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Garden City, NY Estate Planning & Complex Litigation Blog

Monday, October 7, 2019

What You Should Know About A Brokerage Agreement Before You Sell Your House

When engaging a realtor to list a home, the realtor will ask a seller to sign a listing agreement which will detail the broker arrangement and the terms of paying the commission.  You should consult an experienced real estate attorney before you sign a brokerage agreement  

Key Terms of a Real Estate Brokerage Agreement

A brokerage agreement should properly identify the property (by address or block and lot) and the price the home is offered for sale.  Additionally, the agreement should list a term and expiration date. If the house doesn’t sell during this time (usually 6 months or less then a year) the seller may want to engage a new broker to sell the home.  

In any event, a seller should not enter into a brokerage agreement with no end. In addition, there will often be a “grace period” whereby if anyone that the agent showed the property to buys the property within thirty (30) days after the termination of the listing agreement, the agent is entitled to the commission.  The agreement should provide the percentage of commission the listing agent will receive as well as the commission the buyer’s agent will receive. A total commission of 2-6 percent of the sale price is customary and varies from locale to locale.   

An exclusive agency agreement means the realtor is entitled to a commission even if the seller brings the buyer.  In some instances a seller may ask for exclusions to the exclusive agreement, meaning the agent is not paid if a neighbor or relative of the seller’s buys the home after the seller showed the property.  

A seller will want to be clear if the agreement is with a particular agent at a real estate office.  If the seller enters into the agreement without a named agent (i.e. “Christian W. Breyers” of We Sell Homes Realty), anyone in the real estate office who consummates a sale is entitled the listing commission.   

When a listing agent who represents the seller also brings the buyer, that is called a “dual agency” and both parties (Seller and Buyer) must be notified that the agent represents both and that each party should provide written informed consent to any conflict of interest.  The agent’s fiduciary duties of disclosure and undivided loyalty will not be the same in a dual agency. 

The agreement should list the methods the agent will use to market the property, such as internet sites, newspaper listings, and open houses. The agreement should state who pays the expenses of marketing and photographing the property (generally the agent’s expense.)

The Takeaway

A listing agreement to sell a home is an important agreement in a real estate transaction that should be reviewed by your attorney for the foregoing issues.


Friday, September 20, 2019

Spinal Cord Injuries Overview

The spinal cord is a long “cord” of nervous tissue that extends from the brainstem to the lower portion of the back. The spinal cord is the communication highway for the human body. It facilitates the communication between your brain and the rest of your body. When the spinal cord is damaged, the brain’s ability to communicate with the rest of the body is often impaired. 

How serious is a spinal cord injury?

Exceptionally. Because the spinal cord allows for communication within your body, the inability to communicate can result in the loss of feeling or control of body parts that can no longer communicate with the brain. This can cause numbness in limbs and paralysis in more severe cases. In the most extreme cases, a spinal cord injury is deadly.

How are spinal cord injuries diagnosed?

If you believe that you may have suffered a spinal cord injury, you should consult a doctor immediately. Only a doctor can accurately diagnose a spinal cord injury. In diagnosing spinal cord injuries, doctors will employ X-rays, computerized tomography (CT) scans, and magnetic resonance imaging (MRI) to evaluate whether the spinal cord has been damaged. Additionally, the doctor may employ tests such as sensitivity and muscle strength tests to determine whether there is a communication issue between the brain and the rest of the body. 

Can a spinal cord injury heal on its own?

Rarely. Due to the specific make-up of nervous tissue and the scar tissue that forms around the injured nervous tissue, the spinal cord is generally unable to heal itself. For those who have suffered a spinal cord injury, the effects are likely to be permanent without proper treatment. 

What treatments are available for spinal cord injuries?

At the moment, no known treatment exists to effectively reverse spinal cord damage. Unfortunately, damage to the spinal cord is most often permanent. However, this does not mean that there aren’t treatments and other remedies available to help individuals recover, regain mobility, and return to their normal lifestyles.

Currently, prostheses and medications are used to help patients cope with spinal cord injuries. New treatments are constantly under research, but at the moment, there is no federally approved treatment that can help the spinal cord heal. However, a recent study by the German Center for Neurodegenerative Diseases found that the cancer drug epothilone reduced the formation of scar tissue surrounding spinal cord injuries and stimulated growth in damaged cells in animals. This treatment is still far from involving human patients, but it presents significant progress in the search for spinal cord injury treatment. 

