by Andy Chen | Jun 20, 2018 | California, Individual, Law, in real life
Retaliatory eviction is one of the things that often arises when the relationship between a landlord and a tenant in California sours. As you can perhaps guess from the name, the landlord is evicting the tenant in retaliation for something the tenant did. As you should hopefully also be able to guess, the word “retaliation” implies a timeline — the landlord must evict the tenant for something they have already done. In other words, the tenant must do something first and then the landlord must evict them in retaliation. A tenant cannot claim the landlord is evicting them out of retaliation when the eviction came first and the tenant’s action came second. (True story: I once had a case where the tenant tried to do this.) The governing statute for residential retaliatory eviction in California is section 1942.5 of the California Civil Code. In this blog post, we’ll go over it. As usual, this post will just be an overview and will – by no means – be an exhaustive description. Please take a look at the full text of Section 1942.5 yourself or consult an attorney in your area regarding your particular situation. If you are in a commercial landlord-tenant situation, retaliatory eviction under Civil Code 1942.5 does not apply to you, but you may have an equivalent against retaliatory eviction under a 1981 California Supreme Court case called Barela v. Superior Court, 30 Cal.3d 244. Section 1942.5 of the California Civil Code basically establishes three categories of activity that could qualify as retaliatory eviction. A lot of stuff can qualify as retaliatory eviction, but not everything. In my experience,...
by Andy Chen | Jun 17, 2018 | Individual, New York, Statutes... and stuff
In general, it is a good idea to have agreements and contracts in writing. A writing is generally more clear and less susceptible to jaded recollection than an oral agreement, for instance. In some instances, however, the law requires that an agreement or contract must be in writing in order to be enforceable. This requirement for a writing is called the Statute of Frauds. In California, the Statute of Frauds is in California Civil Code section 1624. In mid-2017, I made a Youtube video in which I went over California’s Statute of Frauds. I have a bunch of other videos on my Youtube channel as well. Most are California-focused because that’s where I practice primarily, but I am trying to add more New York videos. Due to New York Judiciary Law section 470, though, (see below), my New York videos are going to go over statutes and other publicly-available legal resources only. Anyway, take a look around the channel and subscribe. New York has the Statute of Frauds as well. The idea is the same — namely, that certain agreements and contracts must be in writing in order to be enforceable — but as is usually the case, the implementation varies from state-to-state. In other words, New York’s Statute of Frauds requires different agreements be in writing than California’s Statute of Frauds does. New York’s Statute of Frauds is codified in New York General Obligations Law Section 5-701. I’ll go over that section briefly, but I encourage you to take a look at the actual statute section in order to get a complete description of what agreements are covered....
by Andy Chen | May 16, 2018 | Estate Planning, Individual, New York, Statutes... and stuff
Every so often, I get questions in California about how to do a probate for someone who died but left very little or no assets. It got so frequent at one point that I made a video about it for my Youtube channel on the California process. The idea of a summary — or quick — probate process for someone who left little or no assets is not unique to California. This post discusses the Small Estate Affidavit Process for New York. As an initial matter, though, I have to clarify that I do not take cases in New York because — while I have been licensed to practice law there since 2012 — New York also requires under New York Judiciary Law section 470 that lawyers maintain a physical office within the state of New York too. I don’t so I don’t take clients or cases there. I do, however, know plenty of lawyers all throughout New York so if I can make a referral to help you solve your problem or move your case forward, feel free to get in touch. Because I don’t have an office in New York state, I have never done the NY Small Estate Affidavit Process myself so I have no first-hand experience to operate from. All of the below is simply due to my, ahem, excellent legal research skills. Anyway, that said, the applicable law for the New York Small Estate Affidavit Process is New York Surrogate’s Court Procedures Act (NYSCPA) Section 1301 and onward. (That’s Article 13, in case you need an Article). The basic idea for the New York...
by Andy Chen | May 13, 2018 | California, Estate Planning, Individual, Law, in real life, Statutes... and stuff
Last time, I posted about how to omit, disinherit, or otherwise leave your spouse out of your will. The rule there was that under California Probate Code Section 21610, you can’t disinherit your spouse by simply not mentioning them in your will. California will assume that such an omission was accidental and give your spouse an intestate share anyway. This time, we’re going to talk about disinheriting your children. The rule is very similar to disinheriting your spouse, except this time, we’re talking about California Probate Code section 21620, simply not mentioning your children in your will is not enough to disinherit them. Unless you can prove one of the section 21621 exceptions apply, California will assume you didn’t mention your child by accident and then give them a share equal to what they would have gotten under intestacy. One reason for this is that California recognizes that while people should update their estate planning documents after life-changing events (e.g. getting married, having kids, etc), not everyone does that so every will and trust will always be out-of-date and can’t be read literally. As with omitting your spouse, there are a few ways in which you can actually leave your children out of your will completely. Those ways are enumerated in Section 21621 of the California Probate Code. You left your child out of your will intentionally and that intention is apparent from the will in some way, You left property to the parent of the child instead of leaving the property to the child directly, or You provide for the child in some other way outside of your...
by Andy Chen | Nov 7, 2017 | California, Individual, Law, in real life, Statutes... and stuff
If you’re in California and either contemplating a divorce or just learning about them just in case, one important distinction to know is whether your marriage is “short-term” or “long-term”. As I’ll explain, it’s not a difficult distinction to keep straight, but it is important to know for at least two reasons: (1) different rules apply depending on which category your case is in, and (2) lawyers and judges will often use the words “short-term” and “long-term” very casually so it’s important to know what they mean. Simply put, a marriage is “short-term” is generally one that is less than 10 years in duration. Conversely, a marriage is generally “long-term” if it is 10 or more years in duration. See California Family Code section 4336(b). This 10-year mark is not set in stone, though. It is possible for a long-term marriage to be less than 10 years long and for a marriage longer than 10 years long to be considered short-term. As with many things in the law, it all depends on the situation. There are many areas in which this short versus long distinction is important. The most common one I see is when it comes to determining permanent spousal support under California Family Code section 4320, specifically section 4320(l). If your marriage is short-term, section 4320(l) can place a limit on the duration of permanent spousal support of half the length of the marriage. If your marriage is long-term, then this “half the length” limitation may not apply. As I said earlier, though, there is no way to say for sure whether your marriage is long or...
by Andy Chen | Sep 12, 2017 | California, Individual, Law, in real life
In a divorce case, one of the big things that the courts in California will decide is custody and visitation of any minor children that the divorcing parties may have. I haven’t checked, but this is probably not unique to California. As always, check the laws of your particular state or country, but if you’re in the United States but outside of California, the court presiding over a divorce will likely determine child custody and visitation also. To be clear, custody and visitation are not interchangeable terms. As they are commonly used in California, “visitation” refers to the schedule by which the child will visit with the parent they do not regularly live with. For instance, if the child lives with Mom regularly, then visitation refers to the schedule under which the child visits with Dad. There could be a visitation schedule for regular or routine weeks and a different schedule for other times of the year, such as holidays and the child’s summer vacation from school. Custody — again, as used in California — refers to two kinds: (1) legal custody, and (2) physical custody. Legal custody refers to the right of a parent to decide things related to the child’s schooling, medical care, and religious education. As a rule of thumb, legal custody is at play whenever a parent has to sign a permission slip (e.g school field trip) of some kind for the child to do something. Physical custody refers to who the child lives with. A common custody arrangement might, therefore, be “shared legal custody and primary physical custody to Mom with Dad having visitation”....
