By Katie Penny
Can you give some basic information on adoption in Louisiana?
There are three varieties of adoption for minor children in Louisiana: 1) agency adoption, 2) private adoption, and 3) intra-family adoption.
An agency adoption is an adoption which takes place when a child is placed by the Department of Social Services or a private, but licensed, adoptive agency. In a private adoption, no agencies are involved, but the parties, rather, agree to the adoption. An intra-family adoption is a kind of sub-species of a private adoption, in which the child is adopted by certain family members.
For all kinds of adoption, usually at least one of the parents is losing their parental rights. In our country, we actually consider the right of a parent to his or her child as one of the most important rights one can have, and the law takes removal of those rights very seriously.
Adoption, by definition, means taking away the rights of a biological parent and giving those rights to a non-biological parent, and that process is understandably one that the courts try very hard to safeguard. The biological parent, even if absent or awful, must be notified at the very least, and usually their consent to the adoption (in an Act of Surrender) is required. This means the consent of the mother of the child, and the consent of the father (usually, and who is meant by the “father” can vary).
To even give up his or her parental rights, the parent must go through mental health counseling (the father can waive his counseling; the mother cannot) and, in a private adoption, legal counseling as well.
The actual Act of Surrender has to be in a particular form, and, in order to protect mothers from aggressive couples trying to get the mother to give up her child, or to protect mothers who want to give up their children before they are born, but might change their minds later, the mother cannot give up her rights until the baby is at least 5 days old. The father can Surrender his rights earlier than the mother, but he can change his mind about his decision to give up his rights all the way up until five days after the birth. At that point, his decision to give up his rights becomes irrevocable. (Under certain circumstances, a parent can surrender their parental rights in open court.)
These requirements might seem excessive and complicated, but, really, in light of the irrevocability and finality of Surrendering these very important parental rights, it is reasonable that the courts should want to give parents every change to make sure they are making the right decision.
A parent’s rights may be taken away by the court (rather than the parent giving up the rights on their own) if the parent is convicted of the murder or unjustified killing of the other parent, if there is extreme abuse or mistreatment of the child or any other child of that parent, or abandonment of the child in such a way that it shows that the parent is trying to avoid supporting the child. Also, if the child has been removed from the custody of the parent by court order for at least a year, the court may terminate the parental rights.
Agency and private adoptions are really rather complicated to address here, and the procedures are very technical. However, it would be good to point out that foster children (when the court has taken the children away from abusive or unfit parents) may be adopted after a period of time being fostered and after the adoptive procedures are followed, and also to point out that the state is in desperate need of wonderful foster parents for the many foster children relying on the State. (If you are interested in providing a foster home for a child, feel free to contact the Office of Child Services in your parish, or the Foster Care program in your area!)
However, intra-family adoptions are very common and very intriguing, and I will address them in the next issue. The intra-family adoption was designed for the situation of a step-parent desiring to adopt their step-child, usually when the biological parent has died or is willing to give up all parental rights. An intra-family adoption is the only kind of adoption in which all previous parental rights need not be terminated---the living biological parent retains their parental rights. However, the intra-family adoption procedure may be utilized by several other relatives wishing to adopt. Further information will follow in the next issue.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Wednesday, November 11, 2009
Sunday, November 1, 2009
Is it really illegal to scalp?
Again, my answer is my reliable old punt (pun intended)—sometimes. Because it is fall in Louisiana, there is only one really important topic: football. My personal drug of choice is LSU football, and if you look to your left and to your right, you will probably see at least two more similarly-addicted junkies.
Nothing else meaningful really happens in this state on Saturday nights in the fall—no one would dare—and, as the Florida game a few weeks ago proved, sometimes every occupant of the state only really wants to be in one place on Saturday nights.
With big-game LSU football tickets being one of the most valuable items on the planet, the question inevitably becomes, what is one really worth? And how much can you get for one?
A friend of mine was on the LSU campus the Saturday of the Florida game, and he had the bad luck to not have tickets. He and his friend found someone selling tickets, and each purchased one for $150. My friend, being a rather experienced football game attendee, was immediately suspicious of the ticket and went to the ticket office to have the tickets checked.
As it turned out, both of their tickets were counterfeit. (This story actually has a happy ending: my friends gave descriptions of the seller to the police, the police caught him and several other counterfeiters, and my friends got their money back.)
Now, obviously, it is illegal to sell counterfeit tickets, which are worthless, for several times the face value of the “tickets.” But what about real tickets? Under Louisiana law (Louisiana Revised Statutes 4:1), admission tickets to entertainment events must have the price paid for the ticket printed on the face of the ticket.
It is illegal to sell or resell an admission ticket to any athletic contest, dance, theater, concert, circus, or other amusement for an amount that is more than the purchase price printed on the face of the ticket. The ordinary penalty for violating this law is a fine of between $100 to $500 dollars and 30 to 90 days in jail. So, in other words, not worth the extra 25 bucks you might get for selling over face value.
Also, the statute allows for certain donations or contribution requirements to obtain the ticket in addition to the face value purchase price of the ticket, but only “in connection with the sale of tickets to athletic contests of institutions of higher education.” (Hmm, I wonder to what “contests” they are referring…)
Finally, the most interesting new part of the law, and the reason for my ambivalent “it’s only illegal to scalp tickets sometimes…” A section has recently been added dealing with ticket sales online. This section provides that it is legal to sell or resell admission tickets online at any price IF two requirements are met.
First, the organizer of the event and the operator of the location where the event is held must authorize the sale/resale of the admission tickets to the event at higher than face value.
Second, the operator of the website on which the ticket is offered for sale/resale has to guarantee (with that guarantee posted on their website, which the buyer is directed to prior to completion of the sale) a full refund of whatever price is paid under certain conditions: if the event ends up being canceled, if the purchaser, through no fault of his own, is denied admission, or if the ticket is not delivered in the way the website said it would be delivered and that failure of delivery procedure caused the purchaser to not be able to attend the event.
