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Jointly Owned Property and Inverse Condemnation

4/6/2017

 
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By William J. Wolf |  wwolf@bathweg.com
There are two (2) ways that property can be taken by the government.  The most common way is through the invocation of the government’s power of eminent domain also known as condemnation. The other way property can be taken by the government is through inverse condemnation. This indirect way of taking property occurs in two (2) ways.  One way is very obvious because it consists of the government physically occupying property without permission from the property owner.  The other less obvious way is through the regulation of property which adversely effects the use or value of a parcel of property.  In order for the regulation of property to result in a constitutionally forbidden taking of property, it must deprive the property owner of substantially all of the beneficial use of the land.
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In the case of Murr v. State of Wisconsin, the United States Supreme Court is being asked to consider an inverse condemnation claim involving two (2) adjacent lots that are jointly owned.  After those lots were purchased, a land use or zoning regulation was adopted that changed the amount of developable land that was required in order to build a house.  A house, therefore, could not be built on either lot.  But if the two (2) lots were combined into a single lot then one house could be built.

In Murr, the landowners contend the land use or zoning regulation made each of their lots unbuildable because neither one had the minimum developable area required by that regulation.  They, thus, argue they had a claim for inverse condemnation.

The Wisconsin Supreme Court disagreed.  The state court concluded that because the lots were in joint ownership they merged into a single lot which met the minimum developable area for a house.  As a result, the inverse condemnation claim was dismissed because the property owners had not been deprived of substantially all of the beneficial use of their property.  

If the United States Supreme Court agrees with the ruling of the Wisconsin court regarding lot merger, the property owners will not be successful with their inverse condemnation claim.  That result will occur because they will not have lost substantially all of the beneficial use of their land because a house could be constructed on the single larger lot created by the merger of the two (2) adjacent parcels.

Claims for inverse condemnation based on land use regulations have been the subject of many court decisions in New Jersey.  Such claims are still being litigated.  For instance, there is currently a dispute between property owners and the New Jersey Department of Environmental Protection (“NJDEP”) over development permits for two (2) adjacent oceanfront lots.  NJDEP has taken the position that the common owners are not entitled to permits to build two houses even though the property owners have separately paid the real estate taxes for those adjacent jointly-owned lots.
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The lesson to be learned from Murr is to avoid taking title to adjacent property in the name of the same owner.  The better practice is to keep title to the lots in different names so the government cannot claim that adjacent parcels of property merged into a single lot.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.  Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

Cancellation of Real Estate Contract By Email Finally OK

4/5/2017

 
real estate contract
By Christopher B. Healy |  chealy@bathweg.com
The New Jersey Supreme Court ruled on April 3, 2017 in Conley v. Guerrero, that residential real estate contracts can properly be cancelled by email or fax.  The central issue in the case was whether the Defendant-Seller of a residence effectively terminated the Contract for Sale with Plaintiffs-Buyers during the “three day” attorney review period set forth in the Contract for Sale.
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None of the parties disputed the facts of the case.  The Buyer and Seller signed a Contract For Sale that included the standard attorney review clause, mandated by the Court in
New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Boards, 93 N.J. 470, 476-77 (1983), modified, 94 N.J. 449 (1983), and N.J.A.C. 11:5-6.2(g)(2), which gave the parties’ respective attorneys three business days to review the contract before it became legally binding.  Specifically, the “three day attorney review” clause, provided:
The Buyer or the Seller may choose to have an attorney study this Contract. If any attorney is consulted, the attorney must complete his or her review of the Contract within the three-day period. This Contract will be legally binding at the end of this three-day period unless an attorney for the Buyer or the Seller reviews and disapproves of the Contract . . . If an attorney for the Buyer or the Seller reviews and disapproves of the Contract, the attorney must notify the REALTOR(S) and the other party named in this Contract within the three-day period. Otherwise this Contract will be legally binding as written. The attorney must send the notice of disapproval to the REALTOR(S) by certified mail, by telegram or by delivering it personally. The telegram or certified letter will be effective upon sending. The personal delivery will be effective upon delivery to the REALTOR’s office. The attorney may also, but need not, inform the REALTOR(S) of any suggested revision(s) in the Contract that would make it satisfactory.
After the Contract For Sale was executed, Seller received a competing offer and entered into a Contract with a third party.  The Seller’s attorney sent a letter via email and fax advising Plaintiffs’ attorney that the agreement was terminated, stating, “This will confirm that the above referenced contract has been terminated by the seller and the realtors are hereby authorized to release the initial deposit monies to the buyers.”  It was undisputed that Plaintiffs’ attorney and the agent received the letter within the three-day period.

