Criminal Law Jobs - 12 Basic Legal Concepts

We’ve tried to explain 12 basic criminal law concepts which will give you a better understanding of some of the ideas you would need to master if considering a career in criminal law.

Actus reus – this Latin phrase translates which directly translates to guilty act. In a criminal case it is the responsibility of the prosecution to prove “proof of fault” which could also be described as a culpability or blame-worthiness. It is necessary to prove that the defendant was guilty in mind.

Causation – did they bring about the result? It may be simple but it’s important when putting together a legal case that the solicitors can be sure that the people accused were responsible for the act or omission which was caused the illegal consequence.

Concurrence – we have already discussed the guilty action, concurrence describes the need for bother the guilty mind and guilty action. Concurrence is not always needed in cases of strict liability. In principle, if the guilty action does not coincide in point of time with the guilty action then no crime has been committed.

Mens rea – this is the mental element of criminal law, it can be compared simplistically to the idea of a motive. Guilty mind does not in isolation does not make someone criminally guilty. There are typically four different kinds of Mens rea, intention, where it was planned. Knowledge, recklessness and negligence are other circumstances where someone can be described as being guilty of mind.

Intention – did they have the foresight to see the consequences and desire to act or fail to act to prevent the consequence. If they are able to prove this the person isn’t guilty. This concept is particularly important and is one of the areas most widely contested when cases reach court.

Recklessness – a type of Mens rea, it falls as being less culpable than intention or knowledge but the person still would have been able to prevent the consequence had they not been guilty.

Wilful Blindness – this is where an individual seeks to avoid liability for a crime by making themselves deliberately unaware of facts which would make them liable for the crime. This protects in situations where people make deliberate attempts to excuse themselves from liability.

Criminal Negligence - careless, inattentive or neglectful. Negligence is another type of Mens rea. To be criminally negligent the person accused is has had the foresight to see the risk which is responsible for the illegal outcome.

Ignorantia juris non excusat – a direct translation from Latin of this phrase is Ingnorance of the Law doesn’t excuse. This is one of the more easy to follow aspects of criminal law. Just because someone might not be aware of the law or some of its details that doesn’t mean they cannot be guilty.

Vicarious Liability – this means that if a group of people are collectively involved in criminal activity they are all liable for their actions carried out as the group. Typically in most modern criminal cases there isn’t a vicarious liability and someone has to be responsible to be found guilty

Corporate Viability – in the eyes of the law companies and corporations can be treated as if they were a ‘real’ individual person.

Strict Liability - in cases of strict liability the mens rea doesn’t have to be proven, the person being charged with a strict liability crime may well be found guilty and convicted even if they were unaware or ignorant of the crime.

Referring a Legal Case

1. An experienced traveler, you purchase a train ticket from Fairbanks, Alaska to Anchorage. In terms of taking trains and purchasing tickets, you have both "been there" and "done that." As you board the train for the multi hour ride which includes a meal you discover that you and your travel companion are sitting on a bench made for one hunched over a narrow table and across from another traveler and her companion. Cramped quarters were not what you were expecting. About quarter way into the journey, you learn that the track diverts since repairs are underway due to a train that crashed last week. You were not told of this when you purchased the ticket. Now the journey will proceed to another stop where you will switch from train to bus for the remainder of the trip. The trip will now take an additional 8 hours. Most of us, lawyers that we are, would likely seek some remuneration for the inconvenience of not being told a significant detail about the benefit we were getting by purchasing the train ticket. (Some would ask even if they liked traveling by bus in scenic Alaska anyway!) You surely did not get what you bargained for.

2. You buy a used last year model car from a dealer. It looks good. You test drive it on the highway from one exit to another. It drives well. You have been driving for 30 years and decide to purchase the car. A week later, you take the family to Utah and get out on the highway cruising at 60 mph. After driving 40 minutes, the car loses power steering when it stalls. You maneuver to the side of the road safely but very concerned. You turn the key, start it up again, and slowly accelerate to 55 mph. After 30 minutes, the car stalls again. By now, you are concerned for your family’s safety and getting your money back from the dealer and returning the car. The buyer did not get what he bargained for.

3. An attorney refers a case to you because:

a. She recognizes the area is outside her experience and wants the client to have the best representation possible,
b. He is in over his head and acknowledges he needs help.
c. He cannot finance an expensive trial, The attorney refers the case when:

a. She initially consults with the client and immediately recognizes another attorney with experience in that area better serves the client.

b. She waits until the 2 year statute will run and wants someone else to file.

c. The trial is a month away. Each of these scenarios represents a variety of ways a case can be "referred." The problems of the matter, especially when another lawyer handles it for 2 or more years, stay hidden in the file’s details. No one can know those details after a telephone

conversation.

So, as in the ticket purchaser and the car buyer not getting what they "bargained" for, so too are attorneys who accept case referrals blindly. When a lawyer asks me to evaluate a case, I always advise them if I can do it. If there is time to review the file, I ask them to deliver it to me. I request an initial meeting with the client. If I can help the client and take over the case, I enter into an initial fee agreement with the referring attorney. "Initial" because once I take over representation, details not given to me previously may start to unravel.

Once while ironing out the referral details I discovered the client had filed bankruptcy and the referring attorney had not applied as special counsel. Effectively there had been no representation of the trustee for over a year! Another time, with a trial pending, the opposing lawyer advised of the referring lawyer’s "verbal" stipulations to bifurcate liability and damages where the plaintiff’s craniotomy photos would have been excluded from the liability portion of the case! (A decision I would never make)

The best time to refer a case that is outside an attorney’s area of expertise or interest (outside of the money interest) is as close to the beginning as possible. It is best for the client. And the client’s interest is primary. It is not wise to hold a case until the statute of limitations or until the trial since much evidence can be permanently tainted or lost. Witnesses are harder to find, experts may be harder to get involved, and so on. If revising the referral fee agreement will get the client the absolute best result and representation then that takes precedence. The "traditions" of old need updating as much as going to the local country doctor for heart surgery no longer cuts it.

