Real Estate – Buyer and Seller Contracts

In New Jersey, when a real estate broker prepared contract is signed by a Buyer and Seller, the parties have the right to consult with an attorney who may then disapprove the contract for any reason at all. This right to terminate the contract for any reason is available to both parties to the contract so long as it is exercised within three (3) business days of the parties’ receipt of fully executed or signed contracts.

This “attorney review period” was created by the New Jersey Supreme Court and is applicable to contracts prepared by licensed real estate brokers and sales people for residential real estate containing one to four dwelling units and for the sale of vacant one-family lots in sales which provide the realtor with a commission or other fee interest. The attorney review provisions also apply to documents prepared by a real estate broker or sales person which materially modify the original contract.

During this initial three (3) day period, if neither party exercises their right to have an attorney review the contract, the contract will be binding. Likewise, if both party retains a lawyer, and that lawyer does not disapprove the contract within that same three (3) day period, the contract becomes binding. The review period may be extended by mutual agreement of the parties.

Once an attorney “disapproves” the contract during the attorney review period, the contract is terminated and, it will remain terminated until the parties, through their attorneys agree to any proposed changes. As soon as the parties agree to the changes, the contract becomes binding subject to the agreed upon changes. This negotiation process may exceed the initial three (3) day review period. If a contract is terminated during the attorney review and the parties cannot agree on proposed changes, the Buyer would be entitled to the full return of any deposits.

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Be Careful Using a Power of Attorney

If you have been named in a Power of Attorney (“POA”) as the agent (also known as attorney-in-fact) to act on behalf of another, you must be careful to act within the letter and spirit of the law when you exercise that authority.  Here are some things to watch out for.

  • First, did the POA take effect yet, and if so, is it still in effect?  In New Jersey, a POA may be effective when signed, or only in the event of disability; it may be durable, or it may lapse over time.   There are other factors that may  come into play as well; perhaps the principal (the person for whom the power is exercised) was under a disability at one time, but has since improved.  In such a situation, the POA may be revoked.  Furthermore, a POA ceases to be valid upon the death of the Principal.
  • Second, does the POA give you the specific authority that you are seeking to exercise as agent?  This can be complicated.  A POA may be limited to one purpose, such as authorizing you to sell the principal’s house; if that is the case, then you are not permitted to use the POA for any other purpose at all.  A POA may include express and implied powers, or a catch-all phrase referring to all powers necessary to carry out its purpose.  Most banking transactions are not authorized unless the POA contains certain specific language to that effect.  Similarly, an agent may not make a gift on behalf of the principal without an express grant of gifting authority within the POA.
  • Third, are you acting for the sole benefit of the principal?  As the agent, you owe a fiduciary duty to the principal to act for the principal’s sole benefit.   Breach of that fiduciary duty is punishable by law.
  • Fourth, are you keeping accurate records?  This is another duty that the agent owes to the principal.  As the agent, you may be legally required to render an accounting.
  • Fifth, do you need to retain a financial planner, an accountant, or an attorney to properly discharge your responsibilities as agent?  This is particularly important to assess if the principal has given you the authority to manage investments or other financial matters.

These are just some of the things to keep in mind when using a POA, not an exhaustive list.  As always, there are “ifs, ands, and buts” too complicated to summarize in this blog post.  Call us with any questions about your particular circumstances.

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Involved in an Automobile Accident? Who is Going to Pay the Medical Bills?

“I was involved in an automobile accident, who is going to pay my medical bills?” This is probably the most common question asked by our clients.  There is a common misconception that the insurance company for the “at fault” driver is responsible for payment of these bills.  In some states that is accurate.  However, in New Jersey we operate under a “no fault” system.  This means that the issue of who caused the accident is irrelevant to determining whose insurance carrier is responsible for payment of your medical bills.

In New Jersey, every personal automobile insurance policy has a coverage Personal Injury Protection or PIP Benefits for payment of medical bills for a covered accident.  This coverage provides that if you were injured in an accident, regardless of fault, your medical treatment would be paid for by your own automobile insurance carrier’s PIP Benefits. This is true whether you were in your own vehicle or someone else’s.  Your PIP benefits follow the insured person, and not the vehicle.  So, even if you were in an automobile accident, but as a passenger in a friend’s car; again it is your own automobile insurance policy’s PIP coverage that pays for your medical treatment.