Despite having received the letter terminating the Contract, Plaintiffs’ attorney faxed a letter to Defendant’s attorney asserting that the original contract was in “full force and effect.” because “the 3 days within which an attorney may terminate this contract has expired.” The Buyers argued that the Sellers were required to strictly adhere to the contractual provision specifying the methods of delivery as certified mail, by telegram or by delivering it personally, even though the Buyers’ attorney admitted that the Buyers received the cancellation notice. 

The Court found that strict enforcement of the contractually identified methods of delivery would frustrate the contract’s overarching purpose and elevate form over the protective reasons for the attorney-review provision.  Therefore, the Court held, “notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days.”  This case finally brings New Jersey residential real estate contracts into the digital age.  
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The attorneys at Bathgate, Wegener & Wolf, P.C. are well versed in all aspects of residential real estate contracts.  If you have questions about your real estate contract, please contact Christopher B. Healy.
CALL CHRISTOPHER HEALY

​Six Things You Should Know About The Rights Of Immigrants

3/14/2017

 
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By Michael M. DiCicco | mdicicco@bathweg.com​
From a purely legal perspective, the term “immigrant” means one who intends to reside permanently in the United States. Thus, if one is in the United States on a student, work or tourist visa, he is not an immigrant. In common language, however, we generally refer to any person living in the United States who is not a citizen as an immigrant. Thus, the term immigrant as used here refers to ​a) legal permanent residents, a/k/a “green card holders” or documented immigrants, b) undocumented immigrants, and ​c) visa holders, that is, persons who do not intend to reside permanently in the United States. This article sets forth some of the rights that “immigrants” have because they live in the United States.
Below are six things you should know about the rights of immigrants:
1.         Constitutional Protections
Every person living in the United States, regardless of whether the person is a citizen, is entitled to the rights guaranteed by the United States Constitution. The First Amendment to the Constitution guarantees the rights of freedom of speech, religion and assembly. The Fourteenth Amendment to the Constitution provides that the Government shall not “deprive any person of life, liberty or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” These rights require that the Government treat all persons with fundamental fairness and not unfairly discriminate against any person. Immigrants, therefore, are entitled to due process and equal protection and have freedom of speech and religion and the right to assemble.

2.         Unlawful Search and Arrest
Immigrants are protected against unlawful searches and arrest. Law enforcement authorities are not permitted to search or arrest an immigrant unless there is probable cause. If a law enforcement official arrives at the front door, the immigrant does not have to let the official in unless he has a search warrant and does not have to speak to the official.

3.         Right to Remain Silent
When questioned by law enforcement officials, an immigrant may remain silent after disclosing his identity. The immigrant is not required to disclose any other information to law enforcement officials including where he was born or his legal status or be compelled to sign anything or produce any documents. The immigrant may say without repercussion: “I don’t want to talk until I speak with a lawyer.”
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4.         Rights at Deportation Hearing
Immigrants are entitled to a hearing before an immigration judge before they can be deported. The Government cannot seize an immigrant and send him to another country unless an immigration judge so decides. Immigrants are entitled to hire a lawyer for representation at a deportation hearing, to examine the evidence against him and to have an interpreter during the hearing. The immigrant cannot be held for more than 48 hours without a charge being filed.

5.         Medical Treatment for Illness
Immigrants are entitled to emergency medical care regardless of their ability to pay. Any hospital that accepts Medicare must provide medical treatment to immigrants in emergency situations. Medicaid pays the hospital for the emergency care. Treatment must be rendered until the person is able to breathe, eat, walk, dress, maintain personal hygiene, urinate and defecate, take medication and be able to understand their condition. Hospitals have no duty to report undocumented immigrants to the authorities.​

6.         No Right to Certain Benefits or Right to Work
Undocumented immigrants are not eligible for welfare, food stamps, Medicaid and most other public benefits. Undocumented immigrants may not be hired to work. On the first day of work, the employer is required to make certain that the immigrant has a “green card”, a work visa, a work permit or a naturalization document. Use of fraudulent documents to obtain a job violates federal law and may harm an immigrant’s future chance of obtaining lawful immigration status. 
In recognition of the fundamental precept of the Declaration of Independence that all men “are endowed by their Creator with certain unalienable Rights,” the United States grants persons – immigrants and citizens alike – certain fundamental rights. To better understand these rights or if you have a question about immigration, please contact Michael M. DiCicco, a partner at Bathgate, Wegner & Wolf. 
Read Michael DiCicco's article  Four Things About Immigration That You Should Know
CALL MICHAEL DICICCO
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The Iconic Building That Is Home To Bathgate, Wegener & Wolf

