or that the only people who used it were the people who either lived on the land-locked parcel or their guests. This remedy will be more difficult to prove as the years roll on, because much of the evidence necessary to demonstrate this use will die off with the people who would have personal knowledge of it.
More frequently, owners of land locked parcels seek to establish an implied easement, either by necessity or prior use. An easement by necessity can only be granted where the land-locked landowner can show that his or her access to a public road was cut off by a severance of a servant parcel. There must be evidence of “unity of title” showing the severed parcel was owned by the same owner immediately prior to severance. There can be no gap in that ownership. A parcel is servant to another parcel where it must permit the other landowner to cross its property. The servant property must bow to the dominant parcel to allow for such ingress and egress.
A similar remedy to the land-locked property owner is accomplished by establishing an easement by prior use. However, proof of the prior use relieves the plaintiff of the need to prove absolute necessity in the need to access a public road. A recent appeal by an Indiana court described the difference between easement by necessity and prior use as “An easement of necessity will be implied only when there has been a severance of the unity of ownership of a tract of land in such a way as to leave one part without any access to a public road. On the other hand, an easement of prior use will be implied where, during the unity of title, an owner imposes an apparently permanent and obvious servitude on one part of the land in favor of another part and the servitude is in use when the parts are severed . . . if the servitude is reasonably necessary for the fair enjoyment of the part benefited. Unlike a landowner requesting an easement by necessity, a landowner requesting an easement by prior use does not need to show absolute necessity. The focus of a claim for an easement by prior use is the intention for continuous use, while the focus of a claim for an easement by necessity is the fact of absolute necessity.” Collins v. Metro Real Estate Services LLC, 72 N.E.3d 1007, (Ind.App. 2017).
If you have land-locked property and unsympathetic neighbors, you are going to need to hire a real estate attorney and seek the court’s assistance in securing a court ordered access.
Marshall Welton, and Indianapolis businessman and real estate investor, along with eight other defendants (all companies owned by Welton), was recently named a defendant by the Fair Housing Center of Central Indiana as advocate for 12 individual Plaintiffs in a lawsuit filed in June of 2018 in the United States District Court for the Southern District of Indiana. The lawsuit alleged numerous violations of federal consumer protection laws, including the Fair Housing Act, Equal Credit Opportunity Act, Civil Rights Acts of 1866 and 1871, and the Truth in Lending Act. The lawsuit also alleged numerous violations of the Indiana’s consumer protection laws, including the Indiana Residential Real Estate Sales Disclosure Statute; the Indiana Landlord – Tenant Relations Statute, and the Indiana First Lien Mortgage Lending Act, the Indiana Consumer Credit Disclosures Act, the Indiana Consumer Sales Act, and the Indiana Home Loan Practices Act. The lawsuit reached settlement that produced the entry of a mutually agreed upon Consent Decree where no party admitted fault, but that will require the defendants to re-tool their operating procedures to insure strict compliance with the federal and state civil rights and consumer protection laws Defendants were alleged to have violated to begin with.
According to the Complaint, the Defendants were engaged in the sale and rental of central Indiana real estate to low income consumers who were largely members of the local Hispanic community which exploited their language limitations and need for housing. The Complaint describes how the Defendants engaged in a scheme designed to reap all the advantages of a landlord when it was expedient and advantageous and as a real estate seller, when circumstances were otherwise. Defendants allegedly skirted every relevant civil rights protection they were obligated to adhere to, as well as Indiana consumer protection laws. The Complaint also alleges Defendants mortgaged properties it sold to its unsuspecting clients without their knowledge or consent and without any subordination agreements with the lenders, making it virtually impossible for Defendants to deliver good title to Plaintiffs. Despite these allegations, the Defendants entered into a Consent Decree where they basically agreed to pay damages to the twelve plaintiffs, pay attorney fees to plaintiff’s attorneys, and amend their practices to comply with the various federal and state laws they were alleged to have violated in the first place. However, since the matter settled, there are no findings by the Court, nor precedent to be cited, enforced, or followed. At most, this arrangement serves as a warning that similar real estate investors plying the same tactics might find themselves named in similar lawsuits in the future.
The impact of this arrangement might be significant to the extent this group of defendants controls a substantial share of the market and their competitors are watching to see the outcome of this lawsuit. Certainly, anyone who would turn a blind eye to this lawsuit and continue to ignore the many federal and state statutes designed to ensure the civil rights of all Americans as well as their consumer rights must proceed at great peril to their financial interests. Undoubtedly, many will do just that, because consumers will rarely recognize how these investors are violating the law and how their rights are being violated. Opportunists will fill in the gaps.
For those would be landlords and/or sellers of real estate, and the professionals who assist them, great care should be given to insure they do not violate any of these statutes while attempting to sell or lease their real estate. Leasing or selling a residential home to anyone individual who intends to live in the home as their primary personal residence, triggers a whole host of obligations that mandate prudent action and carefully worded disclosures in order to avoid running afoul of the Fair Housing Act, the Equal Credit Opportunity Act, the Truth in Lending Act, the Indiana Residential Real Estate Sales Act, the Indiana Landlord – Tenant Relations statute, the Indiana First Lien Mortgage Act, the Consumer Credit Disclosure Act, and the Deceptive Consumer Sales Act. Equal Protection, the Civil Rights Act of 1968, the Americans with Disability Act may also relate to a lease or sale of real estate. When a real estate transaction turns bad, parties on both sides of the deal would be well advised to seek the assistance of an Indiana real estate attorney.
So if you think the statement Have You Been Discriminated Against applies to you, contact us. We can help you. While exemptions exist regarding some of these Acts no individual can be exempt as to all these applicable laws and consequently, investors and real estate professionals should be vigilant in their efforts to play fair and follow the law. The next defendant may not be so fortunate to secure a settlement where no legal findings and judgments are rendered against them. They may end up carrying that judgment like a bad tattoo forever tainting their name in local real estate markets.
