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Archive for October, 2011

Have Some Tricky Questions? We’ll Treat You to Some Answers.

October 31st, 2011 1 comment

Lately, we’ve been flooded with mail from readers with legal problems and questions. I thought it would be appropriate to use the Kiley Blog to post some of the better ones.

 

A desperate housewife posed question about divorce law:

Dear Blogger,

My husband doesn’t seem to understand me and won’t communicate. I try to engage him in conversation but he mostly just grunts in response. I try to put the spark back in our marriage but he only says, “Fire . . . bad.” He’s abusive, but usually focuses his anger on local villagers carrying pitchforks. Sometimes, I think he’s a real monster. Do I have grounds for divorce?

Signed,

The Bride of Frankenstein

Dear Bride,

You’re in luck. On October 13, 2010, the New York State legislature passed a no-fault divorce statute. You can now bring an irretrievable-breakdown divorce action under D.R.L. §170(7). Good luck finding a process server.

 

 A merchant wrote a question about the Uniform Commercial Code (U.C.C):

Dear Blogger,

I wanted to order a supply of straight edge razors, but my office manager accidentally ordered a pallet of double blade Gillette Venus razors. They’re so safe. You can’t even nick someone with one. Do I have to take delivery of them?

Signed,

The Demon Barber of Fleet Street

Dear Barber,

§ 2-507 of the UCC regards Effect of Seller’s Tender; Delivery on Condition. Sub-section

(1) provides that “tender of delivery is a condition to the buyer’s duty to accept the goods and, unless otherwise agreed, to his duty to pay for them.” If I were you, I’d keep them, break them in half and sell them to the old lady at the end of the street who’ll stick them in apples and give them to trick-or-treaters.

 

Another reader asked a question about criminal law:

Dear Blogger,

I’ve been a very bad boy and committed mass murder. Well, to be truthful, I’ve committed several mass murders. You see, it’s a sequel thing and the movie-going public can’t seem to get enough. Now, I’m concerned that I may be caught and prosecuted. I’ve got two questions. First, I’ve got a contract for two more pictures. Can my director be convicted for aiding and abetting me? Second, what’s the difference between consecutive and concurrent sentencing.

Signed,

Freddy (Last name withheld upon request)

Dear Fred,

If your director is directly responsible for the actus reus (guilty act), he’ll be considered your joint principal and could be charged for the actual crime. But if he merely encourages you to “go with it” and be creative, he’d only be guilty of being an accessory to your crimes. As to your second question, New York State Penal Law § 70.25 (2) provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” As for the applicability of your facts to the law, I have to admit that I’m not a fan of the genre. You’ll have to ask Roger Ebert.

 

This reader was named the as beneficiary in his probate a neighbor’s will but was frustrated by the probate process.

Dear Blogger,

I helped a neighbor write his biography and he named me as the sole beneficiary in his will. The man was pretty much a loner and only came out at night. I’d have to confess that he was a little batty. He was very old when he died and I can’t find his birth certificate. Also, he grew up in a remote section of Romania and I can’t seem to find his family. What should I do?

Signed,

Bram Stoker

Dear Bram,

You’ve got a problem. The New York State Estates, Powers and Trusts Law (EPTL) requires you to locate his heirs at law. If he had no spouse or children, you’ll need to research his family tree all the way back to his grandparents on both sides. You’ve got to diligently do your research. If I were you, I’d spend the money to hire a genealogist. Why not go with him and make a vacation out of it. I’ve heard that Transylvania is beautiful this time of year.

Dear Readers,

Keep those questions coming in. I’ll be happy to answer them or not, depending on my moods.

Sincerely,

The Blogger

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Encroachment…Defense…5 Yard Penalty!

October 2nd, 2011 Comments off

In the 3rd Millennium, prehistoric man picked up his hunting and gathering tools and moved to Mesopotamia to live with his fellow former cavemen. Thus, began civilization. The dawn of the next day witnessed the first dispute between adjacent landowners. It probably started over something minor. Perhaps Uruku’s camel too frequently fertilized Ebarbar’s front lawn. An argument ensued over picayune matters and quickly escalated to a full-blown feud until Ebarbar finally settled the matter by burying the hatchet . . . in Uruku’s skull.

After Hammurabi codified the laws, the hatchet solution became passé. So was spawned the first lawyer. Five thousand years later people still fight with their neighbors and lawyers are still busy.

Not-so-neighborly disputes arise over boundary lines, shared driveways, noise complaints and innumerable other actual or perceived injuries. To solve these problems, I advise my clients of their five options:

You can sue the bastards, but civil litigation is costly.

You can do like Ebarbar did, but criminal defense attorneys are also expensive and felony murder can get you a long prison term.

You can try to work it out.

You can ignore it.

You can move.

If the offense is minor, I always advise the client to choose option three and fallback on option four. No matter how many times your neighbor puts his trash cans on your side of the driveway, it’s not worth it to sue him. If you do, it will cost you money, time and aggravation. And it won’t solve the problem. You’ll find yourself mired in the quagmire of trench warfare which will make you paranoid and anxious. You’ll never again feel that you are at “home sweet home.”

Some offenses cannot be ignored or excused. If your neighbor paves over your lawn to make a larger driveway for his boat and RV, his encroachment impairs the value of your land and clouds your title – perhaps making it unmarketable. What can you do in such a case?

First, you should research the title to your property to see who owns the land in question. Check for easements, which are recorded agreements permitting adjacent property owners to use or cross your land. It may be that a prior owner gave your neighbor the right to place his driveway next to your geraniums.

It is essential to know your property line. Where does your land end and his begin? Only a licensed land surveyor can make that determination. It’s expensive to obtain a new survey. But if your surveyor can locate an existing survey, he can compare it with the “meets and bounds” description in your deed. He will measure your property by reference to fixed points such as intersections. The surveyor researches available property records and compares adjoining properties. He then measures distances with references to compass points to identify your property lines. Ask the surveyor to “stake the property” so that you can see for yourself and show your neighbor.

If your inspection reveals that your neighbor’s driveway is less that one foot inside your property line, a title company will insure the property as such deviations are minor. However, if own a small lot, a one foot encroachment can be significant regardless that your ownership is insured. Then, it’s your call whether to make an issue of it.

If the surveyor confirms that your neighbor’s driveway extends more than one foot onto your land you must take action to remedy the problem and reclaim the land. Even if you don’t mind the intrusion, it may prevent you from selling the house if your buyer can’t get title insurance or his mortgage lender determines that the value of the “lost” property severely impairs their investment. In the worst case scenario, an obvious, obtrusive and offensive use of your land for more than ten years will allow your neighbor to take the property by “adverse possession.”

What then can you do? Machiavelli once said, “There is no avoiding war; it can only be postponed to the advantage of others.” But he didn’t have to pay a lawyer or live next door to his mortal enemy. Decide if the encroachment really bothers you or significantly impairs your use of the property. If not, one solution is to negotiate and sign a Boundary Line Agreement, by which you may permit your neighbor to use the land with the understanding that he doesn’t own it. It’s a good compromise. He keeps his driveway and avoids the cost and inconvenience of relocating it. You keep good title to the property and avoid the cost of litigation. You both avoid conflict which is essential to your sanity and peace of mind. Remember. You live here. This is “home” where you should be safe and happy.

The Boundary Line Agreement can be drafted so that it will expire upon a future event, such as when your neighbor sells the property or needs to repave the driveway. That provides a permanent but bloodless solution.

If you’ve tried unsuccessfully to resolve the problem amicably, it will be easier to justify spending the time and money to sue him.

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