3/6/2017

 
© 2017 Bathgate, Wegener & Wolf, P.C.
Bathgate, Wegener & Wolf, P.C. Lakewood headquarters
By William J. Wolf |  wwolf@bathweg.com
Many people leaving the Garden State Parkway at Exit 89 or driving on Cedar Bridge Road wonder what activities occur under the steeply pitched roofs of the unique building known as One Airport Road, Lakewood, New Jersey.  That iconic building is the home of the Bathgate Wegener & Wolf law firm.  Our law firm employs 45 people and we occupy the entire building.  Our unique building has been named in an architectural guide book as one of 150 Best Buildings in New Jersey.   
This truly unique building was designed by Noboru Kobayashi.  The architectural guide book describes the building as having a “spare and elegant design … made up of pure geometric forms that recall both Shinto temples and the Louis Khan Bath House in Ewing Township.  The complex consists of nine square pavilions of ascending dimension offset from each other on diagonal axes.  The pavilions are capped with steeply pitched pyramidal roofs covered by wood shingles”.
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From the unique roofline it might seem there are several buildings.  Actually, there is only one building that has a roofline consisting of nine pyramids.  Although it appears that the pavilions are separate structures, the building has a unified floor plan consisting of several intersecting ovals.
© 2017 Bathgate, Wegener & Wolf, P.C.Main Entrance
​Beginning with its stone entry terraces, the building has many unique features. Our main entrance is framed by fountains, a moat and a waterfall.  The fountains are not only visually dramatic but also generate a pleasing sound as the water cascades down the waterfall and is propelled high into the air before splashing into the largest of the reflecting pools.

​The interior of the building is graced by two gardens that provide a very pleasing internal landscape of shrubbery and flowers. One of those gardens has its own pool. The internal gardens, open to the sky, provide light and air that enlivens the interior of several of the pavilions.

© 2017 Bathgate, Wegener & Wolf, P.C.
One of two interior gardens
© 2017 Bathgate, Wegener & Wolf, P.C.
Reception area
© 2017 Bathgate, Wegener & Wolf, P.C.
Atrium ceiling
​The reception area has a soaring ceiling capped by a glass peak and brick walls that are accented by the soft glow of wall mounted lights.  From that vantage point our clients and visitors are able to view the interior gardens. 

​A truly attractive feature of one of the pavilions is a library constructed as a room within a room.  This pleasing architectural dimension permits access to our bound book collection without the stacks of shelves typically associated with traditional libraries.  In our modern law firm, each of our 45 individual computer terminals has direct access to the latest version of computerized legal research software.
© 2017 Bathgate, Wegener & Wolf, P.C.
Library
© 2017 Bathgate, Wegener & Wolf, P.C.
© 2017 Bathgate, Wegener & Wolf, P.C.
© 2017 Bathgate, Wegener & Wolf, P.C.
​Anyone who is interested in touring the public areas of the Bathgate Wegener & Wolf, P.C. office will have that opportunity in conjunction with the upcoming immigration seminar that we will host.
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​To discuss the unique characteristics of the Bathgate Wegener & Wolf, P.C. building or legal issues please call partner William J. Wolf (732-363-0666).  For more information regarding Bathgate Wegner & Wolf, please visit our website at www.bathweg.com.

Four Things About Immigration That You Should Know

2/15/2017

 
Immigration
By Michael M. DiCicco | mdicicco@bathweg.com
I. Overview
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That the United States is a land of immigrants is as American as baseball, apple pie and the 4th of July. Today, however, there may be no more divisive issue in the United States than immigration policy. This article does not address the pros and cons regarding liberal or conservative immigration policies. Instead, it is educational in approach inasmuch as it explains uncontroversially who is permitted to enter the United States under our immigration laws. 
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II. Immigration: What Is It?
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Immigration is the action of coming to live permanently in a different country. According to the Congressional Research Service, “Immigrants are persons admitted as legal permanent residents of the United States.” Immigration admissions are subject to detailed rules that set numerical limits and establish preference categories designed to limit and prioritize admission into the United States. 

