Thursday, April 30, 2015

Legal Definitions - Z


Hallelujah!  The last letter!

Zealous representation - To represent a client diligently with competence and promptness, passionately assert the client's position under the rules of the adversary system. The key phrase here is “under the rules”. I can't encourage my clients to manufacture or conceal evidence, or lie under oath. I can't outright lie to the judge or jury.  Even if I know the opposing party is lying.

Zoning - Land is classified into zones for different uses such as industrial, open space, residential, commercial. The zoning ordinance governs the types of structures, density, and land use for various parts of the town or community. Zoning is performed by a city council, or for unincorporated areas, the county board of supervisors.

ZZZZ – Yes, I've fallen asleep in court, after lunch while waiting for TWO-AND-A HALF HOURS for a judge to be assigned to my case. No, I only dozed for maybe 5 minutes until the bailiff woke me up and told me to go out in the hallway and splash cold water on my face. Many years ago I was also a juror on a case and I could have sworn the judge had fallen asleep [because he leaned back with his eyes closed and his head resting on the back of the chair], but every time an attorney made an objection, he did rule on it, so either he was a light sleeper, a good faker, or he really was paying attention with his eyes closed and his face relaxed. [Thanks to Donna Everhart for the idea for this definition.]

For those interested, I obtained primary information on these definitions from the following sites:

YAY! I finished the A to Z Blogging Challenge!

I'm exhausted lol

Wednesday, April 29, 2015

Legal Definitions - Y


[Oddly enough, this was the most difficult letter.  There aren't that many Y legal words.]

Yard – A piece of outdoor land, generally adjoining residential property, which exists for the use and enjoyment of the occupants of the property. If a tenant rents a house, he is also entitled to the use of the yard unless the rental agreement specifically states otherwise. This use, however, does not extend to the establishment of a marijuana farm or meth lab. Additionally, the tenant is generally required to maintain the yard, meaning watering the grass, mowing the lawn, etc. Approximately fifty percent of tenants residing in residential properties with yards, do not maintain the yard. This is why most savvy landlords pay for a gardening service and also pay the tenant's water bill, in hopes the yard isn't left entirely to die.

Your Honor – The proper way to address the judge in court. The phrase “with all due respect to Your Honor”, is usually a clue for the judge to prepare himself for a diatribe, because it is generally followed by the attorney telling the judge he's an idiot, sometimes using that exact word. This may or may not then be followed by the attorney paying sanctions for contempt of court.

Tuesday, April 28, 2015

Legal Definitions - X


[I kind of cheated today. There were no X legal words I wanted to use, so I'm using “ex” instead. So sue me.]

Ex Parte – Motions, hearings, or orders which are heard by the court without formal notice to the opposing party. Ex parte matters are usually temporary orders [like a temporary restraining order or temporary custody] pending a formal hearing, or an emergency request for a continuance. Most courts require a diligent attempt to contact the other party or the other party's lawyer, usually by telephone altho sometimes by overnight mail, to provide the time and place of the ex parte hearing.

Excusable Neglect - A legitimate excuse for the failure of a party or lawyer to take required action on time. This is usually claimed by lawyers asking the court to set aside a default judgment entered against their client because they failed to timely file an answer or to show up at the hearing/trial. Illness, work overload, staff on vacation or sick or up-and-quit, mis-calendaring the hearing, or missing the bus/train, are common excuses which the courts will often accept. The offending party or attorney must reimburse the other party for its costs and legal fees incurred because of the error. This is separate from INexcusable neglect, which is often caused by voluntarily deciding not to file an answer and/or show up for the hearing/trial. This frequently happens in the eviction world because the defendant/tenant filed for bankruptcy, then fails to show up at the trial to let anyone know. However, if the defendant does NOT inform the court or the plaintiff of the bankruptcy filing, the plaintiff will be granted judgment [not knowing about the bankruptcy filing] and then go to the bankruptcy court and request permission to allow the judgment to stand. Most of the time, the bankruptcy court will allow this, meaning the defendant/tenant will be evicted because he stupidly did NOT show up for trial, which is INexcusable neglect.

Expert Witness - A person who is a specialist in a subject, who may testify at trial as to his/her expert opinion without having been an eyewitness in the case. Examples of expert witnesses are physicians, police officers, coroners, general contractors, real estate brokers, accountants, and computer programmers. I make use of real estate agents and brokers quite frequently to establish reasonable rental value of foreclosed properties.

Monday, April 27, 2015

Legal Definitions - W


Waive – To voluntarily give up something. Most tenants want the landlord to waive the rent owed, if they agree to move out. Approximately fifty percent of landlords will agree to this, provided the tenant moves out on time, usually within 30 days, and leaves the property clean and undamaged. The other fifty percent of landlords want a money judgment for the rent owed.

Warranty of habitability - Implied in a residential lease, usually does NOT apply in a commercial lease unless specifically written into the lease. Most states impose certain duties on a landlord to maintain residential premises in habitable condition, including adequate weatherproofing, heat, water and electricity, and clean, sanitary and structurally safe premises. If those conditions are lacking, it may be legal justification for a tenant's defensive acts, such as moving out (even in the middle of a lease), paying less rent, withholding the entire rent until the problem is fixed, making necessary repairs (or hiring someone to make them and deducting the cost from next month's rent). A landlord who consistently does NOT maintain the premises in habitable condition is generally called a slumlord.

Waste – Damage to real property caused by a tenant [other than normal wear and tear], which lessens its value to the owner. Waste I have encountered with my clients include tenants discarding items into swimming pools, marking walls, punching holes in walls or doors, breaking the hinges of cabinets and doors, taking a sledgehammer to the kitchen counters, allowing the grass and landscaping to wither and die, and burning down the premises.

With prejudice – A dismissal with prejudice means the dismissed case cannot be brought again, or the court's order on the motion is final. Opposite of “without prejudice” which means the party retains the right to file a new case [or new motion] on the same claim.

Writ of possession – A written order of the court, authorizing and directing the Sheriff to evict the occupants of real property. When the court grants judgment in favor of the plaintiff/landlord, the clerk then issues a writ of possession. That writ is delivered to the Sheriff, who then forcibly evicts the occupants from the property if they don't move out voluntarily prior to the date the Sheriff arrives. Most of the time in CA, it takes about 2-3 weeks after the court grants judgment, for the actual eviction to occur. I have heard that in some states, the Sheriff arrives the same day, or within five days, of the court's judgment. And in some states, the Sheriff will place all of the occupant's personal property outside at the curb. That does NOT happen in CA - the former occupants have 15 days to make an appointment to come back and retrieve their personal property, and the landlord must safely store the property for that time.

Saturday, April 25, 2015

Legal Definitions - V


Vacate - 1) When a judge sets aside or annuls an order or judgment - Defense attorneys sometimes ask the court to “vacate the judgment” on the grounds that they forgot to file an Answer on behalf of their client, the tenant. If this happens, the attorney is usually required to reimburse the plaintiff for his costs and attorney fees. And, 2) to move out of real estate and cease occupancy - The primary purpose of approximately one-hundred percent of eviction cases is to force the defendant/tenant to vacate the property. Only about seventy-five percent of cases result in an actual eviction. The rest are generally settled on a “pay and stay” agreement.

