Category Archives: Litigation/Disputes

The Deadly Double Dip–Things for Unhappy Condominium Unit Owners to Think About before suing their Association

Condominium, Litigation/Disputes, ,

The case made perfect sense. The Condominium Trustees were acting capriciously, and without any regard for my client’s well-being. There had been a water main break which has damaged my client’s unit, and he was aware of a substantial payment from the insurance company which provided the common area insurance. My client wanted to repair the damage to his unit, and he wanted a portion of the insurance proceeds to do this repair. 

So we wrote a few nasty letter, which were ignored. Then, we sat down with the client and discussed litigation. We gave the client a budget and a timetable. They were reasonable, and we  got clearance to proceed. We filed a lawsuit, and then we got hit with the BOMB. The Trustees hired a very expensive law firm to defend their position. The law firm required a substantial retainer, far more than our firm quoted for representing the client throughout the entire litigation, including a trial if necessary. By the rules of the Condominium, my client was required to advance his share of the retainer to the Trustee’s law firm. If this sounds like “Oz” to you, you can imagine my client’s reaction.

The case has since settled, with a result that my client could live with. In fact, my client received a substantial percentage of the advanced retainer back when the matter settled. That made things more palatable to my client.

There are some lessons to be learned from this set of circumstances, which I want to pass along to each of you:

     1. Review the Condominium Documents carefully before you Purchase. Look to see if there is an arbitration provision for disputes. Arbitration is becoming more common in newer documents, and some Lenders are insisting on arbitration provisions, especially for smaller Condominiums.

     2. Pursue all non-litigation avenues before deciding to start litigation.  Without arbitration. litigation is a lonely path for a single unit owner, and often more expensive than a unit owner can anticipate. Try to find a sympathetic person on the Condominium Board of Trustees, who can bring about a non-litigation based solution. It is worth the effort.

     3. If your Condominium Documents do not provide for arbitration, try to get them amended.  Amending Condominium Documents is generally expensive, mainly because the consent of Lenders will need to be obtained. Lenders favor arbitration. Therefore, the normal Lender will be receptive to the type of change which institutes arbitration. It is definiotely worth pursuing.

Many Condominiums are poorly managed, with the least capable people serving as Trustees. That being the case, it is imperative that the Condominium Documents be adapted, as much as possible, to permit free speech by unit owners and a non-confiscatory way to settle disputes. “Double dipping” really hurts, and it is not fair.

The AirConditoning System Only feeds the second floor–What to do when the pre-closing inspection reveals an issue that complicates closing

closing, Litigation/Disputes, ,

Recently, I conducted a residential closing on a property in a high end suburb of Boston, The property was generally in great condition, but my client, the BUYER, informed me that the pre-closing inspection (not the inspection after the Offer, but the “walk-through”) indicated that the air conditioning system in the home didn’t feed both floors. The SELLER said he was mistaken, and there was no problem with the air conditioning system, at all.

An impasse arose where the closing, itself, was in jeopardy. The problem was that this is a “grey” area in most sales agreements. It is not a material kind of breach of the covenant that the property will be in the same condition that it was at the time of the signing of the sales agreement. On the other hand, the BUYER expected a fully operational air conditioning system.

After some rather heated discussion between counsel, a compromise position was reached, whereby a sum of money was held in escrow pending analysis and repair by an air-conditioning professional. That work was done; the $360 charge paid out of the escrow, and the  both parties were generally satisfied.

That was a good thing, because at the worst part of the closing negotiations, my BUYER was not going to close on the transaction, and perhaps leave a healthy deposit on the table, pending litigation, and the SELLER needed the sales proceeds to buy another home in Florida.

So when it was over, I tried to develop some provision I might put in the sales agreement which could prevent this from re-occurring. I came up with the following provision, and I would appreciate feedback from the ActiveRain community (1) whether you think this approach makes sense or (2) what other ways you have seen to deal with this type of problem.

MY SUGGESTED PROVISION:

       “If at the “walk-through” the BUYER determines, in good faith, that there is a condition on the premises which is not consistent with the condition which existed when the purchase and sale agreement was executed, but which is not of such material nature which would prevent completing the delivery of the deed and the payment of full consideration for the premises, the BUYER may, nevertheless, complete the transaction, and the BUYER and SELLER will agree on an appropriate escrow sum to be held by BUYER’s attorney, for a period of no longer than thirty (30) days to permit the parties to resolve the problem with the assistance of professionals skilled in the area which is in dispute.”

Let me know if you think this works, or any other thoughts you may have. Thanks

Seller’s attending closings–Very little to gain: Perhaps a lot to lose

closing, Litigation/Disputes, ,

In my over 40 years of conducting real estate closings in New England, I wouldn’t say I have seen everything. I would say, however, that I have seen enough to reach the conclusion that having the Seller present at a real estate closing is rarely a positive experience, and in some instances, is an invitation to trouble.

