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Archive for the ‘Business Law’ Category

CLASS OUTLINE: LAND STEWARDSHIP 202


1.         INTRODUCTION TO RURAL LAW

a.          Know the facts about what you own/have purchased (real estate rights; boundaries; easements; access; claims of others; fence lines; water rights).

b.          Avoid unnecessary confrontations; reach a reasoned agreement, if possible; particularly on neighbor-neighbor disputes.

c.          If litigation is necessary, get fully prepared to go to trial, but make formal efforts to settle, before, during or after hearing/trial.

2.         LEGAL ENTITIES IN COLORADO.

a.          Agriculture as a high-liability activity.  Large animals, heavy equipment, water bodies, fences.

b.          Corporations, LLC, Partnership.  General recommendations that I make to clients.

3.         PERSONAL PLANNING.

a.          Ranch Maintenance and Management (written contracts)

b.          Protecting access rights, boundaries, water rights.

– Number one, know what rights you have.

– Number two, know how you can lose your rights. e.g. adverse possession is generally a period of 18 years; water rights must be used, or can be construed as having been abandoned.

c.          Estate Planning.

– In context of farm or ranch that you want to pass along to children or family, there are a number of steps that can be taken to protect this ability.  For example, family partnerships, lifetime transfers, conservation easements, family businesses, etc.  These efforts can be critical to preserving this property for heirs, especially in periods of escalating land values.

d.          Ownership.  Review of plats, boundaries, title commitments.

– If you have no survey, consider having one done.  If there are known boundary issues, contact neighbor and resolve.  If there are items on title commitment that are of concern, make inquiry and resolve.  Important for dealing with neighbors, for dealing with government, for dealing with sale of all or part, for dealing with owners of mineral interests, etc.

e.          Protecting agriculture tax status.

Know the definitions and the rules.  Then, be careful to comply.  Discuss County efforts 10-12 years ago; litigation; attitude since the litigation.  (Colorado Revised Statutes, Sec. 39-1-102, “Agricultural land”, “Farm” and “Ranch” defined; recent amendments (House Bill 11-11-46).

f.           Protecting rights of use (building, activities).

– As County becomes more urban, county’s planners come up with changes to zoning resolution that may impact use of private property.  For example, limits on ridge-line development were a major issue for a couple of years.  Secondary units and the related rules continue to be an issue.  Land preservation subdivisions and the related rules may impact owner directly or indirectly.

g.          Conservation Easements.

– Describe and explain how they come into being.  Describe the basic steps to be taken, and the basic options.  Describe the short-term and long-terms impacts.  Discuss/provide information on where to get more details.

– Discuss that fact information is critical to establishing a conservation easement.  Here, not only are boundary lines critical, but also knowledge about water rights and mineral rights.

– Practical:  Those conservation groups which are active in this region tend to be cooperative and mutually supportive.  However, all have their standard form easement, which, as expected, tends to be very restrictive.  The fact is that where there is any level of “gift” involved, the organization will negotiate terms.

h.          Mineral Rights.

– In Colorado, mineral rights are severable from the surface rights of real estate.  In some cases, this has occurred.  For example, on my ranch property, my company owns the surface rights; the State of Colorado owns the mineral rights.

– On some properties, a past owner may have retained the mineral rights, or may have retained a one-half interest in the mineral rights.  A later owner may have retained the other half.  However, mineral rights are not cleanly traceable in the land records.  So, a title company may note that certain mineral interests were reserved, or conveyed, by a previous owner, but the title company will not insure that you are receiving mineral rights, as part of a title commitment.

– Historically, not a lot of issues/disputes in Routt County.  However, with the energy development activities, there have been serious issues between rural property owners and energy development interests – particularly in New Mexico and in Wyoming.  In Colorado, these issues have started to arise in Garfield, Rio Blanco and Moffat Counties.  We are now seeing these in Routt County.

4.         DISPUTES.

a.          Fences and Gates.  The basic law; the typical dispute.  (Colorado Revised Statutes, Sec. 35-46-101, et seq.)

b.          Covenants and Easements.  Restrictions that are “recorded.”

– Back to your title commitment.  Typical provisions/restrictions will relate to access, to road maintenance, to utilities, and to water rights; some relate to permitted structures, require architectural review.

c.          Water Rights.  Discuss fact that water rights are established, ultimately, by Court Decree.  Property owner can make use of the water first; then file for rights.  Alternatively, owner can file first, and then develop the water rights that were established.  Discuss Colorado Supreme Court case; ramifications.

d.          Dispute resolution.  Court or alternative dispute resolution (ADR).

