Revocable Living Trusts for Second Homes – By: Tim Brynteson- Published in the BizWest Thought Leader column in July 2018.

Many residents of Colorado own real estate in other states.   If you own a condo, townhome or other piece of real estate in such popular destinations as Florida, Arizona or California, you may want to consider holding the property in a Revocable Living Trust located here in Colorado.   While many people will not opt for a Living Trust as their preferred estate planning vehicle for various reasons, if you own property in a different state, you should consider forming a Living Trust for the sole purpose of holding the real estate.   The reason is to avoid the necessity of opening a probate proceeding in the different state.

While the Colorado probate system is fairly inexpensive and simple to navigate, other state systems can be more complicated and expensive, not to mention simply the need to hire an attorney and navigate a different state’s system.

When you die, someone must have the authority to sell your real property.  In Colorado, opening a probate proceeding is required to Personal Representative (“P.R.”) being appointed.  The P.R. is issued “Letters Testamentary” which provides them the authority to sell property from your estate.  If you own property in another state, your estate’s P.R. will need to go to Arizona (as an example) and open what is called an “Ancillary Probate” to receive the authority to sell any real property in Arizona.   However, if your Arizona property was owned by a Living Trust you established here in Colorado, your successor Trustee has the authority, without the need of opening a probate, to sell any property in the Living Trust – even in Arizona.  If you already have a Living Trust as your primary estate planning vehicle, just transfer the property into it.  If you do not currently have a Living Trust, but own property in another state, you may want to consider this option to ease administration of your estate after your death.

Jennifer Peters Featured in BizWest

Each month BizWest invites a business leader to reflect on the issues affecting his or her industry. This month, BizWest asked Jennifer Peters to discuss issues facing her firm and the professional role she plays in the community.

To read the article click on the following link:

https://bizwest.com/2018/06/27/one-on-one-with-jennifer-peters-otis-bedingfield-peters-llc/?member=guest

Transfer on Death Provisions – By: Brandy Natalzia- Published in the BizWest Thought Leader column in June 2018.

What happens to a member’s membership interest in a limited liability company (LLC) upon his death? Generally, a death should be treated as nothing more than a transfer of interests between the deceased member and the person who is that member’s rightful heir. But what about any restrictions on transfer spelled out in the Operating Agreement? There is case law that holds that the express language in contracts (here, the Operating Agreement) addressing the disposition of the membership interest trumps contrary language in a testamentary instrument, such as a will or trust.

And what if the LLC is a single-member LLC and that sole member dies? When the decedent operates a viable business in a single-member LLC, significant value can be lost to the estate if the LLC is dissolved upon the death of the member. If there is no provision within the single-member LLC’s Operating Agreement for the transfer of ownership to someone else, the LLC can become an asset of the decedent’s estate. As such, it may encounter tax and probate problems. The LLC may be divided among family members, dissolved, or even sold off to people the decedent did not choose.

Consider the use of and effect of a Transfer on Death (TOD) registration of the LLC interest under the Uniform TOD Security Registration Act. Arguably, this can be used to name a TOD beneficiary of the LLC interest within the Operating Agreement. Although the TOD designation may be a powerful estate planning tool for the members, it may be difficult procedurally for the remaining members when a member passes away. It is important for the members to discuss whether they want to allow TOD designations when the Operating Agreement is being drafted and then to work with an experienced business lawyer who can help ensure that any TOD designations for the membership interests are recognized.

Thanks to BizWest for recognizing Otis Bedingfield, and Peters at the Mercury 100 awards for fastest growing companies in Northern Colorado. We are proud to be one of such an elite group of organizations from Fort Collins, Loveland, Windsor and Greeley.

Thanks to BizWest for recognizing Otis Bedingfield, and Peters at the Mercury 100 awards for fastest growing companies in Northern Colorado. We are proud to be one of such an elite group of organizations from Fort Collins, Loveland, Windsor and Greeley. 

Adverse Possession: Losing the Farm Without Even Knowing It – By: Lia Szasz – Published in the BizWest Thought Leader column in May 2018.

Did you know that, under Colorado statute, someone can obtain title to your land without paying for it? Under the doctrine of adverse possession, if someone uses your land continuously for 18 years, it may become theirs. This doctrine became famous when a retired judge in Boulder obtained title to part of his neighbor’s property through adverse possession, and a lengthy (and expensive) legal battle ensued.

However, there are actions a landowner can take to prevent this from happening to them. While adverse possession is a concern for all Colorado landowners, it is especially important for those in agriculture, who often have hundreds or even thousands of acres of land. For example, if a neighboring landowner’s fence line is placed somewhere other than the true property line on a ranch, a portion of the ranch could become the neighbor’s property if the fence line stands for 18 years. Those in agriculture should take care to periodically monitor their ground for use by any third party and to put a stop to it.

On the other hand, if you’re buying a farm or ranch, it is also important to have a survey completed to determine the true boundaries of the property. Often, agricultural land is kept in the same family for generations, and a fence line may not reflect the true property line. When someone from outside the family purchases some or a part of that property, a survey may keep you from buying something you did not expect—the defense of an adverse possession claim. A competent attorney can assist those in agriculture, as well as any landowner, in ensuring that they are protected from losing some or all of their real estate to adverse possession.

ARE YOU THE CONTROLLING TYPE?

By: John Kolanz

A version of this article was published in the March 2018 BizWest Thought Leaders column.

If so, and you own property on which tenants engage in certain regulated activities, you should consider consulting a specialist for a little preventive care – legal, not medical. Controlling the activities of these tenants can draw enforcement against the property owner when the tenants’ operations raise environmental compliance issues, as a recent federal case illustrates.