No matter what your “rent to buy” contract might say, if it quack’s like a lease, and walks like a lease, then it must be a lease. If it’s a lease, then you’re either a landlord or a tenant.
Many people are attracted to ads that offer to sell them a home on a “rent to buy” basis. These arrangements have become more popular as the requirements necessary to secure conventional mortgage financing became more difficult to satisfy. Recently the Indiana Supreme Court addressed the enforceability of one particular buyer/seller agreement, and its decision will no doubt go a long way toward protecting buyers who might otherwise enter into such oppressive contracts. In the Rainbow Realty vs. Carter case, the Indiana Supreme Court held “the parties’ “rent to buy” agreement is not a land-sale contract, but a rental agreement subject to Indiana’s residential landlord tenant statute.
The “buyers” in the Rainbow Realty case entered into a “rent to buy” agreement which contained contractual features that appeared similar to a land-sale contract, but which also included features similar to a lease. The general concept of the agreement was to allow the “buyers” to make payments toward the purchase of the property, while granting the Seller all the controls of a Landlord. When tenants fail to pay rent, landlords simply sue for eviction and recover possession, unlike sellers in a land-contract, who must go through the long and expensive process of a foreclosure action. In a foreclosure action the seller sues to foreclose on the land-contract just like it was a mortgage. The Seller must secure a judgment against the buyer(s), have the Judge send the real estate to a sheriff’s sale, where it will be sold to the highest bidder. Rainbow Realty wanted have its cake and eat it too. If the “buyer” defaulted, they wanted to take back the real estate as though they were the landlord. The trial court refused to enforce that contractual option and the Supreme Court ultimately affirmed that ruling.
The Supreme Court found the contract was essentially a lease, because it did not give the buyers equitable title while at the same time the seller retained the right to evict and recover possession. With those features written into the agreement, the seller was exerting too much control over the buyers. The fact the home had no running water, or heat, and was essentially a bug and rodent infested shell of a house convinced the Court the sellers were actually landlords who had violated Indiana’s residential landlord tenant statute.
For sellers of real estate in Indiana, this decision serves as a warning to avoid the pitfalls of a written agreement that looks like a lease while including terms similar to a land-contract. For buyers, this decision serves as a measure of protection for them against sellers wishing to engage them in oppressive real estate transactions.
Rob McNevin is a real estate attorney located in Indianapolis who has been practicing since 1995. He is a partner with McNevin & McInnes, LLP with years of experience in real estate and construction related matters.
Is there anything more exhilarating than selling your house without paying a big commission? In 2017 thirteen percent of all home sales in the United States were transacted without a realtor, according to the National Association of Realtors. That equates to approximately 716,300 homes sold without paying a real estate agent, nationwide.
Most real estate sales end happily ever after, including the For Sale By Owner Indianapolis (FSBO) transactions. That is most, but not all. Because the seller is typically in receipt of the net sale proceeds at closing, sellers rarely find themselves with any complaints. The overwhelming majority of real estate lawsuits are initiated by disgruntled buyers, who sue their sellers. The buyer takes the risk that they won’t have problems with their home, and the seller takes the risk they won’t be sued. Capeesh?
So, buyers and sellers are both at risk in the real estate game. Since buyers almost never pay their realtor to help find them a home, they should have few reservations about hiring a qualified, experienced real estate broker to help them. However, many realtors won’t waste their time negotiating with a FSBO, because it is too easy to find a home with an advertised commission split right on their multiple listing service. Where the buyer desires to buy a home from a FSBO, then hiring a real estate attorney is very much advised.
Sellers, on the other hand, must weigh the high cost of a commission against the value of the services provided. It is hard to argue that those commissions aren’t worth paying, when you don’t already have a buyer, just as it is hard to justify paying a large commission when you do have your own buyer. That is because the value of having a professional listing on a multiple listing service is quite significant. A seller can’t sell, if he or she doesn’t have a buyer.
Real Estate brokers vs. Real Estate attorneys, what’s the difference?
They offer very different services, designed to facilitate a clean real estate closing. Real estate brokers / agents cannot give legal advice and they cannot practice law. Yet most every document from the listing agreement to the deed of sale is a legal document. These real estate professionals work with pre-drafted forms that merely require them to fill in the blanks. The forms are by and large very well drafted, and time tested. These real estate professionals also offer access to a net based multiple listing service that broadcasts your listing to everyone who has access to that system, including buyers without real estate agents. They put signs in your yard; hold open houses and make your home available for viewing to potential buyers. Of course, this comes at a cost of 6 or 7% of the purchase price. It’s not exactly cheap.
The real estate lawyer, on the other hand, prepares the documents and agreements that make up the real estate transaction and help insure their client is protected whether they represent the buyer or the seller. The fees for these legal services are typically much less than a real estate commission, but the attorney typically is paid whether the sale closes or not. Many attorneys will provide continued support for a subsequent transaction at a reduced fee if the original purchaser fails to close, since much of the work necessary to transact the closing has already been done. Real estate lawyers understand the law as it relates to your sale or purchase and are the only real estate professionals who can advise you as to your rights and risk of liabilities.
The FSBO desiring to avoid the high cost of a sales commission may find hiring a real estate attorney to be a very affordable alternative to hiring a real estate broker, particularly, if they already have a buyer. Expending some effort to guard against potential disputes is key to any “sound business plan” and while selling a house may not necessarily be business, guarding against risk is “good business” for everyone.
The risks inherent in a real estate transaction are substantial. If buying a house is the largest single purchase most Americans will ever make, then the potential for financial loss may likewise be the biggest risk they ever take. Common disputes include breach of the purchase agreement (breach of contract), earnest money refunds, fraud – actual and constructive, easement rights, undisclosed special assessments, defective construction, mold, closing cost apportionment, title problems, zoning issues, restrictive covenants, flooded basements, defective septic tank systems, encroachments, insect infestation, radon gas, taxes, mechanic liens, tax liens, judgment liens, claims for specific performance, and more. While the risk is inherent, it can be substantially minimized with the assistance of a real estate professional, whether that is a real estate broker or a real estate attorney. The point is perhaps best summed it with the old adage that an ounce of prevention is worth a pound of cure. There are few if any transactions where this advice would be more warranted. Go it alone at your own substantial risk.
