On Mar 29, 5:22 am, Paul Cassel <pcasselremo...@comremovecast.net> wrote:
> John A. Weeks III wrote:
>
> > The question is if anything is in writing. In real estate, unlike
> > any other contract law, nothing else matters other than what is
> > put down on paper.
>
> I've seen this said many times in this forum, but never with a cite. Why
> do you say that real estate contracts differ from all others?
I'm guessing that John is referring, in non-professional language, to (1) the Statute of Frauds (different citation for each state, but basically similar, and all based on a pre-colonial English statute) which requires contracts for an interest in land to be in writing; and (2) the fact that, because realty is such a valuable asset and therefore people are expected to be extremely careful in dealing with it, the courts are generally unwilling to carve exceptions to the SOF to relieve a litigant who has made a bad decision in that regard. So if you don't put it in writing, the other side is not going to be bound by an oral agreement if a dispute arises and lands in court.
But IMO John goes overboard in saying this is "unlike any other contract law" since the SOF applies not only to realty transactions but to many other kinds of contracts, including suretyship or guarantee agreements for the debt of another, contracts that can't be completed in one year, and sale of goods worth more than $500.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Thursday, August 9, 2012
Mailman spoiled my newly poured driveway
On Mar 28, 6:56 am, "Sweet Polly" <udogs...@remove.hotmail.com> wrote:
<mailman walked across fresh concrete, leaving footprints>
> I called the post office today and reported it. As mad as I am about it, my
> husband is seriously upset and wants it fixed. As I said, I don't even know
> if it can be fixed without tearing it out, but if so, or even if not, can I
> expect any compensation from the city?
Um, no. The city doesn't owe you anything because the mailman doesn't work for them. He is a United States Postal Service employee (or, possibly, independent contractor, if you live in a rural area with contracted mail delivery). The entity you would have to make a claim against is the United States of America (the federal government, not city hall).
> This was blatant negligence.
Well, don't be too sure. How else is the mailman supposed to get to your mailbox to deliver your mail? Did you provide him with alternate access? Did your yellow caution tape go completely around the new slab, or only at the street edge (you said he apparently walked across the lawn from the neighbor's) where he may not have even seen the tape? Was it obvious to anyone first setting foot on the new slab that it was still wet and leaving an impression? Would your husband be just as mad if the neighbor's cat, or a wild animal, had walked across the new slab, leaving footprints? How bad does it look, really? And if it is merely a surface image and not a deep impression, maybe there is some kind of easy surface treatment you can do to fix it, with sandpaper or something.
> I live in Kentucky.
The rules for suing the Feds are the same there as anywhere else. You have to notify the appropriate agency, IN WRITING, preferably on the form they provide (called a Form 95) and comply with all other requirements under a law called the Federal Tort Claims Act (FTCA). You'll find that law in bits and pieces in various places in Title 28 of the U.S. Code (the Judiciary), and it will also have implementing regulations in the Postal Service section of the Code of Federal Regulations (CFR) that you have to comply with. You have to file your Form 95 within 2 years, regardless of what state law says about your statute of limitations, and your written claim MUST include a specific demand for a specific sum of money OR IT WILL BE LEGALLY INSUFFICIENT and will not preserve any right to sue if your claim is denied.
And based on your facts, I can almost assure you your claim WILL be denied, or at least will be sat upon for at least 6 months (which, under the FTCA is the same as a denial) and you will have to sue the USA in Federal court if you want to have a judge decide whether the USPS owes you money or not for this incident. Also, if you don't sue within 6 months after a formal denial (maybe it's actually 180 days, I forget; but of course you will read the statute yourself to know what you're doing) you ALSO lose the right to sue.
In Federal court, even your relatively small claim will have to follow all the rules of Federal civil procedure and you will be tying up the time of a busy Federal judge who will not be happy to spend his time on what amounts to a small-claims case and who may well take that into account when he decides whether to throw your case out for some minor procedural flaw in your paperwork or in your adherence to the court schedule and other procedural requirements. A pro se litigant (person representing himself) in Federal court doesn't have much chance.
> Can anyone advise?
My suggestion is, either try to fix it yourself or file a Form 95 and see what happens, since "there's no harm in asking", but if they deny your claim, fugeddaboudit, since suing the Feds if they deny your claim would be a major hassle with an unlikely chance of success in your situation. Good luck,
--
This posting is for discussion purposes, not professional advice.
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I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
<mailman walked across fresh concrete, leaving footprints>
> I called the post office today and reported it. As mad as I am about it, my
> husband is seriously upset and wants it fixed. As I said, I don't even know
> if it can be fixed without tearing it out, but if so, or even if not, can I
> expect any compensation from the city?
Um, no. The city doesn't owe you anything because the mailman doesn't work for them. He is a United States Postal Service employee (or, possibly, independent contractor, if you live in a rural area with contracted mail delivery). The entity you would have to make a claim against is the United States of America (the federal government, not city hall).