Verdict – The jury's decision after trial. If it wasn't a jury trial, the judge's decision is called a judgment, not a verdict. A “special verdict” is when the jury decides the facts but does not decide the case. For example, many times the jury will be asked to provide answers to specific questions, like “did the parties have a contract” and “how much was the required payment” and “was written notice provided and if so, on what date” and “did the defendant understand what he was signing”, but will NOT be asked the bottom line of “must the defendant move out” or “did the defendant engage in securities fraud” or “was the defendant legally incompetent when he signed” because the law on the issue is complicated and not even most lawyers or judges agree on exactly what it means. So the jury decides the facts in a “special verdict”, and the judge then applies the law to those facts.

Vexatious litigant – A person who files a lawsuit knowing it has no legal basis, with the purpose to harass, annoy, and cause legal expenses to the opposing party. I have filed [and won] several motions to declare opposing parties as vexatious litigants, which often result in (1) dismissal of the case, (2) those parties NOT being able to file any other lawsuit unless the court gives advance permission, and (3) often includes the awarding of sanctions of more than $10,000, payable to my client. Don't mess with my clients!

Friday, April 24, 2015

Legal Definitions - U


Unconscionable - A contract or bargain which is so unfair to one party that no reasonable or informed person would have voluntarily agreed to it, usually signed by the one party because of duress, fraud, or deceit. A court will generally not enforce an unconscionable contract. Examples would include signing a contract to (1) give your first-born child to the other person, (2) rent an apartment when, buried in the fine print, is a clause which states if the rent is one day late, you must pay twice the rent for that month, and (3) purchase six cars and, buried in the fine print, is a clause which states that if you fail to make a single payment, even if it is the last payment, ALL of the cars may be repossessed, not just the last one.

Unconstitutional - Refers to a statute, governmental conduct, court decision or private contract which violates one or more provisions of the U.S. or State Constitution. Examples would include (1) a clause in a contract or deed which limits the transfer of real property only to Caucasians, (2) a law which restricts the ability of persons to attend church, and (3) denial of a parade permit based on the group's race or religion.  Approximately fifty percent of foreclosed homeowners believe it was unconstitutional for the lender to sell their property, even though they haven't made a payment on their mortgage in over a year.

Unlawful Detainer – Retaining possession of real property without the right to do so, including without the permission of the owner [squatter], without the payment of rent [deadbeat], or failing to comply with a lawful notice. An eviction case is called an Unlawful Detainer or U.D. case, because that sounds more scholarly than “eviction.” But we all know what it means, and now you do too. Welcome to my world =)

Thursday, April 23, 2015

Legal Definitions - T


Tenant – A person who occupies real property owned by another, either residential or commercial, usually for the payment of monthly rent. Most tenants are responsible, law abiding citizens. I don't get to meet many of those. Some of the tenants I meet are just experiencing a bad time of their lives, but others have relocated to their current dwelling from the netherworld, which is a euphemism for the fact they are tenants from hell.

Testify – Giving oral evidence under oath at a trial or deposition, with the opportunity for opposing parties to cross-examine. The amount of lying under oath which I have witnessed in court boggles the mind.

Time is of the essence – A legal phrase which means “the date/time indicated are EXACT. Even one second too late is too late.” Therefore, if I write a settlement agreement that states the defendant will move out of the property on May 1 at 4:00pm, if the defendant has not removed ALL of his personal property and ALL of the persons who reside there with him, and he does not hand over the keys at precisely 4:00pm [or before], he is in breach of the settlement. Most of my settlements have provisions for what happens upon breach, the most common being the defendant is responsible for paying a LOT more money. I once had a defendant ask the judge whether, if he didn't move out on time, he would be arrested. That provision is NEVER a part of my settlement agreements, altho there have been defendants for whom I would have LOVED to have included that provision.

Trial – A hearing wherein the facts of the case are presented for determination. The trier of fact [the entity who determines which facts are true and which aren't] can be either a judge or a jury. Most eviction trials are bench trials [non-jury]. Most legal aid organizations demand jury trials because the tenants don't have to pay for them [legal aid and all], and landlords don't want to pay for them either. Therefore, demanding a jury trial gives the tenants more bargaining power to obtain the settlement they want.

Wednesday, April 22, 2015

Legal Definitions - S


Sanction – A financial penalty imposed on a party or attorney by a judge, usually for a violation of the local rules. Most judges tend to waive sanctions [not impose them] after a stern lecture. Some judges are sanction-happy and impose them for any minor technicality, probably to help increase the court's available budget.

Sealing the record – An order of the court making the court's record non-public. Criminal records of juveniles are usually sealed. Certain civil records are sealed to protect trade secrets, national security, etc. Post-foreclosure eviction records in CA are sometimes sealed by CA state law. And in certain CA counties, the parties can agree to seal the record, so the defendant/tenant's credit report does not include the fact that he was evicted. This helps the tenant because future landlords never know he was evicted. It can help the current landlord motivate the tenant to move out, but it does not help future landlords who search credit reports but never find out that this applicant is a deadbeat who has been evicted multiple times in the past.

Security deposit – A payment required by a landlord from a tenant, usually prior to the tenant moving in, to cover the possible repairs of damage to the premises greater than normal "wear and tear." If the unit has no unusual damage upon the tenant moving out [not greater than wear and tear], the landlord must return the security deposit to the tenant. Many small claims actions are filed by tenants who believe the slimy landlord completely refurbished the unit with the tenant's deposit.

Sheriff – The actual physical eviction is performed by a Deputy Sheriff, who notifies the landlord of the exact date and time of the return of possession, or “lockout.” The landlord arrives at the property on that date/time with a locksmith, the Sheriff forcibly removes the occupants, and the locksmith changes the locks. Most of the time, the Sheriff will allow the occupants 5-10 minutes to collect necessaries like medications. Thereafter, the prior occupants must make an appointment with the landlord to retrieve any remaining personal property. The landlord is not permitted to inform the occupants of the exact date and time of the lockout, because sometimes Sheriff deputies are injured, or worse, by disgruntled occupants.

Tuesday, April 21, 2015

Legal Definitions - R


Reasonable wear and tear – A tenant living in a residential dwelling is allowed to use it for normal residential purposes. The paint, carpet, etc will experience common “wearing out.” A tenant is not responsible to pay for reasonable wearing out. Unusual damage to the property can be deducted from the security deposit after the tenant moves out. Some examples of unusual damage are crayon marks on the wall, holes in the walls and ceilings, urine and feces [both animal and human] ground into the carpet.

