Inadequate Security and Liability for Criminal Attack Edited by Kenneth Vercammen Many people are injured when attacked on a business property, when the property owner fails to provide adequate security. Injured persons may be able to recover damages plus payment of medical bills. The New Jersey Supreme Court in Kuzmicz v. Ivy Hill Park Apartments, 147 N.J. 510. (1997) reviewed liability for injuries suffered by people attacked. The duty of landowners for injuries that occur on their premises, the analysis no longer relies exclusively on the status of the injured party. Instead "[t]he issue is whether, in light of the actual relationship between the parties under all of the surrounding circumstances, the imposition of a duty on the landowner is fair and just." Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)). For off-premises liability, the issue is substantially the same. In both contexts, however, the analysis is fact-sensitive. Hopkins, supra, 132 N.J. at 439. Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Snyder v. American Assn of Blood Banks, 144 N.J. 269, 292 (1996); Crawn v. Campo, 136 N.J. 494, 501 (1994); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962). Foreseeability of injury to another is important, but not dispositive. Snyder, supra, 144 N.J. at 292; Carter Lincoln-Mercury v. EMOR Group, 135 N.J. 182, 194 (1994). Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty on a landowner is the nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty. Dunphy, supra, 136 N.J. at 108; Hopkins, supra, 132 N.J. at 439; Goldberg, supra, 38 N.J. at 583. Landlord liable to Tenant Consistent with that analysis, the Court has found a landlord liable to a tenant for damages resulting from a burglary when the landlord failed to replace a broken dead-bolt lock on the tenants apartment. See Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975). The apartment house was in an area where break-ins were common, and the landlord had assured the tenant that it would repair the lock. Id. at 371-73. Furthermore, a regulation of the Department of Community Affairs required the landlord to furnish a working lock. Id. at 383-84. In that context, the Court held, "[a] residential tenant can recover damages from his landlord upon proper proof that the latter unreasonably enhanced the risk of loss due to theft by failing to supply adequate locks to safeguard the tenants premises after suitable notice of the defect." Id. at 383. The Court likewise have imposed liability on a landlord who provides inadequate security for common areas of rental premises for the failure to prevent a criminal assault on a tenant. See Trentacost v. Brussel, 82 N.J. 214 (1980). In Trentacost, the apartment was in a high crime area. Id. at 218-19. Burglars and other unauthorized persons previously had broken into the building. Id. at 219. Contrary to an administrative regulation, the landlord had not installed a lock on the front entrance. Id. at 222. On those facts, the Court held that "[b]y failing to do anything to arrest or even reduce the risk of criminal harm to his tenants, the landlord effectively and unreasonably enhanced that risk." Ibid. The Court relied in part on the implied covenant of habitability in the lease and stated that "[t]he premises which the landlord must secure necessarily encompass the common areas of multiple dwellings." Id. at 228. In both Braitman and Trentacost, the criminal act resulting in the imposition of liability on the landlord occurred in the apartment house. Supermarket Liability Similarly, the Court has held that the owner of a supermarket may be liable to a customer who is mugged at night in the markets parking lot. See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982). In Butler, unknown to the customer, seven muggings had occurred in the lot during the preceding year, five in the evenings during the four months preceding the attack in question. Id. at 274. To combat the muggings, the market had hired off-duty policeman. Ibid. At the time of the attack, however, the only guard was inside the market; no one was on duty in the parking lot. Id. at 275. In that setting, the Court held that the market had a duty to protect the customer from foreseeable criminal activity. Id. at 284. Uniting Braitman, Trentacost, and Butler is the premise that landlords and business owners should be liable for foreseeable injuries that occur on their premises. The underlying rationale is that they are in the best position to control the risk of harm. See Butler, supra, 89 N.J. at 284. Ownership or control of the premises, for example, enables a party to prevent the