Spinal cord injuries are life-changing and can result in exorbitant medical expenses. If you have suffered a spinal cord injury, consult with an experienced personal injury attorney to determine what actions may be available to you.


Friday, September 13, 2019

What You Should Know About a Brokerage Agreement for the Lease of Commercial Space

A landlord and a broker typically enter into a brokerage agreement in connection with the leasing of commercial space. The best way to protect your interests is to consult an experienced real estate attorney before signing such an agreement. 

Key Terms of a Commercial Lease Broker Agreement

A broker who finds a tenant for a landlord of commercial space is entitled to a commission. The broker will want the agreement to be “exclusive” which means the broker gets paid the commission regardless of which party brings the tenant.

The landlord should verify that the broker is licensed in the state where the rental property is located. The agreement should identify the rental space (office or retail) and the building address. Generally, the commission will not be earned until a lease is signed, the tenant has paid the first month’s rent in advance and taken possession of the property.  

The agreement will describe the rate of commission for the initial term of the lease and any renewal periods. If a lease has an escalating rent provision, the parties may agree on a flat commission or a commission based on a percentage of ech years’ rent. Certain items that are not included in the rent may be excluded when calculating commissions such as the utility costs, any free rent or construction costs.  The agreement should also consider the rate of commission if the tenant takes on additional space in the building (whether adjacent or on another floor).  

An example a commission rate schedule for a five (5) year lease with an option to renew: 

For the first (1) year of the lease, or any fraction thereof               5%

For the second (2) and third (3) year, or any fraction thereof        4%

For the fourth (4) and fifth (5)year, or any fraction thereof            3%

Any renewals                                                                                  2%

While a commission rate may be calculated based on the changing rental rate, the commission is usually paid in one lump sum at the time of lease signing. It should be noted that if a tenant terminates, or violates a provision of, the lease, the landlord can sue the tenant to recover damages --  the amount the commission paid to the broker.

The agreement may provide a protective clause known as a broker indemnity whereby both parties state there are no other brokers entitled to the commission.  If the brokerage commission is not paid, the broker can place a lien on the property.  

A landlord may want certain key individuals in a brokerage agency to work on the lease the property and may name such individuals.  Then, a new broker can only be placed on the matter if the landlord consents to such broker.  

The Bottom Line

In the end, a commission agreement for the lease of property varies from a commission agreement for the sale of the property and the forgoing issues deserve serious consideration.


Friday, September 6, 2019

How the IRS Treats Personal Injury Awards

You've reached the end of your personal injury lawsuit and finally have the award you deserve. Court costs, attorney's fees, medical costs, and other expenses will need to be paid. But what about the IRS?

Most personal injury awards are not subject to federal taxes. The tax treatment of your award will be the same, whether it was reached through trial or settlement. However, personal injury awards are complex and contain both taxable and non-taxable parts.

Non-taxable

The portion of your award that compensates you for physical injuries is generally not taxable. Medical bills are perhaps the most significant portion of your award that falls under this category. 

Pain, suffering, and emotional distress damages are also not usually taxable. But these must be directly related to your physical injuries. Property damage is another type of award that typically does not get taxed. The IRS views all of these as reimbursement to the victim and so excludes them from federal taxes.

Taxable

On the other hand, lost wages are taxed. This is an award intended to compensate someone for work that was missed due to an injury. However, had the person not been injured and had earned that money, it would have been taxed. The IRS therefore will tax any portion of damages covering lost wages. Some plaintiffs also deduct out-of-pocket medical costs on previous tax returns. If you wrote off these sorts of eligible expenses in a previous tax year, the compensation you receive for them will likely be taxed.

In some personal injury cases, the court awards punitive damages. These are designed to punish particularly offensive behavior on the part of the defendant. The IRS considers these awards to be in addition to the actual losses incurred by the plaintiff, and so they will be subject to tax.

It's important to understand how exactly your personal injury award is divided up among all of the different types of damages. Failing to make this distinction could subject the entire amount to taxes. Talk to your personal injury attorney so you understand exactly what you have been awarded.

