Real Estate Closings: What Happens?

What Happens in a Real Estate Closing?

Buying property can be an exciting process.  You look at properties, find one you love, and make an offer.  When the sellers accept that offer, you will need to close on the property.  For many buyers, the closing is a mystifying process.  This article will explain what to expect at a Real Estate Closing.

The Closing Process

Closing is often called "settlement."  These two terms are used interchangeably, so a Real Estate Closing and a Real Estate Settlement are the same thing.  In a nutshell, this is when all documents are signed, monies are exchanged, and the property transfers to the buyer.  The period between acceptance of an offer and closing is often called "the escrow period."

What Happens During Closing?

All parties involved meet in a mutually agreed upon location to review and sign all of the documents. Since most of these documents are prepared in advance of the Settlement Meeting, you should have already thoroughly reviewed them with your attorney.  If there is a mortgage involved, these documents are reviewed, signed, and notarized during this meeting, and the monies are disbursed to the seller.  The buyer also pays his share, including closing costs, via certified check.  Often, the buyer is also required to set up an escrow account to cover things like taxes, insurance, and the first few mortgage payments.  The buyer will need a separate certified check for this.  In addition, closing costs (usually 3-5% of the financed amount) are paid with a third certified check.  The Real Estate Agents also receive their commissions during the closing conference.

Who is at a Settlement?

Whether you are the buyer or the seller, hopefully you've followed our advice and retained an attorney to help you with the whole process.  Your attorney should have reviewed ALL contracts and documents, as well as helped you with all negotiations.  Your attorney should also be there for the closing.  In addition to buyer's and seller's attorneys, you can expect both the real estate agents (both the Buyer's and Seller's agents,) a representative from the financing agency (usually a bank,) and a representative from a title company.  You will also need a Notary Public to notarize all the documents.  Often, one of the Real Estate Agents, Bank Representatives, Lawyers, or Title Company representatives is a Notary.  Connecticut, Georgia, and Delaware all require an attorney to execute the closing, so if you live in one of those states, settlement definitely includes at least one lawyer.

Where Does the Closing Take Place?

A closing may take place in a number of places, be that an Attorney's Office, a Title Company, an Escrow Company, or the Lender's Office.  If it is a "cash" transaction with no mortgage, settlement usually occurs at the Attorney's office, either yours or that of the seller.

When Does the Closing Occur?

The closing takes place at a date and time mutually agreed upon by all parties.  Generally, there is approximately a month between acceptance of offer and the settlement meeting.  

How Long Does the Process Take?

Generally, the Closing takes between 30 and 90 minutes, depending on how prepared all parties are, and how long it takes to review the documents.  However, if issues arise during the closing, it may need to be rescheduled, and it may take several days.  

What Documents Need to be Executed?

Usually, the closing involves signing the following documents:

• The Closing Disclosure Form: This is an itemized list of the buyer's final costs, credits, and charges;
  
• Deed of Trust or Mortgage Document: These are the actual terms and conditions of the financing agreement;
  
• Promissory Note:  This is the actual IOU form to the lender, detailing the actual amount of money you are borrowing and will need to pay back;
  
• Loan Estimate: This document outlines the actual closing costs, which are in addition to financing and down-payment;
  
• Title Insurance: protects an owner's or a lender's financial interest in real property against loss due to title defects, liens or other matters.
  

What Happens After Closing?

You take possession of the property, and the new deed is recorded.  You also receive your keys at this meeting.

What Issues May Arise During Closing?

Hopefully, the closing will go smoothly, and there will be no issues.  Ideally, both parties have all the documents ahead of time, and have had a chance to review them, so that issues do not prevent a smooth closing.  However, the following issues may delay or prevent a settlement:

• Errors in the Documents: These can be as simple as typos, or there may be terms that were not previously agreed upon.This is why it is important to thoroughly re-read ALL documents before signing them.  DO NOT sign any documents containing errors until those errors are corrected.
  
• Money Issues: Often, funds are delayed, especially if the purchase involves a mortgage.  If checks are delayed, settlement may need to be postponed.
  
• Title Issues: Sometimes title issues are found that must be cleared before final settlement may occur.  These may be unknown liens placed by contractors or an Association, unpaid Association fees, tax deeds, etc.  Despite the presence of Title Insurance, the Buyer's Attorney will not allow settlement to commence if any title issues are found.
  
• Issues Found During the Final Walk-Through or Inspection: Many contracts are contingent on a Home Inspection.  If the Inspector finds any issues, the Buyer's Attorney may negotiate buyer credits to fix these deficiencies.  Likewise, if any issues were found during a final walk-through, such as damages to the home, paint defects caused during a moving out process, non-working fixtures or appliances, or cleanliness issues, the attorneys may negotiate repairs or credits, or even a reduction in the final cost of the property.

If any of these issues arise, the closing may be delayed or continued on another day.  Sometimes, these issues may prevent a closing from happening at all.  The contract may fall through if significant issues crop up.  Again, these issues are best handled by an attorney, whether you are the buyer or the seller.  

Often, "Earnest Money," or a deposit is made when the offer is accepted.  If the closing falls through, what happens to this money is dependent on several factors, including the wording in the sales contract and the reasons for the closing falling through.  Again, it is best to let your attorney handle these negotiations.  Whether you are the buyer or the seller, it may cost you a lot of money if you try to handle these negotiations yourself, or if you leave them to your Real Estate Agent.  It will most likely cost you far more than you would have paid in Attorney's Fees.

Summary

This article attempted to demystify the closing process.  It outlined the who, what, when, where, and hows of the  settlement process.  It also stresses the importance of retaining a skilled Real Estate Attorney to represent you at settlement.  There are a plethora of complicated documents to sign, and even more issues that may arise, all of which are best  handled and negotiated by your lawyer.

