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Rand L. Koler

Rand Koler’s Answers

139 total


  • Our corporation has no assets, but we still maintain the corporation, adhering to all rules.

    We decided to keep the corporation as there is a two year window of time for a client to possibly file a law suit for defective work and we don't want to be personally liable - so it's a just-in-case decision. If someone decides to sue the corpor...

    Rand’s Answer

    One approach to "piercing the veil" is to show that the corporation is thinly capitalized, but if it is not doing business you would argue that it is adequately capitalized. If the assets were distributed without consideration those transfers can be attacked if the amount of the claim warrants that degree of litigation. Consider dissolving the corporation in accordance with statutory procedures.

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  • Does this clause disqualify me from entering the market in question?

    Here is an excerpt from the contract I signed: Contractor will also not directly or indirectly engage in any business activities with any competitor for up to one (1) year after the date of the termination of this Agreement. I'm wondering if...

    Rand’s Answer

    A couple of principals of law might help you understand the problem. First, the provision is a restraint on trade and is not favored in law. The cases recite that these restraints have to be reasonable in both duration and geographical scope to be sustained. You provision is not geographically limited so there is an argument, depending on the contract and the context, that it is unenforceable. If you have that aspect reviewed and you get a favorable opinion, you still have to factor in the likelihood of being sued and the cost of defending your position, as well as the risk.

    I believe that if you formed a new entity that competed, you would be "engaging in business activities with a competitor." It might be a closer question if you operated a competing sole proprietor ship.

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  • Is it normal to include a professional liability clause in a freelance game writing contract? Is it enforceable?

    I am on the point of signing a freelance game writing contract with a large entertainment conglomerate. It includes a requirement for professional liability insurance; i.e. the company does not in any way validate or guarantee the content of what ...

    Rand’s Answer

    At the risk of redundancy, you should look at the contract you received as a statement of what they want, not what you have to give. The provision is negotiable to a degree that depends on your bargaining position. If you take it you have the comfort that it is a common provision.

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  • Is there a way for a home owner to delay the forecloser of home through hiring a lawyer?

    I was told that the right lawyer could delay a forecloser for a year and a half, is this true and what kind of lawyer will this take?

    Rand’s Answer

    Generally speaking if there are irregularities the sale can be stayed by state court, but there is a state law that requires the owner to pay into court the monthly payments during the stay. This can sometimes be avoided but it is a concern in state court. Also the foreclosure can be recommenced if the problem is only a procedure in the foreclosure process. A problem with the loan can block the foreclosure. Bankruptcy is a resort of many homeowners, usually a Chapter 13 wage earner plan. You need a lawyer to analyze your situation to recommend the best course. You might talk to a lawyer with a foreclosure practice first then perhaps a bankruptcy lawyer.

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  • How much should I request from possible buyers of real estate I own surrounding their home?

    I own a town home and recently discovered that I own ALL property, less the driveway, surrounding the townhouse of the neighbor I share a wall with. In actuality, we're talking about 125 sq ft, however, if I were to take hold of the property they...

    Rand’s Answer

    First, remember that if they have had possession for several years they may have a claim to title by adverse possession or any of a number of related theories, or by prescriptive easement, which would entitle them to continue their use. That aside, usually you can start with the last assessment of the land and figure out the assessed value per square foot. You can then ask a real estate broker or agent to do a market survey to get an idea of the value of the land, or talk to an appraiser. The price is determined by what the buyer is willing to pay, which would be a percentage of the value to his or her home, but if you go too high it might become cost effective to take you to court. Another consideration is what the buyer can afford and whether you will accept terms. In any case you should agree to enter into an boundary line adjustment paid for by the buyer. This can be fairly lengthy and the result is not certain, so there should be a carefully worded agreement.

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  • We have used a very small piece of land that we have had a building in and have maintained the grounds for more than 20 yrs.

    We recently received notice from Weyerhaeuser that we must move a 20 yr. old shed, a 4 yr. old pool site (18' circle) and a newly constructed tree fort (built on a tree that snapped during last yrs. storms). We offered to buy the property without...

    Rand’s Answer

    There is nothing really to file. Rather, an adverse possession claim is presented in court, then you can file notice of the action determining title. There are a few routine matters that you should look to first. You need to find out exactly
    the basis of Weyerhaeuser's claim. Then you should look at your title policy. At that point you can evaluate the two claims to see the root of the problem. On the face of it you have a valid claim to adverse possession but for facts have to be unearthed before this can be adequately determined. The next step is typically to have a lawyer send a letter staking your position. It would be prudent to do this very promptly to avoid action by the rival claimant.

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  • What are the restrictions on resell of goods in USA.

    Planning to import herbal supplement from India. The manufacturer already has a franchise in USA. We wish to bypass the franchise, buy the supplements in India, ship them to USA and sell them over here. What legal issues should we be aware of r...

    Rand’s Answer

    Putting aside considerations directly involving the product and its importation, if the manufacturer has an exclusive arrangement with the franchise, you could be subject to a claim of tortious interference with business relations. You may not intentionally involve yourself with an activity which breaches established contractual expectations. It would be prudent to verify that you are not infringing on the rights of the franchisee. If there would be a breach of their rights, then you should obtain a serious legal opinion about your rights and what you might do. It might be prudent to put aside money in case you were challenged, depending on the results of the formal legal opinion.

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  • I carry a contract on property, the new owners want me to carry the contract for their buyer. Isn't this their responsibility?

    The contract with the current owners is almost 4 years old with a ballon payment at the end of next year. They are moving and have a buyer (family member) and asked me to carry the contract. Wouldn't that be between the current owners and the futu...

    Rand’s Answer

    It sound like they want their buyer to assume the contract. Usually the contract has a paragraph labeled "Assignment" that discusses the right to do this. Usually you at least have the right to approve the credit worthiness of the buyer. You should not release your present buyer under any conditions but keep them liable on the contract so that you have two parties responsible for its payment if there is to be an assumption. You would do well to hire a lawyer to take care of this very routine matter to be sure that you are protected.

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  • The architect we hired for a residential addition continually fails to meet deadlines and to design within the stated budget.

    He blames everyone - the builders, the DPD, etc. He was unfamiliar with submitting plans for permitting, and he definitely has no idea what it costs to build what he's drawn. Our budget for the project was $200k. The first estimate we got from a b...

    Rand’s Answer

    I believe that you do have a case for a refund. This though depends on your contract with the architect. The best case is that you have written agreement that clearly states this. If your written contract does not support your position, then you may be able to argue that it is void for misrepresntation or that it includes the apparently verbal agreement about cost. You may also have a case for negligent misrepresentation but your contract should be reviewed before reaching any conclusions.

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  • How do I find a good business lawyer?

    I am looking to start a small business and need a legal help.

    Rand’s Answer

    You can check Martindale.com for peer reviews of lawyers in your area. Be sure to create a budget for this. I believe that all business lawyers have experience with startups.

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