Rob McNevin is a real estate attorney located in Indianapolis who has been practicing since 1995. He is a partner with McNevin & McInnes, LLP with years of experience in real estate and construction related matters.
If you are the party suing (“The Plaintiff”) another party that owes you money (“The Defendant”) in court, and you win a judgment will be granted in your favor. The Court will typically order that the Defendant pay you within a given time frame, but what happens if that person does not pay? How can you collect the judgment? Here is some information that can help you on collecting on judgments in Indiana
A judgment is good for twenty years in Indiana. Of that twenty-year time span, that judgment remains a lien on the debtor’s real estate and a personal judgment against the debtor for the next ten years. A judgment can be reinstated after the twenty years is up if the creditor and/or his attorney files a motion to reinstate the judgment.
After the judgment is obtained, the creditor can enforce the lien right for the first ten years by attempting to foreclose on any real property or personal property the judgment debtor owns. For example, if the debtor owns a home or a vehicle that is free of any liens, you, as the creditor can try to seize the property and have it sold to apply towards the judgment value. If that doesn’t work, there are other means on collecting on judgments in Indiana.
If you have the debtor’s date of birth, social security number, and maybe even bank account information for the debtor, you can try to institute a garnishment on the debtor’s bank account to be applied towards the judgment. You will need to submit a set of questions (“interrogatories”) to the court to be signed by the judge. Those questions will then be sent to the bank to see if the debtor has an active account and if there are funds in that account. If the bank answers come back positive with funds in the account, you will need to be sure that the account has greater than $450.00 in it and that the funds are not from an exempt source, such as disability or unemployment. What is the bank account is closed or the funds are less than the exemption amount?
Assuming you have the date of birth and social security number for the debtor, you can try to get a garnishment in place against the wages of the person who owes you money. If you don’t have their employer information, you can submit a request filed by the court to find out where they work. If that report comes back showing that the debtor is gainfully employed, you can file interrogatories with the court to be issued to the employer to find out what they earn and if there are already garnishments in place against their wages. If the owner is not employed or has wage garnishments pending, then you can file another motion to find out the debtor’s employer again as employer information is updated quarterly with the Indiana Department of Workforce Development.
If the debtor is not employed and has no active bank accounts, real property or personal property that can be seized, collecting on a judgment may become tricky. However, because the judgment stays valid for so long, all hope is not lost. Many people who are younger make poor financial decisions but later after becoming established financially, they may want to buy a house or a car. The lender is going to run a credit check on the buyer to see if there are outstanding judgments. That 10-year old judgment that seemed to be uncollectible may now get paid in full as the buyer, your judgment debtor, needs to clear up his/her credit. People can often find money to pay for judgments when these outstanding judgments prevent them from obtaining something they really want.
Although a judgment is valid for 20 years, there are certain limitations in place by statute to protect the judgment debtor from losing everything due to an outstanding judgment. If the property is the debtor’s primary residence that is subject to a mortgage or is involved in a foreclosure or bankruptcy proceedings, then there are certain values that must be considered when enforcing a judgment. Also, a creditor should always check to see if the debtor’s property has been foreclosed on by the mortgage company or if the debtor has filed bankruptcy. If the debtor has filed a Chapter 7 bankruptcy (debtor wipes all debts clean) and has named you as a creditor in the bankruptcy then your attempts to collect on the debt must stop. If the debtor has filed a Chapter 13 bankruptcy (repayment plan) and has named you as a creditor, you may be able to file a claim with the bankruptcy to get paid.
The likelihood of getting paid through a bankruptcy claim decreases if you are not a secured creditor in the debtor’s bankruptcy case. That means is you don’t have a lien that runs with the property such as a mortgage or a car loan, your claim is very low in priority and you may never receive money through the bankruptcy claim. If you are unsure whether your claim is a secured debt or an unsecured debt, you may want to consult an attorney who can advise you whether or not it’s a good idea to file a claim within the debtor’s Chapter 13 Bankruptcy plan.
Whether you use an attorney or not to collect on your judgment, you always want to be sure that you have not violated bankruptcy laws. As soon as a debtor has filed bankruptcy, an automatic stay, or hold, goes into place that protects the debtor’s assets. There can be fines for violating the bankruptcy stay, so you want to do all of your homework before suing someone or trying to collect on a debt. If you have a judgment against someone or want to file suit against someone who owes you money, you should strongly consider contacting an attorney who is familiar with collections and/or review IC 34-55-10-2 prior to attempting to enforce a judgment.
If you are interested in talking with an experienced collection attorney and setting up a strategy session, give us a call at 317-939-3000. Additional information on judgments can be found here.
For most Americans, the purchase of a new home is the fulfillment of the American Dream. It’s an opportunity to own a piece of the Earth, an opportunity to build wealth and financial security. But all too often that opportunity turns into a nightmare. Even when you hire real estate professionals to guide you through the maze of potential issues, it’s easy to come out on the short end of the stick.
“What could go wrong,” you ask? This article will discuss some of the more common problems that arise when purchasing residential real estate in the State of Indiana. While some of the issues described in this article might be a concern in any state, this discussion will focus on Indiana real estate and Indiana law as it applies to these concerns.
Problems most commonly suffered by purchasers of residential real estate in Indiana include:
1. Purchase
agreement disputes;
2. Title
issues;
2. Hidden
defects within the building structure;
3. Boundary
encroachments;
4. Zoning
problems;
5. Easement
issues;
6. Insect
infestation;
7. Hazardous
materials;
8. Neighborhood
covenant issues;
9. Predatory
lending;
10. Real
Estate Settlement Procedures Act;
11. Fraud;
12. Warranty
issues;
13. Mold
problems.