Prior to this new law, there were lots of great stories about people selling an admission ticket to the National Championship game for $1 on Ebay. Except the ticket was only being sold together as a package deal with an old LSU sock, which was priced at $9,000. Well, as long as the two requirements above are met, this sort of charmingly devious subterfuge is no longer necessary.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Nothing else meaningful really happens in this state on Saturday nights in the fall—no one would dare—and, as the Florida game a few weeks ago proved, sometimes every occupant of the state only really wants to be in one place on Saturday nights.With big-game LSU football tickets being one of the most valuable items on the planet, the question inevitably becomes, what is one really worth? And how much can you get for one?
A friend of mine was on the LSU campus the Saturday of the Florida game, and he had the bad luck to not have tickets. He and his friend found someone selling tickets, and each purchased one for $150. My friend, being a rather experienced football game attendee, was immediately suspicious of the ticket and went to the ticket office to have the tickets checked.
As it turned out, both of their tickets were counterfeit. (This story actually has a happy ending: my friends gave descriptions of the seller to the police, the police caught him and several other counterfeiters, and my friends got their money back.)
Now, obviously, it is illegal to sell counterfeit tickets, which are worthless, for several times the face value of the “tickets.” But what about real tickets? Under Louisiana law (Louisiana Revised Statutes 4:1), admission tickets to entertainment events must have the price paid for the ticket printed on the face of the ticket.
It is illegal to sell or resell an admission ticket to any athletic contest, dance, theater, concert, circus, or other amusement for an amount that is more than the purchase price printed on the face of the ticket. The ordinary penalty for violating this law is a fine of between $100 to $500 dollars and 30 to 90 days in jail. So, in other words, not worth the extra 25 bucks you might get for selling over face value.
Also, the statute allows for certain donations or contribution requirements to obtain the ticket in addition to the face value purchase price of the ticket, but only “in connection with the sale of tickets to athletic contests of institutions of higher education.” (Hmm, I wonder to what “contests” they are referring…)
Finally, the most interesting new part of the law, and the reason for my ambivalent “it’s only illegal to scalp tickets sometimes…” A section has recently been added dealing with ticket sales online. This section provides that it is legal to sell or resell admission tickets online at any price IF two requirements are met.
First, the organizer of the event and the operator of the location where the event is held must authorize the sale/resale of the admission tickets to the event at higher than face value.
Second, the operator of the website on which the ticket is offered for sale/resale has to guarantee (with that guarantee posted on their website, which the buyer is directed to prior to completion of the sale) a full refund of whatever price is paid under certain conditions: if the event ends up being canceled, if the purchaser, through no fault of his own, is denied admission, or if the ticket is not delivered in the way the website said it would be delivered and that failure of delivery procedure caused the purchaser to not be able to attend the event.
Prior to this new law, there were lots of great stories about people selling an admission ticket to the National Championship game for $1 on Ebay. Except the ticket was only being sold together as a package deal with an old LSU sock, which was priced at $9,000. Well, as long as the two requirements above are met, this sort of charmingly devious subterfuge is no longer necessary.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Tuesday, October 13, 2009
Tree Trouble
By Katie Penny
Can’t I make my neighbor do something about his tree that is extending over onto my property?
“My next-door neighbor’s giant pine tree is dropping 80 pounds of pine needles onto my carefully manicured lawn every week.
The tree’s roots are growing in my lawn, and broke the blade on my lawn mower this afternoon. My toddler daughter tripped over the roots and had to go to the emergency room. Isn’t there something I can make my neighbor do about this tree?”
Unfortunately, living in a society sometimes means living almost on top of each other. We are lucky to live in a country that, as far as highly populated countries go, is a bit more spread out, but many of us still have to deal with a dreaded enemy: neighbors. Almost everyone who has ever had a neighbor has had, also, a problem with something that neighbor has done.
Fortunately, the law does provide a kind of remedy if your neighbor specifically has trees, bushes, or plants that are extending over the property line and causing you problems. (For anyone interested, these rules are found in the Louisiana Civil Code articles 687 and 688.)
There is a distinction between trees, bushes or plants that are standing on the boundary line itself, and trees, bushes, or plants that are growing entirely on your neighbor’s property, but which have branches or limbs extending over the property line.
The rules are very different, because when the plant is sitting on the property line, the plant is presumed to be “common,” which means that you and your neighbor are presumed to both co-own the plant and share the responsibility for it. That becomes a problem when you hate the pine tree, and your neighbor thinks it is beautiful, natural, and festive. When the plant is growing on the boundary, and (this is very important) the plant is interfering with your enjoyment of your own property, you can demand that the plant be removed.
However, if the plant is “common” and it is interfering with your enjoyment of your property, and you want it removed, you have the right to have it removed despite your neighbor’s objections, but you must bear the expense of the removal. You must call a (fully-licensed and insured!) tree-cutting service and pay their fee.
However, the more likely scenario is that a tree’s trunk is growing entirely out of your neighbor’s property, but the branches are extending over the property line many feet in the air, and are somehow bothering you. This could probably be anything from dropping leaves into your swimming pool and clogging the filter, to branches that are scraping the side of your house, to branches that are interfering with power lines, etc.
At that point, you can demand that the branches which are extending over the property line be trimmed at your neighbor’s expense. This is different than the previous situation in that you do not necessarily have the right to demand removal of the plants; rather, you can demand trimming of the parts of the plant that are extending over your property and interfering with it. You can also demand “trimming” (how this would be accomplished is beyond my legal know-how) of the roots of the plant which are extending into your property and interfering with your enjoyment of your property.
For instance, if you wanted to dig and install a pool, and your neighbor’s magnolia tree’s roots are in the way, you could demand that your neighbor pay for time spent by the pool-diggers cutting the roots out of the way. (Though you would have to go court to demand that money, which may cost more than simply doing it yourself, but you could.)
Simply the fact that you do not like the tree, or find it ugly, or just want to make your neighbor’s life a little less enjoyable, is not enough to have a plant removed. The plant must be actively interfering with your enjoyment of your property. If you own property and want to build a pool on it (meeting all parish and city ordinance requirements for building such a pool), then you are entitled to enjoy your property in that way.