The Law Offices of Heath D Harte are located in Connecticut, a state which requires an attorney to be involved in the closing process.  Again, we stress you hire your OWN attorney, rather than depending on the Real Estate firm to provide one.  Only your own attorney has your best interests at heart, (or should we say at Harte, as we always have our clients' best interests at the forefront.)  There are just too many issues that may crop up during the settlement process that can cost you far more than paying attorney fees.  With the proper preparation, we can even represent you at the closing so that you do not even have to be present.  If you live in one of the areas in which we practice, we are happy to represent you throughout the entire home buying process, from identifying property to buy, to placing an offer, to reviewing and negotiating documents, to handling the closing for you.  We can take most of the stress out of the home buying process.

Land Trusts: Final Thoughts

Land Trusts:
Final Thoughts

We hope you have enjoyed this series on Land Trusts.  But alas; all good things must come to an end. We are wrapping up this series.  Then, we are going to take a couple of weeks off to compile this information into an ebook.  (Subscribe to this blog and/or follow us on Facebook or Twitter to be advised as to when this book is available.)  When we return, we'll be highlighting other  important Real Estate Law and Real Estate Investing subjects.  

Land Trusts: Summary of Advantages

Throughout this series, we have focused on all the advantages of putting properties into a Land Trust. To sum up, these advantages include:

1. Privacy: Using a Land Trust keeps property ownership private, and it keeps your name out of the public records.
2. Liability Protection: Using a Land Trust can help shield you from many frivolous lawsuits.
3. Protection from Judgements: A Land Trust helps protect your personal assets from being subject to a judgement.
4. Protection from Liens: IRS and other government judgements do NOT attach to property held in a Land Trust.
5. Avoiding Probate: Land Trusts help your assets pass DIRECTLY upon your death, rather than having to pass through probate.
6. Eases Transferability and Control: Property held in a Land Trust is much easier to sell, transfer, and manage.  This is especially true of "distressed properties," "under-water properties," and those in danger of foreclosure.
7. Minimizes Fees: Minimizes fees related to deed recording, transferring properties, title insurance, etc.
8. Eases Multiple Ownership: A Trust can have many beneficiaries.
9. Asset Protection: A Land Trust can help shield assets in case of ownership issues, such as bankruptcy or divorce.
10. Keeps Pricing Information Private:  A Land Trust helps protect your privacy regarding what individual parcels of land are worth.

Land Trusts: Summary of Concerns

1. You will need a Skilled Attorney: Few lawyers are experts when it comes to Land Trusts. You will need to find an attorney with skills and training in this area to receive the maximum benefits.
2. There are ongoing fees: A Land Trust will always have nominal ongoing fees associated with it.  After all, few Trustees are willing to do the job for free.
3. Privacy May Be Revealed with a Court Order: Although a Land Trust makes it more difficult to determine ownership, a Court can order ownership information be disclosed.
4. May Only Hold Real Property as Assets: Other forms of trusts allow multiple types of assets to be held by the trust.  A Land Trust, however, may ONLY hold real estate as assets.
5. Statutes Vary by State: Only a few States have their own, specific statutes regarding Land Trusts.  Their validity in other States relies on Case Law.  However, in those states that HAVE specific laws, you must ensure you follow them to the tee, or the Land Trust may not be valid.  Again, this is where engaging a skilled attorney is of supreme importance.

Land Trusts: Should I use One?

The choice to use a Land Trust is very individual.  No one can say definitively whether a Land Trust is the investment vehicle for you.  In writing this series, we hope we have equipped you with the tools and information you need to make this decision for yourself.  If you are leaning towards "yes," we suggest you gather your own information and documentation, and you meet with a skilled Land Trust Attorney in your area.  (If you live in the New York-Connecticut area, we'd be happy to meet with you to discuss your individual circumstances.  We offer free consultations for these purposes.)  

Again, we believe in Land Trusts.  We use them ourselves.  And as we branch out into property investments to enhance our own personal portfolio, we have begun using Land Trusts even more.  We want to invest in our own community, and we know that using Land Trusts are our most effective way of doing so.  And we live in a State that is using Land Trusts to revitalize neighborhoods and to provide affordable housing to our local workforce.  We have seen how effective Land Trusts can be, both on an individual and an organizational level.

Whether you already own real property, or there is property you have your eye on, we suggest you identify an attorney to help you now.  Having an attorney you know and trust will ease the process as you begin to accumulate property.  And you will need to interview this attorney to ensure s/he has the skills and knowledge you need.  Pick a few items from this series and use them as the basis for your interview questions.  If your prospective attorney cannot answer them to your satisfaction, move on to a lawyer who can.  

Final Thoughts

Again, we welcome your comments and feedback, whether you have been with us from the start or you are just finding this series now.  You can always find us through our website, hartelawoffice.com. We are also active on Facebook and Twitter.  We are also interested in what you would like to see in upcoming blog posts.  Do you have a burning question in the area of Real Estate Law?  Is there any topic you'd just like to learn a little more about?

Stay tuned for details on our Land Trusts e-book!

Drawbacks to Land Trusts

Drawbacks to Land Trusts

In previous posts, we've learned all about Land Trusts and how to form them. By now, you may be thinking that Land Trusts are the greatest thing to come along since sliced bread. And Land Trusts offer many benefits. But nothing in this world is all good. Land Trusts have some disadvantages too.

This week, we're going to review some of these drawbacks.  Next week, we'll go back to the positives.  But there are limitations to Land Trusts that are important to consider.