Receipt – A written and signed acknowledge of payment of money or delivery of goods. When the tenant pays rent, the landlord often gives a receipt for the payment. Many times the canceled check is the receipt. If the tenant pays cash and does NOT obtain receipt, it falls within the legal adage “if it's not in writing, it doesn't exist.” Who would pay anywhere from $600 to $1000 in cash [most higher rents are paid by check or money order] and NOT demand a receipt for the payment? Way too many tenants don't demand a receipt, and then they testify at trial that the landlord is a scumbag but they trusted him. What's up with that?

Rent – Hiring personal property [like a car] or real property for the payment of a price to the owner, usually monthly. The person paying the rent money is then legally entitled to retain possession of the property for the stated term [lease], or month-to-month.  Non-payment of rent is the most common reason for evicting a tenant.

Rent-controlled – A local ordinance which limits the allowed amount of rent or rent increases and/or the right of the owner to evict tenants. Most rent-control ordinances are enacted in jurisdictions where most of the residents [read: voters] are tenants.

Rental value – The amount of money the rental property is worth on the open market. Theoretically, the rent charged equals the rental value. In rent-controlled jurisdictions, long-term tenants usually don't pay nearly the fair market rental value of their units. Sometimes, this causes unethical landlords to manufacture a reason to evict them. Occasionally, this actually works.

Monday, April 20, 2015

Legal Definitions - Q


Quash – To annul or set aside an action. A Motion to Quash is a motion by a defendant asking the court to declare the service of the Summons and Complaint invalid, requiring the plaintiff to find him and serve him again. The intent of this motion is to delay the eviction while the defendant gets another chance to have a lot of fun evading service. When defendants don't have lawyers, they go to court and swear under penalty of perjury that they weren't served. Then I serve them in court in front of the judge hahahahahahahaha neener neener neener.

Quiet title – A lawsuit requesting the court to make a determination that the plaintiff is the owner of the real property. These are frequently filed after foreclosure sales, alleging the lender did not follow proper procedures, so the sale should be rescinded and the property returned to the borrower/prior owner. In CA, if a third-party bona fide purchaser bought the property at the foreclosure sale [instead of the property going back to the lender], approximately one-hundred percent of the time the prior owner might be entitled to collect money damages from his lender, but he cannot be restored to title. Some quiet title cases demand return of the title to the plaintiff because “the original note was obtained fraudulently.” This means the plaintiff wants the house back but he claims he isn't responsible for paying for it. Approximately one-hundred percent of judges in CA will make valiant efforts to refrain from laughing while throwing the case out.

Quitclaim deed – A deed for real property which grants “only that interest which the grantor owns.” This type of deed is commonly used in the divorce context, when one party “gets the house.” One person signs his interest, whatever that may be, to the other person.  I could sign a Quitclaim Deed granting my ownership interest in the Brooklyn Bridge to a third party. Since technically I am not stating I own any of it, I am just granting what I own which is nothing, my signature is theoretically not fraudulent unless I took your money when I gave you the deed. Quitclaim deeds are sometimes used in the foreclosure context where the borrower grants a partial interest in the property to someone who is in bankruptcy. Then the lender can't foreclose without permission of the bankruptcy court. Approximately one-hundred percent of the time, the bankruptcy court will give permission because the bankrupt person is not on the note and generally has no idea that he owns part of the property.

Saturday, April 18, 2015

Legal Definitions - P


Pain and suffering – How most non-lawyers, and some lawyers, describe their experience in court.

Paralegal – A non-lawyer with specialized training, who performs routine tasks requiring some knowledge of the law and legal procedures. Some paralegals are employed by a law office, and others work freelance for various lawyers. I've been a lawyer for almost half my life, and I know paralegals who know more about the law than I do. A good paralegal is worth MORE, in my opinion, than most lawyers are worth.

Peremptory challenge – Each party in a jury trial may “thank and excuse” a certain number of potential jurors without having to give any specific reason. These challenges cannot be used for invalid reasons, such as to exclude all women or black persons from the jury, but can otherwise be used just because the party or attorney “doesn't think that person will vote in my favor, no matter what the facts.” At the start of a case, the parties also have the right to file a peremptory challenge against ONE judge without giving a reason. There are several judges in the courthouses where I practice, that I will “file paper on” [exercise my peremptory challenge], because those judges do NOT afford landlords a fair trial. I can only do this once per case tho [additional challenges must be for cause, like the judge is related to a party or attorney], so I have to be careful to weigh the risk that I paper a bad judge and am randomly assigned to a worse judge.

Personal property – The pile of “junk” that tenants leave behind when they move out. Some of my clients have had to pay more than $25,000 to trash-out companies to remove the abandoned personal property of a single bad tenant/prior owner.  These people give new meaning to the word hoarder.

Plaintiff – the person or entity who filed the complaint, thereby starting a case. In an eviction case, almost all plaintiffs are landlords or new owners of foreclosed properties.

Preponderance of the evidence – One of three legal burdens that the prosecution/plaintiff has, in order to prove his case. (1) Criminal cases require beyond a reasonable doubt, which does NOT mean 99.99%, it just means that all reasonable doubts must be resolved in favor of the defendant. For example, if two solutions can be the result of the facts presented, and one of those solutions means the defendant did NOT do the act, then judgment must be in favor of the defendant. Obviously, “not guilty” is not the same as “innocent.” It just means the prosecution did not prove the case beyond a reasonable doubt. (2) Clear and convincing evidence is required for certain cases, like probate, child custody, and paternity, and for the resolution of certain motions [like whether a bankruptcy case was filed in good faith]. Some people attempt to place a percentage on this burden, something like 80%, but there is no legal percentage, it is just “substantially more probable as true than not true.” (3) Preponderance of the evidence means more probable than not. This is not the same as 51%, but is 50% plus a feather-weight. The scales must just barely tip in favor of the person who has the burden of proof. In most civil cases, the plaintiff has the burden of proof [defendants have the burden for most affirmative defenses], so if the evidence is 50/50, the plaintiff loses. Evictions are theoretically governed by preponderance standards, altho in some areas, especially rent-controlled jurisdictions, most juries, and even some judges [snarl], will thumb their noses at the requirements and use the clear and convincing standard.

Pro bono – An attorney providing legal services without pay. Most states, including CA, either request or require attorneys to work a certain number of pro bono hours per year, to help the poor or “less fortunate” among us. Sometimes my clients want it also, usually after I've already done the work and they decide they don't want to pay me. Most of the time, those are my ex-clients.

Process server – A person who serves legal papers to another person or entity, usually by personal delivery. For example, a Notice or a Summons and Complaint. Some defendants evade service, requiring process servers to get creative in finding the persons and serving them. One of the process servers my firm uses has even served celebrity defendants at the Grammy awards [“Congratulations on your nomination! Here's a paper to remember me by....”]. Here's a link of a process server serving a celebrity at a public event.

Friday, April 17, 2015

Legal Definitions -O


Objection – If one party has a LEGAL reason why a piece of evidence, usually testimony, should NOT be heard by the jury, that party usually objects. The key term here is LEGAL reason. You can't object just because you know the answer to that question will make you look bad.