One way to manage personal injury taxes is to use what are called structured settlements. These pay the plaintiff over time instead of all at once, which could lighten the tax burden. 

When you've received news of your award or settlement, have your attorney categorize each part. Talk with a tax professional who can provide assistance specific to your situation, and who can also advise as to any tax consequences from your state taxing authority. Tax laws and regulations change every year, so be sure to get the most updated advice from an expert.


Friday, August 30, 2019

What You Should Know Before You SIgn a Co-Working Space Agreement

Co-working is a popular, flexible work style for sharing a workspace and reducing overhead costs for the users. Users can choose an unassigned seat at a desk or a more formal private office setting. Co-working is on the rise in many industries but special care and concern should be noted for professions such as law that require confidentiality.  

What is a user office agreement?

There are many companies that offer co-working facilities, especially in urban environments and these providers will often require the user to sign a User Office Agreement.  The agreement should clearly state that it is not a landlord/tenant lease. In fact, the landlord is the owner of the building, where as the co-work provider is the tenant and the member is a co-work user. 

Co-working agreements resemble a gym membership more then a lease agreement.   For example, the user agreement will list certain “house rules,” which give users the day-to-day rules regarding using the space and sharing it with other users.  Some of the key provisions to look for before signing a user agreement in addition to the fees to be paid are:

  • Term -- A user should review the term of the agreement. Is it month-to-month or annual?  How does a user cancel? Is there a notice period?  
  • Amenities -- A user will want to understand what amenities comes with the member’s agreement, such as use of copy machines (or is there a printing fee?), coffee, refreshments, mail delivery services, networking events and file storage/lockers.  
  • Access -- Can the user access the space 7 days a week/365 days a year (24 hours a day) with a key card or does the particular facility have closed hours.  
  • Relocation Rights --  If a user selects a formal office with walls and locked door, the user should be aware of any relocation rights the provider may have. Relocation rights basically give the provider the right to move the user to a different office, which may or may not have the same square footage, to accommodate a new user.
  • Internet -- The provider may provide free WiFi along with certain disclaimers regarding liability and damage to the user’s business.  Some providers will request users waive any rights in the event of a data breach.  This provision should be reviewed carefully especially for legal or financial industry users who may work with sensitive information.  
  • Disputes -- As with many other contracts, the method for resolving disputes -- arbitration, mediation or litigation -- should be specified.

The Bottom Line

Co-working is becoming a popular alternative to the traditional office lease. Users should review the user agreement to ensure that it provides for a productive and economical work style.


Friday, August 16, 2019

How to Prove Mental and Emotional Distress After an Automobile Accident

Car accident victims often suffer more than just physical injuries. The effects of mental and emotional distress can compound trauma long after the injuries have healed. A victim can be compensated for these types of injuries. Because mental and emotional damages are not always as obvious as physical ones, however, they are typically more difficult to prove.

What is emotional distress?

Evidence of distress includes anxiety, post-traumatic stress disorder, apprehension, and confusion. Some accident victims lose interest in things they once enjoyed, or experience dramatic shifts in their attitudes and temperaments. If you or a loved one has been injured in an accident, take note of these and other changes you observe.

There are various types of evidence that may substantiate a claim of distress, not the least topf which is therapeutic, psychiatric, and prescription records. In addition, witness testimony from family, friends, co-workers, and other individuals can attest to changes in someone's disposition after an accident. At times, video or photographic evidence can provide some of the strongest proof that a victim's demeanor has been altered.

As with any accident case, you will need to establish liability to claim distress.  This means proving the other driver was negligent in his or her actions, and that the negligence caused the accident.

However, not everyone affected by an accident can assert mental or emotional distress. The law is narrow enough to prevent individuals from claiming distress simply over hurt feelings or the shock of witnessing something. For example, random, unrelated bystanders to an accident cannot claim distress. If that were the case, the number of claimants could be astronomical. 

A victim who sustains a physical injury, which in turn causes mental or emotional anguish, can claim distress. But there are also cases of non-injury distress resulting from an accident.  An example of this is loss of consortium. This refers to the deprivation of a family relationship because of an accident, such as the death of a spouse or parent.  