III. Who Is Eligible?
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The immigration system in the United States considers priority factors and personal status preference in determining who is eligible to become a permanent resident of the United States. The priority factors are family reunification and employment skills and talents including ability for capital investment. The system also creates a personal status preference that permits refugees and asylum seekers to gain permanent residency and creates a diversity lottery for those seeking entry without priority status. ​
a) Family
An individual with a close relative like a spouse, child or parent in the United States who is a citizen or lawful permanent resident is favored for immigration into the United States. The relative becomes the person’s sponsor and files a Petition for Alien Relative with the United States Citizenship and Immigration Services Bureau. 

b) Employment Skills
An individual who seeks permanent residency in the United States based on employment skills must fit within one of five priority categories: 1) extraordinary ability in science, art, education, business, athletics or other occupation; 2) advanced degree equivalent to a masters, doctorate or professional degree; 3) skilled worker with a minimum of two years of training; 4) special worker such as religious worker or employee of the United States living abroad; and 5) investor who will invest $500,000 to $1,000,000 in a job creating enterprise that employs at least 10 full time American workers. 

c) Refugees and Asylum Seekers
Refugees and asylum seekers may gain permanent residency status if they have suffered past or are in reasonable fear of persecution on the basis of race, religion, nationality, political view or membership in a social group. Refugees and asylum seekers are generally living outside of their country of origin and are unable or unwilling to return because they fear serious harm. 
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​d) Diversity Lottery System
Up to 55,000 persons annually are admitted into the United States as permanent residents based on a random selection among individuals who are from countries with low rates of immigration to the United States. These individuals who are given permanent residency in the United States are known as “lottery winners.”
ImmigrationEllis Island Great Hall
IV. How Many Immigrants?
The Immigration and Naturalization Act provides for an annual worldwide limit of 675,000 permanent immigrants not including limited exceptions for close family members, refugees and asylum seekers. Generally, the 675,000 limitation includes 480,000 family based immigrants, 140,000 employment based immigrants and 55,000 diversity based immigrants. In addition to the 675,000 aggregate limitation, the United States places a limit on how many immigrants can come to the United States from any one country. No group of family based or employment based immigrants from a single country can exceed 7% of the total amount of people immigrating to the United States in one year. In 2016, the President set the worldwide refugee ceiling for immigration to the United States at 85,000 while about 25,000 immigrants were asylum seekers granted permanent status. ​

Conclusion
Although immigration raises complex political and public policy considerations, the United States remains committed to immigration. This dynamic area of the law will be particularly relevant as the Unites States considers public policy changes regarding immigration. 

​​If you have a question about immigration, please contact Michael M. DiCicco, a partner at Bathgate, Wegener & Wolf.
Call Michael DiCicco

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The Importance Of The ABC Test To Classification Of Workers

1/4/2017

 
By Michael M. DiCicco | mdicicco@bathweg.com
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Whether a worker is an employee or an independent contractor has serious repercussions under New Jersey and federal wage and hour laws for both the worker and the company. For example: a) employees are entitled to be paid overtime if they work more than 40 hours during the work week while independent contractors have no such entitlement; and b) companies are  required to pay state and federal payroll taxes for employees but not for independent contractors. Recently in Hargrove v. Sleepy’s LLC, 220 N.J. 289 (2015), the New Jersey Supreme Court was asked to determine whether a worker is an employee or an independent contractor for purposes of the New Jersey Wage and Hour Law  (“WHL”) and the New Jersey Wage Payment Law (“WPL”).
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In determining whether a worker should be classified as an employee or an independent contractor, the Court explored the application of four different tests: the right to control test, the hybrid test, the economic realties test, and the ABC test. The Court ultimately adopted the ABC test which is the most permissive test for determining that a worker is an employee. Explaining the test, the Court wrote:
The “ABC” test presumes an individual is an employee unless the employer can make certain showings regarding the individual employed, including:
(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
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(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
If the employer fails to satisfy any one of the three criteria set forth in the ABC test, the result is that a worker is classified as an employee.

Part A requires that the employer show that it neither exercised control over the worker nor had the ability to exercise control in terms of the completion of the work. “In establishing control for purposes of part A of the test, it is not necessary that the employer control every aspect of the worker’s trade; rather, some level of control may be sufficient.” This inquiry extends to the actual performance of the work, and the control that the employer has over the worker’s performance of the work.

Part B requires that the employer show that the services provided were “either outside the usual course of the business … or that such service is performed outside of all the places of business of the enterprise.” Part B of the ABC test focuses on identifying “the usual course of the business for which the individual has been retained to provide services or the usual place or places at which the employer performs its business.”

Part C requires that the employer show that the worker “has a profession that will plainly persist despite the termination of the challenged relationship.” This part of the test “calls for an enterprise that exists and can continue to exist independently of and apart from the particular service relationship. The enterprise must be one that is stable and lasting – one that will survive the termination of the relationship.” 