If the tree roots from your neighbor’s tree are interfering with your ability to do that, then you can require that your neighbor pay for their removal. Theoretically, if your neighbor’s tree is dropping leaves onto your property in a way that you find aesthetically displeasing, those leaves would be interfering with your enjoyment of your property, and you could force your neighbor to trim the tree branches to stop the tree detritus.
However, again, in order to make your neighbor do so, you would have to bring him to court and convince the court that the leaves on your lawn are interfering with your enjoyment of your property. If you feel confident that you could do that, and win, then feel free to take your case to the court, and good luck. However, if your neighbor’s trees simply drop a few bags of leaves on your lawn in the fall, but otherwise do not bother you at all…well. I can ask, but I cannot insist, that everyone in the world be reasonable and just get a rake.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Can’t I make my neighbor do something about his tree that is extending over onto my property?
“My next-door neighbor’s giant pine tree is dropping 80 pounds of pine needles onto my carefully manicured lawn every week.
The tree’s roots are growing in my lawn, and broke the blade on my lawn mower this afternoon. My toddler daughter tripped over the roots and had to go to the emergency room. Isn’t there something I can make my neighbor do about this tree?”
Unfortunately, living in a society sometimes means living almost on top of each other. We are lucky to live in a country that, as far as highly populated countries go, is a bit more spread out, but many of us still have to deal with a dreaded enemy: neighbors. Almost everyone who has ever had a neighbor has had, also, a problem with something that neighbor has done.
Fortunately, the law does provide a kind of remedy if your neighbor specifically has trees, bushes, or plants that are extending over the property line and causing you problems. (For anyone interested, these rules are found in the Louisiana Civil Code articles 687 and 688.)
There is a distinction between trees, bushes or plants that are standing on the boundary line itself, and trees, bushes, or plants that are growing entirely on your neighbor’s property, but which have branches or limbs extending over the property line.
The rules are very different, because when the plant is sitting on the property line, the plant is presumed to be “common,” which means that you and your neighbor are presumed to both co-own the plant and share the responsibility for it. That becomes a problem when you hate the pine tree, and your neighbor thinks it is beautiful, natural, and festive. When the plant is growing on the boundary, and (this is very important) the plant is interfering with your enjoyment of your own property, you can demand that the plant be removed.
However, if the plant is “common” and it is interfering with your enjoyment of your property, and you want it removed, you have the right to have it removed despite your neighbor’s objections, but you must bear the expense of the removal. You must call a (fully-licensed and insured!) tree-cutting service and pay their fee.
However, the more likely scenario is that a tree’s trunk is growing entirely out of your neighbor’s property, but the branches are extending over the property line many feet in the air, and are somehow bothering you. This could probably be anything from dropping leaves into your swimming pool and clogging the filter, to branches that are scraping the side of your house, to branches that are interfering with power lines, etc.
At that point, you can demand that the branches which are extending over the property line be trimmed at your neighbor’s expense. This is different than the previous situation in that you do not necessarily have the right to demand removal of the plants; rather, you can demand trimming of the parts of the plant that are extending over your property and interfering with it. You can also demand “trimming” (how this would be accomplished is beyond my legal know-how) of the roots of the plant which are extending into your property and interfering with your enjoyment of your property.
For instance, if you wanted to dig and install a pool, and your neighbor’s magnolia tree’s roots are in the way, you could demand that your neighbor pay for time spent by the pool-diggers cutting the roots out of the way. (Though you would have to go court to demand that money, which may cost more than simply doing it yourself, but you could.)
Simply the fact that you do not like the tree, or find it ugly, or just want to make your neighbor’s life a little less enjoyable, is not enough to have a plant removed. The plant must be actively interfering with your enjoyment of your property. If you own property and want to build a pool on it (meeting all parish and city ordinance requirements for building such a pool), then you are entitled to enjoy your property in that way.
If the tree roots from your neighbor’s tree are interfering with your ability to do that, then you can require that your neighbor pay for their removal. Theoretically, if your neighbor’s tree is dropping leaves onto your property in a way that you find aesthetically displeasing, those leaves would be interfering with your enjoyment of your property, and you could force your neighbor to trim the tree branches to stop the tree detritus.
However, again, in order to make your neighbor do so, you would have to bring him to court and convince the court that the leaves on your lawn are interfering with your enjoyment of your property. If you feel confident that you could do that, and win, then feel free to take your case to the court, and good luck. However, if your neighbor’s trees simply drop a few bags of leaves on your lawn in the fall, but otherwise do not bother you at all…well. I can ask, but I cannot insist, that everyone in the world be reasonable and just get a rake.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Thursday, October 1, 2009
Legal Eagle 10-2-09
Tree Trouble
By Katie Penny
Can’t I make my neighbor do something about his tree that is extending over onto my property?
“My next-door neighbor’s giant pine tree is dropping 80 pounds of pine needles onto my carefully manicured lawn every week. The tree’s roots are growing in my lawn, and broke the blade on my lawn mower this afternoon. My toddler daughter tripped over the roots and had to go to the emergency room. Isn’t there something I can make my neighbor do about this tree?”
Unfortunately, living in a society sometimes means living almost on top of each other. We are lucky to live in a country that, as far as highly populated countries go, is a bit more spread out, but many of us still have to deal with a dreaded enemy: neighbors. Almost everyone who has ever had a neighbor has had, also, a problem with something that neighbor has done.
Fortunately, the law does provide a kind of remedy if your neighbor specifically has trees, bushes, or plants that are extending over the property line and causing you problems. (For anyone interested, these rules are found in the Louisiana Civil Code articles 687 and 688.)
There is a distinction between trees, bushes or plants that are standing on the boundary line itself, and trees, bushes, or plants that are growing entirely on your neighbor’s property, but which have branches or limbs extending over the property line. The rules are very different, because when the plant is sitting on the property line, the plant is presumed to be “common,” which means that you and your neighbor are presumed to both co-own the plant and share the responsibility for it. That becomes a problem when you hate the pine tree, and your neighbor thinks it is beautiful, natural, and festive. When the plant is growing on the boundary, and (this is very important) the plant is interfering with your enjoyment of your own property, you can demand that the plant be removed. However, if the plant is “common” and it is interfering with your enjoyment of your property, and you want it removed, you have the right to have it removed despite your neighbor’s objections, but you must bear the expense of the removal. You must call a (fully-licensed and insured!) tree-cutting service and pay their fee.