> This was blatant negligence.
Well, don't be too sure. How else is the mailman supposed to get to your mailbox to deliver your mail? Did you provide him with alternate access? Did your yellow caution tape go completely around the new slab, or only at the street edge (you said he apparently walked across the lawn from the neighbor's) where he may not have even seen the tape? Was it obvious to anyone first setting foot on the new slab that it was still wet and leaving an impression? Would your husband be just as mad if the neighbor's cat, or a wild animal, had walked across the new slab, leaving footprints? How bad does it look, really? And if it is merely a surface image and not a deep impression, maybe there is some kind of easy surface treatment you can do to fix it, with sandpaper or something.
> I live in Kentucky.
The rules for suing the Feds are the same there as anywhere else. You have to notify the appropriate agency, IN WRITING, preferably on the form they provide (called a Form 95) and comply with all other requirements under a law called the Federal Tort Claims Act (FTCA). You'll find that law in bits and pieces in various places in Title 28 of the U.S. Code (the Judiciary), and it will also have implementing regulations in the Postal Service section of the Code of Federal Regulations (CFR) that you have to comply with. You have to file your Form 95 within 2 years, regardless of what state law says about your statute of limitations, and your written claim MUST include a specific demand for a specific sum of money OR IT WILL BE LEGALLY INSUFFICIENT and will not preserve any right to sue if your claim is denied.
And based on your facts, I can almost assure you your claim WILL be denied, or at least will be sat upon for at least 6 months (which, under the FTCA is the same as a denial) and you will have to sue the USA in Federal court if you want to have a judge decide whether the USPS owes you money or not for this incident. Also, if you don't sue within 6 months after a formal denial (maybe it's actually 180 days, I forget; but of course you will read the statute yourself to know what you're doing) you ALSO lose the right to sue.
In Federal court, even your relatively small claim will have to follow all the rules of Federal civil procedure and you will be tying up the time of a busy Federal judge who will not be happy to spend his time on what amounts to a small-claims case and who may well take that into account when he decides whether to throw your case out for some minor procedural flaw in your paperwork or in your adherence to the court schedule and other procedural requirements. A pro se litigant (person representing himself) in Federal court doesn't have much chance.
> Can anyone advise?
My suggestion is, either try to fix it yourself or file a Form 95 and see what happens, since "there's no harm in asking", but if they deny your claim, fugeddaboudit, since suing the Feds if they deny your claim would be a major hassle with an unlikely chance of success in your situation. Good luck,
--
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I am not your lawyer, and you are not my client in any specific legal
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Intestate estate
On Mar 28, 6:56 am, "kkaiser1" <kkais...@juno.com> wrote:
> My father-in-Law died yesterday.
Sorry to hear about your family's loss. You have our sympathies.
> He has at least three bank accounts,
> that we know of, and only his name is on them.
Although it's too late to help your M-in-L with hindsight, hopefully other people reading this will realize that this is not the best way to plan for an easy transition and to provide for your loved ones. Estate planning isn't only for old people; a breadwinner can die at any time, and, realizing this, he should at least inform those he loves in some way of what steps they will have to take to access his assets after he dies. Much easier, yet, is to set up joint accounts or "pay on death" accounts or living trusts (if you don't want the beneficiary to have access to the funds while you are still alive) that avoid any transition time after you die; the money automatically becomes accessible to the heirs without having to go through probate. But none of that applies to your M-in-L, who has to deal with the facts on the ground as they are, after it's too late to plan.
> He did not have a will,
All that means is, the portion of his estate that has to pass thru probate (not including any joint or POD accounts, or trusts) will pass to his heirs according to the presumptions contained in the intestacy laws of the state where he resided at the time of his death, which probably means your M-in-L will get a major share but some will also go to his children. If he held property (such as bank accounts, but basically anything else too, including a home) in his sole name, I'm afraid the only way to transfer title to those assets is through probate.
> and we don't know about life insurance.
There's basically only one way to find out about that, which is to look through all his papers and see if you find anything. A subset of that approach is to check his incoming mail for a period of time and see if he gets mail (bills, privacy statements, annual reports, etc.) from a life insurance company, then you'll know who to contact and advise of his death to claim benefits.
> My questions is, How can my
> Mother-in-Law access these accounts to pay his final expenses without
> the added cost of hiring a lawyer?
Personally I think this is a penny wise pound foolish approach. Lawyers who handle estate administration have their fee bills closely regulated by state law and/or by specific court oversight and approval before they get paid, and they are generally not allowed to charge anything up front; the fee will eventually come out of the amount of your F-in-L's assets that pass thru probate, not exceeding a maximum percentage set by law in most states. At the very least it wouldn't hurt to set up an initial consultation (find a lawyer who will do that for free) for a half hour or so, to find out more specifics about the application of your state's laws in your particular situation, and then decide whether it makes economic sense to hire him or not.