PURCHASE
AGREEMENT DISPUTES
A contract for the sale of real estate is not enforceable in the State of Indiana, unless it is in writing and signed by both parties to the sale. Therefore, a written contract is the generally accepted means of purchasing and selling real estate. When you think about the myriad of issues that give rise to conflicts during a real estate transaction, there should be no doubt about the importance of a written agreement. Real estate professionals typically use boilerplate forms, which are tried and proven in their ability to address most of the contingencies that might arise between the time the offer is made and the time the closing is concluded. However, despite the best laid plans of the drafters and the real estate professionals who fill in the blanks, things often go wrong.
Buyers and sellers need to be concerned about such things as deadlines for submission of earnest money, deadlines for closing, insurance coverage up to the transfer of ownership and thereafter, right to inspect the property, right to withdraw the offer, right to make repairs, right to possession, responsibility for property taxes, express and implied warranties, what appliances and other personal property stay with the real estate, and more. By reaching agreement on these issues at the inception of the contract, the parties can expect to avoid problems later. When contingencies arise, some parties find themselves inextricably shackled to a legal problem and those legal problems are often complex enough to require the assistance of an experienced real estate attorney.
WHAT
YOU SHOULD DO TO PROTECT YOURSELF.
There is not much the seller needs to do to guard against contract disputes other than to play fair and hire experienced real estate professionals to assist with the sale. The buyer should do the same, but keep in mind there are so many unknowns from the buyer side of the transaction, a buyer cannot afford to be anything less than vigilant. “Let the buyer beware. A simple checklist may go a long way toward guarding the unsuspecting buyer from a disastrous transaction.
BUYER’S
CHECK LIST
1. Consider
making your purchase subject to financing, even if you are not
dependent upon financing. This may give you an escape option you
might not otherwise have.
2. Require
a Warranty Deed and an insured closing through a reputable title
company, whenever possible.
3. Make
your offer subject to inspection, and then hire an inspector to
inspect the home. Don’t sign a contract with an inspector, if he
limits his liability in any substantial way. It is not
unreasonable, however, to limit their liability to matters which can
be seen by a visual inspection.
4. Be
sure to have a pest inspection. This type of inspection is usually
not included within the scope of a standard home inspection.
5. Have
a survey performed by a licensed surveyor and then review the survey
and the property by personal inspection to rule out the possibility
that structures on the real estate or neighboring real estate are
encroaching and to insure the existing structure does not violate
any city or neighborhood set-backs.
6. Review the Indiana Seller’s Real Estate Sales Disclosure Form carefully, and ask about matters that might not be disclosed on the form, such as prior illegal drug dealing activity at the location, and other psychologically related history. (No such form is required for new construction or for sellers who never owned or lived in the home, such as the County Sheriff, or the Executor of an estate).
7. Ask
for a copy of the covenants. Under Indiana law, a buyer of
residential real estate can withdraw the purchase offer, if they
make a timely objection to the covenants. So be sure
to obtain a copy, review it carefully, and prepare to object timely,
if you can’t abide by the restrictions and obligations set forth
within the covenants.
8. Require
licensed contractors to perform all work required by any inspection
response and always, always, always have the inspector re-inspect
the property after the work has been completed to insure the work
was performed properly and according to code. You won’t get
another bite of this apple after the deed transfers into your name.
9. Have a radon test performed, and if radon is discovery, make sure remediation is confirmed prior to closing. The EPA recommends remedial action be taken, if radon is discovered above 0.4 pCi/L.
10. If you are buying from a builder or developer, require a written warranty and a signed vendor’s affidavit at closing.
11. Never close without a title search.
12. Insure access to the property is either directly connected to a county or state road, and if it is not, insure a proper easement is in place to insure you won’t be held hostage by a neighbor on whose property the driveway may traverse.
13. When purchasing a home with new appliances demand all owner’s manuals and product warranty information, where applicable.
14. Never waive the walk-through prior to closing.
Ownership of real estate is evidenced by a deed of conveyance. Conveyance requires a document containing a legal description indicating the Seller is granting to the Buyer the real estate described therein. It also requires the deed be delivered by the Seller to the Buyer. It does not require the deed be recorded. However, recording your deed is the best way to insure your deed is valid and superior to any subsequent deeds of conveyance from the same Seller.
Common problems with title to real estate include errors in the deed, liens, encumbrances, restrictive covenants, easements, survivorship rights, incompetency of grantor, bankruptcy, divorce, encroachments, judgment liens, tenants, and Lis Pendens notices. When your purchase is closed through a title company, a title search is expected to reveal problems that might interfere with a buyer’s interest. When problems are discovered, they are either resolved, waived, or unable to be resolved, in which case the closing will almost always be halted. However, some problems don’t get discovered until after closing, and sometimes closings occur without a title search, as might be the case when closing a cash sale or land sale contract.
Where the buyer is purchasing without an insured closing or without the benefits of title insurance, the following checklist should be helpful to avoid the more common problems clouding title.
1. Order
a title search prior to closing. (A title search does not give you
title insurance).
2. Order
a survey. You may not need a staked survey, unless there are
structures that appear to be situated close to the presumed property
lines.
3. Search
the public records for Lis Pendens notices, which are typically filed
with the clerk of the Courts in the county where the real estate is
situated.
4. While
at the clerk’s office, do a search for the Sellers’ names to make
sure there are no active lawsuits or unsatisfied judgments against
them. Buying real estate from a Seller who has an unsatisfied
judgment could subject your property to the judgment lien.
(Information found at the clerk’s office will typically appear on
a title search).
5. Review
any covenants for limitations on the use of the property.
6. If
there is any reason to suspect the Seller is not of sound mind or
incapacitated in any way, then hire a lawyer to help you find out
and look for ways of avoiding a void or voidable real estate
transaction.
7. Search
the federal bankruptcy records to make sure the Seller is not
currently in bankruptcy. Once a Chapter 7 or 13 bankruptcy
proceeding is filed the Bankruptcy Trustee usually takes over legal
control of the property making a conveyance without the Trustee’s
consent void. (This information will typically appear in a title
search).
