Claimed Lawyer ProfileQ&A
- Real Estate Law
- Products Liability
- Arbitration & Mediation
I will provide fixed fee quotes for all areas of service, including litigation, trial consulting and mediation
- Contingent Fees
Jurisdictions Admitted to Practice
- President 2017-2018
- Utah State Bar
- Voting member of the body adminstering the Utah Judiciary
- Utah Judicial Council
- Third District Commissioner
- Utah State Bar
- The University of Utah S.J. Quinney College of Law
- J.D. (1984) | Law
- University of Colorado - Boulder
- B.A. (1981) | Economics
- Honors: magna cum laude, Phi Beta Kappa
- International Academy of Trial Lawyers
- - Current
- American Board of Trial Advocates
- - Current
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25 Questions Answered
- Q. Can we get our earnest money back if Association changes covenants after approval but before closing.
- A: The Association docs you reviewed and approved probably set out the process for the Association to approve new covenants. If that process was followed and all took place after you approved the Association docs, then you probably cannot avoid the obligation to either close on the sale or lose your earnest money. However, if the seller/builder should have included information about pending changes to the covenants, such as a notice of pending changes or a vote on pending changes, in the category of HOA documents that were to be provided, then you probably have an out. If this contract was on the standard Colorado REPSA. then look at section 7.3 and consider whether there is something the builder should have given you on that list which would have notified you of the pending changes. Otherwise, if you could make out a case of deliberate mispresentation or knowing non-disclosure by the seller/builder, then that might possibly give you right to recoup the earnest money but that is tougher because it is based on some evidence of wrongdoing vs. just what your contract rights permit. It's up to the title company, if they hold the earnest money to decide how to handle it and they should not release it to either you or the builder until the dispute is resolved. Also under the standard REPSA, the parties are obliged to mediate their dispute before going to court. The markets are very hot in some areas of CO and the builder can probably find another buyer. So perhaps you can work out a compromise to get most of the money back if he realizes you are going to fight it. Good luck.
- Q. Retail Business Space Lease
- A: If you sign the personal guarantee then yes, at least as to the obligation to pay rent and any other lease obligations covered by the guarantee, you will not have the LLC's protection from personal liability. The LLC's protection would continue in all other respects, such as if the business were sued for a personal injury on the premises. However, you may need to have the lessor added to your premise liability insurance so that they have protection as well. These sort of guarantees are not unusual in commercial lease situations. The lessor is looking for assurance that you will perform under the lease, especially pay the rent and not default during the term. This may be negotiable but you probably will need to otherwise satisfy the lessor's concerns. Sometimes that can be done with strong financials for the business, etc. Or you can pledge some other asset.
- Q. Question on Retail Lease
- A: Your option to renew is an enforceable contract right. So long as you have complied fully with the notice requirements and are not in default on the lease, it is your unilateral right to renew at the rates set by the lease. If your position is valid then if you remain past the end of the current term the landlord would have to file a lawsuit and seek an order of eviction. But if you have validly renewed the lease then you should be able to defeat that eviction action. You could go to court first by filing a case seeking a declaration from the court of your right but I would advise that you first retain an attorney to help you address this with letters and discussion with the landlord. Other terms may be negotiated in your favor in connection with the renewal.
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