If your M-in-L chooses not to hire a lawyer to help her with the estate, she can still apply to the appropriate court on her own to open probate and get herself assigned as the personal representative (PR) or administrator of your F-in-L's decedent estate. This can be done immediately if she knows what she is doing. The court will issue her a properly formatted, officially sealed, Letter of Appointment making her the PR, which she can then take around and show to banks to see if they have an account in her late husband's name. The banks are perfectly correct not to speak with her about his private affairs otherwise; but once she has been appointed his PR, she stands in his shoes and has control over his assets, including the right to withdraw or transfer funds from any accounts he held. Note well, though, that she has to exercise that right as PR for the benefit of ALL the legal heirs, not just for herself. Your F-in-L's assets now belong to a new entity called his "intestate estate", and after paying off his legitimate creditors (including medical and funeral expenses) what is left over will have to be distributed to the heirs in accord with the laws of your state.
If your M-in-L isn't up to handling all the duties that would be imposed on her as PR of her late husband's estate while she is still grieving, or just because she's clueless about what to do (no aspersions intended, but anyone who doesn't do this stuff for a living is going to have a steep learning curve at least initially) it would make a lot more sense to pay a professional to do this for her. Whatever she decides, I wish your family good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My father-in-Law died yesterday.
Sorry to hear about your family's loss. You have our sympathies.
> He has at least three bank accounts,
> that we know of, and only his name is on them.
Although it's too late to help your M-in-L with hindsight, hopefully other people reading this will realize that this is not the best way to plan for an easy transition and to provide for your loved ones. Estate planning isn't only for old people; a breadwinner can die at any time, and, realizing this, he should at least inform those he loves in some way of what steps they will have to take to access his assets after he dies. Much easier, yet, is to set up joint accounts or "pay on death" accounts or living trusts (if you don't want the beneficiary to have access to the funds while you are still alive) that avoid any transition time after you die; the money automatically becomes accessible to the heirs without having to go through probate. But none of that applies to your M-in-L, who has to deal with the facts on the ground as they are, after it's too late to plan.
> He did not have a will,
All that means is, the portion of his estate that has to pass thru probate (not including any joint or POD accounts, or trusts) will pass to his heirs according to the presumptions contained in the intestacy laws of the state where he resided at the time of his death, which probably means your M-in-L will get a major share but some will also go to his children. If he held property (such as bank accounts, but basically anything else too, including a home) in his sole name, I'm afraid the only way to transfer title to those assets is through probate.
> and we don't know about life insurance.
There's basically only one way to find out about that, which is to look through all his papers and see if you find anything. A subset of that approach is to check his incoming mail for a period of time and see if he gets mail (bills, privacy statements, annual reports, etc.) from a life insurance company, then you'll know who to contact and advise of his death to claim benefits.
> My questions is, How can my
> Mother-in-Law access these accounts to pay his final expenses without
> the added cost of hiring a lawyer?
Personally I think this is a penny wise pound foolish approach. Lawyers who handle estate administration have their fee bills closely regulated by state law and/or by specific court oversight and approval before they get paid, and they are generally not allowed to charge anything up front; the fee will eventually come out of the amount of your F-in-L's assets that pass thru probate, not exceeding a maximum percentage set by law in most states. At the very least it wouldn't hurt to set up an initial consultation (find a lawyer who will do that for free) for a half hour or so, to find out more specifics about the application of your state's laws in your particular situation, and then decide whether it makes economic sense to hire him or not.
If your M-in-L chooses not to hire a lawyer to help her with the estate, she can still apply to the appropriate court on her own to open probate and get herself assigned as the personal representative (PR) or administrator of your F-in-L's decedent estate. This can be done immediately if she knows what she is doing. The court will issue her a properly formatted, officially sealed, Letter of Appointment making her the PR, which she can then take around and show to banks to see if they have an account in her late husband's name. The banks are perfectly correct not to speak with her about his private affairs otherwise; but once she has been appointed his PR, she stands in his shoes and has control over his assets, including the right to withdraw or transfer funds from any accounts he held. Note well, though, that she has to exercise that right as PR for the benefit of ALL the legal heirs, not just for herself. Your F-in-L's assets now belong to a new entity called his "intestate estate", and after paying off his legitimate creditors (including medical and funeral expenses) what is left over will have to be distributed to the heirs in accord with the laws of your state.
If your M-in-L isn't up to handling all the duties that would be imposed on her as PR of her late husband's estate while she is still grieving, or just because she's clueless about what to do (no aspersions intended, but anyone who doesn't do this stuff for a living is going to have a steep learning curve at least initially) it would make a lot more sense to pay a professional to do this for her. Whatever she decides, I wish your family good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Hotel overbooking compensation
On Mar 28, 6:56 am, b...@nyx.net (Barry Gold) wrote:
> Hotels routinely "overbook" rooms - they take
> resevations for more rooms than they have, expecting that some
> percentage of people will not show up -- even after "guaranteeing" the
> reservation with a credit card, so they will be charged for one night
> if they "no show".