8. A
search that reveals your seller is a party to a pending divorce could
signal problems as well. Indiana law treats all real estate owned
by a married individual as marital property, which may give the
spouse rights to the property even if his or her name is not on the
deed.
9. If
you are purchasing on contract, make sure the Deed is signed and will
be held in escrow by an institution independent from the seller that
can be expected to be in existence when the payoff is anticipated.
10. Purchasers
in a land sale contract should also require their payments be sent
directly to the Seller’s mortgage company, if possible, to guard
against foreclosure. This is a common problem for purchasers in
these types of sales.
11. The
same issues regarding mortgage payments should apply to the payment
of property taxes and casualty insurance.
HIDDEN
DEFECTS WITHIN THE BUILDING STRUCTURE
It is nearly impossible to build a perfect home or building. Problems occur due to poor quality workmanship or materials. Sometimes external forces can cause construction systems and appliances to fail. The list of problems that commonly occur are too numerous to mention here, but there are some fundamental things even the most inexperienced buyer can look for.
The roof and the foundation are two fundamental components that should never be overlooked. Shingled roofing which shows signs of aging, such as missing shingles or discoloration, may be due for a replacement. Foundations with noticeable cracks may indicate serious structural problems exist elsewhere within the structure. Highwater marks in the basement evidence flooding problems. Uneven floors, doors that do not close properly and cracks in drywall or plaster are also indications of foundation problems. If you see any of these issues, think twice about making an offer, unless you are prepared to live with problems that will almost certainly result, even if repairs are made prior to closing.
It may surprise you to learn that once you make an offer to purchase subject to inspection, that you are bound to follow through with the purchase even if your inspection reveals problems, provided the Seller agrees to fix those problems. The only exception under Indiana law is typically that you may rescind the agreement, if you find major structural problems.
Frequently, a buyer asks for the problems noted in the inspection to be repaired prior to closing, and the Seller agrees to repair, but the Buyer learns all too late the problems are not properly repaired. This is often due to the Seller attempting to do the repairs himself rather than hiring it out to licensed contractors, and the Buyer failing to have a follow up inspection conducted.
While this article is not intended to address common problems associated with the purchase of commercial properties, it is not uncommon for properties which once served as a commercial property to become residential. Where that is the case, an environmental survey should also be performed, especially if there is any reason to believe the prior commercial use was related to any type of enterprise where toxic or hazardous chemicals were used. Underground tanks can become a huge headache for unsuspecting buyers, because they will eventually breakdown and leak and the residual contents in those tanks will leach into the soil and contaminate everything it comes into contact with, including drinking water from nearby wells.
BOUNDARY
ENCROACHMENTS
Boundary lines are determined by the legal description. They are not determined by fence lines and other physical structures. In other words, you can’t tell where the property line is simply by looking at structures built upon it. Therefore, it is important to know where the property lines are before you purchase.
Garages, driveways, fences, and utility lines are among the most common structures found to encroach upon another land owner’s property. Resolving encroachment problems can be very expensive, especially where a structure must be moved or torn down.
Having a survey performed prior to closing is the easiest way to shift responsibility for these problems back to the Seller prior to closing. Failing to catch an encroachment problem after you close may leave you with no recourse against the seller, unless you can prove they defrauded you in the Seller’s Residential Real Estate Disclosure Form.
ZONING
PROBLEMS
Buying a home in a platted subdivision is not likely to lead to zoning problems, provided your intended use of the property is simply residential, but many homes don’t exist in these residential developments. For properties that are not located in a residential subdivision, be sure to do your homework.
Zoning dictates the way a property can be used and where and how structures can be built. Almost all properties in Indiana have setback requirements for building purposes. It is good to know what those setbacks are before you buy. It is also helpful to know how other properties near the property you are interested are zoned.
When zoning conflicts arise, property owners typically seek out the assistance of a real estate attorney to help them either petition the local zoning board for a rezoning order, or a variance, which is like a temporary re-zoning and it typically expires upon the sale of the property to another seller or change of use.
Be sure to carefully review the seller’s statements on the Indiana Residential Real Estate Sales Disclosure form as they pertain to zoning, and everything else on that form for that matter. If zoning issues arise later, this may be your only port in the storm.
EASEMENT
ISSUES
When a utility company or neighboring property owner desire the right to use a portion of another property owner’s real estate, they typically secure that right by means of an agreement, called an easement, which is recorded in the county Recorder’s Office. These easements are called appurtenant easements and they run with the land. This means the easement will remain and pass with the property when the property is sold. The property owned by those granted the right to use the other property is considered the dominant parcel. The property granting the use is the subservient parcel.
One common problem occurs where a new property owner discovers his driveway passes over a neighbor’s property, but no easement was ever created. This might happen, for example, where the one property owner granted the neighbor a license to use the property. Since the license expires upon the sale of the property, the new owners may find themselves cut off from the use of the driveway to their home.
It is imperative to know before purchasing whether the property has direct unfettered access to a public thoroughfare. If not, stop the presses! Secure an easement with the aid of the Seller before closing.
INSECT
ISSUES
Insects are everywhere and usually in places you can’t see with a casual inspection. Some insects, such as cockroaches and bedbugs pose a serious health concern. Others, such as Carpenter Bees, Carpenter Ants, and Termites pose a threat to the building structure itself.
Experts say termite damage costs homeowners billions of dollars every year in the United States. They work fast and silently and, if unchecked, they can do sever damage to the structure of any building or home.
Have a Wood Destroying Insect Infestation Inspection done at the same time as the Property Inspection. Remember the best time to have the problem addressed is before you close. If you ask the Seller to treat the problem and he/she refuses, you may have the right to terminate your contract under Indiana law.
HAZARDOUS
AND TOXIC MATERIALS
Much has been done in the last several decades to clean up hazardous waste. The Environmental Protection Agency is the federal enforcement agency in charge of sites where problems of hazardous waste and toxic materials contaminate the land. While they are aggressive administrators of the agency and its goals, they cannot be everywhere. Contamination continues to be a big problem, both in industrialized urban areas as well as rural areas where farming is the most prevalent industry.