Occupant – A person residing in or using real estate. An occupant can be the owner, a rent-paying tenant [whether residential or commercial], a deadbeat brother, a daughter sponging off her parents along with her deadbeat boyfriend, or a squatter.

Opening statement – A summary of the case, given by the attorneys usually to the jury [altho sometimes to the judge in a bench trial if the case isn't a standard eviction case], letting the jury know what to expect. For example, (1) “ladies and gentlemen, today you'll learn that Colonel Mustard killed the victim in the Conservatory with the Candlestick” or (2) “ladies and gentlemen, today you'll learn that the defendant here [gesture toward the tenant] ran a meth lab from his apartment and the resulting explosion displaced an entire city block.” That last opening statement was one I didn't need to give, because the explosion also displaced the tenant to the point that his new residence was a hole six feet deep in another city.

Opinion – A decision, usually by the Court of Appeal or Supreme Court following an appeal of the trial court/jury decision, which takes the facts as determined by the trial court/jury and applies the law to those facts. For example, (1) “we are of the opinion that separate facilities are of necessity not equal” and (2) “we are of the opinion that a criminal defendant must be informed of his rights, so that he may intelligently invoke them.” In CA, an opinion may be published or unpublished. If the opinion is published, it can be cited in future cases and becomes a statement of the law.  If the opinion is unpublished, it applies to that specific case only, and cannot be cited as law in a future case.  Generally, an unpublished opinion comes from a case where "hard cases make bad law."  The judge felt sorry for one of the parties, so ruled in that party's favor despite the law, but does not want to establish precedent in using the law in that manner for future cases.

Oral contract – A contract which is NOT in writing. In most cases the standard legal adage applies – if it's not in writing, it doesn't exist. However, if a tenant pays rent and the landlord accepts the rent, then an oral contract exists for the rental of the property occupied by the tenant, for the proffered amount of rent.

Thursday, April 16, 2015

Legal Definitions - N


Notice – The official document requiring the tenant to perform, or cease performing, certain actions. The most common notice is a Notice to Pay Rent or Surrender Possession. Others include Notice of Termination of Tenancy and Notice to Perform Covenants or Surrender Possession. That last one can include the requirements to (1) remove unauthorized occupants or pets, (2) remove abandoned cars from the parking area, (3) cease smoking marijuana in the common areas, (4) cease playing heavy metal rock “music” at all hours of the day and night, and (5) “cease the loud, rhythmic thumping and moaning sounds emanating from your apartment, which disturb the quiet enjoyment of the other residents.” Yes, my firm did serve that last notice once, because the noise was so loud it not only disturbed the quiet enjoyment of other residents in the same complex, but residents of the neighboring complexes were also complaining.

Nuisance – The unreasonable, unwarranted, or unlawful use of property which causes inconvenience or damage to others. Some examples in an eviction context are included in notice above. Most of the time, the tenants causing the nuisance are seriously disrupting the quiet enjoyment of the other residents in the apartment community. Sometimes, however, individual residents are overly-sensitive to the personality quirks of others. I mean, seriously people, this is an APARTMENT COMPLEX. If you want to live in complete peace and solitude, join a convent or a monastery.

Wednesday, April 15, 2015

Legal Definitions - M


Mediation – A meeting of the parties of a lawsuit, usually with a neutral third party, where the parties try to resolve the dispute without having a trial. For eviction cases, the landlord generally wants the tenant to move out RIGHT NOW and pay all the back rent RIGHT NOW, and the tenant usually wants to STAY in possession and NOT PAY ANY RENT or move out in 30 days OR MORE and NOT PAY ANY RENT. Most settlements usually result in each party not getting all of what they want.

Meet and confer – Before filing a motion with the court [asking the court to make a decision on a dispute], the parties are usually required to “meet and confer,” or discuss the disagreement and try to come to some sort of resolution without requiring the court to decide the issue for them. For some reason, CA thinks that lawyers representing opposite sides of a dispute can actually agree on something. Sometimes this happens. Most of the time, the court has to slap them around prior to making the decision for them.

Motion for summary judgment – Also called MSJ. A motion requesting the court to grant judgment in favor of the party bringing the motion [moving party], without having a trial. The MSJ includes most or all of the moving party's evidence, and makes a statement that the evidence proves the moving party is entitled to judgment. The opposing party usually files an opposition and includes all of its evidence. The judge then decides whether a trial is necessary. When the plaintiff wins an eviction MSJ, the defendant/tenant/prior owner doesn't get to have his day in court, see letter D previously, which is highly beneficial and much less expensive for the plaintiff, especially if the defendant had demanded a jury trial.

Tuesday, April 14, 2015

Legal Definitions - L


Landlord – an owner of real property who rents that property to others, called tenants. Synonyms for landlord include scumbag, slumlord, money-grubber, and “the people who pay my salary.”

Leading question – a question which suggests the answer. Leading questions are generally not allowed on direct examination [questioning your own witnesses] but are permitted on cross-examination [questioning your opponent's witnesses]. Examples of leading questions are “Wasn't that driver going too fast in the fog?” and “Was the rent one thousand dollars per month?” Perry Mason did it best - “Isn't it true you shot Bob because you caught him in bed with your wife?”

Lease – a rental agreement with a fixed beginning and ending date. If you rent your apartment for one year, January 1 through December 31, you have a one-year lease. If the rental agreement has a specific beginning date but no definite ending date, it is a month-to-month agreement. In CA, a month-to-month agreement can be terminated by the tenant, by giving the landlord a 30 day notice, and by the landlord, by giving the tenant a 30 day or 60 day notice, depending on certain factors. A lease cannot be terminated without the agreement of both parties or the occurrence of specific events, for example a fire destroys the premises or an active-duty military person is deployed. The death of the tenant, in most cases, operates as a 30 day notice to terminate the tenancy of a month-to-month agreement, but does NOT terminate a lease, altho some leases do include that provision.

Monday, April 13, 2015

Legal Definitions - K


K – a legal abbreviation for the word contract. The law has a lot of abbreviations [altho definitely not as many as the military], like P [or the pi symbol] for plaintiff and D for defendant. Many a law student's notes will say “P & D w K” and that is entirely understandable for any law student or lawyer unless they haven't had their morning coffee.

Key – the symbol identifying which party has possession of the apartment. When the landlord gives the key to the tenant, the tenant then has legal possession, whether or not a rental agreement was actually signed or any rent money was actually paid. Conversely, the tenant is still in possession until he tenders the key back to the landlord. Many of the settlement agreements I write, state that if the tenant delivers possession of the apartment, in good condition, back to the landlord by X date and X time, the landlord will forgive some or all of the back rent owed. Unless the tenant tenders the key on or before the stated date/time, he still has possession and the back rent is still owed. The moral of this story is never just move out, always get a receipt that states you returned the key.  One local judge, recently retired [unfortunately, because he was really funny], would tell defendants to hire a busload of nuns to watch the return of the key and get it all on film, so there would be no question that possession had been returned to the landlord.

