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James Oberholtzer
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James Oberholtzer’s Answers

415 total


  • Real estate contract

    l had a house that was listed "as-is" , the contracr was signed by both parties and closing was doon. They had a house inspection and sent an addendum for $2500 less than what was price l signed for else no sale. Because house was listed "as-is" ...

    James’s Answer

    The terms of the written contract control the transaction. In most contracts the house inspection is a condition of closing the sale. If that is the case here, then they buyer is within their rights to ask for a concession or cancel the sale.
    There may be other requirements in the contract that have not been met that would alter this result. You should consult with an attorney familiar with Oregon law for a thorough review and to obtain legal advice.

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  • Lawyer has provided a draft of a couple of estate planning documents but is vague on follow up.

    A lawyer that I chose to draw up my estate plan, not a very complicated one, has provided mw with drafts of the 2 trusts, again, not complicated. I asked where the other documents as in pour over will and advanced directive were and he said that i...

    James’s Answer

    Your relationship with your estate planning legal counsel is voluntary. Any time it is not working for you, you can terminate it and move on. Like most relationships, it usually makes sense to communicate and try to work it out first. Tell the attorney your concerns and let the attorney respond. Even if you decide to terminate the relationship, you will have learned something useful.
    It is a harder question to determine how much you should pay, if at all. If the attorney did professional quality work, the attorney is entitled to be paid for it. If not, then the attorney is not entitled to be paid. It may be difficult for you to evaluate if the work was professional quality or how much it is worth. The only way to find out is to hire another attorney to advise you. Often this is not worth the cost involved.
    One way forward is to negotiate with the attorney about it. Most attorneys would rather have you leave with a sense of fairness than get the last dollar out of the work they have done. It may be that you can come to an agreement.

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  • What are the required legal documents for the private sale of a home?

    The property is co-owned. One owner is buying out the other. No Realtors involved to manage the process.

    James’s Answer

    These intra-owner transactions can be tricky. They may seem like a gift but involve money and title. The absence of realtors saves money but you lose their experience and expertise.
    It is important to make sure that the buyer is covered by title insurance in case their are any title defects or easements on the property that are unknown.
    If the buyer is not intimately familiar with the physical condition of the property, a professional inspection should be taken.
    In general, the buyer should get all of the promises (aka covenants) and warranties that a buyer in an arms length transaction gets.
    that requires a Purchase and Sale Agreement and Seller Disclosure Statements. They buyer will also want to get a Warranty Deed (not a Quit Claim Deed), a Bill of Sale for the personal property and an Affidavit of Title that the title is free of defects.
    All together, the buyer should hire an attorney to make sure all of this happens and to look closely at the situation to see what else needs to done.

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  • I am a beneficiary on a living trust in Oregon, but I am not a trustee. Do I have any legal rights to read the living trust?

    and how would I make the trustee let me read it?

    James’s Answer

    There are two ways you can have a right to a copy of the trust agreement. First, the trust agreement itself can give you a right to a copy. Second, under Oregon Trust statute ORS 130.710 a qualified beneficiary is entitled to a copy of the trust agreement.
    (14) “Qualified beneficiary” means a beneficiary who:
    (a) Is a permissible distributee on the date the beneficiary’s qualification is determined;
    (b) Would be a permissible distributee if the interests of all permissible distributees described in paragraph (a) of this subsection terminated on the date the beneficiary’s qualification is determined; or
    (c) Would be a permissible distributee if the trust terminated on the date the beneficiary’s qualification is determined.
    Also, a beneficiary of an irrevocable trust is entitled to a copy of the trust.

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  • Oregon Small Estates: Intestate or Testate?

    My brother passed away and had very few possessions - some derelict vehicles and a small, vacant piece of land in the Central Oregon desert. My father has a photocopy of a will (but not the original) naming him as Executor and sole beneficiary of...

    James’s Answer

    As my colleagues have said, it depends on what the Will says. However, if it was drafted by an attorney, I can take an educated guess that it at least waives the bond for the executor. This saves you some money. The amount of the bond is a function of the non-real estate assets in the estate. There may be some other provisions in the Will that save you money or effort. If you can find the original Will, the administration will be easier.
    However, you are right. As far as the administration of the estate goes, there is not that much difference between the testate and intestate administration.
    You did not ask, but, why are you bothering with a probate estate? The few possession can probably be handled informally. the cars are probably worthless and the land can be handled with an affidavit with the title company whenever you get around to selling it. Just saying.