harm. Accord Steinmetz v. Stockton City Chamber of Commerce, 214 Cal. Rptr. 405, 408 (Ct. App. 1985) (reasoning that duty is grounded in possession of premises and right to control and manage premises); LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W. 2d 563, 565 (Tex. Ct. App. 1988) (holding that duty to provide protection arises from defendants power of control). Usually there is no liability in off - premise assault. Courts from other states likewise have refused to impose liability on commercial landowners for off-premises murder or assault. See, e.g., Steinmetz, supra, 214 Cal. Rptr. at 408 (declining to impose liability because of difficulty in defining scope of any duty owed by landowner off premises and not controlled by him); Wofford v. Kennedys 2nd St. Co., 649 S.W. 2d 912, 914 (Mo. Ct. App. 1983) (declining to impose liability on tavern owner for injuries suffered by patron assaulted on adjacent public street because otherwise "line which would cut off the landowners liability becomes nearly impossible to draw"). Generally, a possessor of land is not liable for off-premises injuries merely because those injuries are foreseeable. See, e.g., MacGrath v. Levin Properties, 256 N.J. Super. 247 (App. Div. 1992), certif. denied, 130 N.J. 19 (1992); Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 705 (Ohio 1995); see generally Restatement (Second) of Torts § 314A comment c (1965) (indicating possessor of land is not under duty to person endangered or injured when one has ceased to be an invitee). That general rule protects an abutting property owner from liability for injuries that occur on a public way. See Restatement (Second) of Torts § 349 (1965); see also MacGrath, supra, 256 N.J. Super. at 251-52 (noting court follows Restatement § 349 unless exception applies). Sidewalk Fall down Liability A narrow exception imposes liability on commercial landowners for injuries to pedestrians on abutting sidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). The duty to maintain the sidewalks flows from the economic benefit that a commercial landowner receives from the abutting sidewalk and from the landowners ability to control the risk of injury. Id. at 158; Davis v. Pecoreno, 69 N.J. 1, 8 (1975) (holding gas station owner liable for injury caused by packed snow and ice on abutting sidewalk because "traffic was directly beneficial to his business and enured to his economic benefit"). Several decisions of the Appellate Division delineate the appropriate limits of a commercial property owners liability for off-premises injuries. Critical to those decisions is the premise that a landowners liability may extend beyond the premises for activities that directly benefit the landowner. Thus, the owner of a shopping center was not liable to a woman who fell on a dirt path leading from the shopping center to a parking lot. See Chimiente v. Adam Corp., 221 N.J. Super. 580 (1987). In Chimiente, sidewalks provided a safe alternative route. Id. at 584. The dirt path conferred no direct economic benefit on the shopping center. Ibid. Similarly, a shopping center on Route 22 was not liable to a customer who was struck by a car while crossing the highway. See MacGrath, supra, 256 N.J. Super. at 250-51, 253. A restaurant that provided parking on the opposite side of the street, however, had a duty to provide safe passage from the lot to the restaurant. See Warrington v. Bird, 204 N.J. Super. 611 (1985), certif. denied, 103 N.J. 473 (1986). The restaurant knew that its patrons would cross the street, and derived a direct economic benefit from their use of the path. Id. at 617. Finally, a caterer was found liable for the death of a business invitee who was killed crossing a county highway after parking her car in a lot the caterer knew or should have known the invitee would use. See Mulraney v. Aulettos Catering, 293 N.J. Super. 315, certif. denied, _ N.J. _ (1996). Prominent among the reasons for the imposition of liability was the proposition that the use of the lot furthered the caterers economic interest. Id. at 321. Critical to the imposition of liability is a direct economic benefit to the commercial landowner from the path taken by the injured party and the absence of an alternative route. Courts from other states likewise have concluded that a landowner does not owe a duty to protect people from criminal activity on adjacent premises that the landowner does not own or control. See, e.g., Donnell v. California W. Sch. of Law, 246 Cal. Rptr. 199, 201 (Ct. App. 1988) (holding law school not liable merely because it took no action to remedy dangerous condition on adjoining