The use of a singular test for determining whether a worker is an employee or independent contractor provides workers with knowledge of  “when, how, and how much [they] will be paid” that is not reliant on a case-by-case analysis. "The ABC test provides an analytical framework to decide whether a person claiming unemployment benefits or seeking the protection of … wage-and-hour provisions … or … wage-payment provisions … is an independent contractor or an employee. It presumes that the claimant is an employee and imposes the burden to prove otherwise on the employer.”

Key Takeaways
  • It is presumed that a worker is an employee and the burden is on the employer to prove otherwise.
  • An employer is required to pay state and federal unemployment tax, social security tax and worker’s compensation/disability premiums for employees but is not required to make any of these payments for independent contractors.
  • Employees are entitled to be paid overtime and to receive unemployment and worker’s compensation benefits; independent contractors are not.
  • Audits by the IRS or the New Jersey Department of Labor that reveal misclassification of employees as independent contractors may result in the assessment of back taxes, interest and penalties.

​Conclusion
Whether a worker is an employee or independent contractor is a fact sensitive inquiry. Correct classification is important. An employer who misclassifies workers is subject to back taxes and penalties. An employee who is misclassified may be getting short-changed because the employee is not being paid overtime and receiving unemployment and worker’s compensation benefits.

Michael M. DiCicco, a partner at Bathgate, Wegener & Wolf, has represented employers and workers in wage and hour disputes and other employment issues such as claims under the New Jersey Law Against Discrimination and Title VII.   If you have a question regarding employment law, please contact Mr. DiCicco.
CALL MICHAEL DICICCO
EMAIL MICHAEL DICICCO

What Is Guardianship In New Jersey and How Does It Work - Part 3 of 3

11/15/2016

 
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By Pamela Madas Snyder |  psnyder@bathweg.com
In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series, we discussed the court hearing process, the possibility of the appointment of a Temporary Guardian, and the bonding requirements for a Guardian.  In Part 3 of this 3 part series, we discuss some of the tasks that must be performed by the Guardian, the reports which must be filed by the Guardian, and the compensation that a Guardian may receive for performing his or her duties.

C.  AFTER THE JUDGEMENT OF INCAPACITY AND APPOINTMENT OF GUARDIAN
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Congratulations! You’ve been appointed as Guardian of your loved one.  Just when you thought your involvement with the Court is over, now the Court oversight begins.  Being appointed as Guardian imposes significant responsibility and record-keeping.  Further, once the Court appoints you as Guardian of your loved one, you do not have unfettered rights to your loved one’s assets, income and health care decisions.  If the Guardian wishes to sell any of the incompetent person’s property, the Guardian must make an application to the Court to do so.  Similarly, Court approval is necessary if the Guardian seeks to gift assets for the purpose of estate or Medicaid planning. (NJSA 3B:12-49,  3B:12-58 and 3B:12-59).
  1. Filing of Reports
  The Guardian must complete several reports each year, beginning with an initial Inventory of Assets.  This initial inventory is usually due within seven (7) to thirty (30) days of the appointment.  Further, each year, the Guardian must complete a Report of Well Being of the incompetent person and must also complete an Accounting of all funds that the Guardian has handled during the year, all income received, and all expenses that the Guardian has paid.  Both of these annual reports are submitted to the Surrogate Court of the County that decided the Guardianship Application.  If the Court has any questions regarding the reports, the Guardian may have to provide supplemental information.
     2.    Commission
A Guardian may receive monetary compensation for his or her work as Guardian.    The commission amounts are set forth in NJSA 3B:18-24 and 3B:18-25.  Presuming the incompetent person has assets and income, the Guardian is entitled to the following commissions on an annual basis without prior court approval:
  1. Six percent (6%) on the income received on behalf of the incompetent person, and
  2.  $5.00 for each $1,000.00 of principal corpus for the first $400,000.00, and $3.00 for each $1,000.00 of principal corpus on amounts exceeding $400,000.00.
Therefore, by way of example only, if the incompetent person has assets totaling $1,000,000.00, and receives $100,000.00 worth of income in a year, the Guardian is statutorily entitled to $3,800.00 on the principal and $6,000.00 on the income for a total annual commission of $9,800.00.

​The Guardian may also receive a termination/distribution commission.  The amount of the termination/distribution commission is based, in part, not only upon the value of the assets, but also upon the length of time the Guardian has acted as Guardian when the termination or distribution occurs.  These termination commission amounts are set forth in NJSA 3B:18-28.

D. CONCLUSION
Being appointed a Guardian for your loved one imposes certain record-keeping and report filing requirements.  Once you are appointed Guardian, the court involvement in your loved one’s estate does not end.  While the Guardianship application process is concluded, the Court oversight begins.  This Court oversight continues until the Guardianship is terminated.

