NOT INTENDED TO BE LEGAL ADVICE.

1.  Should I have an attorney review my listing agreement?

Absolutely.  An attorney can help point out items in the listing contract that will net you more from the sale of the home than you may have gotten.  At attorney can also talk you about things like real estate agents’ dual representation clauses and how they may affect you.

2.  Do I really need an attorney?

An attorney is highly recommended regardless of whether you are the Buyer or the Seller.  There are many different types of sales contracts being used in the marketplace, including various revisions thereof.  A real estate attorney can help negotiate terms to the Sales Contract that will protect you in case the sale of the home falls through.  Attorneys also become the focal point for document requests and preparing closing documents, thereby freeing you up to prepare for the big move without having to worry about all the legal details necessary.  Your attorney will also prepare any required legal paperwork, including the deed.  An attorney will also sit with you through the closing and explain what you are signing and why it is required.  Without an attorney, you will have to manage the entire process and prepare legal documents yourself.  An improperly executed or insufficient document can kill the sale at the closing table.

3.  What is Title Insurance and Do I Need it?

Title insurance is protection against loss arising from problems connected to the title to your property.  It is meant to protect an owner’s or a lender’s financial interest in real property against loss due to title defects, liens or other matters.  It will defend against a lawsuit attacking the title as it is insured, or reimburse the insured for the actual monetary loss incurred, up to the dollar amount of insurance provided by the policy.  Is it required?  If you are going to take out a loan to buy the property, then you will be required to purchase title insurance, although our office always recommends that you purchase it anyway,

4.  What Type of Loan Do I Need?

While not necessarily a legal question, there are many different types of loans and programs available to Buyers.  Fixed rate mortgages and variable rate “ARM” mortgages are amongst the most popular.  There are also home buyer programs, such as FHA backed loans, that can help you receive a lower rate or allow you to put a lower down payment down.  A mortgage broker or lender can help you select the best type of loan based on what you want to do with the home and length of time you plan on living there.

5.  Do I Need Homeowner’s Insurance?

Homeowner’s insurance is mandatory if you are taking out a mortgage.  Every lender you encounter will require that you purchase it, and if you do not, they will take out a policy for you and pass the premium down to you.  Beware the double-dip.  The lender may not know you independently purchased insurance and they may charge you for it anyway.  Other times, a lender may make a mistake and charge you for it regardless of whether you told them about purchasing your own policy.  Always make sure to read your lender’s monthly statement to make sure you aren’t being charged extra!

6.  What is an escrow account?

An escrow account is a bank account that your lender opens for you.  As part of your monthly payment, your lender will likely take out an additional amount for real estate taxes, insurance, and PMI.  The lender will then make direct payments to the county (for taxes) and to the insurer (for PMI and homeowner’s insurance).  Be careful to monitor that your bank is actually paying your taxes!  Sometimes, the bank will make a mistake and not pay your taxes, which will cause you to assess late fees, and possibly even send you into foreclosure for uncollected taxes.  When property tax time rolls around, ALWAYS make sure the tax has been paid.

7.  What is PMI?

PMI is “Private Mortgage Insurance.”  PMI is extra insurance that lenders require from most home buyers who obtain loans that are more than 80 percent of their new home’s value.  PMI plays an important role in the mortgage industry by protecting a lender against loss if a borrower defaults on a loan and by enabling borrowers with less cash to have greater access to home ownership. With this type of insurance, it is possible for you to buy a home with as little as a 3 percent to 5 percent down payment. This means that you can buy a home sooner without waiting years to accumulate a large down payment.

NOT INTENDED TO BE LEGAL ADVICE

Starting a business can be both an exhilarating, yet stressful event… we should know!  There are many things to consider when deciding to go in to business, most of which we can’t cover here, but here are 5 important things you should consider before beginning.

1.  Type of entity:

The type of entity you select will govern how you run your business and how you are taxed.   Types of entities include Sole Proprietorships, Corporations, Partnerships, and Limited Liability Companies.   Each has advantages and disadvantages in terms of annual reports, taxes, and liability.  An attorney can help explain the different types of entities, the protection each type offers and assist.  An attorney can also help you file the proper paperwork with the state and help put an operating agreement in place so that you and your partners, if you have any, know the rules if one of you has a disagreement or wants to leave the business.

2.  Chose a name for your business:

What’s in a name?  Your company name is your brand.  Customers associate your company name to your product and the goodwill your company has worked hard to build.  You don’t want others to trade off on your name and make an easy profit skimming off your sales.  Protecting your name and brand is therefore probably one of the smartest things you’ll do.  An attorney can talk to you about different naming conventions and how you can best protect your name and brand under both federal and state statutes.