property); Steinmetz, supra, 214 Cal. Rptr. at 408-09 (holding tenant in industrial park not liable to business invitee who was mugged a block away from tenants premises but within park); National Property Investors, II, Ltd. v. Attardo, 639 So.2d 691 (Fla. Dist. Ct. App. 1994) (holding no duty for store owner to protect customer from assault in apartment premises when assailant followed customer from convenience store to apartment house across street); Simpson, supra, 652 N.E.2d 702 (holding supermarket owners duty to warn or protect business invitees from foreseeable criminal activity extends to premises in possession and control of owner and therefore owner not liable for injuries suffered by patron attacked in common area of shopping center). Southland Corp. v. Superior Court, 250 Cal. Rptr. 57 (Ct. App. 1988), is consistent with that premise. In Southland, three assailants attacked a customer from a convenience store in a parking lot ten feet away from the stores property line. 250 Cal. Rptr. at 58. The customer sued the lessee and sub-lessee, who were the franchisor and franchisee of the store. Id. at 59. The master lease provided that the store could use the adjacent lot for parking, and the injured customer believed that the store controlled the lot. Id. at 58 n.1, 59. Many customers parked in the lot. Id. at 58. The lessees did not erect a fence or do anything else to discourage the customers from using the lot. Id. at 59. Denying summary judgment for the lessee and sub-lessee, the court relied on the fact that the store controlled the lot and "realized a significant commercial benefit from their customers use of the lot . . . ." Id. at 62-63. Absent a landlords control of an adjacent lot or realization of "a significant commercial benefit" from tenants use of the lot, the landlord does not owe a duty to warn tenants of the risk of criminal assault on the lot. See Ibid. Conclusion There is a possibility of imposing on a landlord a duty to pay a tenant for injuries sustained in a criminal attack on its property to help compensate the tenant. In appropriate circumstances, property owners may be liable if they negligently conduct activities that expose others to foreseeable criminal attacks. Contact a Trial Attorney to discuss your rights.
Friday, September 19, 2014
Inadequate Security and Liability for Criminal Attack
Inadequate Security and Liability for Criminal Attack Edited by Kenneth Vercammen Many people are injured when attacked on a business property, when the property owner fails to provide adequate security. Injured persons may be able to recover damages plus payment of medical bills. The New Jersey Supreme Court in Kuzmicz v. Ivy Hill Park Apartments, 147 N.J. 510. (1997) reviewed liability for injuries suffered by people attacked. The duty of landowners for injuries that occur on their premises, the analysis no longer relies exclusively on the status of the injured party. Instead "[t]he issue is whether, in light of the actual relationship between the parties under all of the surrounding circumstances, the imposition of a duty on the landowner is fair and just." Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)). For off-premises liability, the issue is substantially the same. In both contexts, however, the analysis is fact-sensitive. Hopkins, supra, 132 N.J. at 439. Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Snyder v. American Assn of Blood Banks, 144 N.J. 269, 292 (1996); Crawn v. Campo, 136 N.J. 494, 501 (1994); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962). Foreseeability of injury to another is important, but not dispositive. Snyder, supra, 144 N.J. at 292; Carter Lincoln-Mercury v. EMOR Group, 135 N.J. 182, 194 (1994). Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty on a landowner is the nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty. Dunphy, supra, 136 N.J. at 108; Hopkins, supra, 132 N.J. at 439; Goldberg, supra, 38 N.J. at 583. Landlord liable to Tenant Consistent with that analysis, the Court has found a landlord liable to a tenant for damages resulting from a burglary when the landlord failed to replace a broken dead-bolt lock on the tenants apartment. See Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975). The apartment house was in an area where break-ins were common, and the landlord had assured the tenant that it would repair the lock. Id. at 371-73. Furthermore, a regulation of the Department of Community Affairs required the landlord to furnish a working lock. Id. at 383-84. In that context, the Court held, "[a] residential tenant can recover damages from his landlord upon proper proof