You may ask, what if I am a passenger in another automobile that was involved in an accident in New Jersey but I did not have automobile insurance of my own?  The law in New Jersey requires that the injured person is eligible for these same PIP benefits under a policy of personal automobile insurance under a policy issued to a “resident relative” with whom you resided at the time of the accident.  If neither you nor a “resident relative” insure a motor vehicle, then you would look to the “host” vehicle’s insurance policy (the owner of the vehicle you were in at the time of your injury) for PIP benefits.

If you have been seriously injured in an automobile accident it is critical that you retain an attorney with knowledge and direct experience in taking on the auto insurance companies who will likely prematurely cut off your medical treatment regardless of how you feel.  Our attorneys provide compassion for our clients while protecting your rights against the insurance industry and ensure that the medical treatment that you require due to injuries sustained in an automobile accident are not unfairly denied or under paid.  Call us immediately to protect yours and your family’s rights.

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Definitions of Common Terms in Estate Proceedings

If you are confronted with the need to administer the estate of a loved one who has died, you may find it helpful to familiarize yourself with the definitions of some terms you’ll be hearing.

The word “estate” in this context means, generally, the deceased person’s assets and liabilities.

Estate administration” and “probate of the estate” are terms referring to the process of settling claims, paying debts and taxes, and distributing assets. An estate is administered, or probated, through the Surrogate Judge of the county where the decedent lived. The Surrogate also handles important non-financial issues involving the estate, such as the appointment of guardians for minor children.

An estate’s personal representative is called an executor if named in the will; if there is no will then the estate’s personal representative is called an administrator. (The feminine forms are “executrix” and “administratrix”.) An estate’s personal representative must qualify and be appointed by the County Surrogate, who issues formal letters as evidence of the appointment. Those letters give the personal representative the legal authority to act on behalf of the estate.

Probate assets” are those which may be distributed in accord with instructions contained in the will, or if there is no will, those distributed to next-of-kin as defined by New Jersey law. By contrast, the ownership of non-probate assets will change hands automatically, by operation of law, upon the death of the owner. An asset such as a retirement account may or may not be subject to the probate process, depending on whether an individual beneficiary is named, or whether the estate itself is the named beneficiary.

A Refunding Bond and Release is a document used to finalize the estate administration process. Each heir signs such a document to confirm that: (a) he received his inheritance; (b) he is bound to refund any portion of the inheritance necessary if an estate debt, such as an unpaid tax, is discovered later; and (c) he is forever releasing the estate’s personal representative from any potential liability, because the probate process was completed properly.

Contact The Legato Law Firm, LLC

As always, there are “ifs, ands, and buts” too complicated to summarize in this blog post. Contact us online for your estate planning matters, or call our office at 908-725-9800 to see if you qualify for a free initial consultation. We offer evening and weekend consultations by appointment, and accept all major credit cards. We will also travel to your home to meet with you, if necessary.

Traffic Offenses in New Jersey – Avoiding Points

What options do people have to avoid motor vehicle points when they receive a speeding ticket or other traffic offense in New Jersey?  Depending on their circumstances, the answer we advise to clients is usually the “unsafe operation” statute.

In New Jersey, under this law, you can avoid points by pleading to this, but no more than two (2) times in a five (5) year period. The penalties are as follows:

  • First Offense: $50-$150 fine and a $250 surcharge
  • Second Offense: $100-$250 fine and a $250 surcharge
  • Third Offense: $200-$500 fine, 4 points, and a $250 surcharge

If available to you, this can be a very useful plea for purposes of avoiding points on your driving record.   However, given the escalation of penalties, and the number of times within which it may be used, this “No Point” option not may not be the best course of action for you.

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If you have received a traffic ticket that carries points, please feel free to call our office to schedule an appointment and discuss your options.