Legal Issues When Hiring Someone to Build Your Site

Given the costs associated with hiring employees, a vast majority of businesses now hire independent contractors to build and/or maintain their websites. This raises a host of legal issues.

First and foremost, it should be a requirement that the person or business developing your site agree to put everything in writing. As with any contractual situation, oral agreements are useless. Handshake agreements and oral promises simply are not enforceable in court. Sad, but true, so get it in writing!

The second issue to consider is jurisdiction. The World Wide Web is aptly titled. If your business is in Los Angles and your site designer is in Toronto, how are you going to enforce the agreement? At a minimum, you should designate the jurisdiction of any disputes as you desire, to wit, Los Angeles in this case. That being said, you need another hammer as well.

The hammer is, of course, the requirement of milestones. Milestones are simply stages of site development. At each milestone, the site designer is required to meet certain thresholds, get approval from you for the progress made and payment of an indicated amount. Milestones are critical because web designers tend to have an artistic side, which means they can take forever to accomplish a site design unless “motivated”. Milestones motivate them.

A major issue that is often missed is the assignment of copyright. Most site owners go through the following thought progression. I am the owner of the site. I am paying this person to create the site based on conversations we have had. When I pay them, I become the owner of the design including copyright of it.

While logical, this thought process is simply wrong. Under federal law, the creator of a work is the owner of the copyright unless they are the employee of a business. In this case, our site designer is an independent contractor. As a result, they maintain ownership unless you take affirmative steps to obtain it. This is handled by including a clause in the agreement that details the specific IP rights to be assigned from the designer to you. Fail to include such a clause and you could end up seeing parts or your entire site reproduced on other domains!

As you can see, there is far more to hiring a site designer than just finding a qualified individual. Think through the process, negotiate a deal, get it in writing and make sure you obtain all the intellectual property rights! Don’t use a pre-printed form!

PA Lemon Law

Pa lemon law has been protecting consumers for a long time. Residents of Pennsylvania have been happy with the comprehensive lemon law which seeks to enable lemon car owners get their rightful compensation from manufacturers and dealers of motor vehicles. A lemon is a generic term that is used to describe a new car that has experienced a nonconformity. This means that the car has shown some signs of serious defects before is time. Many people in Pennsylvania find themselves in this predicament and they take advantage of the lemon law. The first thing you might do when you experience a problem with your new car is to take it to the repair shop. When you realize that the problem is much more serious than you thought, the Pa lemon law requires you to contact the manufacturer or the car dealer in writing to inform them about the situation.

This will allow them a chance to repair the lemon and verify whether it is a complete lemon or not. If your new vehicle is a lemon, it will not respond to the repair attempts and you will then request for compensation or a refund from the car dealer. Do not forget to keep every document or correspondence in regard to the lemon. This is because it is evidence which might be necessary if you proceed with the case. Some dealers will not hesitate to compensate and you can choose a refund or a replacement. However, this will happen in an ideal situation and many manufacturers or car dealers will not agree to compensate this easily. They might allege that you are the one who did not maintain the car properly and they might also accuse you of negligence.

If they have enough grounds to do this, you must be prepared to state your facts in the most convincing way. According to Pa lemon law, a lemon must have undergone at least 3 attempts of repair. When the car has not served you in 30 days, you can also use the lemon law to get compensation. When the manufacturer fails to deliver on the compensation, you have other options under the Pa lemon law to proceed with the case. The first option you have is to go through the informal dispute settlement programs. The first program is sponsored by the manufacturers and what they do is to have a neutral mediator who can help settle and resolve the issue.

Both parties which are the lemon car owner and the car dealer present their cases and voice out every concern they might have in regard to the lemon case. The mediator then makes a ruling which might favor you. If you win the case, the manufacturer or car dealer will have to compensate you. If the case does not go your way at the manufacturers dispute resolution program, you have the option of going to a program that is government sponsored. There will be an administrative judge to hear your case and when they have taken all the facts into consideration, they will rule. Again, you might not be pleased by the ruling and the next thing you have to do is to file a civil suit where a good lemon law lawyer will come in handy. When you believe that your case deserves to win, you will present all the documents to show that you bought a lemon.

Utilizing Legal Aid Services

I have worked in the human services field for years and I am well aware of the fact that most people don't know that there are legal aid services available. When people need legal advice they can turn to a variety of legal aid services. Most of the states in the US offer legal aid services to people who cannot afford to pay for lawyers. In each state there is a different division of legal aid services, they may be located by regions, counties or cities. It is good to know that legal aid services include many different services.

Usually when you need to have an attorney answer a specific question over the phone, you don't have to pay for their services. However, you should be very careful and absolutely sure that you are speaking with the right guy. For example, if you need a legal advice about a crime you shouldn't talk to a real estate attorney and in case you need information about taxes a criminal attorney won't help you. It is vital to know that each area of legal service is divided into areas of expertise.

In case talking over the phone is not good enough, then you will have to hire the attorney to help you solve your case. This is when you can turn to the legal aid services in your state. You can get legal advice and representation at a discounted price or sometimes completely free of charge if you are not able to pay anything. There are states which provide public defenders for criminal cases. Sometimes these services are divided into separate offices. In some states legal aid services handles only civil matters and family court cases. For instance, the legal aid service in my city offers help for divorces for women who are victims of domestic violence. The local office also protects the civil rights of vulnerable adults.

Maybe you are wondering how legal aid services can be free of charge. This is possible when the attorneys working on the case do the work pro bono which means that they donate their time to represent the person in court. Sometimes local or state governments hire attorneys to provide services to individuals in the community. It is great that there are legal aid services because this is the only chance that the poor will be able to protect their rights and will get legal advice. However, when you turn to the local legal aid services office you should be ready for long waiting as the attorneys working there have very heavy case loads.