Put aside the possible distractions of having another “persona” at the closing table who wants to comment about the length of the process or the interminable amount of paperwork involved in a typical real estate closing. That is part of the territory, and I believe I, and the other people in my law firm, know how to deal with that. Also, put aside the possible antagonisms that may have developed between the Seller and the Buyer over some aspect of the pre-purchase and sale negotiations about the property. The real estate professionals at the closing table should have the skill to deflect this aspect of the process, so things can proceed at an acceptable pace.

The real problem is the potential for litigation about the condition of the premises based on a comment, or lack of comment, made by an attending Seller. If I am representing a Seller at a closing, armed with a durable Power of Attorney, I am duly ignorant about the history of the home or the condition of the premises. If I am asked about the “spot” on the bedroom ceiling, or the trace of water that the inspector found in the finished basement, I can truly answer “I do not know”, and that will be the end of the discussion.

What if the Seller is present and asked the same question? As a point of fact, there was a water problem, maybe 6 years ago, and the derivation of the problem had been found, and the problem resolved. The Seller just had not gotten around to “painting and patching” the spot on the ceiling. That explanation would be honest, and should be sufficient to end the discussion. What if the Seller panics, and thinks, if I mention water now, I may kill the sale, right at the closing table? So, the Seller either denies that there was ever a problem or otherwise lies about why there is a spot. Months, or years, later, there is a water problem in the home, and the Buyer clearly remembers the Seller stating, at the closing, before many witnesses, that there was NO water? The chances for a lawsuit, even after closing, are greatly increased.

The moral of this story is that we, as real estate professionals, are better served if the Seller does not attend the closing. If the Seller wants to meet the Buyer, or convey information important information about the home to the Buyer, suggest a post closing event. Better yet, suggest that the Seller write down information for the Buyer and deliver it at the closing. While the writer hates to be as defensive as the suggestions in this post appear, litigation after a sale is costly and never really benefits either the Buyer or the Seller.  It certainly is not a felicitous event for a realtor. The Buyer is purchasing a “used” home in most circumstances. Small problems are bound to appear. Gratuitous, or even fabricated, remarks at a closing by the Seller can be costly. Use your influence on your customer to prevent the problem before it arises.

Disposition of Offer Deposit–Ending Buyer and Seller Disputes over Small Amounts of Money

Litigation/Disputes, Uncategorized, , ,

I have been pleasantly surprised at the number of comments I received relative to the disposition of Purchase and Sale deposits, and the problems that many of you have experienced because of the uncertainty in what to do about the “Offer Deposit” so-called, normally $500 or $1,000, which is delivered to bind the Offer. See my post on Purchase and Sale Deposits in www.realtorsresourceblog.com

In point of fact, the Seller changes his position once an Offer is accepted. In most cases, marketing efforts are sharply curtailed, and even if they continue, they are presented on a “back-up” basis which does not engender a lot of enthusiasm from prospective purchasers. So, there is a “price” involved in the Seller’s accepting an Offer, and that needs to be somehow recognized.

For the Buyer, the accepted Offer is an opportunity to “get serious” about the property. The Buyer pays for an inspection, and often has his attorney look over the Condominium Documents and Condominium Information, if this transaction involves the purchase of a Condominium Unit. Well drafted Offers (future blogs will consider the status of Offers in Massachusetts) will give the Buyer many “outs” if the transaction does not go forward.

What seems to be the problem is what you, as the realtor holding the Offer Deposit, must do with same if for some reason the deal does not go to signed Purchase and Sale Agreement status. The normal approach would be for the deposit to be returned,in full, to the Buyer if the Buyer decides not to proceed. Most realtors will require both the Seller and the Buyer to “sign off” on such return.

Most realtors I have dealt with will NOT return the deposit unless and until a piece of paper, authorizing the Release of the Offer Deposit, with signatures of both Seller and Buyer, is obtained. If it is not obtained, for whatever reason, the Offer Deposit goes into some form of purgatory in the realtor’s fiduciary account, never to see the light of day for either the Seller or the Buyer.

Suppose the deal doesn’t go because the Buyer just “walks away” and cannot be located. Suppose the deal doesn’t go because the Seller is not comfortable with the Buyer’s reasons for not going forward, and, in effect wants to punish the Buyer for acting irreponsibly or arbitrarily. Haven’t we seen this happen in our practices?

I have a suggested solution, which I would appreciate your feedback on. In my opinion, my approach champions some much needed reform in this area.

My suggestion is two-pronged:

            1. No Request from the Buyer.If the Buyer does no request  the Offer Deposit back, in or within thirty (30) days of the date of the Offer, the Offer Deposit, in full, shall be delivered to the Seller.

            2. Request from the Buyer for Return of Offer Deposit. If the Buyer requests the Offer Deposit back within said thirty (30) days, Eighty (80%) per cent of the Offer Deposit is returned, no questions asked. The remaining Twenty (20%) is delivered to the Seller to defray Seller’s costs for participating in the inspoection and delivering Condominium materials, if a Condominium Unit is the subjectof the sale.