If the guest doesn't show up and gets charged, he got what he paid for, even though he chose not to use it. If we compare that to OP's parking lot question, that would be like paying a flat fee for reserved monthly parking and then not showing up during a month when you are away from your office. What you paid for is to keep your reserved slot open, presumably because you are in an area where high demand would make it difficult for you to gat a reserved monthly space again after you get back from vacation (if not, a sensible parker would cancel for his vacation month, then renew the following month). Ditto for season ticket holders at the football stadium or the opera; you got what you paid for even if you don't go there on a particular night.
If the guest _does_ show up and the hotel can't provide him a room because they overbooked, the worst that can happen (for the guest) is he _won't_ get what he expected, but at least he won't have to pay for it. I don't know whether hotels can cancel reservations that way with impunity or whether some law makes them find a comparable room for the bumped guest; the guest would still be expected to pay for that first night at the going rate if they do find him a room.
> I keep an Amex card solely because the Amex
> contract requires the hotel to find you a room or pay for your first
> night at a nearby comparable hotel, plus cab fare to and from. I
> don't use it for anything else.
A nice perk, but not required by law AFAIK. OTOH in the airline bumping example which someone else mentioned in this thread, the airlines _are_ required to compensate any passenger they involuntarily bump due to overbooking, as the result of being sued by Ralph Nader years ago when one of the less heads-up airlines didn't realize it was him they were bumping.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Hotels routinely "overbook" rooms - they take
> resevations for more rooms than they have, expecting that some
> percentage of people will not show up -- even after "guaranteeing" the
> reservation with a credit card, so they will be charged for one night
> if they "no show".
If the guest doesn't show up and gets charged, he got what he paid for, even though he chose not to use it. If we compare that to OP's parking lot question, that would be like paying a flat fee for reserved monthly parking and then not showing up during a month when you are away from your office. What you paid for is to keep your reserved slot open, presumably because you are in an area where high demand would make it difficult for you to gat a reserved monthly space again after you get back from vacation (if not, a sensible parker would cancel for his vacation month, then renew the following month). Ditto for season ticket holders at the football stadium or the opera; you got what you paid for even if you don't go there on a particular night.
If the guest _does_ show up and the hotel can't provide him a room because they overbooked, the worst that can happen (for the guest) is he _won't_ get what he expected, but at least he won't have to pay for it. I don't know whether hotels can cancel reservations that way with impunity or whether some law makes them find a comparable room for the bumped guest; the guest would still be expected to pay for that first night at the going rate if they do find him a room.
> I keep an Amex card solely because the Amex
> contract requires the hotel to find you a room or pay for your first
> night at a nearby comparable hotel, plus cab fare to and from. I
> don't use it for anything else.
A nice perk, but not required by law AFAIK. OTOH in the airline bumping example which someone else mentioned in this thread, the airlines _are_ required to compensate any passenger they involuntarily bump due to overbooking, as the result of being sued by Ralph Nader years ago when one of the less heads-up airlines didn't realize it was him they were bumping.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Easement vs. title by adverse possession
On Mar 26, 6:12 am, s...@panix.com (Seth Breidbart) wrote:
> Neighbor builds a shed on my land, over a utility easement. I do
> nothing for several years, so neighbor gets an easement.
That's the mistaken assumption that leads to your conundrum. Neighbor doesn't get an easement, he gets title to that portion of your land by adverse possession (assuming your hypothetical refers to his shed being there long enough for that to happen), but subject to the pre-existing easement. IIRC Stu has already told us in a previous post that the reason it's nearly impossible to get "adverse possession" of an easement is that the easement survives any change in the fee ownership of the land it applies to. You can't take away the utility's easement just by selling your property, and you also can't take it away by allowing your neighbor to get adverse possession of the portion of your land the easement covers.
> Then the
> utility company comes in, and demolishes the shed (at my expense?)
In your hypo, if the land the shed is on now belongs to your neighbor by adverse possession, the utility would bill your neighbor for the demolition cost. He's the new owner.
> At that point, can I prevent neighbor from rebuilding the shed?
Not if he already has title thru adverse possession. That land isn't yours anymore. The tiff is between your neighbor and the utility and you have no say in it.
> Or
> can they keep rebuilding it, only to have me billed for removing it by
> the utility?
No. See above. But it sounds like a great idea for "Sisyphus' Perpetual Motion Machine" if you could get it to work.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Neighbor builds a shed on my land, over a utility easement. I do
> nothing for several years, so neighbor gets an easement.
That's the mistaken assumption that leads to your conundrum. Neighbor doesn't get an easement, he gets title to that portion of your land by adverse possession (assuming your hypothetical refers to his shed being there long enough for that to happen), but subject to the pre-existing easement. IIRC Stu has already told us in a previous post that the reason it's nearly impossible to get "adverse possession" of an easement is that the easement survives any change in the fee ownership of the land it applies to. You can't take away the utility's easement just by selling your property, and you also can't take it away by allowing your neighbor to get adverse possession of the portion of your land the easement covers.