Contact us by e-mail or call our office at 908-725-9800 to see if you qualify for a free initial consultation.

 

Do You Need a Living Trust?

Every so often we receive an inquiry about living trusts, also known as revocable trusts. Living trusts have been heavily marketed in the recent past, and some myths are still circulating about them.

One myth is that everyone needs a living trust to avoid probate, which is the court-supervised process of settling an estate. It’s true that wills must be probated, and living trusts need not be. But in New Jersey, the cost of probate is relatively low, and the court does not have to be involved at every step. In addition, while New Jersey probate records are open to the public, those records do not necessarily have to include details of assets and liabilities.

Another myth is that living trusts, but not wills, may help minimize estate and inheritance taxes. The truth is that either a living trust or a will may contain similar tax-saving provisions.

Still another myth is that a living trust is required to plan for the possibility of future incapacitation. In many cases, it may be sufficient to have a durable power of attorney (POA). One major advantage of a durable POA compared to a living trust is that a POA does not require re-titling of assets.

We recommend living trusts where circumstances warrant, chiefly for those who own certain types of assets outside New Jersey. But for most New Jersey residents, a living trust simply is not necessary.

Contact the Estate Planning Lawyers at The Legato Law Firm Today

As always, there are ifs, ands, and buts too complicated to summarize in this blog post. Contact us online, or call our office at 908-725-9800 to see if you qualify for a free initial consultation. We offer evening and weekend consultations by appointment, and accept all major credit cards. We will also travel to your home to meet with you, if necessary.

What Steps Should You Take if You Find Out That There is an Underground Oil Tank on the Property of the New Home You Are Buying?

Even if the Seller provides paperwork showing the oil tank was properly decommissioned, that is no guarantee that there has been no contamination of the surrounding soil since then, or that the integrity of the tank will not be compromised in the future.

The most prudent course of action is to have the tank removed prior to closing. As part of the removal process, a municipal inspector should be present to assess the condition of the tank, and to determine if soil testing is required. You may also choose to have the soil tested after the tank is removed, regardless of whether the inspector requires it.

If contamination is found, the Seller should pay for remediation and obtain a “No Further Action Letter” from the New Jersey Department of Environmental Protection.

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Our attorneys protect your rights when purchasing a home to ensure that the appropriate steps are taken on your behalf. Call us before you buy.

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Protecting Your Rights after a Car Accident

headlamp-2940_640When you’ve been in a motor vehicle accident, it’s important to take the right steps to protect yourself.

Here’s what you should do in the immediate aftermath of a traffic accident:

Get the Medical Care You Need

The most important thing you need to do after a motor vehicle accident is seek treatment for any injuries. If you are unable to move under your own power, don’t try to do so. This isn’t the time to be heroic, it’s the time to let others take care of you, if necessary. Wait until emergency medical technicians or professionals arrive. Let them decide if you need to travel to the hospital by ambulance.

If you are able to move about on your own, it’s still critical to obtain medical treatment immediately, whether by taking yourself to the hospital, going to an urgent care facility or scheduling an appointment with your family doctor. The longer you wait to obtain medical care, the greater the risk that defense attorneys can argue that your injuries were not severe or were caused by some other incident.

When you seek medical care, ask doctors and nurses to document everything in writing. Be sure to tell them about everything you can remember, and about anything that seems out of the ordinary. Don’t focus on the broken arm and forget to tell them about the stiffness in your back or neck. Often, the most debilitating injuries sustained in a car accident are the ones that take a day to two to appear.

Document Everything

To the extent possible, you want to get a record of everything related to the accidents. Gather all contact information from any other parties involved in the accident, including name, phone number, e-mail address and insurance provider (for other drivers). If there were witnesses, ask for their contact information as well, so that your lawyer can easily contact them when preparing your lawsuit. Take pictures of everything related to the accident, from the damage to all vehicles to any injuries you sustained, from the road conditions at the time of the crash to the weather or any stop signs or road signs at the scene of the wreck.

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At the Legato Law Firm, we offer evening and weekend consultations by appointment, and accept all major credit cards. We will also travel to your home to meet with you, if necessary.