Before any attorney in such offices provide you with whatsoever legal service you will have to give your financial information in beforehand to insure you qualify for legal aid services. There are different income guidelines for the different states. If you go to one of the offices for legal aid services you will also be informed if they can take the particular case that you need legal representation for or not.

Roles of Real Estate Attorneys

Do you know that real estate attorneys are the most wanted personals in the real estate world?

Food, dress and shelter are three essential requirements of any human being. Hence there will be real estate transactions each and every day.

Everyone has a dream of owning a home. As far as property sellers and buyers are there, real estate attorneys are in great demand. In fact these people are inevitable in selling and buying of properties. Both parties in the property transactions make use of these attorneys in variety of ways.

What are the roles of real estate attorneys?

Let me detail out here about eight important roles of real estate attorneys in the selling and buying process of properties.

• Tenant's dispute is the first area in which they can play a major role. They will help in negotiating between the tenant and Landlord and make a settlement, which offers a win-win situation.

• Property dispute between two parties is the major area in which these attorneys often involve. They can negotiate between the parties and find an amicable solution for the dispute. Apart from this, they can help in the selling of the property so that the amount can be used for the settlement of the dispute.

• Some are available for arranging buyers for those sellers who do not feel comfortable with agents/brokers.

• Mostly there will be dispute about properties after divorce. These attorneys handle divorce property disputes excellently.

• In case of dispute regarding jointly owned properties, the real estate attorneys could settle the dispute with negotiations or any other proper actions.

• An attorney can handle disputes among the heirs of a deceased. He can help in selling the property and make settlements between the heirs.

• Real estate attorney can act as a consultant or an advisor for you. Real estate investors like to use the great service of attorney to do the business efficiently and fast. He can make the transaction very smooth and hassle free. You can make use of the tremendous experience he has to save your precious time. He will do it perfectly without any issues, which can arise later.

• In fact they are knowledge banks regarding real estate investments. Mostly the properties with disputes will be much beneficial to the investors. These legal people can provide you the best information on the disputes and settlements.

Real estate attorneys have always plenty of jobs in their hand, whether the real estate field is on a roll or not.

Becoming a Trainee Solicitor – Tips on Getting a Legal Job

Fortunately for anyone who wants to become a solicitor there are quite clear routes to getting a job. Providing you put in the time & effort you should be able to become a solicitor & get a law job.

In order to train to become a solicitor there are some unavoidable prerequisites. The simplest path is to gain is a law degree from an accredited university. Once you have completed your degree in law you are perfectly qualified to begin the process of becoming a lawyer.

However, often people are unsure of their career intentions when they choose their subject of study at university. This needn’t be a problem though, anyone with a degree should be able to carry out a one year conversion course. This builds on experience you have gained in your current degree but introduces you to all aspects of law & the knowledge you would need to train to become a solicitor.

If you don’t have a degree this doesn’t prevent you from becoming a solicitor. Provided you have some extensive legal experience, such as working for a law firm in a non-legal position you may be qualified by experience. The route to becoming a solicitor is slightly different to those taken by graduates but the Institute of Legal Executives provide a combination vocational & comprehensive academic courses to prepare you to become a solicitor.

No matter which route you take to get to this stage now everyone is required to take the Legal Practice Course (LPC) which takes one academic year, if you are working full time or two for those studying part-time. Places on the course themselves can be quite competitive at the most highly regarded institutions & universities but you wouldn’t be hugely disadvantaged by taking the course where ever is most convenient.

Once you have completed the LPC, aspiring solicitors are required to apply for two year trainee positions at a legal firm or an organisation like the Crown Prosecution Service. Competition for these positions is high, especially at the top law firms. It’s vital to polish your CV & brush up on your interview skills to make the best impression.

Though the training courses & exams are finished, during the traineeship you will still have to pass the Professional Skills Course (PSC) before you can become a solicitor proper. The course takes an equivalent 12 days & covers three compulsory courses plus a number of elective courses.

Once you’ve ticked off all these boxes on your to do list you will have your “Admission to the Roll” you can apply for a “practising certificate” which enables you to offer legal advice & represent your clients.

Getting a Divorce? 5 Tips to Avoid a Huge Legal Bill

Divorce is not easy at the best of times. But it can be especially difficult when enormous legal bills add to the usually stress and strain. Here are some tips we recommend that you consider to keep your legal bills manageable.

1. Is a lawyer really necessary? Often the answer is "yes". Where else can you go to find out what your legal rights and responsibilities are? But after you get the answers to your questions if may be possible for you to take care of the remainder of your divorce by yourself - possibly with just a little help.

The vast majority of divorce cases are uncontested - the spouses have agreed on the terms of divorce. The relationship is over and needs legal closure. You cannot expect the court office to prepare your paperwork for you but there are some affordable alternatives to law firms.

One is a do-it-yourself divorce kit. You can buy one of these for about $30 at most bookstores or office supply stores. They give you the basic information you need along with the blank forms you will need to fill out. It will still take some time to read through and figure out what they are telling you to do but it has the advantage of being the cheapest possible option.

An easier alternative is a little more costly, between $200 and $300, but still much cheaper than hiring a lawyer. The Internet has several divorce document preparation services which will send you all the forms you need, already completed and ready for you to sign. You just follow the instructions they provide to file the forms with the court office. Yes, this is more expensive than the kits but much easier and will still save you a great deal compared with hiring a law firm.

2. Try mediating instead of litigating. If you are among the 10% or so who have not been able to agree with your spouse on the terms of your divorce, before your lawyers start scrapping hire a mediator. A mediator is a specialist in assisted negotiation who will help you and your spouse come to an agreement on those touchy issues that you have not been able to resolve on your own. Mediation is successful in resolving the majority of disputes and can change your divorce from a courtroom contest into a far less expensive paper shuffle.

Mediation is going to cost you a few thousand dollars so you have to keep the alternative in mind. Sure, if you and your spouse can settle matters without a mediator then that is the way to go. But if the alternative is a court room battle you will both by out tens of thousands of dollars. If you can spend a couple of thousand and avoid this through mediation then the choice is obvious.

