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Justin C. Lowenthal

Justin Lowenthal’s Answers

427 total


  • What are the parameters on backing out of a sublease and not being held responsible?

    Can a subtenant back out of a sublease and leave the original leaser responsible because the subtenant believes that the lease was signed on false premises, such as apartment cleanliness? If these beliefs are false, what can the original leaser do...

    Justin’s Answer

    The landlord may sue either or both the subtenant and the tenant for breach of the lease agreement. The tenant will always be ultimately responsible for payment on the lease to the landlord. The tenant may maintain a separate action against the subtenant for breach of contract, in addition to any other cause of action the tenant may have. That would make the subtenant liable to the tenant. However, if the subtenant has an affirmative defense, that may absolve the subtenant of liability under the sublet agreement. I don't think misrepresentation of the cleanliness of the apartment will work here, since the subtenant would have had ample opportunity to inspect and approve the rental unit.

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  • I'm being dragged into a bogus residential real-estate non-disclosure issue. What is an effective defense / strategy?

    House is 15 years old, sold it about two years ago. The buyer is claiming that we failed to disclose that the foundation is moving. Home inspections and two independent expert engineering, foundation, soil reports say there is nothing wrong and ...

    Justin’s Answer

    You will really need to review this matter with a lawyer. It is possible that they will claim intentional misrepresentation/omission, but frankly, they can claim whatever they like. What really matters is what they can prove by a preponderance of the evidence. It may be possible for you to recover your costs of suit, as well as reasonable attorneys' fees if such is provided for in the original purchase agreement. However, because this is a construction defect matter, I am not certain that they will sue on the purchase agreement. Try to have this case reviewed ASAP by a real estate attorney.

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  • An unlawful detainer was filed by an owner when the subject rental was apart of a business partnership/agreement....

    Property Owner and I entered into verbal business relationship/partnership regarding one of his rentals. He failed to meet ANY of his business obligations/agreements to our BUSINESS as far as property repairs and upgrades. He expected to receive...

    Justin’s Answer

    • Selected as best answer

    Before taking any action you need to spend some time conferring with an attorney in your area. We don't have access to sufficient facts here on Avvo to help guide your decision. Moreover, further facts should probably not be provided through an online forum such as this. It is also important to note that unlawful detainer actions entail summary proceedings, which means the case progresses rapidly. You have a very short period of time to file a responsive pleading and take other action to protect your rights. Speak with an attorney immediately!

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  • If you owe any back rent from previous months can the landlord keep your security deposit.

    We had issue in previous years a little short on rent and could only give 800 instead of 1200. So wasn't sure if he can keep all our deposit.

    Justin’s Answer

    Landlords may use a tenant's security deposit, or a portion thereof, for the purpose of paying any unpaid rent.

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  • Is my business partnership a self-dealing conflict of interest?

    Started an e-commerce company ("ECOMMERCE"), a C-corp, with a friend of mine. He is a product broker, I am a technologist. My partner earns a commission, through his other company, an S-corp, a brokerage ("BROKERAGE"). The goods we sell t...

    Justin’s Answer

    A conflict of interest exists when an officer or director has a personal material interest in a proposed transaction to which the corporation may be a party. Generally speaking, conflicts of interest are not prohibited, nor are they unusual. Sometimes, transactions involving a conflict of interest may be in the best interest of the corporation, which may be the case here. From a legal perspective, it is the manner in which conflicts of interest (even ones that are favorable to the corporation) are handled by the director and the board that may determine whether the director's duty of loyalty has been breached and whether the transaction may be rendered void.

    However, a self-dealing transaction may not be rendered void when it benefits the corporation, the transaction was fair and reasonable, was approved in advance by the board, and a similar transaction with a non-interested party could not have obtained a more advantageous arrangement with reasonable effort under the circumstances.

    It is important to note, though, that this particular transaction could impact your company’s reputation or negatively influence investors’ impression of the company during due diligence efforts. Even a perceived conflict of interest, which may not be actual, may cause the investors to look elsewhere for a suitable investment. You want to be sure your books are clean, you have the appropriate employment, confidentiality and IP-assignment agreements in place, and that you don’t have any outstanding or potential legal liabilities, such as interested-director transactions. Proceed with caution, but at the very least follow the statutory guidelines set forth in the Corporations Code.

    This, of course, is in addition to the advice offered by Mr. Doland.

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  • How can I prove that I never had a partnership?

    I started on a project with 2 other people and I was the developer for the website. However, myself and the other partner had a falling out with the third guy, call him "X". X did not contribute to our project nor did any of us have an oral/writte...

    Justin’s Answer

    Proving the nonexistence of a partnership is tricky, and especially difficult without all of the facts. I strongly recommend that you work with an attorney on this or at least have one review the case with you.

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  • Can a landlord contact tenant's references (on tenant's application) when trying to locate absent tenant?

    After 6 months of a 1-year lease, tenant has disappeared. Rent is 10 days past due and neighbors say tenant has been gone over 3 weeks. Tenant will not return calls or emails. Five days ago I posted a 3-Day pay or quit (and mailed copy). Soon I wi...

    Justin’s Answer

    I would instead hire a process server, such as Moe's in Sacramento. They will help you find him and if they cannot find him, will provide a declaration of due diligence in support of your application to serve the defendant(s) by publication. Assuming you own the property and are not a "debt collector" under the FDCPA, it is permissible, in my opinion, for you to contact references. However, I think it would be best to handle this through a professional process server. I also recommend that you hire an attorney to represent you in the unlawful detainer action so that there are no missteps. Good luck!

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  • Can an LLC member not have a vote?

    Can we specify that only the original members as the sole 'voting members' in the Operating agreement so that no one else we give equity in the future will have any say in any company matters?

    Justin’s Answer

    Although I would need to double-check to provide you with my "official" answer, you may create membership interests with differing voting rights; PROVIDED, however, that you MUST create a separate class of membership interests. You may not have one class of membership interest and retain voting rights for some members, and none for others. You would need a voting class and a non-voting class. That, at least, is the rule of law for corporations. The law pertaining to LLCs I presume is very similar.

    If you create two classes of membership interests you may be precluded from certain tax treatment, if desirable. For instance, your LLC may not be taxable as an S-corporation - although that is somewhat uncommon.

    The best way to solve your problem is to use a business attorney and ask them to draft an operating agreement that specifies that transferees of membership interests are merely ECONOMIC INTEREST HOLDERS and have no voting rights.

    Good luck!

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  • What can I do if my lease agreement is not being honored?

    There is a clause in my agreement where parking would be included free for 3-months in the lease agreement. However, it's a week and a half into my lease and I still don't have a parking spot. What are my rights as a tenant? I've been asking the g...

    Justin’s Answer

    My colleague is correct, put your demand in writing and give the landlord a reasonable time to accommodate you. If you are incurring damages as a result of their failure or neglect to provide you with a parking spot you may consider a small claims action an option; however, I highly doubt that will be worth your time.

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  • Problem with manager at apartment complex with coming in my apartment without me be being there and no permission to enter.

    has happened twice and now I have a notice to permanently perform covenant or quit after cat was found in my unit after unauthorized entry by manager. how do I go about correcting this?

    Justin’s Answer

    Mr. Brelje is correct. I suggest that you remove the cat to avoid an eviction action. There is no "fruit of the poisonous tree" rule here, whereby the landlord's visual confirmation of the cat might be disregarded because they failed to comply with Section 1954 of the Civil Code. You should remove the cat and immediately send, by certified mail - return receipt request, a demand to the landlord that they comply with Section 1954 in the future.

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