3.  Should I get an accountant?

One question that many clients ask is whether they should hire an accountant.  An accountant is an instrumental player in your business.   As your business grows, managing accounts payable and receivable, handling payroll, and paying quarterly and yearly taxes will get more time consuming to manage, taking you away from doing what you originally wanted to do when you started your business.  We always recommend that you find an accountant that best meets your personality and management style, and work with them in managing your business.

4.  Are you going to hire employees or consultants?

While good employees can be some of your valuable assets, they can also become your worst liability.   A business owner must be aware of whether an employee or consultant is going to, unbeknownst to them, keep rights to creative works, technical drawings and designs, and even trade secrets, and then use them against you.  An attorney can help you figure out whether you need an employee contract, and if you do, what you need to put into that contract.

5.  Where will you work?

Finding where you will run your business is a very important step in starting a business.  Whether you want to sell goods from a store, offer services from an office, or manufacture goods in a small shop or plant, you must first find a location and then either lease or purchase the space.  An attorney can help you navigate the world of sales contracts and leases and assist you in negotiating the best possible terms for your place of business.

For more information, please feel free to speak to one of our attorneys.

As you undoubtedly head over the last few months, the “Internet” was up in arms over a proposed House bill, SOPA.  SOPA was the Stop Online Piracy Act.  Amongst its many iterations and various ever changing provisions, this bill imposed criminal liability against copyright infringers, forced the registries to manage and block others from visiting international infringing sites, and even forced search engines to filter out infringing content.  It was a virtual powder keg waiting to explode, with opponents stating that it would significantly impede freedom of speech and expression.  After a large outcry from the “Internet,” the bill was eventually killed.

What people didn’t see though, was a treaty named ACTA, that was silently enacted during the SOPA battle.  ACTA is the “Anti-Counterfeiting Trade Agreement.”  The agreement was signed on 1 October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States.  The EU followed suit shortly thereafter.

ACTA Supporters have described the agreement as a response to “the increase in global trade of counterfeit goods and pirated copyright protected works”.  The treaty (it’s not yet a bill and does not yet have any legislation supporting it) is broad in its scope.  It calls for both criminal and civil penalties against those infringing against intellectual property on “an economic scale.”  It calls for signatories to allow for border searches and further calls out for international cooperation in pursuing infringers.

In the digital environment,  enforcement should be available “to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment.”  Infringement over digital networks (possibly including “the unlawful use of means of widespread distribution for infringing purposes”) should be enforced in a manner, which “preserves fundamental principles such as freedom of expression, fair process, and privacy.”

One must note that many of the items called out in ACTA are already in place in the United States.  The DMCA governs piracy and infringment online, the Copyright Act and the Lanham Act protect against copyright and trademark infringement, and we already do border searches and cooperate with other nations trying to enforce their citizens’ intellectual property rights.

So, what will ACTA look like in the United States?  The treaty as written, is broad and sometimes contains a very low threshold for infringement liability.  Will another SOPA come about again, or will Congress provide for a more measured approach that protects the rights to freedom of speech and expression?  The laws as they currently are may not suffice to cover the requirements of ACTA, so it will be interesting to see exactly what Congress may come up with.  Until then, we will have to wait with baited breath.

As I was perusing the web today, getting ready to search for “Cyber Monday” deals, I ran into this article reporting that Chic-fil-A is suing a Vermont man for trademark infringement:

(http://finance.yahoo.com/news/vt-artist-ill-fight-chick-141222247.html).

Chic-fil-A apparently has a registered trademark for: “Eat mor chikin.”  Chic-fil-A ads use cows, who cannot spell, to promote this phrase and promote the consumption of chicken instead of beef.  Funny, right?  This man’s alleged infringing use?  “Eat more Kale.”  To the common consumer, they may look at this and think, “Really?”  You know what, they are probably right!

The test for trademark infringement is whether there is a likely of confusion to the consumer.  Said differently, is the consumer going to be confused as to the source of goods?  Here, we have a man using “Eat more Kale” on t-shirts and sweaters to promote the benefits of local agriculture.  He spells the sentence correctly and does not depict anything related to chicken, sandwiches, or Chic-fil-A.  According to Chic-fil-A, “eat more” is their sole intellectual property and must be aggressively protected.

So, what do we really have here?  Do we have blatant trademark infringement or use of a generic term, which does not deserve trademark protection?  To me, as a humble observer, it seems like Chic-fil-A is using its extensive litigation budget to protect an interest in a trademark that probably wouldn’t receive protection in the courts.  But that issue, and corporate bullying, is an entirely different blog post.

Best Regards,

Konstantinos Muhtaris and Emily Sherrer