This set of provisions would be an inetgral part of the Offer to Purchase, thus agreed upon in advance. The 80/20 split of the Offer Deposit is mechanical, but it ends disputes. Having the Buyer bear some responsibility for the work involved in getting to a signed Offer limits “tire kickers” who sign offers like eating popcorn. Serious Buyers may think twice before leaving $200 or $100 on the table. The transaction can “move on” without the weight of what to do with the Offer Deposit. Neither the Seller or Buyer can dispute the dispostion of the Offer Deposit. it is agreed upon beforehand, and is based on reason.

I would be interested if my readers think a system like this could work. It would end endless headaches for our profession, and the need to go to Small Claims Court or other litigation for a relatively small amount of money.

The Greater Boston Real Estate Offer Form and Purchase and Sale Form have not been amended for almost twenty years. Future posts will explore this situation and suggest some other needed revisions. I truly believe that the proposed “automatic” Offer Deposit solution makes sense and should be included in a new Offer Form. Get me your responses to this idea through blog comments or emails to etopkins@topbev.com. I promise to respond and keep this matter alive.

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Nike has been criticized for contracting with factories (often known as Nike sweatshops ) in nations comparable to China, Vietnam, Indonesia and Mexico Vietnam Labor Watch, an activist group, has documented that factories contracted by Nike have violated minimum wage and overtime laws in Vietnam as late as 1996, though Nike claims that this observe has been stopped. forty three The company has been subject to a lot critical protection of the usually poor working conditions and exploitation of low-cost abroad labor employed in the free commerce zones where their items are usually manufactured. Sources for this criticism include Naomi Klein s book No Logo and Michael Moore documentaries.
In addition to its iconic swoosh emblem, Nike can also be identified for its slogan, Simply Do It. The phrase has been in use since 1988 and bolstered sales significantly as a result of its common resonance. It communicates the sense that Nike wearers do not should be well-known athletes to reach their objectives, simply that they possess unfailing grit and dedication. On the same time, endorsements from professional nike free run 4 0 sales discount cheapest athletes reminiscent of Michael Jordan havent harm the brands credibility. Sports idols and their trademark footwear, equivalent to Air Jordans, have seeped into fashionable culture, where they remain to today.
As Apple gets concerned, Nike has a potential accomplice. Apple CEO Tim Cook dinner, who was seen sporting a FuelBand on the companys launch of the iPad Mini in October 2012, sits on Nikes board, and has for the last nine years. That relationship has been fruitful, helping Nike enter the wearable market as early as 2006 – with the Nike+iPod shoe-sensor package – with a strong model companion. Again, whereas the MVX is technically all new, if you ve worn Mercurials in the past, or just thin sneakers normally, the MVX will present a similar expertise. Protection
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Theres increasing competition out there for wrist-worn health trackers, and Nikes digital app ecosystem, Nike+, has grown less reliant on wearables as smartphone sensors have improved. In different phrases, it makes much less and less sense for Nike to stay in the hardware race when its physical wearables will not be bottom-line needle movers, particularly as corporations like Apple and Google put together to join the fray. Partnering with trade-main tech firms is nothing new for Nike, Nikes Sturdy mentioned. We have been working with Apple to develop merchandise since 2006, after we introduced Nike+ Running, and Nike has since created iOS Apps including Nike+ Training Club, Nike+ FuelBand and Nike+ Transfer.
In January 2013, Nike signed Rory McIlroy, the then No 1 golfer in the world to a 10-12 months sponsorship deal price $250 million. The deal includes utilizing Nikes range of golf golf equipment, a transfer Nick Faldo beforehand described as dangerous for McIlroys game. 69 Brettman, Allan (sixteen November 2012). With Cole Haan sale, Nike can deal with more necessary issues, analysts say The Oregonian Retrieved 13 February 2013 Fass, Allison (2000-08-31). The Media Business – Advertising – Addenda – Cheap Nike Roshe Run 2014 Womens UK Sale The Media Enterprise – Promoting – Addenda sale nike hypervenom in shops – Nike Spot Wins An Emmy Award New York Occasions Retrieved 2010-03-04
Nike has also sponsored many other profitable monitor and subject athletes through the years, similar nike shox tanger outlet wisconsin dells to Carl Lewis, Jackie Joyner-Kersee and Sebastian Coe nike basketball shoes zooms The signing of basketball player Michael Jordan in 1984, with his subsequent promotion of Nike over the course of his career, with Spike Lee as Mars Blackmon, proved to be one of the biggest boosts to Nikes publicity and sales. Brettman, Allan (February 2, 2013). www.oregonlive.com/playbooks-earnings/index.ssf/2013/02/as_nike_looks_to_expand_it_alr.html As Nike looks to increase, it already has a 22-constructing empire The Oregonian Retrieved 2013-02-06 The first section of the Nike World Headquarters campus opened in 1990 and included eight cheap nike free trainer buildings. Now, there are 22 buildings.
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