There is no such thing as “100%” Protection for Any Asset

No asset can be completely protected, and of course, this applies to real estate in a trust as well.  Let's face it.  We live in a litigious society where anyone can sue for anything they want.  People often go so far as to hire investigators to uncover hidden assets they can possibly attach for judgments.  While Land Trusts make it more difficult to find the assets, and protect them from being found in a cursory search, a skilled investigator will work to find the beneficiaries of the trust.  

Again, this is why many people choose to put their assets, including real estate, into an LLC. However, if the LLC is sued, real estate  WILL be considered a part of that LLC's assets.  Likewise, if an individual is listed as beneficiary, the properties in a trust can be considered to be amongst that person's assets.  While putting real estate into a trust makes it more difficult to find the beneficiary, Federal Regulations ensure it is not impossible.  This is especially true for assets in a revocable trust, which is why Land Trusts should be formed as irrevocable, whenever practical.

Assets Held in Trust are NOT Exempt from Financial Disclosure Requirements

Oftentimes, an individual is deposed, under oath, during the course of legal actions. You may be deposed as part of a lawsuit or during a legal separation.  You may be asked for a list of ALL assets during the deposition process.  If so, you MUST disclose assets held in trust, Land Trusts included. Failure to disclose your Land Trust assets can be considered perjury.  

Timing Can Be Important

The timing related to developing the trust can matter too.  If you have pending litigation or are contemplating separation from a spouse, it is not a good time to be putting assets into trust.  You must avoid the appearance of impropriety.  Should your spouse file for divorce close to the time the trust is formed, you could be charged with hiding assets.  Similarly, if you form a trust while legal or financial action is pending, you could be accused of fraud for attempting to hide assets. Thus, it is important to plan proactively, and to form the trust before you are in the middle of such issues.

Insurance and Financing Can Be More Difficult

Many insurers, lenders, and mortgage companies are reluctant to get involved with Land Trusts.  It can also be harder to refinance real estate held in a trust.  Some mortgagers will require you to take the real estate out of the trust before they will consider refinancing.  This will require additional fees and paperwork.  Of course, you can always put the property back into trust after refinancing, but again, there will be additional fees and paperwork.  It may also be more difficult, or even impossible to get a traditional equity loan on property held in a Land Trust.

Requirements Can Be Different in Different States

Because few states have their own Land Trust Statutes, mistakes can be made when forming the trust that do not become apparent for years.  Additionally, because trusts are often formed in a different state than where the real estate property is held, multiple state statutes may apply.  This is especially true if the trustee and beneficiary live in different states.  Great care must be taken when forming the trust to avoid such mistakes.  And case law from the applicable states must be carefully considered.  

For example, the State of California requires the Trustee to have specific duties and obligations.  It requires a more active role than the traditional Illinois model usually includes.  The State of Texas requires a trustee to be licensed and bonded for the trust to be considered valid.  

This is where working with a skilled attorney is especially important.  You do not want to go through the work and expense of creating a Land Trust, only for the courts to find it invalid.  (Here at the Law Offices of Heath D. Harte, we carefully research the requirements and precedents set in EVERY STATE involved with the Land Trust to avoid these types of issues. However, not all so-called Real Estate Attorneys have this type of expertise.  If your Land Trust involves multiple States, your choice of attorney is even more crucial.)

It May Impact Homesteading

Many States have Homestead Exemptions for a primary residence to reduce your tax obligations.  If you have such an exemption, it is important to investigate if putting your property into a Land Trust will effect that exemption.  Again, this differs according to locality.  In some states, you are able to put your primary residence into trust and maintain your homestead exemption.  In others, this is not true.  

Again, your lawyer will be able to advise you if this will impact your situation.  But this is an important point to research if you are considering putting your home into a trust.  It is not a concern for real estate investment properties that do not qualify for homesteading.

Likewise, the US Government still has a homesteading program.  Most of us think of “Little House on the Prairie” when it comes to homesteading.  Today's homesteading program usually applies to derelict properties in urban areas.  Many real estate investors look at this homesteading program as an avenue to acquire housing.  Since homesteading requires BOTH residency and renovation to acquire title to the property, homes acquired through this program cannot be put into trust.  

There are Costs and Fees Associated With Land Trusts

There will always be annual costs and fees for any Land Trust.  And these costs apply throughout its life.  Most trustees receive compensation for their services.  In states that require Trustees take a more active role, the fees will be higher.  Of course, we strongly believe that the benefits outweigh the costs.  But there will always be ongoing costs and fees associated with maintaining the trust.  

Summary

This week, we discussed some of the drawbacks of Land Trusts, as well as things to consider before putting real estate property in to a Land Trust.  Although a Land Trust enhances your privacy, ownership can be determined through comprehensive investigation.  A Land Trust can help to protect your assets, but in certain circumstances, these assets can still be attached.  Insurance, financing, and refinancing can be more onerous, and it may involve taking the property out of trust. Putting your primary residence into trust may effect homesteading, in certain states, and state requirements for trusts may be confusing.  Finally, there are ongoing costs involved with running the trust.

However, as we've discussed in previous posts, the benefits outweigh the drawbacks in many cases. We will continue to highlight these benefits in our next post.

We truly believe in the utility of land trusts at The Law Offices of Heath D Harte.  We are real estate property investors ourselves, and we have found our Land Trusts to be helpful in many ways.  If you are considering your own Land Trust, you do not have to wait until this series is over to contact us. We are here to help you with all of your Real Estate Law needs, Land Trusts included.

We invite you to send your questions to us by visiting www.HarteRealEstateLaw.com and using the contact us form.  You may also follow our Land Trust series on Facebook, Twitter, & G+ by selecting the respective icons on the bottom of our web page.  www.HarteRealEstateLaw.com

Happy Holidays from the Law Offices of Heath D Harte!