5.         ADDITIONAL INFORMATION SOURCES.

a.          A Guide to Rural Living & Small Scale Agriculture, Routt County

b.          “ktlaw.com” publications page

c.          “cobar.org” (Colorado Bar Association)

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Klauzer & Tremaine Business Support Program Application

Application for Klauzer & Tremaine,
Business Support Program

Name: _______________________________________________________

Contact Information: _____________________________________________

_____________________________________________

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Describe current or planned business: ______________________________

__________________________________________________________________
(Is this information confidential? Yes/ No (circle one))

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Background/Experience of business principal(s): _________________________

__________________________________________________________________

__________________________________________________________________

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Number of business owners? _____
Business plan prepared? _____

Business in operation? _____
Number of existing employees? ____

Have a business attorney? _____
Number of planned employees? ____

Referrals (optional): _________________________________________________

Legal Notes: Filling out this form does not make you a client of Klauzer & Tremaine, LLC. The business information you provide here will be reviewed solely to determine whether you qualify for our Small Business Support Program. If you have indicated that the information is confidential, we will treat it as such. The contact information that you provide will be used solely for us to contact you in response to this Application. It will not be sold or used for any other purpose.

Klauzer & Tremaine, LLC * 320 Lincoln Ave. Steamboat Springs * 879-5003 * ktlaw.com

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SUCCESS STEPS LUNCHEON – JANUARY 13, 2011

Presented by:  Rich Tremaine, managing attorney, KLAUZER & TREMAINE, LLC

Introduction and Disclaimers:  This program is primarily BAFL (Business Advice From Lawyer), though some portions will include reference to legal rules or guidelines that apply in business situations.  You should not consider any comments as “legal advice” that you would apply to a specific situation; specific legal advice should be sought.  The “stories” that are included in the presentation are based upon true events, but have been modified to protect client confidences.

Topics Planned for Discussion, with References:

1.  The Three Requirements for a Contract to Exist —  An Offer, Acceptance of the Offer, and Consideration.  (Colorado Jury Instructions, Civil, chapter 30 and related citations)

2.  Attorney Ethics for Consideration in Business – Examples for Discussion include “Competence” (Rule 1.1), “Communication” (Rule 1.4), and “Fees” (Rule 1.5). [For the full text of Colorado Rules of Professional Conduct, go to www.cobar.org, select “For the Public” in the left column, then choose the option “Opinions, Rules & Statutes” and finally the “Rules of Professional Conduct”.

3.  Business Entity Choices in Colorado – Partnerships, Corporations, Limited Liability Companies.  Registration info at:  www.sos.state.co.us/pubs/business/main.htm For an example of legal services and documents related to corporate set-up, go to www.ktlaw.com and select the “business” category.

4.  Written Contracts – Basic Provisions recommended for inclusion.

5.  Business issues related to e-mail, social media, and electronic communications.

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Hiring a Lawyer: Finding a Trusted Adviser


“Never leave that till tomorrow, which you can do today” – Benjamin Franklin

Last week you learned about being your own attorney. Well, if that is not for you, then you are going to need to select a lawyer to address your legal needs. Venturing into the world of finding a lawyer may seem daunting. You may not know who to call. Should you reach for the phone book? The newspaper? The computer? If you need a lawyer, or think you might, you should start your search promptly. If you delay this, you run risks and create unnecessary stress. For example, if you are a Colorado resident and are served with a lawsuit, you have twenty days to answer. If you start searching for an attorney right away, you will have a choice of available attorneys. You can conduct a couple of interviews and hire a lawyer who has a few days to assist you in preparing a timely response.

The following should be considered to ensure that you do not just hire a lawyer, but that you engage someone who will quickly become: a trusted adviser.

1. Seek a referral. The best place to start is to talk with your family, friends, and colleagues about lawyers they recommend. These people can tell you about their experiences and whether they were satisfied with their attorneys. While your parents’ estate planning lawyer may not be able to defend you against the crime of which you have been accused, good lawyers will usually point you in the direction of other good lawyers.

2. Arrange for a meeting. Meet with the lawyer you are considering hiring to get a feel of whether you will be able to work with that lawyer. Be aware that many lawyers charge for an initial consultation, so to make the most of your time be prepared to present a brief, clear summary of your legal issue. A good lawyer will explain your options and the legal procedures you will encounter at your initial consultation.