However, the more likely scenario is that a tree’s trunk is growing entirely out of your neighbor’s property, but the branches are extending over the property line many feet in the air, and are somehow bothering you. This could probably be anything from dropping leaves into your swimming pool and clogging the filter, to branches that are scraping the side of your house, to branches that are interfering with power lines, etc. At that point, you can demand that the branches which are extending over the property line be trimmed at your neighbor’s expense. This is different than the previous situation in that you do not necessarily have the right to demand removal of the plants; rather, you can demand trimming of the parts of the plant that are extending over your property and interfering with it. You can also demand “trimming” (how this would be accomplished is beyond my legal know-how) of the roots of the plant which are extending into your property and interfering with your enjoyment of your property. For instance, if you wanted to dig and install a pool, and your neighbor’s magnolia tree’s roots are in the way, you could demand that your neighbor pay for time spent by the pool-diggers cutting the roots out of the way. (Though you would have to go court to demand that money, which may cost more than simply doing it yourself, but you could.)
Simply the fact that you do not like the tree, or find it ugly, or just want to make your neighbor’s life a little less enjoyable, is not enough to have a plant removed. The plant must be actively interfering with your enjoyment of your property. If you own property and want to build a pool on it (meeting all parish and city ordinance requirements for building such a pool), then you are entitled to enjoy your property in that way. If the tree roots from your neighbor’s tree are interfering with your ability to do that, then you can require that your neighbor pay for their removal. Theoretically, if your neighbor’s tree is dropping leaves onto your property in a way that you find aesthetically displeasing, those leaves would be interfering with your enjoyment of your property, and you could force your neighbor to trim the tree branches to stop the tree detritus. However, again, in order to make your neighbor do so, you would have to bring him to court and convince the court that the leaves on your lawn are interfering with your enjoyment of your property. If you feel confident that you could do that, and win, then feel free to take your case to the court, and good luck. However, if your neighbor’s trees simply drop a few bags of leaves on your lawn in the fall, but otherwise do not bother you at all…well. I can ask, but I cannot insist, that everyone in the world be reasonable and just get a rake.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
By Katie Penny
Can’t I make my neighbor do something about his tree that is extending over onto my property?
“My next-door neighbor’s giant pine tree is dropping 80 pounds of pine needles onto my carefully manicured lawn every week. The tree’s roots are growing in my lawn, and broke the blade on my lawn mower this afternoon. My toddler daughter tripped over the roots and had to go to the emergency room. Isn’t there something I can make my neighbor do about this tree?”
Unfortunately, living in a society sometimes means living almost on top of each other. We are lucky to live in a country that, as far as highly populated countries go, is a bit more spread out, but many of us still have to deal with a dreaded enemy: neighbors. Almost everyone who has ever had a neighbor has had, also, a problem with something that neighbor has done.
Fortunately, the law does provide a kind of remedy if your neighbor specifically has trees, bushes, or plants that are extending over the property line and causing you problems. (For anyone interested, these rules are found in the Louisiana Civil Code articles 687 and 688.)
There is a distinction between trees, bushes or plants that are standing on the boundary line itself, and trees, bushes, or plants that are growing entirely on your neighbor’s property, but which have branches or limbs extending over the property line. The rules are very different, because when the plant is sitting on the property line, the plant is presumed to be “common,” which means that you and your neighbor are presumed to both co-own the plant and share the responsibility for it. That becomes a problem when you hate the pine tree, and your neighbor thinks it is beautiful, natural, and festive. When the plant is growing on the boundary, and (this is very important) the plant is interfering with your enjoyment of your own property, you can demand that the plant be removed. However, if the plant is “common” and it is interfering with your enjoyment of your property, and you want it removed, you have the right to have it removed despite your neighbor’s objections, but you must bear the expense of the removal. You must call a (fully-licensed and insured!) tree-cutting service and pay their fee.
However, the more likely scenario is that a tree’s trunk is growing entirely out of your neighbor’s property, but the branches are extending over the property line many feet in the air, and are somehow bothering you. This could probably be anything from dropping leaves into your swimming pool and clogging the filter, to branches that are scraping the side of your house, to branches that are interfering with power lines, etc. At that point, you can demand that the branches which are extending over the property line be trimmed at your neighbor’s expense. This is different than the previous situation in that you do not necessarily have the right to demand removal of the plants; rather, you can demand trimming of the parts of the plant that are extending over your property and interfering with it. You can also demand “trimming” (how this would be accomplished is beyond my legal know-how) of the roots of the plant which are extending into your property and interfering with your enjoyment of your property. For instance, if you wanted to dig and install a pool, and your neighbor’s magnolia tree’s roots are in the way, you could demand that your neighbor pay for time spent by the pool-diggers cutting the roots out of the way. (Though you would have to go court to demand that money, which may cost more than simply doing it yourself, but you could.)
Simply the fact that you do not like the tree, or find it ugly, or just want to make your neighbor’s life a little less enjoyable, is not enough to have a plant removed. The plant must be actively interfering with your enjoyment of your property. If you own property and want to build a pool on it (meeting all parish and city ordinance requirements for building such a pool), then you are entitled to enjoy your property in that way. If the tree roots from your neighbor’s tree are interfering with your ability to do that, then you can require that your neighbor pay for their removal. Theoretically, if your neighbor’s tree is dropping leaves onto your property in a way that you find aesthetically displeasing, those leaves would be interfering with your enjoyment of your property, and you could force your neighbor to trim the tree branches to stop the tree detritus. However, again, in order to make your neighbor do so, you would have to bring him to court and convince the court that the leaves on your lawn are interfering with your enjoyment of your property. If you feel confident that you could do that, and win, then feel free to take your case to the court, and good luck. However, if your neighbor’s trees simply drop a few bags of leaves on your lawn in the fall, but otherwise do not bother you at all…well. I can ask, but I cannot insist, that everyone in the world be reasonable and just get a rake.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Monday, September 21, 2009
Eviction
By Katie Penny
I’m getting evicted! What is happening?