Happy Holidays to Our Readers!

The Law Offices of Heath D Harte would like to wish everyone a very Happy Holiday Season!  We thank our readers for spending the year with us.  In 2015, we published a variety of articles to help you understand legal issues and your rights. We laughed over the antics of stupid criminals. We gave you tips on how to handle issues.  We talked about Family Law, Father's Rights, Connecticut Laws, and Real Estate Law.

Below, you will find a list of the articles we published in 2015.

This will be our last blog posting in 2015.  We hope you will continue reading our articles in 2016. We look forward to helping you understand legal issues throughout 2016.

We wish you all a Happy Holiday Season and a Healthy Happy New Year!  See you in 2016!

• Shopping for Real Estate During The Holidays
• Real Estate Attorneys

What Is a "Free Consultation" with a Lawyer?

• Non-Adversarial Divorce in Connecticut
• Ignition Interlock Devices Now Required for DUI Of...
• Child Support in Connecticut, Part 1

Silly Connecticut Laws
Preparing Your Appearance For Court
The Top 10 Biggest Mistakes In Injury Claims

• Child Custody: Does it Mean Litigation?
• Mistakes in the Florida "Sex on the Beach" Case In...
• Fighting for Paternal Rights
• Geofeedia: Using Social Media Against You
• Five Considerations in Choosing a Lawyer

Real Estate Attorneys

Do I Need a Lawyer When Buying or Selling a Home?

When it comes to buying, selling, and transferring properties, most people think of Realtors, rather than attorneys.  However, failing to hire an attorney for your real estate dealings can be a huge mistake.  There are good reasons to hire an attorney for real estate transactions.

What do Real Estate Attorneys DO?

1. Contracts and Negotiations

When a potential buyer makes an offer to purchase a property, what usually happens next is a contract.  Many realtors have standard purchase contracts, and many sellers and buyers choose to use those boilerplate contracts, figuring they will save a couple of hundred dollars.  Savvy buyers and sellers, however, have their own lawyers draw up the purchase agreement.  Many times, an offer is made with several contingencies.  As either the buyer or the seller, you need to ensure these contingencies are appropriate.  You also need to negotiate the purchase price for the home.  An attorney is a skilled negotiator with his client's best interests driving the deal.  Conversely, a realtor just wants his/her commission with the least amount of work.  Generally, as a buyer, you will recoup your attorney fees in price negotiations.  As a seller, an attorney will help ensure you do not lose money by having potential buyers back out of a sale.  Your attorney will negotiate the type of contingencies the offer is dependent on as well.  If you are involved in any type of "bidding war," your attorney can help you determine when it is time to back away.

Even if you DO choose to use the Realtor's standard contract, an attorney can help you review and understand the contract BEFORE you sign it.  Often, a lawyer will help you modify this standard contract to better benefit you.

2.  Title Searches

Before a sale can commence, a buyer needs to be sure the seller actually has the right to sell the property.  Buyers also need to ensure the property is free from liens, judgments, and other encumbrances. Title searches are performed by attorneys. Again, many realtors offer to handle the title search, but it won't necessarily cost any less.  And should the title search find any liabilities, an attorney can negotiate to clear these.  He can provide documentation to the loan companies (which require clear titles) that the title has been cleared.  And he can negotiate the costs of obtaining clear title into the overall purchase price.

3. Property Research

Often times, a buyer has potential uses in mind for a purchased property.  Your attorney can research the property to see if it is appropriate for your intended use.  Can you subdivide a unit into a 2 family home?  Can you establish a home office?  Are there any zoning or licensing requirements?  What type of renovations does the current building code allow? Were there any unpermitted renovations that may come back to haunt you in the future?  A real estate attorney can research all of these issues for you BEFORE you enter into property negotiations.

Again, many people rely on their realtor for these types of questions.  However, realtors are not always honest or accurate in their answers.  A realtor is not bound by the same ethical code as an attorney, and there are few consequences for a realtor giving inaccurate zoning information to a prospective buyer.  It is far better to ask your Real Estate Lawyer to research these types of things while he is reviewing the other documents.

4. Document Preparation and Property Transfers

A Real Estate Attorney can draft and/or review all documents associated with a sale or purchase.  S/he can prepare "rent-to-own" agreements.  Your lawyer can prepare all paperwork necessary to complete the sale, including deed transfers, purchase contracts, financial agreements, etc.  An attorney can review all loan documents. These days, much investment property is owned by an LLC. Your attorney can help you form the LLC, as well as transfer properties to its ownership.  An attorney can also prepare and review leases, security deposit restrictions, property management contracts, etc. for your investment properties.  And, of course, s/he can help you with all of the paperwork associated with investment properties, including tax and licensing paperwork.

5. Filings and Document Recording

Almost all paperwork associated with real estate needs to be filed with the local courts.  And of course, your attorney will ensure all paperwork is filed and recorded in a timely manner.  An attorney is crucial in helping navigate the "who, what, where, and when" of property paperwork.

6. Litigation

Buyers and sellers always hope their property transactions go smoothly, but alas, this is  not always the case.  Often, issues crop us well after the closing date.  Should this occur with your transaction, you will be glad you worked with an attorney throughout the process.

Often, issues crop up around "defects' discovered well after the sale.  Sellers are legally bound to disclose "known defects," and Home Inspections are often performed to uncover defects not disclosed by the sellers.  Despite these precautions, sellers can find themselves in court, with buyers claiming unknown defects were actually known.  Many times, having had the same attorney handle the transaction from start to finish can prevent such issues from turning into litigation.  And of course, the costs will be lower as your attorney is already familiar with the intricacies of the case.

What Can Happen if I Don't Hire an Attorney?