The best way to reduce the expenses associated with a Guardianship is to discuss and finalize your estate plans, long term care plans and Power of Attorney preferences with a knowledgeable attorney while you are still mentally competent and can make those decisions on your own.  As our society ages and as the law continues to recognize the independent legal rights of “children” once they reach eighteen (18) years of age, the need for Powers of Attorney and Guardianships is becoming increasingly important.  Having a Power of Attorney or estate plan is no longer limited to the rich and famous or elderly; even college-aged children should consider having Powers of Attorney in place. If there are questions regarding your or a loved one’s mental competency to sign a Power of Attorney, ask your family physician or neurologist to perform a competency exam such as the mini mental status exam. 

If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Navigating the maze of Guardianship applications on your own can be both confusing and overwhelming.  Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  This may cause tension and misunderstandings between you and your loved one if you make the application on your own.  Having an attorney to prepare the Guardianship application and to guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings. 

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact Pamela M. Snyder, Esq. or one of our other attorneys at the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options. 

Pamela M. Snyder, a partner with the law firm of Bathgate, Wegener & Wolf, P.C. located in Ocean County, New Jersey, focuses a portion of her practice on estate planning, guardianships, Powers of Attorney, Wills, Special Needs Trusts and probate litigation in Ocean and Monmouth Counties. 
EMAIL PAMELA SNYDER
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Jury Rules Against Home Improvement Contractor Over Sandy Contract

10/21/2016

 
Home Improvement Contractor
Photo credit: Greg Thompson/USFWS
 ByBrian W. McAlindin, Esquire | bmcalindin@bathweg.com​
Nearly four years after Superstorm Sandy made landfall in Ocean County, NJ, a jury has rendered its first verdict in favor of  homeowners against a home improvement contractor repairing Sandy damage.  In August, an Ocean County jury sided with the homeowners in their suit against Price Homes Group (PHG).  PHG was a fledgling home building contractor that, like many others, spawned in the aftermath of Superstorm Sandy.  The entity was formed 100 days after the most powerful storm to affect the Jersey coast made landfall.  The storm caused billions of dollars in property damage as a result of wind and flood.  Despite being newly formed, PHG enjoyed the illustrious status of being a “qualified builder” under the State’s RREM (Reconstruction, Rehabilitation, Elevation and Mitigation) Program administered by the Department of Community Affairs (DCA). Under the RREM Program, the DCA checked whether a contractor was a registered Home Improvement Contractor licensed to do business in New Jersey, and whether it had been debarred from doing business with the government.  By now many have heard horror stories of the RREM program.  RREM later allowed homeowners receiving such grants to select their own contractors.  Sadly, in spite of a trial victory for the homeowners, whether they will ever see any of the $300,000 in damages awarded against PHG remains to be seen.  The three principals of the company have declared bankruptcy and PHG vows to appeal the verdict.  There are at least fifteen other such suits against PHG. 
 
Whether embarking on a home improvement project as a result of Sandy or otherwise, the lessons of the PHG experience are apparent to homeowners and contractors alike.  As shocking as it may seem, many enter into home improvement projects, often as big or bigger than the home purchase itself, without a written contract that identifies the scope, cost and timing of such a project, and do so without checking to see whether a contractor is a registered Home Improvement Contractor. The NJ Consumer Fraud Act (CFA) requires that any residential home improvement agreement over $500 must be in writing, as well as any change orders, and include:
  • Start and completion date
  • Agreed price
  • Contractor’s HIC number
  • Three day right to rescind with full return of deposit
  • Copy of Contractor’s general liability insurance declarations page
  • The toll-free number of the NJ Division of Consumer Affairs.
A contractor that fails to comply with the CFA runs the risk of exposing itself to a consumer fraud action, in addition to the standard breach of contract action by a homeowner that the work does not meet the terms of the contract and is not completed in a workmanlike manner, and/or consistent with applicable building codes.  Any contractor found to have caused an ascertainable loss as a result of a “deceptive business practice” and to comply with the Act’s requirements, runs the risk of not only damages for  the costs of repairs to properly complete the project, but also treble (tripling of) damages, attorney’s fees and costs of suit.  There is New Jersey case law that further allows such damages to be assessed against the principals or officers of a corporation (“pierce the corporate veil”) if actual participation in such deceptive business practice by the principal or corporate officer is shown.  While budgets may be strained by any contemplated home improvement project, it behooves a homeowner to have a consultation with a qualified attorney before blindly wading into the treacherous waters of home improvement.  If you earn your living as a New Jersey Home Improvement Contractor, you must be aware of your legal obligations. You must register with the Division of Consumer Affairs consistent with the Contractor Registration Act and be sure your contracts are Consumer Fraud Act compliant, otherwise your next project may be “on the house”.  A home improvement contract that fails to comply with the CFA is deemed void and the contractor’s only right to receive compensation for such work and materials is the value of such services and materials provided (quantum meruit) without any profit.  It has been held that even quantum meruit recovery is questionable because the purposes of the CFA are to punish the wrongdoer and deter others from such conduct.
 
