February 20, 2018

Why Did You Become a Lawyer?

Questions from the field.

So, I often get asked the question why? Not just from my kids, but from the community and clients alike. Why did you become a lawyer?

My family will tell you that I have been saying since about 9-10 years old that I would become an attorney when I grew up. I knew that was my goal.

Around the ripe old age of 8, I had decided I was going to be a teacher. Not long after that my 8-year old mind decided teachers don’t make enough money. (My 39-year old mind KNOWS that they are grossly underpaid!) Next, I decided I would be a chiropractor because as I went to my appointments, I thought surely, they make enough money for me to drive a different car each day of the week. For whatever reason that seemed important to me at the time. But what happened next sealed the deal. My mother started attending college to become a paralegal. She was a single parent so, 1 went with her to study groups and the law library. I can still remember being at the Vincennes University library, walking through the aisles looking for whatever book my mom needed. There were volumes and volumes of cases. I remember searching through them, flipping the pages and reading the cases. I am not sure how much of it I really understood back then, but one thing was sure I loved it. Reading about property disputes, criminal trials or family law cases peaked my interest. I became fascinated by the opinions, the analysis, and unique facts of each of the cases. It caught me hook, line and sinker. All of a sudden, I no longer cared about having a different car to drive each day of the week, I cared about those cases, but more importantly, I think I cared about what those cases represented.

After high school, I worked my way through undergrad at IUPUI, studied for the LSAT, applied and was accepted to Indiana University School of Law at Indianapolis, graduated, studied for 8 hours a day for 6 weeks for the Bar exam, passed it and here I am over a decade later. I have told my 8 year old story many times, but recently I really had to think about it. Did I do it because I was so geeky that the cases really interested me that much, or was it because I wanted to be a part of something that is bigger than myself? Part of the history of our country, where people could gain rights, change laws and impact the future through research, writing and analysis. Part of change, part of helping others, part of a community that fights for individuals who don’t know how to fight for themselves…that was what I really loved about the law. There was a consistent theme through my child aged “career” choices (teacher, chiropractor, lawyer) they all help people. One way or another that was going to be my route! Now, I have to admit rarely do we get those cases that impact broad swaths of people or communities. That doesn’t mean my career choice has let me down, rather now, when I am speaking to a client, the question in the back of my mind is always, how can I help? What does this person, family or business really need?

At the end of the day that is what we are here for, that is what I studied for and that is what I work for, to help. I recently joined Webster Legal, in Westfield and as a Westfield resident myself I look forward to helping our community in many ways. At the end of the day, if I helped someone, then I have done my job.

Are you considering law school, need some advice? Shoot me an email, I am glad to have a chat with you or grab a coffee, [email protected]. Danica L. Eyler

March 22, 2017

Westfield Indiana Real Estate Attorney discusses: Landlord and Tenant, Legal Issues to Avoid

Are You Considering Becoming a Landlord?  Avoid These Legal Pitfalls. 

As you considered your goals for the New Year, did acquiring rental property make the list?  Are you hoping to create a second stream of income?  Retire early?  Or perhaps you are already a landlord and are discovering that it is more complicated than you anticipated?  Being a landlord presents unique legal challenges.  This article will provide you with examples of the most common legal pitfalls facing landlords and with tips on how to avoid falling into these traps.

Your Rental Agreement Fails to Comply With Indiana Law.

As a landlord, it is important to have a residential lease agreement that complies with Indiana and Federal law.  Avoid the mistake of placing conditions in a rental agreement that require a tenant to waive the right to a refund of a security deposit or the right to bring a lawsuit.  It is also important to avoid including any conditions that would discriminate against a tenant based on race, national origin, gender, familial status, disability, or religion.

Failing to Make Timely Repairs

A rental agreement should specify who has the duty to make repairs.  Importantly, though, pursuant to Indiana law, a landlord must make some repairs even if a rental agreement does not specify these duties.  A landlord has the duty to provide a rental unit that is fit to live in, safe, and clean. This is called an “implied warranty of habitability.”  Pursuant to Indiana Code Section 32-31-8-5, the property must be in a “safe, clean, and habitable condition.”  Additionally, a landlord must ensure that the following are in “good and safe working condition:”   the electrical systems, the plumbing systems sufficient to accommodate a reasonable supply of hot and cold running water at all times, sanitary systems, heating, ventilating, and air conditioning systems, and appliances supplied in the rental agreement.  The failure to timely make these major repairs could result in a lawsuit against you.

Failing to Provide a Functional Smoke Detector and Obtain Written Confirmation

A landlord is required to provide a functional smoke detector in the rental property.  A landlord and tenant may not waive this requirement in either the rental agreement or in a separate writing.  Additionally, according to Indiana Code 32-31-5-7, at the time a landlord delivers a rental unit to a tenant, the landlord must require the tenant to acknowledge in writing that the rental unit is equipped with a functional smoke detector.

Keeping the Security Deposit

Upon termination of a rental agreement, Indiana law requires a landlord to return to the tenant the security deposit minus any amount applied to:  (a) the payment of accrued rent; (b) the amount of damages the landlord will suffer due to tenant’s noncompliance with the law or the rental agreement; and (c) unpaid utility or sewer charges the tenant is obligated to pay under the rental agreement.  It is important to note that you, as the landlord, have a duty to provide a written notice to the tenant with an itemization of the amount due and the estimated cost of each repair not more than 45 days after termination of the rental agreement and delivery of possession.  Indiana Code Section 32-31-3-14 also provides that the landlord must include a check or money order for the difference between the damages claimed and the amount of the security deposit with this notice.  According to Indiana Code Section 32-31-3-12, if the landlord fails to deliver this notice, the tenant may recover all of the security deposit, along with reasonable attorney’s fees and costs against the landlord.  The landlord would forfeit any rights to the security deposit in that scenario, according to Indiana Code Section 32-31-3-15.