that the latter unreasonably enhanced the risk of loss due to theft by failing to supply adequate locks to safeguard the tenants premises after suitable notice of the defect." Id. at 383. The Court likewise have imposed liability on a landlord who provides inadequate security for common areas of rental premises for the failure to prevent a criminal assault on a tenant. See Trentacost v. Brussel, 82 N.J. 214 (1980). In Trentacost, the apartment was in a high crime area. Id. at 218-19. Burglars and other unauthorized persons previously had broken into the building. Id. at 219. Contrary to an administrative regulation, the landlord had not installed a lock on the front entrance. Id. at 222. On those facts, the Court held that "[b]y failing to do anything to arrest or even reduce the risk of criminal harm to his tenants, the landlord effectively and unreasonably enhanced that risk." Ibid. The Court relied in part on the implied covenant of habitability in the lease and stated that "[t]he premises which the landlord must secure necessarily encompass the common areas of multiple dwellings." Id. at 228. In both Braitman and Trentacost, the criminal act resulting in the imposition of liability on the landlord occurred in the apartment house. Supermarket Liability Similarly, the Court has held that the owner of a supermarket may be liable to a customer who is mugged at night in the markets parking lot. See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982). In Butler, unknown to the customer, seven muggings had occurred in the lot during the preceding year, five in the evenings during the four months preceding the attack in question. Id. at 274. To combat the muggings, the market had hired off-duty policeman. Ibid. At the time of the attack, however, the only guard was inside the market; no one was on duty in the parking lot. Id. at 275. In that setting, the Court held that the market had a duty to protect the customer from foreseeable criminal activity. Id. at 284. Uniting Braitman, Trentacost, and Butler is the premise that landlords and business owners should be liable for foreseeable injuries that occur on their premises. The underlying rationale is that they are in the best position to control the risk of harm. See Butler, supra, 89 N.J. at 284. Ownership or control of the premises, for example, enables a party to prevent the harm. Accord Steinmetz v. Stockton City Chamber of Commerce, 214 Cal. Rptr. 405, 408 (Ct. App. 1985) (reasoning that duty is grounded in possession of premises and right to control and manage premises); LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W. 2d 563, 565 (Tex. Ct. App. 1988) (holding that duty to provide protection arises from defendants power of control). Usually there is no liability in off - premise assault. Courts from other states likewise have refused to impose liability on commercial landowners for off-premises murder or assault. See, e.g., Steinmetz, supra, 214 Cal. Rptr. at 408 (declining to impose liability because of difficulty in defining scope of any duty owed by landowner off premises and not controlled by him); Wofford v. Kennedys 2nd St. Co., 649 S.W. 2d 912, 914 (Mo. Ct. App. 1983) (declining to impose liability on tavern owner for injuries suffered by patron assaulted on adjacent public street because otherwise "line which would cut off the landowners liability becomes nearly impossible to draw"). Generally, a possessor of land is not liable for off-premises injuries merely because those injuries are foreseeable. See, e.g., MacGrath v. Levin Properties, 256 N.J. Super. 247 (App. Div. 1992), certif. denied, 130 N.J. 19 (1992); Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 705 (Ohio 1995); see generally Restatement (Second) of Torts § 314A comment c (1965) (indicating possessor of land is not under duty to person endangered or injured when one has ceased to be an invitee). That general rule protects an abutting property owner from liability for injuries that occur on a public way. See Restatement (Second) of Torts § 349 (1965); see also MacGrath, supra, 256 N.J. Super. at 251-52 (noting court follows Restatement § 349 unless exception applies). Sidewalk Fall down Liability A narrow exception imposes liability on commercial landowners for injuries to pedestrians on abutting sidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). The duty to maintain the sidewalks flows from the economic benefit that a commercial landowner receives from the abutting sidewalk and from the landowners ability to control the risk of injury. Id. at 158; Davis v. Pecoreno, 69 N.J. 1, 8 (1975) (holding gas station owner liable for injury caused by packed snow and ice on abutting sidewalk because "traffic was directly beneficial to his business and enured to his economic benefit"). Several decisions of the Appellate Division delineate the appropriate limits of a commercial property owners liability for off-premises injuries. Critical to those decisions is the premise that a landowners liability may extend beyond the premises for activities that directly benefit the landowner. Thus, the owner of a shopping center was not liable to a woman who fell on a dirt path leading from the shopping center to a parking lot. See Chimiente v. Adam Corp., 221 N.J. Super. 