Eviction takes place when a person who is leasing something (usually a house or residence of some kind) ceases to retain the right to lease that something from the person leasing it to them. In other words, you can get evicted when your lease is broken.
A lease is a contract, just like most contracts, that has a party on either side: a lessee (the one paying for the use of the thing) and a lessor (the one accepting payment for the use of the thing). Unlike a sale, which exchanges ownership of an object, a lease exchanges simply the possession of the object. The lessee pays for the right to possess the object, and the lessor accepts payment in exchange for giving up possession of the object.
To make this easier, I will refer to the lessee as the occupant and the lessor as the landlord, and assume we’re discussing an apartment.
Leases do not necessarily have to be for specific amounts of time. Both the occupant and the landlord have certain obligations under the lease.
For example, the landlord must maintain the apartment in a condition suitable for the purpose for which the apartment was leased (usually, for living in), among other things. The occupant, for example, has a duty to pay rent, to be prudent in his use of the apartment, and to return the apartment in the same condition, except for normal wear and tear.
However, the lease can be terminated for various reasons. The term of the lease may simply have run—if it was merely for a year, then the passage of a year will mark the termination of the lease. If the occupant has failed to pay rent, the lease may be terminated because the occupant has violated the lease contract.
The lease contract may contain any number of reasons for which the lease may be terminated, so if you want to know how you can violate the terms of your lease, simply read it and see what was included when you signed it.
Once the lease has been terminated for any of those reasons, the landlord may deliver written notice to the occupant that he must vacate the premises within 5 days of delivery of the notice. If the landlord cannot locate the occupant, this notice can be attached to the door. At that point, the occupant has 5 days to vacate the premises and “deliver” it back to the landlord (“deliver” just means vacate and let the landlord take control of the apartment).
If the occupant does not vacate the premises within 5 days of the notice of eviction from the landlord, then the landlord can file suit for eviction in court, and serve a “rule to show cause” on the occupant. That means the landlord is demanding that the occupant come to a court hearing and “show cause” why the occupant should not be evicted.
The court hearing can be as soon as 3 days after the landlord serves the Rule to Show Cause on the occupant (which can also, if the occupant cannot be found, be attached to the door of the apartment). At that hearing, the occupant, if he believes he is being wrongfully evicted, should present evidence to the court showing that he did pay his rent, or show any opposition to the reasons that the landlord is attempting to have the occupant evicted. If the occupant either does not show up at the hearing, or the court decides the landlord is right about the eviction reasons, then the landlord will get a “judgment of eviction.”
If the landlord gets a judgment of eviction, the occupant has 24 hours to vacate the apartment. If the occupant still does not vacate within 24 hours after the judgment, then the court can immediately issue a warrant which orders the sheriff to “deliver possession of the premises.”
The sheriff delivering possession means the sheriff will move all of the property out of the apartment, and he can break any locked windows or doors in order to do it. It is possible for the occupant to appeal the court’s Judgment of Eviction, but even appealing the decision will not keep the sheriff from executing the warrant and moving the occupant's possessions out unless bond is posted with the court.
The worst thing of all is that you can waive the right to five days’ notice in the lease itself, and the landlord can simply file the Rule to Show Cause with the court without giving you any notice of eviction beforehand. This all seems really mean of the landlord.
However, remember that all of the things that the landlord is able to do, and all of the rights that the landlord has over you as his tenant, were given to him when you yourself signed the lease and entered into this contract.
I understand that most of us have very little power of negotiation with standard lease contracts, but if you actually read your lease and figure out what will lead to the landlord being able to evict you, it may help you avoid pitfalls and understand how to avoid getting into such an uncomfortable situation in the first place.
I’m getting evicted! What is happening?
Eviction takes place when a person who is leasing something (usually a house or residence of some kind) ceases to retain the right to lease that something from the person leasing it to them. In other words, you can get evicted when your lease is broken.
A lease is a contract, just like most contracts, that has a party on either side: a lessee (the one paying for the use of the thing) and a lessor (the one accepting payment for the use of the thing). Unlike a sale, which exchanges ownership of an object, a lease exchanges simply the possession of the object. The lessee pays for the right to possess the object, and the lessor accepts payment in exchange for giving up possession of the object.
To make this easier, I will refer to the lessee as the occupant and the lessor as the landlord, and assume we’re discussing an apartment.
Leases do not necessarily have to be for specific amounts of time. Both the occupant and the landlord have certain obligations under the lease.
For example, the landlord must maintain the apartment in a condition suitable for the purpose for which the apartment was leased (usually, for living in), among other things. The occupant, for example, has a duty to pay rent, to be prudent in his use of the apartment, and to return the apartment in the same condition, except for normal wear and tear.
However, the lease can be terminated for various reasons. The term of the lease may simply have run—if it was merely for a year, then the passage of a year will mark the termination of the lease. If the occupant has failed to pay rent, the lease may be terminated because the occupant has violated the lease contract.
The lease contract may contain any number of reasons for which the lease may be terminated, so if you want to know how you can violate the terms of your lease, simply read it and see what was included when you signed it.
Once the lease has been terminated for any of those reasons, the landlord may deliver written notice to the occupant that he must vacate the premises within 5 days of delivery of the notice. If the landlord cannot locate the occupant, this notice can be attached to the door. At that point, the occupant has 5 days to vacate the premises and “deliver” it back to the landlord (“deliver” just means vacate and let the landlord take control of the apartment).
If the occupant does not vacate the premises within 5 days of the notice of eviction from the landlord, then the landlord can file suit for eviction in court, and serve a “rule to show cause” on the occupant. That means the landlord is demanding that the occupant come to a court hearing and “show cause” why the occupant should not be evicted.
The court hearing can be as soon as 3 days after the landlord serves the Rule to Show Cause on the occupant (which can also, if the occupant cannot be found, be attached to the door of the apartment). At that hearing, the occupant, if he believes he is being wrongfully evicted, should present evidence to the court showing that he did pay his rent, or show any opposition to the reasons that the landlord is attempting to have the occupant evicted. If the occupant either does not show up at the hearing, or the court decides the landlord is right about the eviction reasons, then the landlord will get a “judgment of eviction.”