 

Ignoring Eviction Rules

A landlord cannot remove a tenant from a property without going through a legal eviction process.  Further, unless the parties have agreed otherwise, pursuant to Indiana Code Section 32-31-1-6, before removing a tenant for failure to pay rent, a landlord must provide a 10-day notice to the client.  If the tenant refuses to comply, the landlord must then file an eviction action in Court.  If the landlord attempts to remove the tenant without a court order, the tenant may be entitled to damages for the landlord’s actions.

Inadequate Insurance on a Rental Property

As a landlord, it is important to obtain a landlord or rental dwelling policy.  These provide property insurance for physical damage to the structure of the home and for any personal property that you may leave on-site, such as appliances or lawnmowers.  The policy should also include liability coverage to protect you in the event that the tenant or a guest is injured on the property.  The rental policy only covers the structure itself and your financial interest in it.  You should also require the tenant to obtain a renter’s insurance policy to cover the tenant’s personal possessions.  Finally, you may want to consider obtaining an umbrella policy, especially if you have substantial personal net worth.

Failing to Consider Forming an LLC to Hold Your Rental Property

There are some compelling reasons to hold your rental property in an LLC.  The main reason is to protect your personal assets and to protect you from personal liability should you be sued.  For example, if a rental property was titled in your name and a tenant’s guest falls down the stairs and is injured, the guest could sue you, as the landlord, for her injuries, claiming that the stairs were maintained in a hazardous condition.  If the guest were to win this lawsuit, any judgment in excess of the liability insurance can be satisfied using the owner’s personal assets. If your property was held in an LLC, only the LLC’s assets would be under attack so long as you follow appropriate corporate formalities. The formation of an LLC to hold rental property can also have estate planning advantages, including a more seamless transfer of property or the ability to gift certain percentages of real estate to family members.  There are important legal and tax considerations to consider before forming an LLC.  Consulting with an attorney and accountant can be helpful in determining if forming an LLC is right for you.

This article is not legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author and attorney, Carla V. Garino, or attorney William Webster, with Webster Legal LLC, located in Westfield Indiana.  Ms. Garino and Mr. Webster can be reached at (317) 565-1818 or at [email protected] or [email protected].

February 22, 2017

Westfield Indiana Business Attorney: Don’t Forget Your Annual Company Meeting

If you own a small business, you are probably aware that one of the advantages of operating your business as a corporation or a limited liability company (LLC) is the ability to shield your personal assets from business creditors.  However, many business owners do not realize that there are a number of steps that should be taken to maintain this liability protection.  Among these steps are “corporate formalities.”  You should be aware of these formalities because, as a business owner, you are responsible for ensuring compliance.  In fact, you can be at risk for losing this personal liability protection if you, among other things, fail to observe the required corporate formalities.  In a lawsuit, a plaintiff can attempt to “pierce the corporate veil” to reach your personal assets.

The Indiana Supreme Court has laid certain factors for Courts to consider in determining whether a plaintiff has met its burden to pierce the corporate veil: (1) undercapitalization; (2) absence of corporate records; (3) fraudulent representation by corporation shareholders or directors; (4) use of the corporation to promote fraud, injustice, or illegal activities; (5) payment by the corporation of individual obligations; (6) commingling of assets and affairs; (7) failure to observe required corporate formalities; or (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form.  Aronson v. Price, 644 N.E.2d 864, 867 (Ind.1994).

In Indiana, corporations are governed by the Indiana Business Corporation Law (“IBCL”) and LLCs are governed by the Indiana Business Flexibility Act (“IBFA”). The IBCL actually requires shareholder and directors to hold annual meetings while the IBFA is more relaxed in its corporate requirements.  However, whether your company is a corporation or a LLC, the Courts apply the above factors in determining whether a plaintiff is able to pierce the corporate veil.  Therefore, holding an annual company meeting is not only good practice but important for maintaining corporate records and observing corporate formalities.

What is an annual company meeting?  A company meeting is an opportunity for the shareholders or members for a LLC to discuss a variety of topics including the operations of the company, goals and budgets, and the appointment of directors and officers.

How to plan a company meeting?  First, each shareholder or member must receive written notice that the meeting is taking place.  Prepare an agenda and include it with the written notice.  You might also want to include a copy of the minutes from the last meeting, along with an update on the company’s progress, including financial statements.  If shareholders or members are able to review this paperwork ahead of time, they can come prepared to ask questions and provide important feedback.

Indiana law allows annual and regular meetings to be held inside or outside of Indiana at a place stated in the company bylaws.  If a place is not stated or fixed in the bylaws, annual and regular meetings are to be held at the company’s principal office.  Alternatively, these meetings may be held by means of remote communication, such as Skype, if provided for in the bylaws.

Minutes of company meetings should also be kept.  Under the IBCL, corporations are legally required to keep a written record of the meeting.  Minutes content typically includes:  time and place of the meeting, attendance and chair of the meeting, any actions taken, and the signature of the recorder and date.  Keeping these minutes, even if you’re a sole owner of your company, can help you stand up in court and protect your limited liability shield if needed.

There are a number of other corporate formalities and additional steps that should be taken in order to shield corporate members from personal liability.  An attorney can help guide you through this process and handle much of the procedural work.

This article is not legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author and attorney, Carla V. Garino, or attorney William Webster, with Webster Legal LLC, located in Westfield Indiana.  Ms. Garino and Mr. Webster can be reached at (317) 565-1818 or at [email protected] or [email protected].