580 (1987). In Chimiente, sidewalks provided a safe alternative route. Id. at 584. The dirt path conferred no direct economic benefit on the shopping center. Ibid. Similarly, a shopping center on Route 22 was not liable to a customer who was struck by a car while crossing the highway. See MacGrath, supra, 256 N.J. Super. at 250-51, 253. A restaurant that provided parking on the opposite side of the street, however, had a duty to provide safe passage from the lot to the restaurant. See Warrington v. Bird, 204 N.J. Super. 611 (1985), certif. denied, 103 N.J. 473 (1986). The restaurant knew that its patrons would cross the street, and derived a direct economic benefit from their use of the path. Id. at 617. Finally, a caterer was found liable for the death of a business invitee who was killed crossing a county highway after parking her car in a lot the caterer knew or should have known the invitee would use. See Mulraney v. Aulettos Catering, 293 N.J. Super. 315, certif. denied, _ N.J. _ (1996). Prominent among the reasons for the imposition of liability was the proposition that the use of the lot furthered the caterers economic interest. Id. at 321. Critical to the imposition of liability is a direct economic benefit to the commercial landowner from the path taken by the injured party and the absence of an alternative route. Courts from other states likewise have concluded that a landowner does not owe a duty to protect people from criminal activity on adjacent premises that the landowner does not own or control. See, e.g., Donnell v. California W. Sch. of Law, 246 Cal. Rptr. 199, 201 (Ct. App. 1988) (holding law school not liable merely because it took no action to remedy dangerous condition on adjoining property); Steinmetz, supra, 214 Cal. Rptr. at 408-09 (holding tenant in industrial park not liable to business invitee who was mugged a block away from tenants premises but within park); National Property Investors, II, Ltd. v. Attardo, 639 So.2d 691 (Fla. Dist. Ct. App. 1994) (holding no duty for store owner to protect customer from assault in apartment premises when assailant followed customer from convenience store to apartment house across street); Simpson, supra, 652 N.E.2d 702 (holding supermarket owners duty to warn or protect business invitees from foreseeable criminal activity extends to premises in possession and control of owner and therefore owner not liable for injuries suffered by patron attacked in common area of shopping center). Southland Corp. v. Superior Court, 250 Cal. Rptr. 57 (Ct. App. 1988), is consistent with that premise. In Southland, three assailants attacked a customer from a convenience store in a parking lot ten feet away from the stores property line. 250 Cal. Rptr. at 58. The customer sued the lessee and sub-lessee, who were the franchisor and franchisee of the store. Id. at 59. The master lease provided that the store could use the adjacent lot for parking, and the injured customer believed that the store controlled the lot. Id. at 58 n.1, 59. Many customers parked in the lot. Id. at 58. The lessees did not erect a fence or do anything else to discourage the customers from using the lot. Id. at 59. Denying summary judgment for the lessee and sub-lessee, the court relied on the fact that the store controlled the lot and "realized a significant commercial benefit from their customers use of the lot . . . ." Id. at 62-63. Absent a landlords control of an adjacent lot or realization of "a significant commercial benefit" from tenants use of the lot, the landlord does not owe a duty to warn tenants of the risk of criminal assault on the lot. See Ibid. Conclusion There is a possibility of imposing on a landlord a duty to pay a tenant for injuries sustained in a criminal attack on its property to help compensate the tenant. In appropriate circumstances, property owners may be liable if they negligently conduct activities that expose others to foreseeable criminal attacks. Contact a Trial Attorney to discuss your rights.
