Law

Attaining a Better Understanding of Real Property Law and Conveyance

Understanding the transfer of land can be “tricky” business. The following makes it “crystal” clear as to the transfer of land pertinent to Real Property Law and the Law of Conveyances.

In order to understand your rights more fully in the ownership of land, this article addresses such matter(s) by definition provided by (English) common law.

Within this beginning series of articles relative to land ownership, we (once again) give definitive guidance as to the meaning of land ownership and all that it entails.

Relative to common law, land includes any soil, even soil immersed in water. Therefore, dry land and bodies of water such as lakes would fit under this classification.

When we refer to plots of land, under common law, the reference is made that such land stretches to supposed infinity upwards; and to the earth’s center downward.

Buildings as well as other type structures and plants growing on the land pass with it. Additionally, produce on the land becomes the owners by accession.

There are exceptions to what an owner is entitled to after acquiring a piece of land. For instance, objects merely resting on the property are not those of the owner.

However, should an object become firmly fixed to the land or becomes part of something else that is firmly fixed on the property then those objects form part of the real estate and are thus referred to as fixtures.

In certain scenarios, individuals entitled to the rights of the land for a pre-designated period of time, in example lessees (or tenants for life), may remove, upon giving up the land, any fixtures, they, themselves have established on “said” land.

Additionally, in other circumstances, persons involved in such an arrangement may garner remuneration from the freeholder for improvements he or she has made on the land.

A precise term as to the formerly mentioned improvements is: betterment.

Works that increase the property’s value off or outside the property such as a publicly-traveled road may also be referred to as: betterment.

Some laws (sometimes) insist that the landowner make contribution(s) to the cost involved in betterment works.

Another example, similar to the circumstances mentioned above, would be the setup of a chain length fence between two properties by two separate land owners. In this case, both might agree to split the cost of such a fixture 50/50 since the fence would set right on the property line; one side of the fence facing an owner’s property and the same holding true for the other (owner.)

From an agricultural perspective, crops produced on an annual basis by a farmer are considered “emblements” and pose an exception to the law wherein crops pass with conveyance of land.

In the circumstance previously mentioned, the crops are considered personal property and in effect may pass separately from the land itself, upon the owner’s passing.

Should there be a sale, they will be auctioned and/or sold with the soil unless there is a specific exclusion.

Particular terms have a known meaning when we are referring to land transferred.

In example, “Farm” includes the farmhouse and the land; “Water” means the owner has the right to the water and fishing; but not to any of the subsoil beneath the water.

“Pool” is inclusive of the water as well as its bed. Owners, who have land bordered by a river, acquire, in addition, alluvion due to the water’s recession.

In conclusion, transfer of land from one person to the next rests in the definition of English common law as it concerns the United States and Great Britain.

Lead Exposure in Older Buildings & The Law

Fortunately, lead poisoning is not as common as it once was and lead testing is easily accessible.  Water is no longer a big  source of  lead exposure in the United States, although corroded pipes, an antique municipal water street connection or lead pipes should be replaced.

The quality of public water supplied by a municipal source, by the way, is not the responsibility of your landlord according to the law.

Since leaded gas has now been eliminated, 80% of today’s lead poisoning cases are from exposures in homes and apartments built before the 1978 ban. Experts estimate these lead hazards exist in about 19 million of our residences and apartments.

The problem is that paint occasionally chips, flakes and peels and even this limited exposure can be a serious problem for children, developing fetuses and some adults.

Fortunately, leaded paint is often well ‘sealed’ underneath fresher paint, but problems occur during remodeling if precautions are not taken.

As multifamily housing is a highly regulated category of housing, some states require registration of buildings that pre-date the leaded paint ban and regular inspections of apartments to check for deferred maintenance, i.e., peeling or chipping paint.

Removal of leaded paint is illegal by anyone who is not certified as a lead abatement specialist – even in a private residence – as the dust is toxic, infiltrates the air and can enter ventilation systems.

No one should live in the home while lead paint is being removed unless the rooms are fully sealed by a professional and the air quality is properly protected.

The Department of Housing and Urban Development (HUD) is the entity that provides the guidelines for both inspection and lead paint removal.

Some states like Oregon and Maryland distribute do-it-yourself inspection kits to residents on their website.  These are generally simple kits and merely identify the hazard without a comprehensive diagnosis.

By contrast, a professional lead abatement specialist will use a portable x-ray fluorescence (XRF) machine to ‘see’ through the surface to determine if lead paint is underneath.

These inspections start around $400 to $600 depending on the size home.

Inspectors normally take 80 to 100 samples from all parts of the home including ceilings, trim, windowsills, etc.

Each of the samples is then tested to determine the amount of lead exposure risk and whether removal is warranted or required.