There is no law that says you HAVE to hire your own attorney.  Many people decide to just work with a realtor, and in many states, a realtor cannot act as both the buyer's and the seller's agent.  This is purportedly to eliminate a conflict of interest and to ensure the transaction is in the best interest of both parties.  But the bottom line is most realtors are only interested in their bottom line.  If you don't hire an attorney, you may experience one or more of the following issues.

• You may not get the best price for your property.  That applies whether you are the buyer or the seller.
• You  may not understand all of the contingencies that may make the deal fall through.
• As a seller, you may fail to make disclosures; this could result in post-sale issues and even litigation.
• As a buyer, you may not receive all the disclosures to which you are entitled.
• The property may not be transferred correctly.
• The sale may not be recorded correctly.
• You may not be able to get licenses or permits to renovate and/or use the property the way you desire.
• You may end up with unexpected financial obligations, including tax liabilities, repair costs, etc.
• Your contracts and negotiations may not be in your best interests and may actually favor the other party.

Should I hire an Attorney for my Real Estate Deal?

Here at the Law Offices of Heath D Harte, we feel strongly that BOTH parties should retain counsel for all real estate transactions.  Most times, your lawyer pays for itself in terms of saving time and money.  It minimizes the stress associated with buying and selling property, and it ensures your interests are protected throughout the process and for years to come.

We encourage our own clients to engage us with every step in the process.  We want to help you with making or accepting an offer, all the way through closing and recording the documents.  For most of our clients, real estate is one of the largest purchases of their lives, and we want to help make it one of the most positive ones too.  We want to help you with every step of the process to ensure no detail is overlooked.

Our advice is to never be "penny wise but pound foolish." and failing to work with an attorney can result in just that.  In our opinion, the document and filing maze is justification for attorney involvement in and of itself.  We have seen many buyers and sellers get taken advantage of, and we are expanding our real estate practice in part, to help stop that.

Having legal counsel through an arduous process like this just makes sense.  We suggest you retain counsel to protect your interests and to ensure everything is handled according to state and local regulations.

So yes.  The bottom line is you really SHOULD hire an attorney to help with any and all real estate transactions.

What Is a "Free Consultation" with a Lawyer?

What happens in my Initial Consultation?

Any good attorney offers a free initial consultation.  However, many people don't really understand what this first meeting is all about.

What is the Purpose of an Initial Consultation?

The purpose of an initial consultation is twofold.  First, you are there to meet each other.  You need to figure out if you and the attorney "click," and if you will feel comfortable working with that person. Does his style mesh with yours?  Will you be able to meet at a geographically feasible location?  Can your own schedule work with the attorney's hours?

Second, you need to let your attorney know why you are seeking legal help.  What is your specific legal issue?  Have you been served with papers?   What exactly are you looking for your attorney to do for you?  You need to be as specific as possible with both your needs and your expectations.  Both you and the lawyer need to determine whether this will be a good match.

What Do I Need to do?

You need to come prepared.  Bring any paperwork along with you.  If you have been served with papers, you need to bring those along.  If you are looking to initiate action against someone else, bring all of your notes, photos, and any other supporting information that might be helpful.  The more information you can bring, the better the lawyer can determine if you will be a good match to his/her skills.

Also, bring along a notepad and pen.  You should definitely be taking notes.  Tell the attorney if you have interviewed other lawyers or if this is the first.  If there are things you like or dislike in a lawyer, let him/her know.  Try to be as brief and succinct as possible, as you only have limited time.  This is your chance to ask about things like fee structures and retainers as well.

How Long Will my Consultation Take?

Typically, a free consultation lasts about 30 minutes and not more than an hour.  Most attorneys will cut you off at the end of an hour, which is why it's important for you to be organized and succinct.

Here at the Law Offices of Heath D Harte, we do not limit the duration of your free consultation.  We will not cut you off after an hour.  Rather,  our free consultation time is unlimited, and we give the client all the time that is appropriate to fully understand the client's circumstances and the options available to them.

Can I get Free Legal Advice During my Initial Consultation?

The point of the consultation is NOT to give free legal advice.  In fact, at this point, legal advice is usually inappropriate.  A lawyer should NOT give legal advice until he has reviewed the specifics of your individual case.  No two cases are the same.  The lawyer will discuss generalities, rather than specifics, during this initial consultation.  Again, the point is not to give you legal advice, but rather, to determine whether the attorney is equipped to handle your case, and to begin to establish a relationship.  If the attorney is not, he may refer you to another attorney who may be more suitable for your particular needs.

Does This Consultation Establish a "Legal Relationship?"

The consultation itself does NOT construe a "legal relationship."  The point is to determine whether you would like to start one.  Generally, the "legal relationship" begins when you decide to retain the attorney.  This may happen at the end of the consultation, or it may happen at a later date.

So is What I Say Confidential?

Yes.  Everything you say during this consultation is subject to attorney-client privilege.  Thus, you need to be honest and straightforward with the attorney during this initial meeting.

Does This Meeting Obligate Me to  Use That Attorney?

Not at all.  Think of this consultation as a job interview.  It is an opportunity to assess each other and decide if you want to establish a working relationship.  But just like interviewing for a job does not obligate you to take that job, interviewing a lawyer does not obligate you to hire that lawyer.

Does This Consultation Obligate the Attorney to Take My Case?

No.  Again, this is an opportunity to meet one another and to decide if you can work together.  A good attorney will tell you if s/he does not think s/he is the right person for the job.

How Should I Act?

Treat the consultation as you would any other business meeting.  Encourage a dialog.  Ask questions, and be prepared to answer them.  Do not expect office staff to babysit children.  Children are usually best left at home, even if the case involves them in some way.  Do not bring your lunch.  Do prepare ahead of time.  You only have a limited time; make the most of it.