> Then the
> utility company comes in, and demolishes the shed (at my expense?)
In your hypo, if the land the shed is on now belongs to your neighbor by adverse possession, the utility would bill your neighbor for the demolition cost. He's the new owner.
> At that point, can I prevent neighbor from rebuilding the shed?
Not if he already has title thru adverse possession. That land isn't yours anymore. The tiff is between your neighbor and the utility and you have no say in it.
> Or
> can they keep rebuilding it, only to have me billed for removing it by
> the utility?
No. See above. But it sounds like a great idea for "Sisyphus' Perpetual Motion Machine" if you could get it to work.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Witness intimidation and social justice
On Mar 25, 8:59 am, "CWLee" <cdubya...@post.harvard.edu> wrote:
> Several (7-10) youths of one race attacked (apparently
> unprovoked, other than being of the "wrong" race) 3 youths
> of another race, in a public park. The victims survived,
> one with apparent very serious injuries. News reports
> suggested that the key witness in the park, who initially
> identified who did the hitting and who did the cheering on,
> suffered vandalism of car and home, and received other
> threats intended to preclude testimony. The key witness,
> for reasons not clear, either didn't testify, or testified
> with much less useful information, and the charged
> individuals were given very light sentences (something like
> 30 days of home probation.) Widely viewed in my circle of
> friends as an example of gang intimidation being used to
> create a gross injustice.
I agree with you about the apparent injustice of the situation, but it is important to keep in mind that it is society that has created and perpetuated that injustice, not the legal system. If we were to allow convictions on lesser evidence or e.g. in secret tribunals without constitutional protections (a la Guantanamo) then even further and worse injustices would be (and are being) perpetrated in the long run.
Your example is a classic of the type of social evil that inspires literature and movies and, ultimately, if it gets enough people feeling angry and oppressed by the tyranny of such gangs, they do something about it, either by building a neighborhood consensus that DOES have the courage to challenge them in court and get convictions, or by less beneficial means, including riot and civil war. The cops can only do so much; in reality, the "order" part of "law and order" depends on the majority of people in a given area believing in and supporting the law as their means of redress of grievances rather than taking the law into their own hands. When the majority of the public stops believing in the rule of law, all bets are off. The law is an imperfect tool but it is a hell of a lot better than Hutu vs. Tutsi, or Shiite vs. Sunni, or whatever us vs. them warfare results in a society where the rule of law has broken down.
The only way we can prevent that from happening, not just now in a moment of crisis but really at all times, is if the people affected by such violence believe in the legal system enough to come forward and provide the needed evidence to convict the perps even at risk of their personal safety; they have to realize that if they don't come forward, then in the long run, their personal safety is even more in danger due to the further lawlessness that results. Sometimes such testimony can only happen after a disastrous war where lots of innocents _do_ get killed, but the good guys win; the Nuremberg trials of Nazi war criminals are a prime example, as are the continued efforts to hunt down and try the remaining perpetrators of the Holocaust, which depend on testimony of their living victims.
Anyway, you have raised an important issue and I thank you for the opportunity to comment on it.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Several (7-10) youths of one race attacked (apparently
> unprovoked, other than being of the "wrong" race) 3 youths
> of another race, in a public park. The victims survived,
> one with apparent very serious injuries. News reports
> suggested that the key witness in the park, who initially
> identified who did the hitting and who did the cheering on,
> suffered vandalism of car and home, and received other
> threats intended to preclude testimony. The key witness,
> for reasons not clear, either didn't testify, or testified
> with much less useful information, and the charged
> individuals were given very light sentences (something like
> 30 days of home probation.) Widely viewed in my circle of
> friends as an example of gang intimidation being used to
> create a gross injustice.
I agree with you about the apparent injustice of the situation, but it is important to keep in mind that it is society that has created and perpetuated that injustice, not the legal system. If we were to allow convictions on lesser evidence or e.g. in secret tribunals without constitutional protections (a la Guantanamo) then even further and worse injustices would be (and are being) perpetrated in the long run.
Your example is a classic of the type of social evil that inspires literature and movies and, ultimately, if it gets enough people feeling angry and oppressed by the tyranny of such gangs, they do something about it, either by building a neighborhood consensus that DOES have the courage to challenge them in court and get convictions, or by less beneficial means, including riot and civil war. The cops can only do so much; in reality, the "order" part of "law and order" depends on the majority of people in a given area believing in and supporting the law as their means of redress of grievances rather than taking the law into their own hands. When the majority of the public stops believing in the rule of law, all bets are off. The law is an imperfect tool but it is a hell of a lot better than Hutu vs. Tutsi, or Shiite vs. Sunni, or whatever us vs. them warfare results in a society where the rule of law has broken down.