If the landlord gets a judgment of eviction, the occupant has 24 hours to vacate the apartment. If the occupant still does not vacate within 24 hours after the judgment, then the court can immediately issue a warrant which orders the sheriff to “deliver possession of the premises.”
The sheriff delivering possession means the sheriff will move all of the property out of the apartment, and he can break any locked windows or doors in order to do it. It is possible for the occupant to appeal the court’s Judgment of Eviction, but even appealing the decision will not keep the sheriff from executing the warrant and moving the occupant's possessions out unless bond is posted with the court.
The worst thing of all is that you can waive the right to five days’ notice in the lease itself, and the landlord can simply file the Rule to Show Cause with the court without giving you any notice of eviction beforehand. This all seems really mean of the landlord.
However, remember that all of the things that the landlord is able to do, and all of the rights that the landlord has over you as his tenant, were given to him when you yourself signed the lease and entered into this contract.
I understand that most of us have very little power of negotiation with standard lease contracts, but if you actually read your lease and figure out what will lead to the landlord being able to evict you, it may help you avoid pitfalls and understand how to avoid getting into such an uncomfortable situation in the first place.
Wednesday, September 2, 2009
What in the world is a mortgage?
By Katie Penny
In law school, to illustrate mortgages, my professors always drew a diagram which resembled a kicked-over capital D. The two lines used to draw the D were arrows that represented the two transactions which had taken place, and it seemed simple enough. However, the amount of confusion about what mortgages actually are and the rights that they entail reveals that the simplicity of the diagram is a bit misleading. In light of the number of foreclosures taking place lately, and the fact that almost every homeowner in this country purchased their home with a loan and a mortgage, mortgages seem like an urgently pertinent topic.
The mortgage relationship at its simplest involves a borrower and a lender. The lender is usually a bank, so for simplicity’s sake, I will say “bank,” but anyone could be a lender to whom a mortgage is granted. Also, anyone could be a borrower, but in the most applicable case, it is a homeowner who has used the loan to purchase a residence.
In essence, when a simple mortgage has been granted, it means this: a bank loans a borrower money. To ensure that it will be able to get its money back, the bank gets the borrower to grant it a mortgage on the property the borrower is purchasing. [The bank gives you money; you give them a mortgage. These are the two lines of my D.] The loan debt is represented by a “promissory note,”—an IOU, if you will—and the borrower has a certain amount of time to pay back the debt, sometimes in installments or sometimes all at once. In exchange, the borrower/homeowner grants the bank a mortgage, which means the bank is “secured” for the amount of the loan through a right to the property on which the mortgage was granted—which is usually the very residence the loan was used to purchase.
In most simple homeowner mortgages, the mortgage document (which is separate from the promissory note) allows the bank to seize and sell the piece of property on which the mortgage was granted if the borrower goes into default on the loan. When the property is sold, the bank is entitled to take the outstanding amount of the loan out of the proceeds of the sale. That way, if you stop making payments on your loan, the bank has the right to take the property, sell it, and get the money you still owed.
I will now try to explain it yet again using actual numbers and names. Katie wants to purchase a house with a price of $250,000. She has 150,000 in the bank (ahh, sweet fantasy!!), but she needs someone to lend her the last $100,000. She goes to Moneybags Bank and they agree to lend her the $100,000 and give her 30 years to pay it back (with interest, of course) in monthly installments. To make sure they get their $100,000 back, Moneybags Bank demands a $100,000 mortgage on the house Katie is purchasing with the loan money. Katie signs the promissory note (this is the straight back of the capital D, by the way), and signs the mortgage (this is the potbelly bottom loop of the kicked-over capital D). She buys the house and moves in happily.
Unfortunately, after paying down $20,000 of the $100,000 debt, Katie finds herself unable to make a few loan payments. Because she has “defaulted” on her loan, the mortgage tied to that loan becomes enforceable by the bank. Moneybags Bank presents the promissory note and the mortgage to the court. If the mortgage and note documents have the proper requirements (and believe me, banks do not usually mess up on making sure mortgages have those requirements; they function on being able to enforce mortgages), the court orders the sheriff to “seize” Katie’s house (which usually just means putting a notice of seizure on the door) and the house is sold at a sheriff’s sale (basically, an auction at the courthouse.) The house sells for $120,000, despite its 300,000 value (since, though it increased in value while Katie owned it, property usually sells for much less than it is worth at a public auction). Katie still owed the bank $80,000 of her $100,000 loan, so the bank takes $80,000 of the $120,000 proceeds, and Katie—who, after all, put in $150,000 of the purchase price—gets the remaining $40,000.
When I say “this can get much more complicated,” I’m sure everyone who has watched the news in the past year would agree. You can grant multiple mortgages on your property, each tied to a different loan, and then when one of the loans is defaulted on, that mortgage becomes enforceable, but not necessarily the other ones (which are tied to other loans.) So older mortgages will stay “tied” to the property despite a sale, and some newer mortgages might be dissolved after the sale. Banks might grant mortgages, then sell the right to enforce the mortgages to other financial institutions. Sometimes, mortgages are not tied to specific loans, but rather to many different loans, or a line of credit. Sometimes there are collateral mortgages, but I don’t want to give anyone a headache.
At its most basic, taking out a loan and granting a mortgage means you give someone the right to sell your house out from underneath you if you do not make payments on the loan. If you take out a loan on which you know you will not be able to afford the monthly payments, do not be surprised when the lender exercises his rights and takes your property. It’s nice to get a loan and have cash in your hands, but when you grant a mortgage for that loan, believe me that you are not getting the money free. If you look up “money, strings attached” in the dictionary, you might just see a picture of my mortgage diagram.
In law school, to illustrate mortgages, my professors always drew a diagram which resembled a kicked-over capital D. The two lines used to draw the D were arrows that represented the two transactions which had taken place, and it seemed simple enough. However, the amount of confusion about what mortgages actually are and the rights that they entail reveals that the simplicity of the diagram is a bit misleading. In light of the number of foreclosures taking place lately, and the fact that almost every homeowner in this country purchased their home with a loan and a mortgage, mortgages seem like an urgently pertinent topic.