Kin – blood relative [including spouse and adopted children], generally used in the context of death, as in “next of kin.” In CA, if a tenant dies, any lease remains in effect until the stated ending date. So if the lease ends on December 31, April rent was paid, and the tenant dies on April 28, the executor of the tenant's estate [usually next of kin] is still responsible for paying the monthly rent until December 31. Most of the time, the executor clears out the tenant's personal property and delivers possession back to the landlord, and the tenant's estate is only responsible for the monthly rent until the landlord finds a new tenant. For a month-to-month rental, the agreement ends 30 days after the last rent payment. In the example above, the rental would end on April 30, giving the executor [next of kin] only two days to clear out the tenant's personal property. Most landlords will work with the next of kin for a week, maybe two, and deduct the additional rent from the security deposit. The moral of this story is, if you like your relatives and don't want them to have a harder time than they would otherwise have on your death, try to die near the beginning of the month so they have additional days to clear out your apartment.

Saturday, April 11, 2015

Legal Definitions - J


JD / Juris Doctor – A person who graduates law school is a doctor, just not a medical doctor. So when my kids want to stay home from school, I can give them an official “doctor note." Just don't tell the school my doctorate doesn't begin with the word medical.

Joint and several – Each defendant/debtor is responsible for paying the entire judgment, or each tenant on a rental agreement [even if they have an understanding that each pays half] is responsible for paying the entire amount of rent. The creditor or landlord can't collect the entire amount from BOTH parties [a double-recovery], but can collect the entire amount from person 1 or person 2, or some from each, until the entire amount is paid. One-hundred percent of divorced persons believe the entire debt is owed by “my deadbeat ex-spouse.”

Judge – also called “the court,” as in “if it would please the court....” or “the court ruled....” Judges in courts of appeal and supreme courts are usually called justices instead of judges. The judge is responsible for making decisions, sometimes difficult decisions, sometimes unpleasant decisions, and sometimes decisions which don't seem “fair.” Contrary to popular belief, the law is not necessarily fair.

JNOV / Judgment notwithstanding the verdict – When the judge overrules the decision of the jury, because “no reasonable jury could have made that decision.” Usually confined to civil cases, because it cannot be done in a criminal case to overrule the decision of the jury of “not guilty” and turn it into “guilty,” because that would violate the rights of the criminal defendant. The abbreviation comes from judgment non obstante veredicto, because lawyers don't think you'll be awed by how intellectual they are unless they call things by their Latin names.

Judicial discretion – Many types of motions are decided “in the discretion of the court,” meaning if the judge wants to do it and can think of at least one obscure, outdated law that might support his decision, he can do it.

Judicial foreclosure – Some states only allow lenders to foreclose on mortgages by filing a case in court. California is a non-judicial foreclosure state, meaning lenders can foreclose on mortgages without filing a case in court, so long as they follow specific procedures. This means that in California and other non-judicial states, a foreclosure is quicker and less expensive for the lender than in a judicial state.

Jury – A group of citizens of a county who hear the evidence in a case and decide the facts. Legal questions are decided by the judge but the facts are decided by the jury [or by the judge in a bench trial]. In most US states, a criminal jury consists of 12 individuals and their decision must be unanimous. In a civil case, the jury can consist of 6, 8, 10, or 12 jurors, and the decision does not usually need to be unanimous. Generally, three-fourths of civil jurors must agree on whether one party owes another party money, and if so, the amount of money owed. A hung jury, either criminal or civil, means insufficient jurors have agreed one way or the other, and the prosecution or plaintiff may try the case again. This usually doesn't happen if the skew favored the defendant. In California, eviction defendants [especially defendants who qualify for free legal aid attorneys] usually demand a jury trial, because they know that plaintiffs/landlords don't want to spend the money to pay their attorney for a jury trial, thereby twisting the plaintiff/landlord's arm into giving them the settlement they want. This is also called extortion.

Jury box - The jury sits in the jury box.  Lawyers can determine which side of counsel table to stand at by looking for the jury box. The prosecution, or the civil plaintiff, has the burden of proof. Therefore, the prosecution or civil plaintiff stands at the table nearest the jury box. In some courtrooms during criminal arraignments and pre-trials, defendants out on bail or OR will sit in the courtroom gallery, and defendants still in custody will wear their jail uniforms [usually a bright obnoxious neon color like orange] and sit in the jury box. This gives new meaning to the phrase “a jury of one's peers.”

Friday, April 10, 2015

Legal Definitions - I


In pro per – a person who does not have an attorney, who represents himself in court. An attorney who represents himself in his own case generally has a fool for a client. Some pro per parties do okay in court. Most don't.  And pro per parties who demand jury trials never do.

Injunction - an order issued by the court that requires a party to do something [mandatory injunction] or prohibits a party from doing something [prohibitory injunction]. Some types of injunctions are illegal, for example, you can't be required to continue working at a job [which is slavery]. Most of the injunctions I deal with are prohibitory – the court prohibits a lender from foreclosing or a landlord from evicting. These injunctions generally require the party who obtains the injunction to pay the enjoined party the reasonable rental value of the property monthly until the injunction is removed. Approximately one-hundred percent of parties who obtain an injunction think it's unfair to have to pay rental value.

Intervention – a procedure where a non-party, someone who is not named as a plaintiff or defendant in a lawsuit, files a motion asking the court to be allowed into the lawsuit as a party. Now why on earth, you ask, would someone actually WANT to be a party to a lawsuit? The two most common examples are class actions and evictions. In a class action lawsuit, if you have the same type of claim [say, for example, you were one of thousands of persons overcharged on your phone bill every month for three years], you will receive a notice in the mail that generally says you are automatically included in the lawsuit unless you mail in an “opt-out” form. Then whatever resolution the original parties agree to, you get the same resolution unless you choose to sue the defendant yourself, which is usually way too expensive so you don't opt-out.  At some point you notice a credit on your phone bill for forty-two cents, even if your actual overcharge was something like three thousand dollars. In an eviction case [all terms are California only], anyone living in the house or apartment who is not named on the eviction complaint can file a form called a Claim of Right to Possession. That person is then automatically added to the case and will usually end up with an eviction judgment on their record. Obviously, most folks with common sense will choose to just move out without filing the form. Two cases where it is definitely beneficial are 1) in rent control jurisdictions, if you want to fight the eviction so you don't have to move out, and 2) in post-foreclosure cases where the new owner doesn't know you live there as a tenant and therefore you generally have 90 days instead of 3 days to move out. This procedure is often abused by prior owners in post-foreclosure cases, who file claims naming fictitious “tenants” to try to get more time in the home, often by filing fraudulent bankruptcy petitions. For this second reason, a lot of California post-foreclosure claims are filed by “Juan Lopez” and “Maria Sanchez”.  I have evicted so many Juan Lopez and Maria Sanchez from foreclosed properties that I feel bad for those people who actually have those names.