3. Free initial consultations are often offered by lawyers looking for your business. Before booking an appointment with a lawyer make sure the first 30 minutes or so will be free or else call someone else. It may be that after getting some preliminary information you will find that you won't need a lawyer to handle your divorce and you can try one of the cheaper alternatives.

4. Understand how a lawyer's bill is calculated. If the hourly rate is $200 then for every message you leave or brief conversation you have you will be billed at least $20. Each time you are tempted to call your lawyer and ask how things are progressing, take out a $20 bill and say goodbye to it - you might reconsider. A better idea is to arrange at the beginning to have copies of all letters written or received by your lawyer forwarded to you. You will still be billed for these copies but they will let you keep tabs on what is happening with your file without incurring any more fees than necessary.

5. Negotiate a flat fee with your lawyer. This may not be easy, or even possible, as most lawyers charge by the hour. But if you can do it the peace of mind of knowing what the legal bill is going to look like at the end of the day is worth making the attempt. It also allows both you and your lawyer to focus on the real issues and not on who to minimize/maximize the bill.

Tips for Reducing Legal Costs

Legal support in this country is absolutely necessary but unfortunately, we see some seriously flawed aspects that are putting a huge strain on just about every industry. For example, malpractice lawsuits are forcing doctors out, legal costs within our school systems reduce the money spent on books, the number of law enforcement officers on the streets is cut back, and even public parks and swimming pools are shutting down, all because of increasing legal costs. The solution is very complex since it requires the involvement of everyone to bring costs under control.

One of the main problems is that many of the costs for legal counsel do not make economic sense, specifically when we look at the current tort system. In other words, payments made out to “victims” through the courts typically relate directly to the individual and not the society as a whole. Today, congress is working hard to determine what changes, if any, would boost the economy.

Most people believe that a nationwide collaboration with specific procedures, guidelines, and strategies is the best defense against the rising cost of legal costs. In other words, we need to create an environment in which a concerted effort would provide cost savings in many, if not all, industries. The truth is that litigation costs and fees are on the rise. By making sure these expenses have, a realistic and reasonable connection to risks and objectives is one way of preserving our society.

With concentrated efforts and strategies, costs could be contained but still provide the reward in appropriate situations. To improve these collaborative efforts, each person needs to consider the ways which they view things. For instance, if an entire law firm has the same concept of value, then decisions in every case are consistent, following direct strategies. This way, decisions from within the law firm are made with the same objectives in mind.

When seeking an attorney, look for a firm that has a lead attorney, someone with outstanding education, experience, and leadership. This way, informed decisions are made, resulting in the elimination of unnecessary costs that are passed down to the business owner or individual. Then, candor is essential. If certain costs cannot be discussed in a professional manner, there are problems. A business owner or individual has the right and obligation to work with an attorney that is honest and direct. This type of communication is crucial to saving money while still being provided with top-notch legal counsel.

In addition, more and more people could do some of the work themselves. Considering that public records provide significant insight, many times, information could be obtained by the business owner or individual involved with a lawsuit rather than a legal team, thus cutting significant costs. For information that would need legal support, some things could be handled by a legal aid or paralegal, again reducing costs. The bottom line is that while we need lawyers and the valuable services offered, being creative in the way information is obtained directly to a lawsuit could mean significant savings to most industries.

Miami Real Estate - Some Helpful Tips About Lease Options

Buying a residential property is not a likely prospect for everyone. Perhaps it could be due to lack of funds or maybe because of the need to relocate frequently. Whatever the reason may be, you still have a myriad of rental options in the Miami real estate market.

When it comes to renting a house or an apartment, you should always be mindful of the possible consequences of each contract. More often than not, a lot of people find the Miami real estate lease/options to be cool and cost-effective. However, you shouldn't readily jump on the same bandwagon seeing as these arrangements usually involve certain drawbacks. To avoid being entangled in such pitfalls, make use of the following tax and legal tips.

Lease/options are actually terrific, except when the home seller chooses not to meet his end of the deal. Certainly, you may take legal action to oblige him to sell you the Miami real estate property. Then again, taking this route may cost you a fortune in legal payments and may take a long period of time to achieve. Thus, you need to make an effort to put yourself in a better spot if you wish for your investment to be safeguarded. Here are some of the things you can do to safeguard your option:

Log The Option

If your lease/option was signed in the presence of a notary public, you can log your option in the public real estate registry. This will serve as a public notice of your intent to purchase the Miami real estate property. If the lease/option wasn't notarized, you can still sign a sworn statement known as a "memorandum of option" before filing the option in the registry.

Escrow The Title Deed

In case your seller dies or disappears, you'll definitely have a problem. Because of these possibilities, you should have an escrow created in advance wherein an attorney or a company is tasked to hold a completed deed. When you're ready to purchase the Miami real estate property, you simply hand in the money to the escrow representative and receive the executed deed.

Keep Track Of The Mortgage

More often than not, a mortgage is noted down on a promissory letter so as to secure payments. Know that a mortgage can definitely be recorded in order to guarantee implementation of any arrangement (i.e. purchase option). As the prospective buyer (optionee), you will now function as the lien holder, which is in the similar position as that of a secured lender. In case the seller of the Miami real estate property changes his mind about selling, you have the option to foreclose. If this happens, the seller will be compelled to go to court in an effort to protect himself, instead of the other way around.

Difference Between Judicial and Non-Judicial Foreclosure

Judicial Foreclosure

Judicial foreclosures are processed through the court system. The lender files a complaint stating what debt is owed with an explanation of why they should be allowed to recover the property from the borrower in lieu of debt settlement. A notice of Lis Pendens usually accompanies this complaint. A Lis Pendens means a notice of pending action. The home or property owners are notified that there is intent to cure a default by mail and publication to have an opportunity to protect their interest in the court. If the court finds probable cause of default in debt settlement, it is then ordered that the amount owed is valid along with court costs. The property is then to be sold at public auction. When the property is sold, it is then presented in front of the court to protect the lender's interest.