The mortgage relationship at its simplest involves a borrower and a lender. The lender is usually a bank, so for simplicity’s sake, I will say “bank,” but anyone could be a lender to whom a mortgage is granted. Also, anyone could be a borrower, but in the most applicable case, it is a homeowner who has used the loan to purchase a residence.
In essence, when a simple mortgage has been granted, it means this: a bank loans a borrower money. To ensure that it will be able to get its money back, the bank gets the borrower to grant it a mortgage on the property the borrower is purchasing. [The bank gives you money; you give them a mortgage. These are the two lines of my D.] The loan debt is represented by a “promissory note,”—an IOU, if you will—and the borrower has a certain amount of time to pay back the debt, sometimes in installments or sometimes all at once. In exchange, the borrower/homeowner grants the bank a mortgage, which means the bank is “secured” for the amount of the loan through a right to the property on which the mortgage was granted—which is usually the very residence the loan was used to purchase.
In most simple homeowner mortgages, the mortgage document (which is separate from the promissory note) allows the bank to seize and sell the piece of property on which the mortgage was granted if the borrower goes into default on the loan. When the property is sold, the bank is entitled to take the outstanding amount of the loan out of the proceeds of the sale. That way, if you stop making payments on your loan, the bank has the right to take the property, sell it, and get the money you still owed.
I will now try to explain it yet again using actual numbers and names. Katie wants to purchase a house with a price of $250,000. She has 150,000 in the bank (ahh, sweet fantasy!!), but she needs someone to lend her the last $100,000. She goes to Moneybags Bank and they agree to lend her the $100,000 and give her 30 years to pay it back (with interest, of course) in monthly installments. To make sure they get their $100,000 back, Moneybags Bank demands a $100,000 mortgage on the house Katie is purchasing with the loan money. Katie signs the promissory note (this is the straight back of the capital D, by the way), and signs the mortgage (this is the potbelly bottom loop of the kicked-over capital D). She buys the house and moves in happily.
Unfortunately, after paying down $20,000 of the $100,000 debt, Katie finds herself unable to make a few loan payments. Because she has “defaulted” on her loan, the mortgage tied to that loan becomes enforceable by the bank. Moneybags Bank presents the promissory note and the mortgage to the court. If the mortgage and note documents have the proper requirements (and believe me, banks do not usually mess up on making sure mortgages have those requirements; they function on being able to enforce mortgages), the court orders the sheriff to “seize” Katie’s house (which usually just means putting a notice of seizure on the door) and the house is sold at a sheriff’s sale (basically, an auction at the courthouse.) The house sells for $120,000, despite its 300,000 value (since, though it increased in value while Katie owned it, property usually sells for much less than it is worth at a public auction). Katie still owed the bank $80,000 of her $100,000 loan, so the bank takes $80,000 of the $120,000 proceeds, and Katie—who, after all, put in $150,000 of the purchase price—gets the remaining $40,000.
When I say “this can get much more complicated,” I’m sure everyone who has watched the news in the past year would agree. You can grant multiple mortgages on your property, each tied to a different loan, and then when one of the loans is defaulted on, that mortgage becomes enforceable, but not necessarily the other ones (which are tied to other loans.) So older mortgages will stay “tied” to the property despite a sale, and some newer mortgages might be dissolved after the sale. Banks might grant mortgages, then sell the right to enforce the mortgages to other financial institutions. Sometimes, mortgages are not tied to specific loans, but rather to many different loans, or a line of credit. Sometimes there are collateral mortgages, but I don’t want to give anyone a headache.
At its most basic, taking out a loan and granting a mortgage means you give someone the right to sell your house out from underneath you if you do not make payments on the loan. If you take out a loan on which you know you will not be able to afford the monthly payments, do not be surprised when the lender exercises his rights and takes your property. It’s nice to get a loan and have cash in your hands, but when you grant a mortgage for that loan, believe me that you are not getting the money free. If you look up “money, strings attached” in the dictionary, you might just see a picture of my mortgage diagram.
Saturday, August 22, 2009
Land Ownership: When Is It Yours?
By Katie Penny
Can you come to own land if you live there long enough?
It is a common belief among the public that if you live on a piece of land long enough, even if you do not technically own it, you can become the owner. For once, one of those strange legal urban legends that are kicked around is actually true.
This idea, in Louisiana, is known as “acquisitive prescription,” and it basically amounts to exactly what people think it does—if you live somewhere long enough, even if you never had good legal title to the land, you can actually become the legal owner of the property. The bad news is that you have to live there a really long time, and you still have to have yourself named the owner in a court proceeding before you can be the legal owner in the public records.
You can come to own something through acquisitive prescription if the thing you want to own is immovable (such as land, buildings, etc.) or movable (vehicles, jewelry, etc.), but the amount of time you must possess the item varies. There are two official kinds of acquisitive prescription for immovable pieces of property, a 10-year variety and a 30-year variety, and two types for movable property, a 3-year variety and a 10-year variety.
An important caveat here is that you can only gain ownership this way to certain types of property. You cannot just squat on government property for 30 years and come to own it, unfortunately. Only private property can come to be owned through acquisitive prescription. Common property and public property (such as the lawn of a courthouse or a public park), whether movable or immovable, cannot come to be owned through acquisitive prescription.
There are 3 requirements in order to be able to become the owner of immovable property in just 10 years, rather than 30 years. It must be private property that can come to be owned by acquisitive prescription to begin with. Then, you must actually physically possess the property continuously for at least 10 years.
For immovable property, physical possession means you do things on the property, like live on it, build fences, etc. Generally, if you use the land in a way that is typical for that kind of land, that would be physical possession. We do not expect you to build a high-rise on a swamp, that is; but if you cut down trees, or drain the swamp, or something someone would normally do who owned swampland, that would probably suffice.
Second, you must be in good faith (at least when you begin the possession of the property). Good faith means that you must reasonably believe that you actually do own the property.