Irrelevant – A claim of fact that eviction defendants think is really important to their case but actually has almost no importance whatsoever. For examples in post-foreclosure cases: claims of cockroaches and other habitability problems by a prior owner, claims of lender misconduct when the new owner is NOT the lender. For examples in landlord/tenant cases: claims of cockroaches and other habitability problems in commercial cases or cases where the tenant didn't move out after a notice of non-renewal of lease.

Thursday, April 9, 2015

Legal Definitions - H


Habitable – the residential property is in a clean and livable condition, including hot/cold running water, electricity, non-leaking roof, toilets flush, no cockroaches or bedbugs. This rule generally does not apply to commercial properties.  Approximately one-hundred percent of tenant Answers in a residential eviction case state the property is not habitable. Some of those Answers are not false.  Approximately fifty percent of post-foreclosure Answers state the property is not habitable. All of those Answers don't matter.  Most post-foreclosure Defendants are the prior owners. Precisely whose fault is it that the property is not habitable???

Harmless error – An error made by a judge which does not affect the outcome of the case. If you won the case, approximately one-hundred percent of the errors were harmless. If you lost the case, approximately zero percent of the errors were harmless.

Hearsay – an out-of-court statement offered for its truth. So if a witness testifies “I went to the office and Bob told me the rent was paid” and Defendant is offering it for the truth that the rent was paid, then it's hearsay because Bob said it outside of court. If I'm offering it to show that the witness is lying because Bob was in Arizona on the day in question [yes, this happened to me], then it's NOT hearsay because I'm not offering the statement for its truth.

Holdover tenancy – a tenant who remains in possession of the property after his lease expires. In California, it becomes a month-to-month tenancy when the tenant pays another month rent and the landlord accepts the rent. If the tenant remains in possession and does not pay another month's rent, the tenant becomes a deadbeat and a squatter.

Wednesday, April 8, 2015

Legal Definitions - G


Gag order – An order by a judge which prevents the parties and attorneys from discussing a case with the public or the media. The purpose of a gag order is usually to prevent tainting the jury pool, so potential jurors don't learn information which they aren't supposed to know or don't form an opinion about the case before they hear the official evidence at trial. Sometimes this is referred to as “preventing the parties from trying the case in the media.”

Garnishment – A collection device where, after the tenant is evicted and a money judgment is entered for the past-due rent and other costs, the creditor/landlord attaches the wages of the debtor/tenant, requiring the debtor's employer to send 25% of the debtor's paycheck to the creditor each pay period. Most debtors then go back to court and whine that they don't have the money to pay the debt, despite that the debt is close to ten years old [if my firm's collections department hasn't been very efficient] and if the debtor had sent even $25 per month for all those years, the debt would be entirely paid off by now. But since the debt is now close to ten years old, and post-judgment interest has accrued at the rate of 10%, plus we can add collection costs, the current debt has ballooned to an amount more than twice the original judgment.  Most of the time, my clients agree to reduce the garnishment to something like $100-200 per pay period, instead of 25% of the paycheck. Sometimes, however, reducing the payment that low results in the payment not even covering the monthly interest amount, meaning the debtor will NEVER pay off the debt.  Some debtors thumb their noses at my clients by quitting their jobs, requiring us to find them again, or filing for bankruptcy.

Grace period - A time stated in a contract in which a late payment or performance may be made without penalty. For example – the rent is due on the first day of the month, and a late fee applies if the rent is not paid by the third day of the month. This is the same as stating there is a two-day grace period. Some tenants interpret this to mean the rent is not due until the third day of the month, and approximately ninety percent of the time, those tenants are upset when a Notice to Pay Rent is posted on their door on the second day of the month.

Grant deed – In an attempt to forestall a foreclosure sale, some homeowners sign a grant deed gifting their property to a third person, usually someone who is currently in bankruptcy. Oftentimes, these third persons have no idea that this property was gifted to them, because it was done fraudulently to delay the foreclosure sale. This causes the lender to go to the bankruptcy court and obtain permission to conduct the foreclosure sale, which almost always is granted because the person who filed that bankruptcy case is not on the loan. Then at the eviction trial, Plaintiff's counsel [yes, I've done this] produces the fraudulent grant deed that the prior owner thought was so smart, and the prior owner is summarily evicted without any recourse whatsoever, because they are no longer the immediately-prior owner but an owner “farther down the chain of title.” Mwahahaha.

Guarantor - a person who agrees to be responsible for another person's debt or performance under a contract if the other fails to pay or perform. For example – a young person obtains his parents' signature as guarantor on a car loan or a rental agreement, because he has no credit history. When the young person fails to make the payments, the guarantor oftentimes finds himself a party to a lawsuit and eventually responsible for a money judgment, see garnishment above. Occasionally a guarantor will find himself with an eviction on his credit report. Most of my clients will work with the guarantor to remove the eviction from his credit report but only AFTER the guarantor pays the judgment in full. Therefore, I don't recommend being a guarantor.

Tuesday, April 7, 2015

Legal Definitions - F


Fact – those pesky things you need to prove in order to win your case.

Finder of fact – the judge in a bench trial, the jury in a jury trial. Those person/s who have the unenviable task of trying not to cry or throw up while viewing photographs of the murder victim, or trying to stay awake while the parties discuss four thousand boring documents related to the breach of contract case. Hint: when the eyes of the finder of fact start to glaze over, you are losing the case.

Federal courtsQuestion: What's the difference between God and a federal judge? Answer: God doesn't think he's a federal judge.

Fixture - An item of personal property that is physically attached to real property and becomes part of it. Examples: toilet, light switch, ceiling fan, kitchen counter and cabinets. Fixtures belong to the owner of the real property, even if they were purchased by the tenant. Some prior owners of foreclosed properties strip the properties of fixtures before moving out, and then they're actually surprised when my clients sue them for the replacement cost. Some of my clients request the DA file criminal charges, depending on the extent of the damage.

Foreclosure – When a homeowner stops paying the mortgage, the lender sells the property at auction to help recoup its losses. Properties sold at foreclosure sales are rarely sold for fair market value, because the buyer has to spend money evicting the current occupants [which pays my salary] and/or fixing the problems with the property which are unknown to the buyer. Many foreclosed homes are purchased by investors [some of whom are my clients], who rehabilitate the property and then “flip” it, reselling it for fair market value. Approximately ninety percent of foreclosed homeowners believe the lender sold their property fraudulently, even though they acknowledge they haven't paid the mortgage for more than a year.  Some of those foreclosed homeowners are correct, altho in California, if my client/investors purchased the property, the prior homeowners can get money out of the lender but generally can't get the property back unless my client/investors choose to sell it back to them [of course for fair market value].

Monday, April 6, 2015

Legal Definitions - E


Eminent Domain – The government has the right to take your private property, upon two conditions. One: it must be for a public purpose. Two: you must be paid just compensation. Just compensation means the government must pay you the fair market value for your property, which is generally subject to dispute – the government wants to pay as little as possible and you want to be paid as much as possible. Public purpose can be very broadly defined. We all know about expanding the freeway, building a school or a park, etc. Those purposes are obviously public. But a recent US Supreme Court decision has allowed the taking of private property by the government and giving it to ANOTHER PRIVATE individual [in that case a company] for its own use, which theoretically helps “the public.” An example here is taking your home and giving it to Wal-Mart to build a new store, the “public purpose” being the increased employment and sales tax revenue. The government is not your friend.