In court, it will be your lawyer's job to attempt to quantify the degree of mental or emotional distress. Numerous factors will be taken into account, including the intensity of suffering. The duration and underlying causes of the distress are also relevant, along with the physical injuries (if any) associated with it. Finally, psychological symptoms can demonstrate the degree of the victim's suffering.

The Takeaway

In the final analysis, mental and emotional distress is a complex blend of science and law.  Accident cases usually require expert witnesses and extensive medical records. If you or a loved one has been involved in a car crash, make sure you get the treatment you need. Follow all advice from your physicians, therapists, and other mental and emotional health professionals.  Lastly, speak with an accident attorney about your rights.


Friday, August 2, 2019

Why You Should Consult a Personal Injury Lawyer Before Agreeing to a Settlement

A car accident can cause major disruption to your life. Not only do you want your injuries to heal, you just want things to get back to normal. Insurance companies know this, so they act quickly to make a settlement offer. While that dollar figure may be enticing, there are several reasons you should check with an attorney before accepting.

Don’t Settle for Less

Settlement offers tend to be way lower than they should be. Remember, insurance companies are businesses. Their goal is to minimize damage – dollar payouts – as fast as possible. So the sooner your case goes away, the easier it is for them. If you speak with an insurance adjuster, which you should never do before talking to a lawyer, that person may come across as sympathetic. But at the end of the day, you're a dollar figure to the insurance company.

In addition, many injuries worsen over time. Still others do not reveal themselves until months or even years later. Insurance companies aren't thinking about later, and they're counting on you not to, either. A proper settlement will account not only for current medical bills, but future ones.  Having an experienced automobile accident attorney in your corner will help evaluate whether the offer is a fair one. 

A good settlement will not only account for medical expenses. It will take into consideration pain and suffering, lost wages, decreased earning capacity, and numerous other things. If you're thinking about an offer, have you calculated all of these (and other) damages? An accident attorney can help evaluate your case and determine whether the offered amount is truly comprehensive.

Bear in mind, also, that settlement agreements tend to be complex works of legal writing put together by insurance company lawyers. They're not drafting these documents with your interests in mind. They have experience doing hundreds and thousands of these agreements, and they know which legal terms and clauses to use that will protect their bottom line. Once you accept a settlement offer and sign the agreement, there is no redo. You cannot renegotiate. And you certainly cannot take your case to court. There may also be restrictive terms such as non-disclosure agreements built in. With so much at risk, it just makes sense to have a lawyer review an offer before you sign.

The Bottom Line

A settlement offer can be a good thing. At the right amount, it can get you the payments you deserve without the time, stress, and delay of going through the court system. But don't be fooled into believing the insurance company and its lawyers are working for you. Have an experienced automobile accident attorney review the terms of settlement before you sign onto a costly mistake.


Friday, July 26, 2019

Why Does a Tenant Need to List "Additional Insureds" on its Insurance Policy for Leased Property?

When a landlord and tenant enter into a commercial lease for a retail store or office space, the lease will likely contain a long insurance provision as well as an indemnity provision.  An indemnity is a promise whereby one party promises to indemnify (or compensate) the other against some anticipated loss.  

The commercial lease insurance provision will state the types of insurance the landlord must carry on the building, such as casualty insurance for damage caused by fire, hazards or terrorism and liability insurance to cover damage to property, bodily injury or death. By contrast, the tenant will be required to obtain and pay for insurance covering casualty or liability occurring within the leased premises and coverage for the certain events that occur in common areas of the leased building, especially if due to the tenant’s negligence.  

The tenant is the named insured – that is the party paying for the insurance whose credit was reviewed when issuing the policy and determining the premiums.  The landlord will request certain types of insurance in certain amounts be on a “per occurrence” basis with permitted deductible amounts. Landlords will sometimes request a tenant to carry business interruption insurance.  The rationale behind this request is if an event occurs that interrupts tenant’s business, the tenant ymay lose revenue and then not have sufficient funds to pay the rent.

Why is the tenant being asked to add others to its insurance policy for casualty and liability ?

On most casualty policies (with the exception of business insurance), the landlord will ask to be named as an “additional insured” on the tenant’s casualty policy, together with other interested parties such as the landlord’s agents (e.g. the property management company, or the mortgage lender).