Factories, whether they are actively manufacturing or not, may have a long-term contaminating impact on surrounding land. Farming operations may have a similar impact on surrounding real estate. For this reason, it is important to do your homework before you buy.
Rural areas tend to experience more problems with contaminated drinking water than urban areas because rural areas rely so much on wells as a water source. Some of the more common sources of this contamination come from farmland runoff containing animal feces, fertilizer, herbicides, and insecticides. Another common contributor is the poorly serviced or inadequate septic systems on site or from neighboring properties.
Environmental surveys can be expensive, but not as expensive as unknowingly purchasing a property with environmental problems. Ask the seller for copies of any prior environmental surveys. Consider having your own survey done. Commonly a Phase I environmental study can determine whether there is evidence of contamination on the site or surrounding properties without the expense of core sampling. If a phase I assessment reveals cause for concern, then a Phase II might be required to conduct core samples, and when contaminants found, a phase III may be required to assess the full scope of the problem. For commercial and industrial real estate purchases, banks typically require some environmental assessment. Purchasers of residential real estate near farms or other commercial or industrial sites may find it prudent to follow the same course of action.
NEIGHBORHOOD
COVENANT ISSUES
Real estate which is developed as part of a residential plat plan or industrial or commercial park, frequently comes with private land use and development restrictions attached to it. These private restrictions are placed on the land when the owner or developer of the larger development places restrictions on the use of the individual parcels sold to individual buyers. These restrictions are generally intended to harmonize the use of the real estate with neighboring parcels, and help insure minimum standards with the hope subsequent owners will refrain from activity that would harm the value of the development.
Covenants may specify the set-back lines for buildings, the size and style of structures, the materials which must be used to erect the structures, even the type of flowers you are permitted to plant in the front yard. Covenants may affect a great many aspects of a property owner’s use.
Amending or vacating the covenants typically requires a unanimous consent of all property owners within the development. Alternatively, the purchase by one buyer of all parcels within the development would also vacate the easements by the doctrine of merger. Consequently, covenants are generally scene as permanent restrictions. Given the rigidity of such restrictions, it is crucial for purchasers to become acquainted with these covenants before purchasing.
For residential purchasers who submit written purchase offers, they are entitled to withdraw their offer to purchase, if they timely object to any provision found within such covenants. The timeline for raising such an objection is ten days from the date the covenants are submitted to the purchaser. This is one of the few “escape hatches” to a purchase agreement under Indiana law.
PREDATORY
LENDING
The term “Predatory Lending” is a catchall phrase referring to abuses lenders sometimes employ unfairly and deceptively to the disadvantage of unsuspecting borrowers. These abuses typically occur in the “sub-prime” end of the residential mortgage industry and include the following:
Inadequate
disclosures in the loan process;
Risk-Based
interest rates (pricing);
Inflated
or unwarranted closing fees associated with the loan;
Requiring
or urging borrowers to buy loan insurance (Loan Packing);
Use
of balloon payments to trigger future refinancing fees;
Negative
amortization;
Unusually
high pre-payment penalties.
Borrowers who suspect they are victims of predatory lending should consult a real estate attorney. One option a borrower has through the Truth In Lending Act (TILA) is the right of rescission. They may also sue for actual damages.
REAL
ESTATE SETTLEMENT PROCEDURES ACT (RESPA)
The Real Estate Settlement Procedures Act (RESPA) was enacted by the United States Congress in 1974 to protect home buyers from being cheated by unscrupulous real estate professionals. The Act applies to all real estate closings that deal with government insured loans. Commercial and construction loans are generally exempt from these regulations. The Act is designed to tightly control the procedures used to close a residential real estate transaction and insure the consumer is given timely, relevant, and accurate information about their loan and the closing process. The Act also made the common practice of paying out “undisclosed kick-backs and referral fees” illegal.
Borrowers have three (3) days in which to rescind their loan and this information must be made known to them during the closing of the loan, as required by RESPA. Rescission may also be an appropriate remedy where the lender otherwise violated RESPA requirements. Alternatively, violations of RESPA can lead to the recovery of actual damages plus attorney fees, and is most often used in defense of a mortgage foreclosure action. Borrowers, who believe they may have been victimized by someone during the closing can send a Qualified Written Request (QWR) to their lender requesting information pertaining to their loan and associated closing documents. Upon receipt, the lender must provide the requested information within 30 days. The information obtained as a result of the QWR may help document a RESPA violation. This can be a game changer for homeowners facing foreclosure.
FRAUD
For disgruntled real estate purchasers, fraud is the key that opens the lock to a lawsuit they would not otherwise be able to maintain. This is because Indiana permits sellers to use the “Merger by Deed” defense to lawsuits against them by buyers who believe the real estate somehow fails to exhibit the qualities they expected when they agreed to purchase. The rule provides absent fraud or mutual mistake of fact, all prior and contemporaneous negotiations, or executory agreements, oral or written, leading up to the execution of the deed are merged into the deed and are thereby satisfied. That leaves fraud and mutual mistake, and of the two, fraud is generally most supportable.
Fraud is generally defined as the making of an intentionally false statement of past or present fact, to another party, who justifiably relies upon the statement and suffers some form of detriment or injury. Note that “future facts”, such as “I’ll gladly pay you Tuesday for a hamburger today” must be distinguished from past or present facts, because future facts that turn out to be false are merely broken promises. They are broken contracts, while false statements of past or present facts make the claim that some fact exists now or existed in the past.
Fraud is criminal in nature and forms the basis for many lawsuits filed by dissatisfied purchasers, when their newly purchased home turns out to be a lemon or not as represented by the seller. The two primary documents that provide the evidence are the listing itself, and more importantly the Indiana Residential Real Estate Seller’s Disclosure Form (“Seller’s Disclosure”). The Seller’s Disclosure is signed under oath by the seller when the real estate is first listed for sale, and again at closing.