Non-Judicial Foreclosure

Sometimes Non-Judicial foreclosures are referred to as power of sale foreclosure. This procedure does not involve the court. The mortgage company sends a notice of default or a right to cure default and files a recording in the county recorders office. Often local publications are used along with these proceedings. There are some states that do not require a notice of default and can proceed without any direct contact with the owner. Most states require a time period for these proceedings and after this lapse the public auction is held and the property is sold to the highest bidder. Homeowners are generally allowed to redeem the property in a process called Statutory Redemption. This time period varies from 30 days to one year, depending on each state law.

Facing a foreclosure is frightening and often times confusing since each state is different. You should not face this alone. Act now to contact your lender to see if you can work out a repayment option to settle the debt. If this isn't a satisfactory solution, get a foreclosure expert to help you with the foreclosure. There are too many laws and terminology that the common man might not understand. You really need to take a look at your finances to see where your problem lies and be upfront and honest with your lender.

Arizona Real Estate Law - Understanding Arizona's Anti-Deficiency Statutes

In Arizona, absent some agreement, rule or statute to the contrary, a lender can generally seek a deficiency judgment after foreclosing on a property securing a loan, if the property does not sell for enough money to satisfy the debt in full. Fortunately for most typical Arizona homeowners, the Arizona legislature has adopted anti-deficiency statutes that preclude such recourse in many typical fact scenarios. In addition, the parties to a real estate contract may expressly agree that the lender's only recourse is foreclosure on the property itself.

In the event of non-recourse loans, the non-recourse provision should be included in the mortgage or deed of trust. In most cases, the lender agreeing to a non-recourse loan will also want assurances in the loan documents that the borrower will not commit acts of waste.

In the absence of express agreement, Arizona law provides protection for borrowers against potential liability stemming from the sale of a property at less than market value in a foreclosure sale. The borrower, however, must act quickly to protect his or her rights. If the property sells for less than the amount owed to the lender, the borrower is entitled to ask a court to determine the property's fair market value. In the event the court agrees that the far market value is higher than the sales price the buyer gets credit for the higher amount. This not only protects the borrower from an unfairly low price, but encourages lenders to make a credit bid for an amount near fair market value.

There is an even more favorable statute protecting borrowers against deficiency judgments involving single or dual-family dwellings on 2 1/2 acres or less where the loan is "purchase money," meaning it was used to pay the purchase price of the property. Typically, loans used to refinance purchase money loans are also considered purchase money loans, although the use of some of the proceeds to pay other debts, obtain cash out, or for other uses may expose the borrower to recourse liability.

Significantly, even if the loan is not a purchase money loan, the lender's election to utilize non-judicial foreclosure on the deed of trust renders it non-recourse by operation of law. The lender may, however, instead seek judicial foreclosure, which is more expensive and time-consuming, but preserves the ability of the lender to obtain a deficiency judgment. This anti-deficiency statute also allows a lender to seek a deficiency judgment against the borrower in the event of waste.

Because interpretation of the Arizona anti-deficiency statutes and related real estate laws can be very complicated, borrowers and lenders are advised to seek the assistance of an experienced real estate attorney with any questions or concerns they may have.

Choosing an Arizona Real Estate Lawyer

Choosing an attorney is never a pleasant endeavor. This is especially true when your residential or commercial real estate, which may represent the most significant asset you or your business owns, is involved. When it comes to choosing an Arizona real estate lawyer, keep the following considerations in mind and you'll have a much better chance being pleased with your ultimate choice.

First, you should understand that the practice of law is something like practicing medicine. There are general practice attorneys (somewhat like your primary care physician) who may perform a wide variety of simple legal services. There are also attorneys who focus on narrow legal issues, such as real estate law.

When you have a serious problem involving a specific area of law, you will probably want to find an Arizona attorney who focuses on and has significant experience in that area of law. This is particularly true when you are facing a real estate-related dispute that is headed for, or already embroiled in, litigation.

If you already have an Arizona attorney who doesn't practice real estate law, they can be an excellent source of referrals. You may also want to contact the Maricopa County Bar Association, which runs an excellent referral service. Of course, an internet search may also help you to find the Arizona real estate lawyer you are looking for.

I recommend that you identify and meet with at least three attorneys before making your decision. Don't feel pressured to hire the first lawyer you speak with. You're facing a serious choice and you are certainly entitled to obtain a "second opinion." The lawyer you do choose should have experience handling the type of case you're facing, and should be willing to provide an honest evaluation of the claims and defenses you're facing.

After meeting with a few attorneys you should carefully consider things such as cost, experience, location and other quantifiable factors. You also, however, should make sure that you are comfortable on a personal level with the Arizona real estate attorney you select, because your ability to communicate with each other will be vital to your case.

Of course, no lawyer can guarantee success, because Courts and juries can be fickle things. The right Arizona real estate attorney, however, can ensure that your claims and defenses are articulated to the Court in manner that will maximize your chance of success.

The Short And Tricky Statute Of Limitations Framework For Claims Under ILSA

The federal Interstate Land Sales Full Disclosure Act ("ILSA") can fairly be described as a possible "land mine" for condominium developers, owing to the statute's poorly understood exemption provisions which can be and are subject to competing judicial interpretations. The ILSA exemption morass has been at least partly responsible for the large number of lawsuits which have been filed in recent months in Florida courts by buyers alleging claims under the statute in an effort to recover deposits paid under condo purchase agreements.

However, ILSA is not just potentially treacherous from the developer's point of view. Indeed, the statute poses some significant perils for buyers who may have viable claims, and these pitfalls stem from ILSA's unusually short statute of limitations. In judicial parlance, a statute of limitations can sound a "death knell" to the claims of an unwitting plaintiff. See, e.g., Helton v. Clements, 832 F.2d 332, 336 (5th Cir. 1987).