The only way we can prevent that from happening, not just now in a moment of crisis but really at all times, is if the people affected by such violence believe in the legal system enough to come forward and provide the needed evidence to convict the perps even at risk of their personal safety; they have to realize that if they don't come forward, then in the long run, their personal safety is even more in danger due to the further lawlessness that results. Sometimes such testimony can only happen after a disastrous war where lots of innocents _do_ get killed, but the good guys win; the Nuremberg trials of Nazi war criminals are a prime example, as are the continued efforts to hunt down and try the remaining perpetrators of the Holocaust, which depend on testimony of their living victims.
Anyway, you have raised an important issue and I thank you for the opportunity to comment on it.
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Can Stepmom disinherit Dad's children in her Will?
On Mar 25, 8:59 am, Paul Cassel <pcasselremo...@comremovecast.net> wrote:
> Rich Carreiro wrote:
>
> > I think that in Louisiana (of course :) it is very, very hard
> > to disinherit children.
>
> How about this scenario. A man with children from a previous marriage
> remarries a woman with children of her own. His Will creates a trust
> with her the beneficiary. Upon her demise (or in X years) the trust
> dissolves with her (or her estate) the beneficiary. Can she Will all her
> property to her children in LA thus indirectly disinheriting his children?
I don't know LA law and would be interested to see Rich's citation for his statement. But in Paul's example, and assuming Rich's summary of LA law to be true, it is the father who would have to make provisions in his own will for a legacy to his own children, in addition to whatever he provided for his second wife. Even then IMO, what Rich said would impose no duty on his second wife (stepmom of his kids) to provide for HIS kids in HER Will; the law would only make it hard to disinherit her OWN kids. Dad's kids would have already gotten their legally required share, when HE died.
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> Rich Carreiro wrote:
>
> > I think that in Louisiana (of course :) it is very, very hard
> > to disinherit children.
>
> How about this scenario. A man with children from a previous marriage
> remarries a woman with children of her own. His Will creates a trust
> with her the beneficiary. Upon her demise (or in X years) the trust
> dissolves with her (or her estate) the beneficiary. Can she Will all her
> property to her children in LA thus indirectly disinheriting his children?
I don't know LA law and would be interested to see Rich's citation for his statement. But in Paul's example, and assuming Rich's summary of LA law to be true, it is the father who would have to make provisions in his own will for a legacy to his own children, in addition to whatever he provided for his second wife. Even then IMO, what Rich said would impose no duty on his second wife (stepmom of his kids) to provide for HIS kids in HER Will; the law would only make it hard to disinherit her OWN kids. Dad's kids would have already gotten their legally required share, when HE died.
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Guaranteed seats at a concert?
On Mar 24, 8:26 am, "Don" <dwz...@telus.net> wrote:
> Could an orchestra sell more tickets to a concert than the number of seats
> in the concert hall? (You are not guaranteed you will hear the concert, only
> the right to sit down if you can find an empty seat.) Just curious.
Um, actually they do... or at least used to, unless fire safety codes and such now prevent the practice. Haven't you heard of "standing room only" performances? They will sell tickets to as many people as they can pack in, even after the seats are all taken. I actually went to a Cubs game at Wrigley Field once when it was SRO and I had to wait until some fans disgusted by the Cubs' usual performance early in the game decided to leave so I could take their seat (actually, they rallied and won in the end).
I can think of plenty of other entertainment venues where the practice is still extant, and seats are not reserved -- HS football games, drag races, horse races, lawn concerts, skiing competitions, motocross races, and on and on. There is no guarantee you will get to sit, or even to stand where you can see what you want to see. You find the best spot you can, or just hang out by the refreshment stand.
But a parking lot (as in OP's case) is not entertainment. IMO the hunting or fishing license is a better analogy. What he is buying is permission to do something, but no guarantee he will succeed in his quest for the elusive prey.
OTOH selling multiple tickets to the same reserved seat is a no-no. But that's not what you asked about. In venues where both general admission and reserved seating are available, those who want a guaranteed seat can pay extra to have a place set aside for them.
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> Could an orchestra sell more tickets to a concert than the number of seats
> in the concert hall? (You are not guaranteed you will hear the concert, only
> the right to sit down if you can find an empty seat.) Just curious.
Um, actually they do... or at least used to, unless fire safety codes and such now prevent the practice. Haven't you heard of "standing room only" performances? They will sell tickets to as many people as they can pack in, even after the seats are all taken. I actually went to a Cubs game at Wrigley Field once when it was SRO and I had to wait until some fans disgusted by the Cubs' usual performance early in the game decided to leave so I could take their seat (actually, they rallied and won in the end).
I can think of plenty of other entertainment venues where the practice is still extant, and seats are not reserved -- HS football games, drag races, horse races, lawn concerts, skiing competitions, motocross races, and on and on. There is no guarantee you will get to sit, or even to stand where you can see what you want to see. You find the best spot you can, or just hang out by the refreshment stand.