Error – When the judge makes a decision which is not in your favor.

Eviction – Landlord definition: The process of removing a deadbeat tenant from real property. Can also be used by the new owner of a foreclosed property for removing the prior owner. Tenant definition [generally discussed from a new address]: Being unjustly forced to move out of your home by an unscrupulous slumlord who has violated your rights.

Evidence – Something which tends to prove or disprove a fact. There are several different types of evidence, and some pieces of evidence qualify under more than one of these headings:
Circumstantial/Indirect – Testimony, documents, items, etc that rely on an inference to connect it to a conclusion of fact. For example – Sally sees Bob entering the apartment, Sally hears screaming and a gunshot, Sally sees Bob running out of the apartment. This is circumstantial evidence of Bob committing the murder of John in the apartment. Sally didn't see Bob doing the crime, but the jury can make an inference that Bob did commit the crime.
Demonstrative – A representation of the actual person/place/thing. A photograph is demonstrative of the actual apartment. A map is demonstrative of the city. A drawing of the intersection is demonstrative of where the crash occurred.
Direct - Testimony, documents, things, etc that prove the existence of a fact. For example – the smoking gun used to commit the murder, the cockroach actually found in the apartment [hopefully dead, but not necessarily so], the actual rental agreement, the witness stating “I saw Bob shoot the gun” or “I saw Bob purchasing cockroaches and letting them go loose inside his apartment" [yes, I had this testimony in one of my cases.]
Documentary - Written documents, photographs, videos, sound recordings, and printed e-mails or web pages. Generally admitted at trial as exhibits. The offering party must establish a foundation that the evidence is what it is claimed to be [ie: not a forgery, etc]. For example – the written rental agreement stating the rent is $10,000 per month, copies of rent checks which have cleared the bank or conversely which were returned as NSF, the note demanding all of the money in the cash register, etc. If the document is being admitted into evidence not for the contents of the document, but to show the blood stain located on its front, that makes it real evidence, see below.
Expert Opinion - An opinion by a person who is established as having training and expertise in a specific field. For example – appraiser providing his opinion as to the value of the real property, real estate agent providing his opinion as to the rental value of the apartment, police officer providing his opinion as to how fast you were driving when you collided with the back of his police car.
Real/Physical – A material/tangible object that played a part in the situation giving rise to the lawsuit. The smoking gun, the rental agreement, the cockroach, the actual audio cassette tape wherein the tenant threatens to kill the landlord [yes, I had this evidence in one of my cases], the video feed from the security camera showing the tenants naked and having "a good time" in the public laundry room [yes, I've had this one also].
Testimonial – A written or oral assertion presented from the witness stand. Sally stating “I saw Bob shoot Sally” or "I stopped paying the rent because I lost my job" or "yes, you're right [sobs into hands], I did shoot Bob."

Saturday, April 4, 2015

Legal Definitions - D


Day in Court – A demand, usually by a Defendant [in an eviction case]. “I want my day in court!” Most Defendants don't realize that to have their day in court, they need to (1) file an Answer, (2) actually show up for their trial, and (3) not lose a dispositive motion [see below]. Plaintiffs LOVE dispositive motions because most of the time, they result in a judgment in favor of the Plaintiff without actually having a trial, thereby depriving Defendants of their day in court. Mwahahahaha.

Defendant – In my practice, the Defendant is always either a tenant or a prior owner of a foreclosed property. Most tenants believe my client [the Plaintiff/landlord] is a slumlord. Most prior owners believe my client [the Plaintiff/new owner] stole the property out from under them and/or is just a “money grubbing investor.” Sometimes, these Defendants are correct, but most of the time I still get to evict them.

Demurrer – a motion filed by a Defendant which basically states “even if everything in the Plaintiff's Complaint is true, they still won't win the case.” Most Defendants know their Demurrers won't be granted by the court, but they file a Demurrer simply to get more time to live in the property. Unfortunately for my clients, this is usually true. Unfortunately for the Defendants, it usually results in a larger money judgment to pay for that extra time. No, Gracie, you can't live in someone else's property for free.

Direct Examination – When an attorney questions his/her own witnesses. Altho cross-examination [questioning your opponent's witnesses] looks more flashy on TV, especially if done by Perry Mason, direct examination is generally the hardest part of the trial, because your own witnesses are the ones who will generally prove your case. Sometimes, like what happened in my hotly-contested bench trial [non-jury] last week, an attorney [Defendant's counsel] did NOT prove his case with his witnesses, because he failed to even address his most important defenses. Therefore, my closing argument was a LOT of fun. I gleefully-but-with-great-restraint pointed out everything defense counsel forgot to bring up, and concluded “therefore, Your Honor, since we heard no evidence on those issues, Plaintiff is entitled to judgment.” Which was true. Defendant fired his attorney in the hallway after the trial. Ouch for him. My client had a much better afternoon – she went to a bar for a celebratory drink.

Discovery – In a civil lawsuit, each side can ask the other side for information prior to trial. Many times, the answers to the questions, and the documents that are produced, destroy the case for the party who is answering/producing. This is fun when you are the one who sent out the discovery, and not fun when you're the one responding to the discovery.

Dispositive Motion – A motion which “disposes” of the case, which means the case is resolved in favor of one of the parties without going to trial. From Plaintiff's perspective, the best part about these motions is they deprive Defendants of their day in court, see above. Mwahahahaha, rubs hands together in gleeful abandon.

Friday, April 3, 2015

Legal Definitions - C


Calendar – The list of cases the court will hear that day. The position of a case on the calendar is directly proportional to the time and location of the attorney's next hearing, and the state of the traffic congestion. For example, if an attorney is required to appear at a 1:30pm hearing in a courthouse approximately 50 miles away from the courthouse where the morning hearing is scheduled, the morning case will be calendared as item 40 or later, and the main arterial freeway linking the courthouses will be closed for the day because of a 10 car pile-up. This same attorney will also generally have three briefs waiting at the office to be finished, all of which must be filed in their respective courthouses by 5pm that same day.

Chambers – The judge's office. Each individual judge's chambers is separately stocked with every conceivable volume of code and case book, despite the high cost of each book, and also despite the fact that all codes and cases can be found online for a fraction of the cost of the books. [A computer monitor obviously doesn't look as impressive in the background of a photograph.] This is a contributing factor to the court's over-burdened budget, but when asked if they can forgo the purchase of the newest volume and/or share with another judge [shudder], approximately one-hundred percent of judges will insist a separate copy is required for them to competently perform their duties. Approximately ninety-nine percent of the new volumes will never be opened. Some are used to prop up computer monitors because there is no budget for replacement monitor arms, said budget having been used for the new volumes.

Charity – Most tenants facing eviction believe the landlord is a charity, which is why they ask the court to let them have “just a few more weeks” to move out, without offering to pay any money for that additional time.