Because the standard of proof for a fraud claim is clear and convincing evidence, a purchaser must have very strong evidence to demonstrate the seller knowingly made false statements on the disclosure form. Absent clear and convincing evidence, a purchaser will find it difficult to succeed with any type of claim against the seller.
WARRANTY
ISSUES
A warranty is like an insurance policy that gives the holder the right to have an item of property, real or personal, replaced or repaired, by the party extending the warranty. The warranty is a benefit paid for with bargained for consideration, and where the consumer has not fully paid the seller, the requisite consideration may not trigger the benefits of the warranty.
Warranties related to real estate transactions generally include builders’ warranties, contractors’ warranties, third-party home-buyer warranties, appliance warranties, and implied warranties. Under Indiana law, builders who sell new homes must provide a written (10-4-2) warranty which warrants against major structural problems for ten (10) years from the purchase date, roof shingles and structure for four (4) years from the purchase date, and all other workmanship and materials for two (2) years from the purchase date. Implied warranties of habitability, good workmanship, and fitness for a particular purpose may also apply, unless specifically excluded by appropriate language placed within the purchase agreement that meets Indiana’s construction warranty statutes.
Sellers and buyers of existing homes may also incorporate a limited warranty for used homes into the sale. Such a warranty is sometimes paid for by the seller as an incentive to the purchaser. It is sometimes obtained by the purchaser at their own expense to help insure against the unknown.
Warranties issued by appliance manufacturers become binding contracts between the manufacturer and the home buyer once the products are registered with the manufacturer. Claims that arise under these arrangements must be resolved by the owner and manufacturer, typically without the involvement of the builder or seller.
One important thing to know about any warranty is that they usually expire after a certain amount of time, and they are almost always triggered only when the consumer follows the specific directions found within the warranty itself about notice to the party obligated to back the warranty.
MOLD
PROBLEMS
There are over 100,000 types of mold. Mold, in general, is not particularly dangerous, except when individuals with hypersensitivity to allergens encounter its spores. Those with hypersensitivity to mold may suffer asthma, lung infections, or sinus attacks. Sometimes mold can become toxic, which can cause those who come in to contact with it to become very sick, even if they don’t have any hypersensitivity to mold. Some toxic mold spores have been blamed as the cause of death to infants and pets.
It is difficult to pin liability for the growth of mold on any individual person or entity, because mold is known to grow anywhere there is moisture. All homes have moisture. Therefore, proving the seller or builder is somehow responsible for the growth or existence of mold may be difficult. It may be a bit easier for a tenant to hold a landlord liable, particularly where the landlord is responsible for the maintenance of the home.
SUMMARY
The issues described above represent common real estate problems affecting the sale of real estate. They are by no means an exhaustive list. What is obvious from this brief survey of real estate related issues, is that there are a great number of legal issues that affect real estate and the people who buy and sell it. When things go wrong, consult with a qualified experienced real estate lawyer, and take steps to protect your rights and your investment.
You’re sitting at a stop light or in a line of bumper-to-bumper traffic on a highway, and……WHAM……you’re rear-ended by an inattentive driver. Your neck is sore, and you may have a headache. You may be taken by ambulance to the ER or go to the immediate care center or your primary care physician on your own after the accident. They will likely diagnose you with a cervical strain (“whiplash”) and prescribe you some pain relievers and in 4-6 weeks you will be good as new. But what happens if you’re not ok in the near future?
You may be one of the unlucky people who take longer to recover than normal or who do not respond well to treatment. If your original course of pain meds along with your refill have run out, you may need to consider physical therapy to work out the kinks. Many times meds along with physical therapy will help even the most painful neck strains, but sometimes those conservative therapy regimes don’t work either. What do you do now? It has been nearly two months, and you don’t feel better from your neck injury from a car crash?
You may be referred to get facet point injections in the site on your body where the pain is still occurring. These initial injections will usually do the trick. You will feel better, get back to your normal routine, whether it be work or working out. You can count yourself lucky that nothing worse happened. You can turn in your medical bills and lost wages to the insurance company of the person who rear-ended you and you can settle your claim. What if those injections still don’t help? What if it’s a year later and you still have headaches, a sore neck and you feel fatigued?
You may need more aggressive treatment called nerve ablation therapy. With ablation therapy, heat waves are used to kill tissue that is causing pain to radiate throughout your body. This procedure will often allow for longer periods of pain relief than the standard facet point injection. Relief is usually felt about 48 hours after the procedure takes place. Patients who receive ablation therapy will need to rest and avoid driving after the procedure and must communicate with their doctors about what pain relievers may be used immediately following the procedures.
Ablation therapy typically relieves pain for anywhere from 6-8 months to a year. The procedure may not be a long-term solution and does have the risk of side effects such as allergic reaction or infection, so all options should be considered with your doctor when dealing with a long-term neck injury. Be informed about what the risks and benefits and stay in constant communication with your healthcare provider along each step of the way.
Consult a legal professional PRIOR to signing a claim settlement. An attorney that is knowledgeable in injury laws can assist you with your insurance claim. We are here for you.
Ask any Indianapolis family law attorney and they will tell you that child Custody law is a complex landscape that can leave any parent or guardian, mother or father with many questions and concerns throughout the process. Within the state of Indiana, child custody is based on the principle of “best interests of the child.” The best interest of the child (“BIOC”) standard is based on such factors as: love and affection and emotional ties between a parent and child; capacity of one parent or another to take care of the child; time spent by the child in one environment or another; the moral fitness of the potential custodial parents; the willingness of the parties to encourage a close parent-child relationship with both parents; and any other factor that a judge would determine to be relevant. This list is non-exhaustive.
Divorce can lead to some tough decisions by both parents and the court in determining child custody and support obligations. In the grand scheme of things, a parent cannot put a price on their child’s well-being. The most important part of a divorce for couples with children involved is custody. How custody is determined in Indiana is under the BIOC. The BIOC is determined by many relevant factors relating to the care and health of the child. Indiana code section 31-14-13-2 discusses factors of custody determination more in specifically. There are eight factors that help the court decide which parent should get custody of the child.