But a parking lot (as in OP's case) is not entertainment. IMO the hunting or fishing license is a better analogy. What he is buying is permission to do something, but no guarantee he will succeed in his quest for the elusive prey.
OTOH selling multiple tickets to the same reserved seat is a no-no. But that's not what you asked about. In venues where both general admission and reserved seating are available, those who want a guaranteed seat can pay extra to have a place set aside for them.
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Easement vs. Tenancy
On Mar 23, 6:43 am, ddl@danlan.*com (Dan Lanciani) wrote:
> Suppose a utility easement explicitly grants the utility the right to
> clear the land in its easement of any obstructions and to erect a
> fence to exclude all others from the (e.g., dangerous) area under the
> high voltage lines that might be installed.
In that case, the interest the utility owns would not be a mere easement, but IMO a tenancy, if their right to exclude others extended even to the fee simple owner. The tenant has a right to set up a fence and/or lock his door to keep the landlord out (except for limited, specified purposes) but the easement holder doesn't; he merely has a right to make a specific use of the property, with the owner still permitted to make other, non-conflicting uses of it..
In your power line example, at least around here the only thing the owner can't do within the boundaries of a power line easement is erect a permenent structure for human occupancy. The owner can still build fences that run under the power lines, so long as he leaves the gates unlocked or provides the easement holder with a key, and can grow gardens, etc. beneath the power lines, along with structures such as trellises, tool sheds, etc. so long as they do not prevent the utility from having access to its power lines when needed..
However, if the owner builds a structure for human occupancy within the borders of the easement, the utility has every right to get a court order permitting it to come in and knock it down, and to charge the owner for the cost of doing so, if the owner refuses to do so himself. I have seen it done.
> Does a neighbor's shed
> in the easement now start the prescriptive clock because it is adverse
> to the utility's right to exclude?
If in fact the utility has a tenancy, not a mere easement, then yes, the utility is entitled to exclusive possession of the entire swath of property within its tenancy, and yes, any structure erected by anyone (including the fee simple owner) in violation of that tenancy and allowed to stand for longer than the prescriptive period, could extinguish that tenancy -- at least to the extent of the area being adversely held. IMO it wouldn't extinguish the fee simple owner's right to recover the remainder of the property at the conclusion of the tenancy, however, because it is not adverse to him, as long as someone keeps paying the rent and/or meeting whatever other conditions the owner set up as consideration for the tenancy. It is possible that the tenant of a long-term commercial lease of land (such as a farm, forest etc.) may have given an easement back to the original fee simple owner, to permit the owner to have continued access over and thru the leased property to get to some other landlocked parcel the owner owns; if that is the case, and if the adverse possessor blocks the original owner's access thru the property, you may have a real mess. I can't predict what would happen then.
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> Suppose a utility easement explicitly grants the utility the right to
> clear the land in its easement of any obstructions and to erect a
> fence to exclude all others from the (e.g., dangerous) area under the
> high voltage lines that might be installed.
In that case, the interest the utility owns would not be a mere easement, but IMO a tenancy, if their right to exclude others extended even to the fee simple owner. The tenant has a right to set up a fence and/or lock his door to keep the landlord out (except for limited, specified purposes) but the easement holder doesn't; he merely has a right to make a specific use of the property, with the owner still permitted to make other, non-conflicting uses of it..
In your power line example, at least around here the only thing the owner can't do within the boundaries of a power line easement is erect a permenent structure for human occupancy. The owner can still build fences that run under the power lines, so long as he leaves the gates unlocked or provides the easement holder with a key, and can grow gardens, etc. beneath the power lines, along with structures such as trellises, tool sheds, etc. so long as they do not prevent the utility from having access to its power lines when needed..
However, if the owner builds a structure for human occupancy within the borders of the easement, the utility has every right to get a court order permitting it to come in and knock it down, and to charge the owner for the cost of doing so, if the owner refuses to do so himself. I have seen it done.
> Does a neighbor's shed
> in the easement now start the prescriptive clock because it is adverse
> to the utility's right to exclude?
If in fact the utility has a tenancy, not a mere easement, then yes, the utility is entitled to exclusive possession of the entire swath of property within its tenancy, and yes, any structure erected by anyone (including the fee simple owner) in violation of that tenancy and allowed to stand for longer than the prescriptive period, could extinguish that tenancy -- at least to the extent of the area being adversely held. IMO it wouldn't extinguish the fee simple owner's right to recover the remainder of the property at the conclusion of the tenancy, however, because it is not adverse to him, as long as someone keeps paying the rent and/or meeting whatever other conditions the owner set up as consideration for the tenancy. It is possible that the tenant of a long-term commercial lease of land (such as a farm, forest etc.) may have given an easement back to the original fee simple owner, to permit the owner to have continued access over and thru the leased property to get to some other landlocked parcel the owner owns; if that is the case, and if the adverse possessor blocks the original owner's access thru the property, you may have a real mess. I can't predict what would happen then.