Brian McAlindin, Esq. is a Partner at Bathgate, Wegener & Wolf, PC and a Certified Civil Trial Attorney with expertise in construction litigation on behalf of both homeowners and contractors, as well as personal injury actions.   
Call Brian McAlindin

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Restrictive Covenants May Be Eliminated in Certain Circumstances

10/20/2016

 
By Michael M. DiCicco | mdicicco@bathweg.com
Restrictive Covenants
Although not favored in the law because they interfere with one’s right to use and enjoy real property, restrictive covenants are enforceable.  Restrictive covenants limit how a property owner can use his property and what he can build on property. Generally, the restrictions are contained in the deed that transfers the property or some document that relates to the property, like a subdivision approval.  Typical restrictions prevent houses of a certain size or style to be built on the property or limit the property to residential or commercial use.  Restrictions that limit one’s use and enjoyment of property cannot be disregarded by the owner of the property, but relief may be available to a property owner who wants to remove the restrictions.

Historically, courts enforce restrictive covenants that are contained in a deed or other document that is within an owner’s chain of title.  If the restriction is “clear, explicit, and unambiguous,” and does not violate public policy, it will be deemed valid on its face and will be enforced by a court.  For example, a restriction that limits the height of houses in a particular neighborhood so that all of the property owners retain unobstructed water views is enforceable because it is clear, explicit and unambiguous.  Conversely, a restriction that prevents a property from being sold to members of a specific race, religion, or ethnicity is unenforceable because it violates public policy.

Once it is determined that a restrictive covenant is valid on its face and thus enforceable, an owner may be able to eliminate the restriction through three different ways:

  1. First, if the restriction is applicable only to a neighborhood of defined properties, the restriction can be rescinded if all property owners unanimously agree to remove the restriction. 
  2. Second, if the restriction has been continuously not enforced, a property owner against whom enforcement is now sought may file a lawsuit to prevent enforcement of the restriction by establishing that the restriction has been abandoned. 
  3. Third, a property owner against whom a restriction is sought to be enforced may seek to invalidate the restriction by filing a lawsuit and establishing “changed conditions” in the geographic area affected by the restriction.  In deciding whether there are changed conditions, the critical inquiry for a court is to determine what benefit the restriction is intended to bestow on the public and whether it would be unfair to enforce the restriction in light of that intended benefit and present day realities.
Restrictions on the use of property are enforceable even though they interfere with a property owner’s right to use and enjoy real property.  These restrictions, however, may be removed in certain circumstances.  If your property is subject to a restrictive covenant or you seek to enforce a restrictive covenant, you may reach out to Michael M. DiCicco, Esquire. Mr. DiCicco, a partner at Bathgate, Wegener & Wolf, has successfully represented property owners seeking to enforce and eliminate restrictions on real property.
Read The Basics: New Jersey Construction Lien Law by Michael DiCicco, Esquire
LEARN MORE ABOUT MICHAEL DICICCO
EMAIL MICHAEL DICICCO

What Is Guardianship In New Jersey and How Does It Work - Part 2 of 3

10/1/2016

 
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By Pamela Madas Snyder |  psnyder@bathweg.com
​In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series What Is Guardianship In New Jersey and How Does It Work, we discuss what will happen at the court hearing.

THE HEARING
 a.        Notice of Hearing Date
Approximately 2 weeks after the application to have your loved one declared incompetent is submitted, the Court will set a date for the initial hearing. Once the initial hearing is scheduled, the person who seeks to be appointed as the Guardian must notify the alleged incompetent, his or her next of kin and anyone else who has a degree of relationship superior to that of the applicant of the date and time of the hearing, and the person’s ability to challenge the application.  In certain circumstances, the Office of Public Guardian must also be notified of the application and given an opportunity to review and respond to it.  The next of kin or other interested party may hire an attorney to represent their interests in the application or they may represent themselves, pro se.  The next of kin or interested party is permitted to challenge both  the requested declaration that your loved one is  mentally incompetent and your appointment as Guardian.  Because your loved one will receive a copy of the filed papers, your loved one will be advised not only that there is a request to have him or her  declared mentally incompetent, but also of the name(s) of the person(s) seeking Guardianship. 
 