Do ALL Attorneys Offer a Free Consultation?

Not all attorneys do.  This is an important question to ask when you first reach out to the attorney. At The Law Offices of Heath D Harte,  we DO offer free consultations. We realize the importance of a good attorney-client match.  However, other attorneys may charge for your first meeting.  Usually, if a Free Consultation is offered, it will be listed on the attorney's website.

Summary

In this article, we discussed the purpose of an initial consultation with a lawyer.  We reviewed what you should expect, as well as your role in the process.  If you are located in the Connecticut or New York area, and you would like to meet with us, please give us a call or fill out the contact form on our website.

Here at the Law Offices of Heath D Harte, we are committed to serving our clients.  Thus, we believe in the importance of a free initial consultation.  We want you to be comfortable working with us.  We believe that lawyers should be affordable.  We do not believe in "nickle and diming" our customers.  We handle many cases on a contingency basis, meaning many legal actions can be taken with no out of pocket expenses for the client.  And to us, a free consultation is a very important part of the process.

Non-Adversarial Divorce in Connecticut

Non-Adversarial Divorce in Connecticut

New Laws go Into Effect, October 1, 2015

Connecticut has approved two simplified procedures for non-adversarial divorces. Effective October 1, 2015, these processes can speed up the divorce process. They may also eliminate the need to appear in court.

What is Non-Adversarial Divorce?

When people think about divorce, a “War of the Roses” type situation often comes to mind.  This is an “adversarial divorce.” An adversarial divorce is one in which the couple is arguing about how to divide property, custody, etc. Conversely, a non-adversarial divorce is one in which the two parties can compromise, reaching an agreement without an all out war. This does not mean there are no disagreements. Rather, it means the divorcing parties, or more often their attorneys, agree to negotiate their differences.  

As of October 1, 2015, in Connecticut, it is also simplified process by which eligible parties can obtain a divorce within 35 days without having to appear before a judge, as long as you meet the criteria.  An adversarial divorce will take a minimum of three months and involves appearing in court.

What are the Criteria for a Non-Adversarial Divorce?

First, you and your spouse must reach an agreement that is fair to both parties and reflects the best interests of the children, (if any.)  Neither party may “contest” the divorce or “charge” the other with grounds, such as abandonment or adultery.  You must meet residency requirements, and you must file a joint petition in the judicial district in which one of the parties resides.  You also must attest the marriage has broken down “irretrievably.”

What are the New Processes?

The first process is a Non-Adversarial Divorce for those with Limited Assets.  This process shortens the process to a mere 35 days, as long as you meet specific criteria.  In addition, a judge may grant these divorces “on the papers,” which means you will not have to come to court.  To qualify, you must first meet criteria for a non-adversarial divorce.  In addition, you must meet the following conditions:

• Have been married eight years or less;
• Neither person is pregnant;
• No children were born or adopted before or during the marriage;
• Neither spouse has any interest or title in any real property;
• The total value of all property they own is less than $35,000;
• Neither spouse has a company sponsored pension plan;
• Neither spouse has a pending bankruptcy;
• Neither spouse is applying for or receiving Medicaid benefits;
• No other action of dissolution of marriage is pending; and
• There are no restraining or protective orders between the spouses.

What if I do not meet these criteria?

If you do NOT meet these criteria, the second new process may apply to you.  This process allows your attorney to file a motion asking for a waiver of the requisite 90-day waiting period.  To qualify, you must have reached an agreement as to all terms of your divorce.  You must also meet the conditions described above.  This still significantly decreases the time period a traditional divorce requires.

What are the Advantages of Non-Adversarial Divorce?

The advantages are many.  First of all, a non-adversarial divorce is significantly cheaper than an adversarial one.  You can save thousands of dollars by avoiding litigation.  Next, a non-adversarial divorce is a lot less stressful.  It allows you to retain more of a sense of control.  It also takes a LOT less time than a traditional divorce.  Fewer relationships are strained, and parties involved have a greater chance of remaining “friends” after the split.  But perhaps most importantly, it allows you to move on with your life much more quickly.

How do I Initiate the Process?

We recommend you start the process as you would a traditional divorce: by consulting an attorney.  During your initial consultation, stress that you are interested in a non-adversarial divorce.  Question your attorney about his track record handling divorces, and ask how successful your attorney has been in keeping previous cases non-adversarial.  Discuss any “problem areas” you anticipate, as well as areas in which you are willing to compromise.

Final Thoughts

Here at the Law Offices of Heath D Harte, we believe in non-adversarial divorces whenever possible.  Even if you do not think you and your partner will be able to work things out, we still recommend you attempt the non-adversarial route.  After all, that is why you are hiring a skilled attorney.  We often take potentially-contentious situations and turn them into workable ones.  We can negotiate compromises where in areas you did not think were possible.  We believe in keeping the battles behind closed doors, whenever possible, and out of the courtroom.  We celebrate the new Connecticut processes that make divorce quicker and less costly.

If your situation warrants, we highly recommend you attempt a non-adversarial divorce.  (Of course, not all circumstances dictate this route, and if yours do not, we will recommend you take the alternate path.) To facilitate this, we often start negotiations before we file the paperwork.  If we cannot take advantage of the new law, we will go back and negotiate a more traditional divorce.  But we always recommend you take the non-adversarial route, if at all possible.  

The Top 10 Biggest Mistakes In Injury Claims

Common Mistakes in Personal Injury Cases?

Not calling the police: 

If you do not call the police, there is no formal investigation of the accident. This applies especially to car accident claims. If the negligent party or driver denies liability later on, you may have a difficult time proving your case. By calling the police, an officer will interview all involved parties and witnesses, record their contact information, and write a ticket to the party at fault in car accident cases. 