The eight factors listed are as follows.
1. The age and sex of the child 2. The wishes of the parents in the custody determination. 3. The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen years old. 4. The interaction and interrelationship of the child with: a. The parents b. Other siblings or step-siblings. c. Any other person who may significantly affect the child’s best interest. 5. The child’s adjustment to home, school, and community. 6. The mental and physical health of all individuals involved. 7. Evidence of a pattern of domestic or family violence by either parent. 8. Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider other factors.
Many times, divorcing parents will agree to custody and support obligations before the official Divorce Decree is issued by the court. In such cases, the court will use this agreement as a potential guideline for granting its support and custody holding. The agreement between the divorcing parents must be in the BIOC to be enforced or upheld by the court.
Also, there are different types or levels of custody to be obtained by guardians. First, there is legal custody which involves the parenting decisions and important legal or educational decisions to be made on behalf of the child. Second, there is physical custody which involves being the guardian or parent who controls the household in which the child resides for a majority or equal amount of time. Finally, there is joint custody which involves sharing physical or legal custody equally. If you do not have shared physical custody, the parent or guardian without physical custody usually has visitation rights or parenting time.
In aiming to get custody or a larger share of child custody during a divorce it is important to show that it is in the BIOC. Parents should always carry themselves in every facet of their lives in such a manner that would show them as favorable parents in the eyes of the court. Remember, moral fitness is a factor in determining custody of children. Further, being involved in the child’s life and maintaining good relationships with all your children shows you care about your children. Spending time with children and displaying that you have a clear and expecting role in the children’s lives is important in determining child custody. The court will ask parents and guardians questions about their involvement with the children to determine the parent or guardian’s role in the life of the child.
Along with the custody battles that ensue following a child custody hearing comes the potential for child support payments by one of the parents. Child support payments in Indiana are calculated by a formula created by the state. Included in this formula are factors such as: the party’s gross income; the cost of childcare; healthcare for the child; and amount of parenting time exercised by the non-custodial parent. Hiding any of this information is forbidden and can severely cut a parent’s chances of gaining favor with the court. The best way to avoid paying child support is to share as equally as possible in the custody of your child with the other parent. This not only a benefit the parents; it will help foster a loving and caring multifamily environment for the child.
A “Force Majeure” clause is a contractual provision found in many contracts, typically in commercial leases, that sets forth the criteria by which one or more parties may be relieved of their obligations to perform under the lease in the event something overwhelming prevents a party from performing. Of course, not just any event will be sufficient, it will generally require that the event be so overwhelming as to render performance impossible and not merely inconvenient.
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Yes, indeed, you have legal issues and you may be wondering what all this means for your particular case. Most law offices are prepared with a continuity plan for emergencies like this. Lawyers can do much of what they do from home. They can continue to work on your case, generally, without the need to meet with you in person or to leave home, as long as they have a computer and a link to the internet.
Indiana courts have given a broad definition to the term “public highway” in limited circumstances. Where evidence is produced to demonstrate a path of common travel has been used for a period of twenty years prior to 1988 (when Indiana codified a more restrictive definition of public highway) Indiana courts have declared such a path to be a public highway. So, the use of the path must be shown to have been in use by 1968 or earlier. This use has few if any restrictions. Evidence of this use need not show any number of users. It need not show the frequency of the travel or its particular use. It need not be defined by structures or gravel, pavement or any other material. It also does not matter that the path terminates on the land-locked property or that the only people who used it were the people who either lived on the land-locked parcel or their guests. This remedy will be more difficult to prove as the years roll on, because much of the evidence necessary to demonstrate this use will die off with the people who would have personal knowledge of it. 
Many people are attracted to ads that offer to sell them a home on a “rent to buy” basis. These arrangements have become more popular as the requirements necessary to secure conventional mortgage financing became more difficult to satisfy. Recently the Indiana Supreme Court addressed the enforceability of one particular buyer/seller agreement, and its decision will no doubt go a long way toward protecting buyers who might otherwise enter into such oppressive contracts. In the Rainbow Realty vs. Carter case, the Indiana Supreme Court held “the parties’ “rent to buy” agreement is not a land-sale contract, but a rental agreement subject to Indiana’s residential landlord tenant statute.
Most real estate sales end happily ever after, including the For Sale By Owner Indianapolis (FSBO) transactions. That is most, but not all. Because the seller is typically in receipt of the net sale proceeds at closing, sellers rarely find themselves with any complaints. The overwhelming majority of real estate lawsuits are initiated by disgruntled buyers, who sue their sellers. The buyer takes the risk that they won’t have problems with their home, and the seller takes the risk they won’t be sued. Capeesh?
If you are the party suing (“The Plaintiff”) another party that owes you money (“The Defendant”) in court, and you win a judgment will be granted in your favor. The Court will typically order that the Defendant pay you within a given time frame, but what happens if that person does not pay? How can you collect the judgment? Here is some information that can help you on collecting on judgments in Indiana
However, because the judgment stays valid for so long, all hope is not lost. Many people who are younger make poor financial decisions but later after becoming established financially, they may want to buy a house or a car. The lender is going to run a credit check on the buyer to see if there are outstanding judgments. That 10-year old judgment that seemed to be uncollectible may now get paid in full as the buyer, your judgment debtor, needs to clear up his/her credit. People can often find money to pay for judgments when these outstanding judgments prevent them from obtaining something they really want.
You’re sitting at a stop light or in a line of bumper-to-bumper traffic on a highway, and……WHAM……you’re rear-ended by an inattentive driver. Your neck is sore, and you may have a headache. You may be taken by ambulance to the ER or go to the immediate care center or your primary care physician on your own after the accident. They will likely diagnose you with a cervical strain (“whiplash”) and prescribe you some pain relievers and in 4-6 weeks you will be good as new. But what happens if you’re not ok in the near future?