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Intimidation of witnesses
On Mar 23, 6:42 am, "CWLee" <cdubya...@post.harvard.edu> wrote:
> I was thinking of the hypothetical situation in which a
> witness or other party believed it was in his own best
> interest (perhaps based on physical threats to him or his
> family, combined with a lack of confidence in the ability of
> anyone to provide adequate protection against those threats)
> not to be involved any more than necessary.
OK, witness intimidation is a big problem in some areas, particularly inner city neighborhoods where drug gangs routinely make and carry out threats against anyone who snitches. In an atmosphere that charged with fear, the most likely thing is that the potential witnesses simply won't come forward and admit they know anything in the first place, even before they get placed on a witness stand. How's the prosecutor going to know who to call to testify, if everybody in the crowd that saw a gang-war shootout occur denies they saw anything when questioned by the cops? The homicide dicks can't "bring in for questioning" an entire neighborhood. It takes a great deal of courage for even a single witness to come forward in such circumstances.
> I suppose he
> could swear/affirm to tell the truth, and then answer "I
> don't know" or "I don't remember" to all questions.
If that's what he's going to do, the state wouldn't put him on the stand in the first place. Besides, that would be perjury.
OTOH if what you're talking about is a fellow member of an alleged organized crime ring, being questioned before a Grand Jury frex, the most likely thing his mouthpiece will tell him to do is to take the Fifth. ("On advice of counsel, I decline to answer on the grounds it may tend to incriminate me") and the state can't do a thing about it.
> Would
> the worst he might face in such a situation be a few
> days/weeks/months in jail for contempt?
I can think of absolutely no sensible reason any witness would ever be put in that position, except possibly a journalist for protecting sources under a claim of journalistic privilege that the court has denied, or some other professional (doctor, priest, shrink) who refuses (on ethical grounds not recognized by the court) to reveal a professional confidence. The intimidated bystander to a crime is simply not going to come forward in the first place, and the close-mouthed co-conspirator will take the Firth.
> That might be the
> more attractive alternative to him, depending on how
> seriously he considered the threats made and how inadequate
> he believe his defenses against those threats might be.
I think you're concocting a pretty unlikely scenario, but it would be interesting to see how it might play out if it ever does really happen to someone. But IMO several other posters have already replied to this angle of your question and have affirmed that a witness who simply refuses to testify, is likely to be jailed for contempt.
> Thanks to all for your previous and continuing insights.
De nada
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> I was thinking of the hypothetical situation in which a
> witness or other party believed it was in his own best
> interest (perhaps based on physical threats to him or his
> family, combined with a lack of confidence in the ability of
> anyone to provide adequate protection against those threats)
> not to be involved any more than necessary.
OK, witness intimidation is a big problem in some areas, particularly inner city neighborhoods where drug gangs routinely make and carry out threats against anyone who snitches. In an atmosphere that charged with fear, the most likely thing is that the potential witnesses simply won't come forward and admit they know anything in the first place, even before they get placed on a witness stand. How's the prosecutor going to know who to call to testify, if everybody in the crowd that saw a gang-war shootout occur denies they saw anything when questioned by the cops? The homicide dicks can't "bring in for questioning" an entire neighborhood. It takes a great deal of courage for even a single witness to come forward in such circumstances.
> I suppose he
> could swear/affirm to tell the truth, and then answer "I
> don't know" or "I don't remember" to all questions.
If that's what he's going to do, the state wouldn't put him on the stand in the first place. Besides, that would be perjury.
OTOH if what you're talking about is a fellow member of an alleged organized crime ring, being questioned before a Grand Jury frex, the most likely thing his mouthpiece will tell him to do is to take the Fifth. ("On advice of counsel, I decline to answer on the grounds it may tend to incriminate me") and the state can't do a thing about it.
> Would
> the worst he might face in such a situation be a few
> days/weeks/months in jail for contempt?
I can think of absolutely no sensible reason any witness would ever be put in that position, except possibly a journalist for protecting sources under a claim of journalistic privilege that the court has denied, or some other professional (doctor, priest, shrink) who refuses (on ethical grounds not recognized by the court) to reveal a professional confidence. The intimidated bystander to a crime is simply not going to come forward in the first place, and the close-mouthed co-conspirator will take the Firth.
> That might be the
> more attractive alternative to him, depending on how
> seriously he considered the threats made and how inadequate
> he believe his defenses against those threats might be.
I think you're concocting a pretty unlikely scenario, but it would be interesting to see how it might play out if it ever does really happen to someone. But IMO several other posters have already replied to this angle of your question and have affirmed that a witness who simply refuses to testify, is likely to be jailed for contempt.
> Thanks to all for your previous and continuing insights.
De nada
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