Most, if not all, ILSA claims originate with respect to a written contract for the purchase and sale of real estate. Under Florida law, the statute of limitations for an action on an obligation under a contract is five years. See section 95.11(2)(b), Florida Statutes. And claims under the Florida state condo statute are governed by a four-year statute of limitations. See section 95.11(3)(f), Florida Statutes. But for claims which arise under the ILSA statute itself (and which are not simply for breach of an obligation under the Purchase Agreement), ILSA sets forth shorter limitation periods as follows:

-- 15 U.S.C. section 1703(b): "Any contract or agreement for the sale or lease of a lot not exempt under section 1702 of this title may be revoked at the option of the purchaser or lessee until midnight of the seventh day following the signing of such contract or agreement or until such later time as may be required pursuant to applicable State laws, and such contract or agreement shall clearly provide this right." (emphasis added).

-- 15 U.S.C. section 1703(c): "In the case of any contract or agreement for the sale or lease of a lot for which a property report is required by this chapter and the property report has not been given to the purchaser or lessee in advance of his or her signing such contract or agreement, such contract or agreement may be revoked at the option of the purchaser or lessee within two years from the date of such signing, and such contract or agreement shall clearly provide this right." (emphasis added).

And with respect to lawsuits brought to enforce rights under ILSA, the statute provides a three-year statute of limitations -- either running from the date the contract was signed, or from the date the discovery of the ILSA violation was made, depending on which right under ILSA is being asserted. See 15 U.S.C. section 1711.

ILSA's statute of limitations framework is not only on the short side, but also confusing on its face. In particular, the two-year revocation window under 1703(c) would seem to be at odds with the three-year period to bring an action provided under 1711. The confusion stems from the fact that in its original form, ILSA provided a two-year (not the present three-year) limitations period for actions. One Florida court has gone so far as to label the apparently conflicting provisions as "rather incongruous." Ni v. Deltona Corp., 701 So. 2d 888, 889 n.3 (Fla. 5th DCA 1997). To date, I have not seen an opinion which adequately reconciles these provisions of ILSA.

Apart from the confusion inherent in ILSA, Florida condo buyers could reasonably be under the impression that all rights which they may have under their Purchase Agreements are governed by statutes of limitations longer than three years. That may be true for state law contract claims (five years) as well as claims under the Florida condo statute (four years), but for claims specifically under ILSA, the limitations period is undoubtedly shorter, and buyers should be careful not to waive rights which they may have and wish to pursue.

Realtors - Why Your Client Needs A Real Estate Attorney

In an effort to save money your clients may choose to forgo legal representation in their sale or purchase of real property. However, the lack of competent legal representation in the sale or purchase of real estate could not only cost your client more money in the long run, it could also jeopardize the entire transaction. An experienced real estate attorney helps facilitate the closing, working with all the parties involved- mortgage brokers, realtors, buyers and sellers- to ensure the smooth closing of the transaction. In my experience, there are four main reasons why your clients should hire a real estate attorney to assist with their transactions:

1. To Review the Contract Before Execution

Simply put, your client should not sign the contract until his/her lawyer has reviewed it. If the parties are in a time crunch- simply put the words "Contract subject to review by [party]'s attorney" and include a reasonable time frame. The other party will see that your client is serious about the sale/purchase and it will allow extra time for the attorney to review the contract. You may find that your clients are comfortable signing the contract if it is printed on a standard form.

However, I have seen standard form contracts where the costs of title insurance were incorrectly allocated, financing contingencies unknowingly waived, and inspection periods extending beyond the date of closing. Mistakes happen. At a minimum, the attorney serves as a second pair of eyes, trained to catch errors and potential issues that may arise from the contract terms.

2. To Review and Clear Title

Having an attorney on board early in the deal will also assist with any title issues that may later arise. Even a small issue, such as an unreleased prior mortgage, appearing at the last minute can delay the closing for the transaction. Your client's attorney will be on the look-out for any possible title issues, and plan ahead, obtaining satisfactions, releases, corrective deeds, probate approval, powers of attorney, etc. in a timely fashion.

Also, a real estate attorney is trained to review and understand the title commitment, which is prepared by the Buyer's attorney or title company. In transactions where I have represented sellers I have seen (and corrected) inaccurate title requirements that were unnecessary and would have caused the seller an undue burden and increased expenses. In such an instance it is essential to have a real estate attorney to communicate with the title company, the title insurance underwriter, and/or the buyer's attorney to clarify and amend the commitment. When your client is the buyer, having an experienced real estate attorney prepare your title commitment is both cost and time efficient- a correct title commitment needs to be prepared only once.

3. To Monitor Contract Dates and Requirements

The experienced real estate attorney will monitor the contract critical dates for the buyer's deposits, as well as all contract contingencies such as the inspections and financing. Missing a deadline can result in financial losses for the parties, including a potential loss of deposit or loss of the whole transaction. Simple matters such as calculating calendar days versus business days may make all the difference in some transactions. A party may try to use a missed deadline in order to avoid the contract or to make unreasonable demands on the other party.

Further, if the other party defaults, the attorney will address it properly, both representing your client's interest and working to salvage the deal. An experienced real estate attorney will keep your client's interest paramount, and will focus on meeting critical dates and requirements per the terms of the contract.

4. To Verify Property is Deeded Correctly

When most people purchase property they are not thinking about when they will be selling it. However, the experienced real estate attorney looks at the buyer's specific objectives when purchasing the property, making sure that the property is deeded correctly so when the property is sold in the future there will be no surprises. Your client's attorney will review and/or prepare the warranty deed and legal description, checking it for accuracy.

In addition, the different ways to title the property, affecting your client's real estate taxes and estate planning must be considered. Whether the parties want to be tenants in common or joint tenants with rights of survivorship, consequences of deeding the property individually, versus in the name of a company or trust, are all matters that should be determined well in advance of the closing. Incorrectly deeding the property at closing will cost your client more money later when the deed is corrected, including additional attorney fees, documentary stamps and county recording fees.