3. Look for a good fit. Make sure the lawyer you are considering hiring has experience in handling your specific legal issue. Most lawyers concentrate in one or more areas of law. It is also important that your lawyer has knowledge of the judge or legal environment you are facing. Finally, you should consider the lawyer’s personality and approach to the case. You do not need to become friends with your lawyer, but your lawyer should be someone that you can work with. At the minimum, you should ensure that your trusted adviser listens to you, answers your questions, and respects your wishes as to the direction that the case goes.

4. Learn how you will be charged. Lawyers may charge an hourly fee, a one-time flat fee, or a fee based upon a percentage of the amount awarded to you at the end of the case. The fee depends on the type of case and the attorney’s practice. Ask the attorney about how small fees, such a copying, faxing, and filing are assessed. Usually a retainer, or advance payment, is required and your attorney should explain how that money will be handled. Learn whether the lawyer works alone or has a paralegal and administrative support staff. Paralegals and support staff can sometimes complete tasks at a lower rate, which will likely save you money in the long run.

5. The Three As: Availability, Affability, and Ability. How quickly you can secure an appointment for an initial consultation should tell you something about your lawyer’s availability. Your trusted adviser should return your phone calls and e-mails within a reasonable time. Your lawyer should be a person you can trust to be honest with you through difficult times. Your lawyer should have the experience to provide you with current legal advice, as well as what to expect from the judge who may decide the outcome of your case.

The bottom line is that your lawyer should be a trusted adviser, especially in tough times. You will be able to rely on your lawyer as a source of advice and support. Because your relationship with your lawyer is trust-based, taking the time to select a lawyer that will be candid and honest with you will pay off in the end. In closing, an old adage comes to mind – “They that will not be counseled, cannot be helped.”

…………………………………………

Originally published in The Steamboat Local

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“So you wanna be your own lawyer?”

You are the captain of your own ship; the creator of your own destiny.  Why not navigate the legal system as a pro se litigant? (Pronounced “pro-say” pro se is Latin for “on one’s own behalf”)  Read on and I will direct you to a resource available to you that can provide basic knowledge of some skills you will need to have in order to succeed in Court.

Without the right navigational system, (radar, sonar, Google Maps, Rand McNally, GPS), you are bound to get lost.  Court is the same–without the right “map,” you could find that you are on the wrong route.  The sense of panic a lost traveler encounters when they misplace their passport is the same feeling a confused pro se party can encounter when tossed by the currents of the judicial system.

What is meant to preserve civility and prevent chaos often makes pro se parties feel disheartened, disadvantaged and distraught.  Without forewarning, you could find yourself in the eye of a tumultuous hurricane, and I am not talking about the delicious grenadine spiked libation.  You need a life preserver, some basic information.

What you need as a pro se litigant is a base knowledge of the rules of evidence, the rules of court procedure, and the law.  What evidence is relevant? What procedure applies?  Civil? Small Claims? Traffic?  What is the law?

Court is where you go to fight a legal issue with your opponent.  Court is adversarial.  However, for this battle you will need to leave your joust at home, your horse in the barn and really think through your plan of attack to persuade the judge to your point of view.

Fortunately, for the pro se litigant, the Colorado Bar Association offers free information online.  This website provides guidance to the pro se litigant by offering basic tools that you will need to present an effective case.

So, you visit the website, read the literature; outline your script; watch twenty episodes of Law & Order, and prepare a three-ring binder of information to present to the judge.  You have read rules until your brain hurts.  You’re ready.

You proceed to the courthouse and make your way to the right court room.  If all goes well, the judge is there, your opponent is there, and your case is called on schedule. The judge sounds friendly, asks if you’re ready to proceed, and your mind goes blank.  (Right about now would be a convenient time for an electricity outage or a fire alarm drill.)

However, because you have prepared for this adventure, you regain composure, make your opening statement and present your side of the story to the Judge.  You make it through your day in court unscathed.  The success or failure of your mission, in the end, will depend on how well you have prepared, and when it comes down to it, the Judge will tell you whether or not your mission was accomplished.  In parting, my general advice is to cultivate your own sensibility and strategy toward fairness and always read the fine print.  To borrow words from a mentor: Don’t bring a knife to a gun-fight.  Good Luck and Carpe Diem.

Originally published in The Steamboat Local

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