“Reasonably,” for example, means that you could not put a tent in the State Capital and reasonably believe you could become the owner of the land under your tent. An ordinary person would have to believe reasonably that he could and does own the land, and he would have to have actually paid money for the property, and in an amount that a reasonable, ordinary person would expect that property to be worth.
Third, you must have what is called “just title.” This means that you have a document that is filed in the public records that would, under normal circumstances, have been enough to give you real actual legal title to the land.
Ten-year acquisitive prescription is actually intended to address a situation in which someone has done everything correctly to purchase and own some land, but it turns out that their paperwork was wrong or the lawyer goofed (that could NEVER happen, I tell you) drawing up the ownership paperwork, or the seller did not actually own the property they were trying to “sell”, or something else is wrong with the documents, but it was not really the fault of the buyer.
Then, if the buyer lives there for 10 years, physically possessing the land, and has what would reasonably be believed to be just title, filed in the public records , even if the “title” was not actually good, and the buyer was in good faith, then the buyer may be legally recognized as having become the owner of the property anyway through 10-year acquisitive prescription.
If you lack one of these elements, such as having a document that someone might reasonably consider to be a title transferring ownership, or you happen to know that someone else might have an ownership interest in the property, you may still become the owner through 30-year acquisitive prescription.
The only requirement for 30 year acquisitive prescription is that you physically possess the property for 30 years. Even if you know you do not own the property, even if you have no documents that say you might own the property, even if you know someone else does own the property, but you live publicly on the property uninterrupted for 30 years, you can come to court and be declared the legal owner. [If the real owner takes you to court, telling you to get off of his property, during the 30 years, that “interrupts” your 30 years.]
The idea behind 30 year acquisitive prescription is that we want land to be used. So, if someone is going to own property but never visit it, look at it, or take care of it for 30 years, so that some other person could come and live on their property for 30 years without them even noticing, we would rather the person who is actually living on and using the property be the owner than the legal owner.
[For movable property, the 3-year version has the same requirements as 10-year immovable acquisitive prescription; and the 10-year version for movable property has the same requirements as 30-year acquisitive prescription for immovable property.]
So, good luck to all the squatters out there. There’s hope!
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Can you come to own land if you live there long enough?
It is a common belief among the public that if you live on a piece of land long enough, even if you do not technically own it, you can become the owner. For once, one of those strange legal urban legends that are kicked around is actually true.
This idea, in Louisiana, is known as “acquisitive prescription,” and it basically amounts to exactly what people think it does—if you live somewhere long enough, even if you never had good legal title to the land, you can actually become the legal owner of the property. The bad news is that you have to live there a really long time, and you still have to have yourself named the owner in a court proceeding before you can be the legal owner in the public records.
You can come to own something through acquisitive prescription if the thing you want to own is immovable (such as land, buildings, etc.) or movable (vehicles, jewelry, etc.), but the amount of time you must possess the item varies. There are two official kinds of acquisitive prescription for immovable pieces of property, a 10-year variety and a 30-year variety, and two types for movable property, a 3-year variety and a 10-year variety.
An important caveat here is that you can only gain ownership this way to certain types of property. You cannot just squat on government property for 30 years and come to own it, unfortunately. Only private property can come to be owned through acquisitive prescription. Common property and public property (such as the lawn of a courthouse or a public park), whether movable or immovable, cannot come to be owned through acquisitive prescription.
There are 3 requirements in order to be able to become the owner of immovable property in just 10 years, rather than 30 years. It must be private property that can come to be owned by acquisitive prescription to begin with. Then, you must actually physically possess the property continuously for at least 10 years.
For immovable property, physical possession means you do things on the property, like live on it, build fences, etc. Generally, if you use the land in a way that is typical for that kind of land, that would be physical possession. We do not expect you to build a high-rise on a swamp, that is; but if you cut down trees, or drain the swamp, or something someone would normally do who owned swampland, that would probably suffice.
Second, you must be in good faith (at least when you begin the possession of the property). Good faith means that you must reasonably believe that you actually do own the property.
“Reasonably,” for example, means that you could not put a tent in the State Capital and reasonably believe you could become the owner of the land under your tent. An ordinary person would have to believe reasonably that he could and does own the land, and he would have to have actually paid money for the property, and in an amount that a reasonable, ordinary person would expect that property to be worth.
Third, you must have what is called “just title.” This means that you have a document that is filed in the public records that would, under normal circumstances, have been enough to give you real actual legal title to the land.
Ten-year acquisitive prescription is actually intended to address a situation in which someone has done everything correctly to purchase and own some land, but it turns out that their paperwork was wrong or the lawyer goofed (that could NEVER happen, I tell you) drawing up the ownership paperwork, or the seller did not actually own the property they were trying to “sell”, or something else is wrong with the documents, but it was not really the fault of the buyer.
Then, if the buyer lives there for 10 years, physically possessing the land, and has what would reasonably be believed to be just title, filed in the public records , even if the “title” was not actually good, and the buyer was in good faith, then the buyer may be legally recognized as having become the owner of the property anyway through 10-year acquisitive prescription.
If you lack one of these elements, such as having a document that someone might reasonably consider to be a title transferring ownership, or you happen to know that someone else might have an ownership interest in the property, you may still become the owner through 30-year acquisitive prescription.
The only requirement for 30 year acquisitive prescription is that you physically possess the property for 30 years. Even if you know you do not own the property, even if you have no documents that say you might own the property, even if you know someone else does own the property, but you live publicly on the property uninterrupted for 30 years, you can come to court and be declared the legal owner. [If the real owner takes you to court, telling you to get off of his property, during the 30 years, that “interrupts” your 30 years.]
The idea behind 30 year acquisitive prescription is that we want land to be used. So, if someone is going to own property but never visit it, look at it, or take care of it for 30 years, so that some other person could come and live on their property for 30 years without them even noticing, we would rather the person who is actually living on and using the property be the owner than the legal owner.
[For movable property, the 3-year version has the same requirements as 10-year immovable acquisitive prescription; and the 10-year version for movable property has the same requirements as 30-year acquisitive prescription for immovable property.]
So, good luck to all the squatters out there. There’s hope!
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Subscribe to:
Posts (Atom)