Fearing the cost of a hiring an attorney, many clients may try to handle their real estate transactions without one. However, your client may not realize that many real estate attorneys work on a flat fee, and are able to provide them both a fee and cost estimate before beginning any work. Advise your clients to hire an experienced real estate attorney, and let them know that they can request the fees and costs up front.

Land Contracts - Buy Or Sell A Home With No Bank Or Mortgage

In many cases, home buyers are in a financial position to afford the monthly payments associated with home ownership, but they lack the down payment necessary to purchase a home. Or the buyer's credit score or rating may prevent him or her from obtaining the traditional bank or mortgage company financing required for the purchase of a home. When this is the case, it often makes sense for the buyers to consider purchasing a home or piece of real estate and have the owner/seller provide the financing for the purchase - called a Land Contract or Contract for Deed.

Likewise, selling a home by way a land contract can prove beneficial to the seller in many ways. Selling property with a land contract can provide a quicker and more inexpensive way for the property owner to sell the property - the seller does not need to comply with the often rigid and tedious guidelines of bank financing and the delays that often accompany those guidelines. Likewise, real property sold on a land contract can often be priced higher than sales with bank financing since the seller provides the all-important financing and the buyer is often times not required to come up with a large down-payment, thereby permitting a higher asking price for the property.

So how does a land contract work?

Land contracts are common throughout the United States. In some states, they are called Trust Deeds, Contract for Deed, Deeds of Trust, Notes, or (privately held) Mortgages, but they all represent the same thing: a way of selling property where the buyer "borrows" from or relies upon the seller for the financing rather than paying cash up front or borrowing from a bank.

The process is generally as follows:

The seller and buyer enter into a contract that normally states that the seller shall transfer ownership of the property to the after the buyer has fully paid the seller the agreed upon purchase price. In most cases, the contract requires the buyer to make a modest down payment and then to make monthly payments over time. The land contract can require the buyer to pay the seller interest on the money owed (just like a bank would). Also, because the buyer and seller privately negotiate and reach their own sales terms, the contract can also call for smaller monthly payments - beneficial to the buyer - and then a balloon payment to be made at some certain period of time; this balloon or lump sum payment will pay the balance of the purchase price for the property.

During the term of the land contract (i.e. while the contract is in force and effect, the buyer is not in default and until all of the payments are made), the buyer holds legal possession of and occupies the property. The land contract can call for transfer of the property once the seller has received all of the required payments or can call for the transfer at some time sooner, with the seller then holding a mortgage on the property to ensure that the balance of the purchase price will be paid in full. Whatever the terms agreed upon for transferring ownership, when the agreed upon transfer date is reached, the seller tenders (or gives) a deed to the property to the buyer who then records the deed in the county recorders office or the real property office of the county where the property is located.

While the benefits of land contracts are many, there are some potential pitfalls to a land contract that the parties must be aware.

If the buyer misses any payment under the land contract, he or she may lose the property (the right to have the deed transferred to him) and the seller may keep the money paid up to that point as rent. Thereafter, the seller would not be required to transfer the deed to the buyer.

Some states have laws providing that if a buyer makes a majority of the payments under a land contract (which cover a large percentage of a purchase price of the property), the seller may not be able to keep or refuse to transfer the deed if the buyer can make payments on the contract price at a later date (known as the right of redemption). Your state laws should be reviewed.

A disadvantage for the buyer can be found when the seller has a mortgage on the property that the buyer is purchasing and the seller does not payoff existing mortgages by the time the buyer pays the entire purchase price - thereby causing the property to subject to foreclosure. The buyer should determine whether or not any mortgages exist on the property being purchased and then require the seller to pay off all mortgages prior to the final payment being made - but if the seller does not, the buyer should be aware that he or she may be required to pay off the mortgages.

Expert Witness Testimony for Real Estate

Expert witness analysis and testimony provides both the parties information to settle prior to the actual judicial proceeding. When settlement negotiations are not successful, expert witness testimony provides the trier of fact (judge or jury) information to consider in making their decision. Expert witness testimony is a subset of litigation support services. The expert witness' primary responsibility is to develop and support a credible opinion of value. The standard of care for expert witness assignments is substantially higher than for typical valuation assignments. Both opposing counsel and the expert witness representing the other party will likely carefully review and scrutinize the expert's underlying data, analysis and final report. Expert witnesses who develop an opinion of value which is unreasonable tend to cause cases to unnecessarily proceed to trial.

The higher standard of care appropriate for expert witness assignments extends through all phases of the assignment. The expert should precisely determine the scope and purpose of the assignment. This includes the letter of engagement, scope of work, research, report preparation, deposition and trial testimony, and preparation for deposition and trial testimony. All data needs to be researched and verified. In many cases, even if sales data has been previously confirmed, it will be verified a second time for the expert witness assignment. Even if the factual data regarding a comparable sale is accurate, issues relating to the motivations of the party can be meaningful. For example, if a purchaser was anxious to purchase it a property because they own the adjacent property, this could artificially influence the sales price. If an expert witness was unaware of such a fact, it could undermine their credibility during a deposition or at trial. The calculations and thought process for the analysis need to be checked and double-checked, as do the report. The expert needs to carefully prepare for both deposition and trial testimony.

Appraisers sometimes believe that preparing a voluminous narrative appraisal, totaling perhaps 200 pages, which effectively documents their opinion is helpful for litigation. However, it is virtually impossible to prepare a voluminous document without overlooking minor errors. For this reason, is typically better to summarize the data and opinion instead of presenting them in a voluminous report. Preparing a summary report also helps to reduce the cost of an expert witness engagement. While it is important to carefully research the facts and perform a thorough analysis, there is little benefit to preparing a voluminous report.

It is imperative that the expert witness understand that the objective of opposing counsel is to discredit the witness and their testimony. Any aspects of the experts' opinion, data, analysis or testimony which does not appear to be reasonable provide opposing counsel an excellent opportunity to discredit the expert witness. Typographical errors and minor math mistakes can be effectively utilized to undermine the expert witness's credibility. If the expert has made a mistake, he should promptly admit it. While all people make mistakes, those who deny them lose credibility.