An “additional insured” is a person or entity other than the named insured who is protected under the terms of the insurance policy sometimes referred to as the “loss payee. “ Typically an endorsement to the policy is added to cover additional insureds.  Landlords feel this protection is like “a belt and suspenders.”

The landlord will sometimes request a full copy of the tenant’s insurance coverage, with an endorsement showing the additional insureds listed, but more commonly will request a “Certificate of Insurance” which is a one-page sheet showing the types of coverage, amounts and deductibles and the lists the parties covered as additional insureds. 

The Bottom Line

Both the tenant and landlord should have their attorney carefully review the insurance provisions of the lease and indemnity clause to determine that there is adequate protection for each party and reasonable coverage given the specific risks.


Thursday, July 18, 2019

What Does Joint & Several Liability Mean?


Joint and several liability is a concept applicable in many areas of law, including contract, debtor/creditor, partnership, insurance/indemnity law, real estate and personal injury law.  

In the context of personal injury (otherwise known as Tort Law), a key concept is negligence.  In order to prove negligence, there must be a duty of reasonable care, a breach of that duty, causation and damages.  A plaintiff in a personal injury case must prove there are actual losses caused by the defendant’s breach of the duty of care.  A plaintiff who is damaged by a defendant’s negligence will want the court to make the plaintiff whole again with compensation for such past, present and future losses, such as medical expenses, pain and suffering/impairment (mental and physical) and loss of earning capacity.
Read more . . .


Friday, July 5, 2019

Why Landlords Want Tenants to Obtain Renter's Insurance


Residential landlords will often include a provision in the lease requiring the tenant to carry renter’s insurance. Landlords do not want be sued by tenants for damage to their possessions and want tenants to look to their own coverage. Tenants often balk at an additional cost and mistakenly assume that they are covered under the landlord’s policy. This is not the case. 

In fact, the landlord’s insurance will cover repairs to or replacement of the structure from things from fire, water or storm damage.
Read more . . .


Thursday, June 27, 2019

Why You Should Give Your Spouse Power Of Attorney

Married couples will often have legal estate documents prepared together.  Such documents may include a will, leaving all property to the surviving spouse and/or the couple’s children, and a heath care proxy (sometimes known as a living will) to direct the spouse how to handle medical issues if one spouse becomes incapacitated.   However, another estate document may be beneficial for spouses -- a durable power of attorney.  

What is a durable power of attorney?

A durable power of attorney (POA) is a power of attorney given in the event of disability (whether mental or physical) by one spouse and directs the other spouse how to handle certain business or monetary activities detailed in the agreement.  Some instances of disability could include mental illness, physical illness, advanced age, drug use, alcoholism, confinement or disappearance.  

While state law may grant spouses certain rights to act for the other spouse, some activities may or may not be covered.  A power of attorney also helps spouses who may have separate ownership of property by giving the spouse the right to act on behalf of the incapacitated spouse. 

Some examples of business decisions in real estate matters where the well spouse is not a co-owner (perhaps because the real estate was a premarital asset or for other tax reasons) and can act for the incapacitated spouse are:

  • If the incapacitated spouse owns rental property, the other spouse can collect rent
  • To pay real estate taxes for properties that may not in both spouses ownership
  • To handle issues related to any mortgages
  • To take out property insurance

Some other general business related functions a durable power of attorney can include: 

  • To sue on the collect of a debt
  • To file for bankruptcy
  • To write checks and do banking transactions
  • To sell stock or other securities
  • To file tax returns
  • To manage retirement accounts
  • To borrow money
  • To make loans
  • To make charitable donations
  • To hire attorneys, accountants or other professionals

In the event state law did not allow a spouse to do any of the functions described above for its incapacitated spouse, a durable power of attorney signed by the incapacitated spouse before the disability (and notarized for validity) can come in handy in a family emergency. 


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Garden City, NY and assists clients throughout Long Island, including: the north shore of Long Island, The Town Of Oyster Bay, The Town Of North Hempstead, The Town Of Hempstead, The Town Of Huntington, Nassau & Suffolk Counties & throughout the Five Boroughs of The City Of New York.



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