Clerk – The judge's courtroom assistant. Most courtrooms are staffed by the judge, the bailiff, and the clerk. If an attorney wants to get anything accomplished, that attorney knows the pecking order [attorney is lower than a cockroach, see definition below], and is ALWAYS nice to the judge, the bailiff, and the clerk. The penalty for not being nice to the clerk, is that your case will suddenly be called at the end of the calendar, and your paperwork will somehow not be able to be located anywhere in the entire courthouse, despite the fact it was personally hand-delivered to the clerk earlier that same day.

Cockroach – A primitive, winged insect, altho it generally does not fly well. Flat, oval body, crawls faster than the speed of light. Eats food, paper, clothing, books and dead insects, especially bedbugs. Therefore, if you find yourself with a bedbug problem, just cultivate cockroaches in your home and you'll be fine.

Commissioner – A person, usually an attorney with a lot of experience or good connections, who is hired by the judges of a county to hear all the cases the judges don't want to hear themselves, which generally includes small claims, traffic, and evictions. In some counties, can also include criminal misdemeanors and juvenile dependency cases. Most commissioners are more knowledgeable regarding the law than most judges, but attorneys will never point that out to any judges, for fear their case will be re-calendared and their paperwork will disappear, see clerk above.

Complaint – The pleading filed by the Plaintiff/landlord which ninety-nine percent of the time states the tenant is a deadbeat, occasionally using that specific word. Not all Complaints are true.

Constitution – The legal document which ostensibly governs the laws and behaviors of the United States [federal Constitution] and individual states [state Constitution]. Quite a few tenants believe their constitutional rights are violated if they are evicted, because they “have the right to be housed in someone else's property even if they don't have permission and/or they can't afford to pay for it.”

Counsel – Another word for attorney and lawyer, generally used in a more formal context, as in when engaged in oral argument before the judge. “With all due respect to my esteemed opposing counsel, that argument is pure flatulence.”

Court – Another word for judge, used in the formal context of speaking with the judge and when referring to the judge. “If the court will remember our last hearing, my esteemed opposing counsel blew flatulence.” And altho Yes, Your Honor and No, Your Honor are always acceptable responses when answering the court's questions, only brave attorneys can substitute Your Honor in direct statements, as in “If Your Honor will remember our last hearing....” Attorneys desiring early retirement will use you, as in “If you'll remember....” Said attorneys are usually cut off mid-sentence and find their allotted time for oral argument has suddenly and unexpectedly ended. Those attorneys may additionally discover the clerk cannot locate their paperwork, see clerk above.

Thursday, April 2, 2015

Legal Definitions - B


Back date – The attempt by the tenant to pay the rent “on time” by tendering the rent late, but dating the check the first day of the month.  This also sometimes occurs when clients attempt to pay their legal bills "on time."  Neither of these is recommended.

Bailiff – The Sheriff/Marshal deputy who attempts, without brandishing his/her firearm, to maintain order in the courtroom, protect the judge, enforce the rules, diffuse arguments, answer inane questions, direct people to the nearest restroom, confiscate ringing cell phones, shush noisy children [and adults], and intercept live insects brought to prove habitability claims.

Bankruptcy – A title of the United States Code which allows folks who (1) fall on hard times, to discharge some or all of their debt [usually Chapter 7], (2) can't manage their finances, to restructure their debt [usually Chapter 13], or (3) want to stall their eviction to gain a few extra weeks in the property, although [much to their surprise] not usually rent-free [either Chapter].

Bench – The place where the judge sits when court is in session. Most judges are reasonably competent. Others give new meaning to the baseball term “warming the bench.” As a general rule, there is no talking, laughing, eating, drinking, smoking, reading, texting, sleeping, singing, spitting, screaming, or discharging of firearms allowed while the judge is on the bench. Coughing, sneezing, crying, and sometimes breathing are heavily regulated in some courtrooms.

Breach – Failing to live up to a term of the rental agreement. For landlords, this can include not maintaining the property in a habitable condition, disconnecting utilities, trespassing, and otherwise being a slumlord. For tenants, this can include not paying rent, allowing unauthorized occupants or pets to reside in the property, damaging the property, maintaining a meth lab or pot farm, and setting bonfires in the kitchen.  Breaches are not necessarily a bad thing, because they are why we have lawyers, and lawyers need to fund their yachts and summer vacations, or at least put food on their tables.

Wednesday, April 1, 2015

Legal Definitions - A

Today is the start of the A to Z Blogging Challenge.  My topic is LEGAL DEFINITIONS EXPLAINED IN PLAIN [AND HOPEFULLY HUMOROUS] ENGLISH.  Because most of my practice is landlord/tenant law, that's where most of the definitions come from.  As always, nothing here is intended as legal advice.

I hope you enjoy!

Abandon – When a tenant moves out [or is evicted] and leaves behind personal property, the landlord is generally required to store the personal property for several days, to allow the tenant time to retrieve it. After that time expires, it is deemed “abandoned property.” Some examples from my own practice – old car and lawnmower abandoned at the bottom of the swimming pool, fish tank in garage abandoned with [at-the-time] living fish inside, broken couches and kitchen appliances too numerous to count. Some of my clients have had to spend thousands of dollars for trash-out companies to remove all the abandoned property some tenants leave behind.

Agreement – A property owner agrees to rent a habitable dwelling or commercial space to a tenant, who agrees to pay rent and treat the property like a reasonable human being would treat his own home or business [because it is his home or business]. It is not uncommon for either side to fail to live up to their bargain, which is why we have lawyers. Can be oral or written, but remember the most important legal adage - if it's not in writing, it doesn't exist.

Ambiguity – A phrase in an agreement which can be interpreted to have more than one meaning. This is also why we have lawyers, because sometimes it takes a good lawyer to come up with a reasonable-sounding ambiguity that benefits your side of the argument.

Answer – The Defendant/tenant's response to the Plaintiff/landlord's eviction Complaint. Ninety-nine percent of all Answers state the landlord is a slumlord. Not all of those Answers are false.

Apartment – Individual dwelling units located within a larger structure. Generally, the entire structure is owned by the landlord, the individual dwelling units are rented by tenants, and the cost for the upkeep of the common areas is included in the rent. If each dwelling unit is owned individually, with upkeep of the common areas charged as “HOA dues”, that is generally called a condominium complex, not an apartment building, because people who buy their dwelling units generally don't want to be mistaken for low-life tenants. When tenants rent a condominium from an individual owner, things get even more confusing.

Appeal – A pleading filed by the losing party which states the judge was all wrong. Not all appeals are pointless, because not all judges know what they're doing.

Attorney – Also known as lawyer. Depending on the outcome of the case, the attorney is either the answer to the person's prayers, or the cause of the person's ruined life. No consideration is generally given by the client to the premise that the actual facts of the case might have been the cause of the result. Sometimes, the actual facts of the case really did have nothing whatsoever to do with the result. That's why we have lawyers.