Contact us by e-mail or call our office at 908-725-9800 to see if you qualify for a free initial consultation.

 

Happy Thanksgiving!

Happy Thanksgiving!

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The Deemer Statute and Choice of Law

When you are involved in an automobile accident it is important to have an attorney who understands this complex area of law. For instance, what are the insurance liability issues if you are a New Jersey resident, injured by an out-of-state driver in New Jersey?

The Deemer Statute imposes on all insurance carriers that transact or are authorized to write automobile business in New Jersey the obligation to include a provision that their policies will provide coverage at least equal to the “standard” New Jersey policy minimums whenever the insured vehicle is used or operated in this state. New Jersey’s Deemer Statute is intended to ensure that New Jersey residents injured by out-of-state vehicles have recourse to policies of insurance that provide coverage at least as broad as a New Jersey Policy. Thus, when an insurer does business in New Jersey (or is authorized to do business in New Jersey) the Deemer Statute, N.J.S. 17:28-1.4, eliminates the choice of law analysis. Instead, there is a full cause of action for an out-of-state insured injured in a New Jersey automobile accident for the full benefits provided by New Jersey law. Adams v. Keystone Ins. Co., 264 N.J. Super 367 (App. Div. 1993) See also Hamilton v. Gov. Employees Ins. Co., 283 N.J. Super. 42, 429-430 (App. Div.) certif. granted 142 N.J. 573 (1995), D’Orio v. West Jersey Health Systems, 797 F. Supp. 371 (D.N.J. 1992)

The statute itself creates three categories of Deemer coverage:

  • A. Policy is sold in any other state or Canada by an insurance carrier that is authorized to sell automobile insurance in New Jersey; Policy is deemed to include liability, uninsured motorist, and PIP   coverage to the same extent as a New Jersey “standard” policy.
  • B. Policy is sold in any other state or Canada by an insurance carrier that is not itself authorized to sell automobile insurance in New Jersey, but that is legally affiliated with a company that is legally affiliated with a company that is authorized to write automobile insurance in New Jersey. Policy is deemed to include liability, uninsured motorist, and PIP coverage to the same extent as a New Jersey “standard” policy.
  • C. Policy is sole in any other state or in Canada by an insurer that is not itself authorized to sell automobile insurance in New Jersey but that is legally affiliated with a company that is not itself authorized to sell automobile insurance in New Jersey, but that is legally affiliated with a company that is authorized to write non-motor-vehicle related insurance in New Jersey. Policy is deemed to include PIP coverage for New Jersey residents who neither have, nor are required to have, PIP coverage.

Where the Deemer Statute does not apply, i.e. out-of-state insureds whose insurance carrier does not do business in New Jersey, or for New Jersey insureds injured in accidents outside of New Jersey, an ordinary choice of law analysis must be used. Absent a “Deemer Statute” one must do a “choice of law” analysis. Under a “choice of law” analysis an automobile policy is a contract that is generally governed by the laws of the state where the car is registered and garaged.

The analysis for a New Jersey Choice of Law case was explained by the Supreme Court in State Farm, etc. Ins. Co. v. Simmons’ Estate, 84 N.J. 28 (1980) aff’g 169 N.J. Super. 133 (App. Div. 1979). This case was decided prior to the Deemer Statute but the choice of law analysis still applies today:

“[New Jersey’s approach to choice of law questions] calls for recognition of the rule that the law of the place of the contract ordinarily governs the choice of law because this rule will generally comport with the reasonable expectations of the parties…At the same time, this choice of law rule should not be given controlling or dispositive effect. It should not be applied without a full comparison of the significant relationship of each state with the parties and the transaction. That assessment should encompass an evaluation of important state contacts as well as a consideration of the state policies affected by, and governmental interest in, the outcome of the controversy…

[I]n an action involving the interpretation of an automobile liability insurance contract, the law of the place of the contract will govern the determination of the rights and liabilities of the parties under the insurance policy. This rule is to be applied unless the dominant and significant relationship of another state to the parties and the underlying issue dictates that this basic rule should yield.”

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