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James Oberholtzer
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James Oberholtzer’s Answers

398 total


  • Our HOA Board is doing a complete revision of our Bylaws. Should we hire an attorney to review them before the members vote?

    Our HOA Board members and bylaws committee have been working over the last several months in drafting a complete revision of our existing bylaws for our homeowners association. We are doing all we can to incorporate Oregon Statutes that apply to ...

    James’s Answer

    Yes, it is essential to have the bylaws reviewed and revised by an attorney before you adopt them. An ounce of prevention is worth a pound of cure.
    You should use an attorney who has experience in this area. You can search on AVVO for an attorney who can do this for you. If you have a management company, they may be able to refer you to someone. Otherwise, contact some other HOAs and see who they have used and liked.

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  • Do I need a lawyer for purchasing a restaurant business?

    Not sure if I need a lawyer or only a paralegal asst when I want to purchase a business from a relative whose business not going so well. If I do need one what kind of lawyer should I looking for. I just want to make sure that I don't have to res...

    James’s Answer

    Buying a failing business without it also dragging you down with is much more difficult than buying a successful business. Obligations to employees, suppliers, customers, tax authorities, various branches of the local, county, state and federal government, neighbors and possibly anyone else you can think of take time and effort to figure out and deal with.
    When the seller does not have a large amount of assets available to fix problems (and this can also lead to cutting corners that created the problems), you are on your own in protecting yourself.
    You need a transactional attorney. Probably one who also knows about tax issues. Restaurants are a cash business with their own issues so some familiarity with the restaurant business would be a plus.

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  • Do I need a Real Estate Atty? My 80yr Mother recently sold her home. Buyers are threatening small claims court.

    My Mother recently sold her home. The buyers negotiated the house to death. Trying to get her to fix things beyond what the home inspection showed that were fixed. Two weeks after closing they are saying a toilet is broken (that was fine in the...

    James’s Answer

    Whether you decide to fight in court or make a deal and pay for the repairs, I suggest you demand an written agreement that the buyers make no more demands and are now satisfied.

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  • A piece of large farming equipment was left on our farm for ten years asked the owner to remove it . What are our options?

    The equipment is a conbine and was used by the owner to farm the land. We are in CRP and have not farmed the land for 10 years or more. Can we have it hauled away and destroyed?

    James’s Answer

    Good question. Your options depend upon the exact facts of your situation. So, lots of initial questions that would lead in a legal consultation to other questions:
    What is your relationship with the owner? Have you ever had any contacts or agreements with the owner? Was there ever any agreement about the combine, at all? Did you use the combine ever? Did you agree to store it? Did you agree how much you would charge to store it?
    If not, how did it come to be on your property? How long ago did you ask the owner to move it off your property? What did the owner respond?
    What is the combine worth now?
    Do you have any property of other persons on your property that you keep for them? do you charge them for the storage? How much would a typical person in your community charge for the storage of a combine?
    Is it stored inside a barn or other structure? Is is maintained?
    How do you know who actually owns it? Have you checked to see if a security agreement is filed against it by a creditor? A creditor might come and take it away if they knew where it is.
    Did you tell the owner you would be charging storage fees if he left it on your property?
    One approach that may fit the situation is to give the owner notice that you will charge storage fees

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  • Can 2 equal inheritors who have lived in home for 7 years, buy out others, even if executer wants to sell it out from under em?

    My neighbors, brother and sister have lived with mom for over 7years taking really good care of her. she passed 2weeks ago. Older brother, who is executer is demanding they move out, and flexing control muscles and while being vague about estate w...

    James’s Answer

    This situation sadly comes up fairly often. Everyone can lawyer up and spend a lot of money fighting about this. If you want to do that (or feel you have no choice) there are many competent estates and trusts litigators in Portland, OR.
    I would recommend you save the money and pursue a family mediation. A lawyer can assist you to pursue this avenue. In any event, you will need to spend a substantial amount on the legal process to compel your older brother to not do what he wants.
    In general, your mother's plan as expressed in her Will will be respected by the law and the courts. You will have to work against this tide to have anything else happen.

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  • Inheritance and taxes, who gets a cut, and how much?

    Hello and thank you for your answer, My Aunt, who lived in Pennsylvania, passed last month. She never married, nor had children. I recieved a packet in the mail from TIAA CREF stating I am a beneficiary for a "retirement account / TIAA traditi...

    James’s Answer

    I agree with my colleagues. I would first contact TIAA CREF and find out more about the account. Chances are it is full of untaxed income. When you withdraw the money, it will be taxed to you at your current income tax rates. If you have a tax attorney, financial advisor or tax knowledgeable CPA, you will want to consult with them about the best strategy for you in your situation.

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  • In the state of Oregon is it possible to represent yourself in place of a "buyers agent"?

    We are building a custom home from a development in Oregon. The listing agent coordinates all design, architecture etc. He sent me paperwork today to represent both the buy side and sell side and is offering no discounts for representing both side...

    James’s Answer

    Under Oregon law, you can represent yourself in a real estate transaction. No one can force you to hire an agent. However, you will not necessarily save the 2.5 to 3.0%. The Seller pays his agent whatever the seller has agreed. The seller may then increase the sales price to you to make up the cost. You can try to negotiate with the seller for a lower price.
    If you hire an agent to represent you as the buyer, you will have to pay that agent.

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  • Living will vs trust

    Wondering if I set up a trust if it is better than a will. Does a person have to survive for a period of time in order for the trust to be valid

    James’s Answer

    I think you got your terms mixed up. A Living Will handles medical decisions; a trust handles property decisions. The usual comparison is between a living trust and a Will. For most people, a living trust is better than a Will. It handles more situations with more flexibility.

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  • Do I have to actively seek intestate succession in the state of Oregon?

    My father died approximately one month ago without a will in place. He was married to his second wife at the time and I am his biological child from his first marriage. He held title for a piece of property in his name only. I'm not sure if the...

    James’s Answer

    Under Oregon law, you are entitled to half of the property your father owned at his death. This includes the real estate that he owned in his own name. Before you can obtain your inheritance, your father's creditors must be paid first. This is handled through the probate process.
    Either you or your step mother need to hire an attorney and initiate the probate process. It is usually an advantage to be appointed the personal representative (formerly known as the executor or administrator) of the estate. It is also a lot of work. If you get along well with your step mother, it would make sense to work together on the estate.
    There usually is a lot of non-titled property that your father owned that you also are entitled to receive half. You will want to make an inventory of all of the valuable things as soon as possible and make sure that they are secure and insured.

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  • Can I use a Lease to Buy agreement to buy my parent's house/property?

    Current value $250k. Lease agreement $1200/mth until their mortgage is paid off ($200k) + $15k cash balloon payment @ payoff w/ remainder of equity gifted to me by parents over two years ($14k from each / yr).

    James’s Answer

    The short answer is yes, you can do it.
    In Oregon, we do not have a gift tax and the federal gift tax exemption is $5.4 Million per person. So, no transfer tax issues here. The $14,000 a year is an annual exclusion that is in addition to the $5.4 Million. You probably do not need to do that unless you have some non-tax reason.

    There are a lot of things that can go wrong in this type of arrangement. It would be money well spent to have an attorney review your individual situation and assist you solving any issues.

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