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  • What to do when property management claims bankruptcy and the home owner wants you to sign a new lease?

    Our property management company claimed bankruptcy and is currently operating under a receiver. We have not been contacted by anyone from the original property management or receivers. We were contacted by the home owner who has asked that we sign...

    James’s Answer

    In general, you should deal with the home owner directly if you can. He owns the property can lease it to whomever he wants. I expect that you had a lease that was arranged by the property manager. Look at that lease and see what obligations you have under the lease. Did the owner sign it or did the property manager? Were you given any document that showed the authority of the property manager from the owner?
    Assuming that your existing lease was ever any good, it is still good. the property manager was acting as an agent of the owner. the bankruptcy of the agent does not invalidate the lease.
    If the owner wants you to now sign a different lease, the owner should indemnify you against any claims from the property manager of breach of the existing lease or arising out of the new lease.

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  • In January, 2015, my now ex-husband attempted to serve me divorce papers in California but they were returned.

    I informed my ex-husband I was returning to Washington/Oregon so that we may let the court settle the division of our assets/debts. I arrived in The Dalles on or about February 15, 2015, and ran into my ex- and his new wife to be within the first...

    James’s Answer

    Yes. Immediately hire an attorney who is expert in family law.

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  • Could an estate/probate attorney discover if the Trustee is hiding something, and then protect the Trustee?

    Father died in 2012. Mother died Jan 2015. Sister, who is the Trustee, has retained an attorney. Land has not been sold and stocks/bonds have not been liquidated. In first letter from attorney, we received an accounting (with no backup receipt...

    James’s Answer

    In case you can't tell from the other attorney responses, based on the information you provided, we can't tell if it is legal or not to withhold a distribution unless the beneficiary agrees to waive the accounting. It would only be legal if the trust specifically authorized it. It would be very unusual for the trust to authorize it.
    Oregon law requires that all current beneficiaries be given a copy of the Trust Agreement. So, you should have a copy. Read it carefully. If you can't figure it out, it probably isn't there. Take it to an attorney and get serious. Do it now. Don't wait. If you wait you may end up with nothing.

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  • We are 2 weeks away from purchasing a house. We decided we do not want it now. it was in escrow for 2 months. Can we get out?

    We have contacted the Real estate agent and received the Termination agreement, Does the seller have legal recourse to sue us for damages related to terminating the contracts and purchase so close to the closing date?

    James’s Answer

    Yes, in most cases. You probably used a standard form Real Estate Purchase agreement supplied by a real estate broker. These forms provide for certain contingencies for the purchaser's obligation to purchase like an inspection contingency or a financing contingency period. Assuming that these periods have all expired and you no longer have a legal reason to reject the property, then you have an absolute obligation to buy it.
    At this point, practicalities intervene. If the price you contracted to buy at is lower than the current market price, the seller may be happy to let you out and sell it to someone else. If not, you could close buy it at the lower price and sell it at the higher price and make some money on the deal (after paying closing costs and probably a real estate broker commission on the second sale. If the price you contracted for is higher than the current fmv, then the seller will want you to make up the difference. Better call an attorney either way.

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  • Can I do computer repair in a different city after signing a non-compete agreement?

    I signed a non-compete when I started working for a tech. company around 10 months ago. The document stated that I wouldn't work as a rival "in the area" for 3 years. Shortly after I ended up moving to a city about 20 miles away and ...

    James’s Answer

    Usually, the area of non-competition is defined in the written agreement. Read it through carefully to be sure. If it is not defined, then it is interpreted to be a reasonable area of non-competition in the circumstances. Factors that can go into the decision of reasonable would be trade secrets you learned, does your new work use the knowledge you learned, is the new work competitive with the old work, etc.
    So, it depends on the work you did for the tech company and the new work you plan to do.
    In general, non-compete agreements are not favored in the law; so, it is worth checking to see if the new work would be a problem.

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