b.        Appointment of Temporary Guardian
On occasion, the Court will appoint a Temporary Guardian for your loved one while the Guardianship application is pending.  The Temporary Guardian serves until the Court makes its final determination regarding a permanent Guardian.  The Temporary Guardian can be the person(s) submitting the application for Guardianship, or it can be someone else selected by the Court.  If the Court does not appoint the applicant as the Temporary Guardian, the Court may appoint an attorney (separate from the court appointed attorney who will represent your loved one in the Guardianship application process) or an accountant or other professional as the Temporary Guardian. The fees charged by the Temporary Guardian are usually paid from your loved one’s assets.
 
c.        Court Appointed Attorney For Alleged Incompetent Person
The Court will appoint an attorney to represent your loved one.  The Court appointed attorney is not free.  He or she is usually paid from the assets of the alleged incompetent.  This attorney will not only present your loved one with a copy of the papers submitted to the court, but will also spend some time with your loved one, interview him or her, will likely interview the guardian applicant, and will research whether your loved one previously signed a Power of Attorney or a Last Will and Testament.  Once the Court appointed attorney’s research and interviews are complete, she will submit a report of recommendations to the Judge.  Although the court appointed attorney represents your loved one, your loved one may hire his or her own private attorney at your loved one’s own expense to represent his interests and challenge a Guardianship application.
 
d.        Conduct of the Hearing
If the Guardianship Application is not contested and the Court appointed attorney agrees with the Application, then the Court may not require anyone to be present at the hearing and the Judge  will make his decision based upon the papers presented to him.  However, if the Guardianship Application is contested, during the initial hearing the Judge will consider:  (a) the written papers submitted to it that support and oppose the Guardianship, and (b) oral arguments (but not witness testimony) regarding the Guardianship Application.  Usually, live witness testimony is not presented to the Court during the initial hearing.  In both contested and uncontested Guardianship Applications, the Court will review and consider the observations and recommendations of the court appointed attorney.  Sometimes, the Court decides that it does not have enough information to make an immediate determination on the Guardianship application.  If that is the case, the Court will schedule another hearing and may request that additional information be submitted to the Court.  At the second hearing, the Court may hear sworn testimony from (a) the person alleged to be incompetent, (b) the person applying to be the Guardian of the alleged incompetent, (c) the physicians, psychologist or psychiatrist who conducted examinations of the alleged incompetent, and (d) any other persons with an interest in the application or who have information regarding the alleged incompetent.  Only after receiving all the information, evidence and testimony that the Court deems necessary and appropriate, will the Judge decide whether your loved one needs to have a Guardian appointed, and if so, who will be appointed the Guardian.
 
e.        Bond Amount
In addition to deciding whether your loved one is mentally incapacitated and who should serve as Guardian, the Court will also decide the amount of the bond, i.e.,  insurance policy, that must be obtained by the person appointed as Guardian.  The amount of the bond is generally based upon the value of the assets of your loved one.  The bond is obtained by the potential Guardian, usually after a general background check, credit check and payment of a bond premium.  The bond premium must be paid every year, and usually can be paid from the incompetent person’s assets.
 
f.        Conclusion
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  Additionally, the next of kin of the alleged incapacitated person, along with those person(s) who have a degree of relationship superior to the applicant requesting to be appointed as Guardian must receive notice of the application.  This may cause tension and misunderstandings between you and your loved ones if you make the application on your own.  Only after a Judge is confident that he or she has received and reviewed all of the evidence and testimony necessary to make a determination regarding your loved one’s mental competency and appropriateness of a Guardianship will a judge make his or her ruling. If a Guardianship is granted, that ruling will include a Judgment of Legal Incapacity, the name of the person appointed as Guardian and the amount of bond that will need to be secured before the appointment of the Guardian can be finalized.   Having an attorney prepare the Guardianship application and guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings that can accompany a Guardianship application.  In Part 3 of this 3 part series, we will discuss a Guardian’s duties after being appointed by the Court.
 
If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact Pamela M. Snyder, Esq. or one of our other attorneys at the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options.

Pamela M. Snyder, a partner with the law firm of Bathgate, Wegener & Wolf, P.C. located in Ocean County, New Jersey, focuses a portion of her practice on estate planning, guardianships, Powers of Attorney, Wills, Special Needs Trusts and probate litigation in Ocean and Monmouth Counties. ​ Contact Pamela at 732.363.0666 or psnyder@bathweg.com.
​

READ PART 3 of What Is Guardianship In New Jersey And How Does It Work
EMAIL PAMELA SNYDER
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