Not getting witness contact information: 

Injury victims often fail to obtain the contact information of witnesses at the scene of the accident. If the witnesses choose to stay and speak to police, this is not a problem; however, witnesses often only stop long enough to make sure everyone is okay and then leave before the police arrive. The scene of the accident may be your only opportunity to get the contact information for any witnesses. Without this information, an insurance adjuster may deny liability and refuse to pay anything to you as an unrepresented injury claimant. 

Not fixing the property damage: 

Accepting and cashing a property damage check without first fixing the damages is another common mistake. The amount offered may end up being less than the amount it takes to fix the damage. Additionally, adjusters often send a check for less than the actual cost of the repairs and hope that you will decide not to repair the property. They can then argue that you were not really hurt and pay you little or nothing for your personal injury claim. 

Giving recorded statements without hiring an attorney: 

Allowing an adjuster to take a recorded statement without the protection and guidance of legal representation can result in serious problems. An adjuster can easily misconstrue your answers in a way that makes it appear as though you were not really hurt in the accident, or that you were partly or wholly liable for its cause. An adjustor's job is to save the insurance company money and he or she will do anything he or she can to do so. 

Signing releases: 

Injured accident victims often sign releases for property damage, only to find out that it was actually a general release that settles any and all claims. After signing such a release, a personal injury claim is no longer possible. Do not sign anything without consulting an excellent injury lawyer. 

Trying to negotiate your claim without a lawyer: 

It may not be a requirement to be represented in a personal injury claim, but that does not make it any less necessary. Insurance adjusters often set the reserves (the value of the case) much lower when a victim is not represented. Verbal settlements are enforceable in Connecticut and New York, and self-represented injury claimants often "settle" their claims verbally on accident, without really intending to settle it. Hiring an experienced personal injury lawyer can prevent this. 

Not using Med Pay: 

Med Pay is health insurance coverage for anyone in your car who is hurt in a car accident, or for you if you were hurt while a passenger is someone else's car. This insurance pays for your medical treatment with any doctor without co-pays or deductible. The amount of your coverage depends on how much you purchased in your policy. 

Not using health insurance: 

This is a mistake since many hospitals and doctors require payment soon after medical treatment is provided. If you do not pay it, the bill is often turned over to collections. Using health insurance, you will pay for your treatment as you go. This can greatly increase the total amount you will net out of your personal injury settlement. Good personal injury attorneys can often negotiate away or negotiate huge reductions in any health insurance subrogation claims. 

Not using uninsured motorist coverage: 

Uninsured Motorist (UM) coverage and Underinsured Motorist (UIM) coverage protect individuals who are hit by motorists with little to no insurance of their own. Any remaining balance after the liable party's insurance runs out will then be covered by your own insurance. Normally, your rates do not rise when you use UM or UIM coverage. You must have this coverage under your insurance policy, however, in order to obtain coverage for your damages. 

Not getting medical treatment: 

Just because you do not have health insurance does not mean that you shouldn't get medical treatment. If you do not get treated, an insurance adjuster may argue that you were not really injured and deny you coverage. Good personal injury attorneys can get you to doctors who treat on a lien. They can also get you pain management and surgeries using medical funding companies. It is also important to avoid long gaps in treatment, once more to prevent adjusters from claiming that your injuries are nonexistent or less severe than they truly are. 

Other mistakes:

Not consulting with a Lawyer:

One of the biggest mistakes you can make is trying to handle a personal injury claim on your own.  Most likely, your award will be far less than you deserve. This applies in ALL injury cases, including auto accidents, negligence claims, slip and falls, etc.   You may miss an important mistake in the claims process and end up not getting anything at all.  A skilled attorney can ease the process, lessen your stress, and maximize your awards.

Not filing in a timely manner.  

Injury claims have strict statutes of limitations.  You MUST ensure your claim is filed within the 2 year period allotted.  If you do not file EVERYTHING in a timely manner, your claim will be denied.

Consult With A Personal Injury Attorney Near You

A good attorney wants to help you win a full recovery of your personal injury damages. However, any lawyer can more easily fight for you if you do not make these mistakes when the incident occurs. An attorney can still help you, even if you have made some of these mistakes, but it is likely that any award may be smaller.  It is best to be proactive and learn not to make these mistakes before you are injured.

Of course, here at the Law Offices of Heath D. Harte, we have decades of experience.  We will skillfully assist you in avoiding these common mistakes. And we will help mitigate the damages caused if you have made any of these mistakes. We treat each client as part of the family and will support and guide you through each step of your injury claim.  

If you are in the New York or Connecticut area, we can help you with your injury claim.  Contact us now to schedule your free consultation and speak with a lawyer. You only have two years to file a personal injury claim under the statute of limitations, so contact our firm right away!

Five Considerations in Choosing a Lawyer

5 Considerations in Choosing a Lawyer

There are a slew of lawyers in every town, all of whom are telling you that they want to be YOUR lawyer. When you find yourself needing a lawyer, how do you choose? Here are some considerations to help you narrow down your choice.

 

1. Big Firm or Little Firm?

 

Some legal firms are huge. Their firms' names have 5 or 6 partners listed, and the firm employs dozens of other legal personnel, from Associate Attorneys to paralegals to legal secretaries. At the opposite end of the spectrum are firms composed of a single attorney. Which is right for you?

With a larger firm, much of your case will be handled by staff, rather than by your attorney. In fact, each piece of your case might be assigned to a different individual. When you call the firm, the receptionist will have to pull your file to see the appropriate person to whom to direct your call. You may rarely speak to “your attorney,” but usually will speak to one of the junior staff assigned to assist with your case. One attorney may handle settlement negotiations, while a different person will be assigned your case if you go to trial. One individual may prepare documents while a different person executes them. If you retain that firm again in the future, you may be working with an entirely different set of people. One lawyer will handle your divorce, different lawyer will handle your will, and another will handle that DUI.