The case involved a sportfishing group that sued an industrial park owner for Clean Water Act (“CWA”) violations caused by discharges of polluted storm water. The fact that any pollutants in the storm water were put there by the tenants did not protect the landlord. The court held that “owners and/or operators who have sufficient control over a facility can be held liable under the CWA even if they do not themselves perform the industrial activities that create the pollutants in the storm water discharge.” Here, the landlord owned and controlled the storm water drainage system from which the pollutants were released.

Operations requiring storm water permits are not uncommon, and can include transportation, food processing, and recycling businesses, as well as construction activities. The requirement can also apply to other operations on a case-by-case basis.

Moreover, this potential enforcement trap for landlords goes beyond CWA concerns. Owners who exert control over their tenants’ waste management practices may also risk enforcement. In recent years, retail outlets like hardware stores, pharmacies, and even groceries have been targeted by hazardous waste enforcement actions. This is because many common products like drain cleaners, over-the-counter drugs, and hand sanitizers can be considered hazardous wastes under certain circumstances.

Thus, a tenant’s business may not necessarily raise a red flag. Landlords should consider how monitoring protocols or proper lease provisions could provide protection from the environmental afflictions of their tenants, and save the expense of a pound of cure.

Surprising Scope of Asbestos Regulation

By: John Kolanz

A version of this article was published in the January 2018 BizWest Thought Leaders column.

Most know that asbestos is bad stuff. However, building owners are often surprised to learn that federal and state asbestos requirements can capture routine activities such as minor renovation and even cleaning.

Asbestos was a popular building material for years. While mostly associated with older buildings, its use was never completely banned, so asbestos can be present even in newer construction. In fact, except under limited circumstances, one must assume asbestos is present, and take appropriate action, before conducting demolition or renovation work.

Owners of commercial properties, even small ones, that contain asbestos are required to protect employees, tenants, and contractors from exposure through training, notice, and work practices. Willful ignorance of asbestos requirements is not an effective compliance strategy. One call from a concerned neighbor, angry former employee, or unsuccessful contract bidder can trigger civil, or even criminal, enforcement.

Asbestos risks can be managed. Understanding how to do so will allow current and prospective building owners to protect their investments.

Work/Family Boundaries: Your Attorney Can Help- By: Christian J. Schulte- Published in the BizWest Thought Leader column in January 2018.

As a litigator in a business law firm, I have seen the best and worst of family businesses. When they work, they work great, for intuitive reasons: family know and trust each other, they share values, they want to maintain a generational tradition. But when they sour, they are horrible. Family business dissolutions are like divorces: parties supposedly fighting over fair asset division are really fighting over hurt feelings and deeper family conflicts.

This Forbes article: https://www.forbes.com/sites/nextavenue/2017/03/08/how-family-businesses-can-set-workfamily-boundaries/#13f6abc62a80 is worth reading. The authors do not, however, mention that legal advice is essential too.

During formation, your attorney will consider things you might not. For instance, you may not think that a sibling, spouse, or child might leave the business, because of new interests, divorce, or an untimely death. Does your business have a buyout provision that lets someone separate without crippling the business? Is your agreement fair to the heirs of a deceased partner? Your attorney can help you make conscious decisions about these issues, instead of leaving them to spring up during a crisis. Hopefully, this makes litigation less likely.

When are falling apart, however, you should consult a litigator early. A litigator such as myself would give you a sense how much litigation can cost and your likelihood of prevailing, but more importantly would help you think about your case dispassionately. Family members may try to “guilt-trip” you into an unfair settlement, or you might be taking an untenable stance motivated by non-business considerations. Regardless, your litigator’s goal should be to help you stop and think, Is this really what you want to do?

Ultimately, whether you want to pursue settlement or a full lawsuit, your litigator’s job is to help you carry out your decision. But that decision should be your informed decision, not an unfortunate gut reaction.

Otis, Bedingfield & Peters, LLC is pleased to announce that attorney Jennifer Lynn Peters has been certified as a member of Lawyers of Distinction.

Otis, Bedingfield & Peters, LLC is pleased to announce that attorney Jennifer Lynn Peters has been certified as a member of Lawyers of Distinction.

The Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States.   Membership is limited to the top 10% of attorneys in the United States. Members are accepted based upon objective evaluation of an attorney’s qualifications, license, reputation, experience, and disciplinary history.

Widely known for organizing the 19th Judicial District Bench-Bar Committee’s Annual Nuts & Bolts CLE, now in its 14th year, Jennifer routinely gives presentations on real estate law, business law, and ethics. She also volunteers as a mediator for the Weld County courts, and was the recipient of the Weld County Bar Association’s Andrew Borg Award recognizing pro bono service in 2009. Ms. Peters was named a Rising Star by Colorado Super Lawyers Magazine in both 2011 and 2012, and is a member of the board of directors of CREW Northern Colorado and the Weld Food Bank. Jennifer was inducted into the 40 Under 40 Hall of Fame by the Northern Colorado Business Report. She was awarded a certificate of completion of the Commercial Real Estate Women (CREW) Leadership Program.

“It is a tremendous honor and I am humbled to be selected for this certification.   It is great to work with a talented and supportive team of lawyers and staff at our firm that make it possible for me to support our Northern Colorado community and provide such a high level of legal services to our clients,” said Jennifer Lynn Peters.

Lawyers of Distinction does not offer membership to more than 10% of attorneys in any given state. Lawyers of Distinction uses it own independent criteria, including both objective and subjective factors in determining if an attorney can be recognized as being within the top 10% of attorneys in the United States in their respective field. This designation is based upon the proprietary analysis of the Lawyers of Distinction organization alone, and is not intended to be endorsed by any of the 50 United States Bar Associations or The District of Columbia Bar Association. Please see the website www.lawyersofdistinction.com for further details concerning membership qualification.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 16 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.