Debtors – Know Your Rights

Obtaining credit nowadays seems to be a lot easier than it was 10 or 20 years ago. Because we are not all mind readers, it is sometimes impossible to determine what lies behind the corner which could have a negative affect on our finances.

If for some unfortunate reason you found yourself in a situation where you were no longer able to meet your monthly repayments to your creditors, would you be aware of the protection from creditors you have from the Office of Fair Trading?

It was recently reported that 12 debt solution companies were issued warnings for misleading debtors to cancel existing Individual Voluntary Arrangements and opt for Bankruptcy instead.

These companies sent unsolicited mail to unaware debtors informing them that they should not be in an IVA as it was unsuitable for them and should go down the bankruptcy route instead.

The companies had no right to do this, as one a debtor is in an IVA, it is a legally binding agreement between the creditors and the debtor which also ensures the debtor is protected from any form of harassment including how the debtor is making repayments.

The Office of Fair Trading makes it clear what is expected of creditors when dealing with people in debt.

There are guidelines set out for creditors which they are expected to follow and is important for people who are struggling repaying their creditors are aware of these guidelines so that they know their rights and know when creditors are attempting to act outside of these guidelines.

The guidelines are not only set out for those already in repayment arrangements but for all who are in debt.

All creditors are required to follow the guidelines set out by the OFT, this includes:

  • Not encouraging debtors to borrow money to pay their existing debt
  • Not contacting a debtor at work if this puts the debtors job at risk
  • Creditors should not harass debtors for payment where undue stress is being caused

The Data Protection Act also protects debtors from creditors disclosing their information to any third party without written permission from the debtor.

This includes sending letters to the debtor with information regarding who they are on the envelope.

Some creditors may arrange house calls to speak to the debtor regarding repayments. If they are unsuccessful, they may try to get information from a neighbor regarding your whereabouts. If this happens, the creditor must disclose who they are or why they need to contact the debtor.

If they were to disclose this information, they would be breaching the Data Protection Act and could have action taken against them.

Creditors who do not abide by the guidelines outlined by the OFT website could find their Consumer Credit License taken away from them which in effect, put’s them out of business, as they cannot legally lend money to people without it.

The guidelines set out by the OFT can be found on their website. It is wise to be clued up about your rights when you find yourself in a situation where you can no longer meet the repayments required of you.

It is not a crime to be in debt, anyone can find themselves in debt for a variety of reasons at any time of their lives.

The important thing is to always keep in touch with your creditors so that you can come to an agreement of what you can realistically afford to pay each month and be aware if a creditor attempts to mislead you about what and how you can pay.

Can my Employer Classify Me as an Independent Contractor?

A common legal challenge facing small businesses and entrepreneurs is whether or not they can use the Independent Contractor status for people they employ. Many small businesses would rather use Independent Contractors. With no workers’ compensation, no withholding tax, no payroll tax, no employment law liability; running your business is easier and less costly and time-consuming.

Millions of workers in the U.S. are retained as “independent contractors” rather than “employees”. Home health aides, nannies, truck drivers, gardeners, general contractors, taxi drivers, limousine drivers, barbers, hair stylists and many others are hired as Independent Contractors.

Many of these workers prefer the independent contractor status for its flexibility, including the ability to decide how and when to work and for whom.

But a new law recently signed by Gov. Jerry Brown raises a large red flag for anyone using independent contractors in California because it dramatically raises the chance for businesses found to have willfully misclassified workers.

In October of 2011,California enacted a new law prohibiting “willful misclassification of independent contractors.”

Governor Brown signed the legislation that prohibits the willful misclassification and creates civil penalties of between $5,000 and $25,000 for each willful misclassification of a worker.

SECTION 1. Section 226.8 is added to the Labor Code, to read:

226.8. (a) It is unlawful for any person or employer to engage in any of the following activities:

(1) Willful misclassification of an individual as an independent contractor.

(2) Charging an individual who has been willfully misclassified as an independent contractor a fee, or making any deductions from compensation, for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment where any of the acts described in this paragraph would have violated the law if the individual had not been misclassified.

(b) If the Labor and Workforce Development Agency or a court issues a determination that a person or employer has engaged in any of the enumerated violations of subdivision (a), (click here) the person or employer shall be subject to a civil penalty of not less than five thousand dollars ($5,000) and not more than fifteen thousand dollars ($15,000) for each violation, in addition to any other penalties or fines permitted by law.

In summary, under the newly enacted statute — Labor Code §226.8 — any entity that “willfully misclassifies” an individual as an “independent contractor,” when that individual is determined to have actually been an “employee,” faces stiff civil penalties.

The law signed by Brown (effective Jan. 1, 2012) amends the Labor Code to add two new sections specifically aimed at the perceived practice of misclassification of employees as independent contractors and the purported loss of substantial dollars in unpaid taxes.

If you are a small business owner or a worker with questions about job classification, you will benefit from contacting a labor attorney specializing in this area.