With a smaller firm, you will get more individualized attention from your attorney. When you call the office, you will generally speak to one of two people: the lawyer himself or his assistant. Any future cases will be handled by these same individuals. You will be working with the same person through document preparation, settlement negotiations, and litigation. The same attorney will handle your divorce, custody settlements, will and preparation. If a few years later you get a DUI, you will be again working with the same attorney.
If a personal experience is important to you, you may want to consider going with a smaller firm. Your lawyer will get to know you with your first interaction, and s/he will be familiar with who you are when s/he handles future cases.

 

2. Areas of Practice

 

Some lawyers specialize, handling only cases that fall under a specific aspect of the law. There are lawyers that specialize in Condo Association Law, attorneys that specialize in Wills and Trusts, and firms that specialize in Personal Injury. Other law offices practice in many different areas of the law. Which is right for you?

Generally, the specialists are part of larger firms. Again, individuals within the firm have a specialized area of expertise. One personal injury lawyer may only handle car accidents, while a second in the firm only handles slip and fall incidents. One attorney may prepare your will, while a different attorney prepares your real estate trust.

With a smaller firm, the same attorney will handle both the will and the real estate trust. S/he will also handle your car accident and your slip and fall.

You might assume that the specialist will be cheaper in the long run, as s/he does not have to do as much research to effectively handle your case. Although it may be true that a single area lawyer can cite case law off the top of his/her head, you still want your attorney to research the latest case law that may apply. This is one area where skimping may be foolish. Chances are that firms of all sizes will need to do the same amount of research on your case.

Another consideration is the states in which the firm does business. To practice in any state, an attorney needs to pass the Bar Exam in that state. It is important to ensure your attorney can practice in the state where you need services.

Larger firms tend to have offices in multiple states. Smaller firms tend to practice in only a couple of states. If you own investment property in 6 different states, it might make sense to go with a specialized firm with offices in those states. Or, your lawyer may recommend s/he consults with such a firm should you require services in an area s/he doesn't practice.

Usually, as a client, you only need to worry about services in your own state and the adjacent ones. Most smaller firms maintain relationships with the specialized firms so that they may work together, when necessary, to meet your needs.

 

3. Convenience

 

Let's face it; we're all busy. None of us seem to have enough hours in the day. Any legal case brings enough stress along with it. You need to choose a lawyer who will work with you, on your schedule, and be convenient.

Does your lawyer insist that you come see him for every interaction, or after the initial consultation, does s/he work with you by phone, text, and e-mail as much as possible? Does your attorney work bankers hours? Or will s/he alter his/her schedule to meet with you after your work hours have finished? Are the offices easy to get to? Can you reach him/her at 1 am from your jail cell? Can s/he arrange for a bail bond if necessary?

Working with your lawyer should be as easy as possible for you. If it is not, you may have chosen the wrong attorney.

 

4. Payment

 

Lawyers are available at all price points. Many require large retainers up front. Other lawyers work on a contingency basis. Some lawyers cannot work within a budget; others will. Some lawyers require payment up front. Some lawyers offer payment plans. Some lawyers charge for travel time to court.

For some people, the price of their defense is no object. For others, money is tighter. It is important to discuss money and payment when choosing your attorney. Often, a contingency type arrangement ends up being a lot more expensive for the client. Sometimes though, contingency is the only way you can afford to pursue your case.

With the law, price and quality are not necessarily the same. Often, a too plush office is a sign your lawyer cares more about padding his wallet than about justice for you. Excellent representation is available at all price points. A good attorney should be able to quote you a ballpark range for your case. The initial consultation should be free. Ensure you choose a lawyer whose prices are in line with what you can afford. Be wary of attorneys that demand complete payment up front.

 

5. Personality

 

Last but not least, you need to choose an attorney with whom you can work. If your personalities clash, your defense will suffer. You need an attorney who you can trust and respect. Now this does not mean your attorney should become your BFF. It does mean that you should feel comfortable speaking with your lawyer. You should trust in your attorney's values and ethics. You should feel like a valued customer. You should be able to get your questions answered in a way you can understand.

That first consultation should be like an interview. If your gut tells you this is the wrong attorney, retain a different one. Likewise, you should feel comfortable with the office staff.

 

Summary

 

Choosing a lawyer can be stressful. But if you keep several things in mind, you can make an effective choice. Consider the size of the firm and how important a personal relationship is to you. If you want an attorney who recognizes your voice on the phone, you may want to consider going with a small firm. You also need to consider the practice areas, both in terms of subject and location. Your lawyer should be convenient to work with and accessible through whatever means you prefer. His work hours should also mesh with your schedule. Your ideal attorney will offer payment options and plans individualized to you. S/he should also be someone you can trust, respect, and just generally get along with. S/he should be able to meet both present and future legal needs.

Here at the Law Offices of Heath Harte, we realize you have a large choice of attorneys from which to choose. We are a small firm, and we believe in individualized, convenient services for all of our customers. We can handle a variety of legal issues, from personal injury, to criminal, to family, to wills and trusts. We offer convenient payment options and convenient payment plans. We believe in getting to know you as a person so we can better handle all of your legal needs. We hope, if you're located in the New York-Connecticut area, that you will consider us when choosing a lawyer. We invite you to our offices for a free consultation so that you can see if we can successfully work together. And we truly believe in law with a personal touch. If you are outside of the Westchester-New York-Fairfield-Greenwich-Stamford area, we hope you will be able to find a firm with the characteristics of our own.