The expert witness needs to be an advocate for their analysis and opinion, not for their client. Novice expert witnesses sometimes succumb to pressure from clients or other parties to develop an opinion which is not reasonable, credible or supportable. While this approach initially appears helpful to the client, it does not typically provide meaningful assistance to legal counsel or the client since it is not credible evidence for trial. Therefore, it is not efficacious for resolving litigation. In addition, opining an unreasonable opinion has a deleterious effect on the reputation of the expert witness. Expert witnesses who provide legitimate and credible opinions of value provide a meaningful benefit to their clients, counsel and the judicial process. Most cases settle when the experts provide a well-supported analysis.

A credible expert witness who is properly prepared to document and articulate a credible opinion is an integral part of the team necessary to resolve cases before trial or win at trial. In some cases, it makes sense to initially hire the expert witness as a consulting expert. If the expert's opinion is not consistent with what counsel is hoping to receive, the opinion and/or report does not have to be provided to opposing counsel. Legal counsel and the expert witness need to directly discuss the strengths and weaknesses of the case. Although a credible report may not comply with the exact preference of the party or counsel, it is an effective method to provide counsel with the insights they need to effectively resolve the case.

Probate Real Estate - Is a Legal Background Necessary?

I know many of you haven't gotten started yet in Probate Real Estate because you are afraid you will run into legal hassles. Well, guess what? When it comes to legal stuff, I'm not the sharpest knife in the drawer either.

However, I'm still extremely successful in Probate Real Estate.

How can that be, you ask? Here's the secret. Buying Probate Real Estate is not a legal process even though the Probate is conducted through the judicial system. Probate Real Estate as I describe in my book, is nothing more than a method of prospecting for folks who might be interested in selling their house at a discount. That's it!

Let me explain it to you this way.

If I thought folks who owned blue houses would give me a discount, I would have figured out a method to contact folks who own blue houses. I have discovered that is not the case. Blue house owners are not a good place to prospect for good deals. Green ones aren't either! What about yellow houses? Nope - wrong again.

How about Probate houses? Now we are talking!

People who have inherited homes ARE more likely to sell these houses at a discount because they don't want them. Why? They have just inherited the house, and most people don't need another house! What they DO need is more long green (cash money), and the sooner the better, thank you very much!

Consequently, I have devised a system to get a hold of them and see if we can put something together. "I'll buy your house quickly if you'll give me a little discount." Simple enough?

So once I find a willing seller, and I'm the willing buyer, we've got a deal. Now it's just like buying the house next door. Even the blue house next door! You and the seller agree on the price, you write a Sales Agreement and the two of you close on the property. Just be sure to use a title company or an attorney, whichever is appropriate in your state, for the closing. They will keep you out of hot water.
Pretty simple, huh?

That's why you don't need any legal knowledge, or legal training. There are no "special" forms or "special" contracts. As a matter of fact, let me give you a little free tip here.

When you go to write your Sales Agreement, if you want to keep in compliance with your local State and County regulations, go down to the For Sale By Owner office in your area and pick up their "forms" packet. It'll cost you around $25. In it you will find a copy of the Sales Agreement that is used in your area. It should also have a short instruction sheet on how to properly fill it out. That's the one to use. Just use their instructions to fill out your Sales Agreements and you'll be good to go. That will also keep the real estate police from knocking at your door!

So now in the two minutes it took you to read this article, you have learned all the legal stuff you need to know about buying Probate Properties.

Legal Documents - 8 Situations When Your Business Needs Them

If you are the owner of a Small to Medium Enterprise, it's likely that the last thing you want to do is worry about the fine details of legal documents, contracts, business agreements, and similar pieces of paperwork. You may want to get on with the running of your business, but if you don't have the correct legal documents in certain situations you pay a high price, whether it is in legal fees, settlement costs or simply lost business. Here are eight common business situations in which you should have accurate legal documents, either through consultation with a lawyer or by using business document templates.

You are moving into new offices...

To fully comply with health and safety regulations, you'll need a number of legal documents if you move into new premises, including a fire safety assessment and a health and safety risk assessment.

You are dealing with an outside company...

In addition to a clear and accurate business contract, giving clear descriptions of the product or service that you expect to receive, you may also want to consider getting a confidentiality agreement if you are working with other companies and independent contractors, especially if they are likely to have access to sensitive company information as part of their work.

You are hiring...

You need to make sure that your employee contracts are properly drawn up legal documents that clearly define the responsibilities, expectations and conditions of employment.

...or firing...

If one of your employees isn't pulling their weight, you might want to show them the door straight away. But it isn't that simple - ignore the legal requirements for dismissing an employee and you could leave yourself open to costly litigation. You need to follow a clear process of official verbal and written warnings - these warnings and the dismissal need to be carefully worded business documents.

You need a written company policy...

Discrimination against age, religion, gender and sexual orientation can all cause businesses a serious legal headache; a clear and comprehensive equal opportunities policy is a vital document to refer to in any dispute or disciplinary issue you have with your staff. Equally important can be company policy documents concerning maternity leave, harassment and bullying, and drugs and alcohol.

You receive a flexible working request...

Any adult carer or parent with a child who is 16 or under has the legal right to apply for flexible working if they've worked for your company for more than six months. If you do reject an application, you must give a legitimate business reason for the refusal, and give them the right to appeal. Make sure any communication you have with the employee is compliant with the laws on flexible working.

You need a disclaimer...

Whatever your product or service, it is likely that you will need some kind of disclaimer to protect yourself if this product or service is misused or causes injury. Even a single legal loophole in a document like this can be highly damaging to a business - make sure any disclaimer that you have is a carefully worded legal document that fully protects your business.

You need to make a complaint...

Complaints to other companies need to be carefully worded. If the dispute becomes serious, any correspondence you send or receive may become vital and if you make a mistake early on it could come back to haunt you.