Saturday, August 2, 2014
New ABA Book: “Smart Marketing For the Small Firm Lawyer” from the American Bar Association.
New ABA Book: “Smart Marketing For the Small Firm
Lawyer” from the American Bar Association.
Author:
Kenneth A Vercammen
Sponsor(s):
Solo, Small Firm and General Practice
Division
Publisher(s): ABA Book Publishing
Marketing is essential to the growth of any
enterprise. There are many low-cost and no-cost opportunities that exist. This
book explores today’s marketing landscape and outlines its many facets for you
in concise and easy to understand terms.
Additional Information
•Table of Contents: TOC Smart Marketing
•About the Author: Kenneth Vercammen
•Preface:
Intro-Smart Marketing
•List Price: $59.95
•ABA Price: $45.95
ISBN: 978-1-62722-484-0
Product Code: 5150468
2014, 156 Pages, 7 x 10
Item Details:
Any business owner will
tell you that marketing is vital to the success and growth of a venture, and a
law practice is no exception! This book thoroughly explores today’s marketing
landscape and outlines its many facets for you in concise and easy to
understand terms. This book will cover: Any business owner will tell you that
marketing is vital to the success and growth of a venture, and a law practice
is no exception! This book thoroughly explores today’s marketing landscape and
outlines its many facets for you in concise and easy to understand terms. This
book will cover: *Creating a blog for free *How to leverage a wide array of
social networking sites (like Facebook, Martindale Hubble, Yelp, etc.) *Best
practices for marketing within the law office *Low-cost and no-cost marketing activities
*Tips to increase your efficiency and reach *And more! Included with this book
is a helpful CD-ROM with digital copies of all the exhibits used in the book
and the various websites that are referenced. Learn how to make the most the
marketing opportunities that exist with Smart Marketing for the Small Firm
Lawyer.
Praise for Smart Marketing for the Small Firm
Lawyer:
"Vercammen's new
marketing book belongs in the tool box and library of every lawyer regardless
of firm size. Ken not only tells the lawyer WHAT to do, he shows the lawyer HOW
to do it."
-Jay
Foonberg-Author of How to Start and Build a Law Practice, 5th Ed
Service Hotline
800-285-2221
312-988-5000
Monday, July 28, 2014
Book: "Smart Marketing For the Small Firm Lawyer" Order Form
Author:
Kenneth A Vercammen
Sponsor(s):
Solo, Small Firm and
General Practice Division
Publisher(s):
ABA Book
Publishing
ISBN:
978-1-62722-484-0
Product Code:
5150468 2014, 156 Pages, 7 x 10
Marketing is essential to the growth of
any enterprise. There are many low-cost and no-cost opportunities that exist.
This book explores today’s marketing landscape and outlines its many facets for
you in concise and easy to understand terms.
Additional
Information
•Table of Contents:
TOC Smart Marketing
•About the Author: Kenneth Vercammen
•About the Author: Kenneth Vercammen
•Preface:
Intro-Smart Marketing
•List Price:
$59.95
•ABA Price:
$45.95
Because you are a
member, you are able to save on this order!
Item Details:
Any business owner
will tell you that marketing is vital to the success and growth of a venture,
and a law practice is no exception! This book thoroughly explores today’s
marketing landscape and outlines its many facets for you in concise and easy to
understand terms. This book will cover: Any business owner will tell you that
marketing is vital to the success and growth of a venture, and a law practice
is no exception! This book thoroughly explores today’s marketing landscape and
outlines its many facets for you in concise and easy to understand terms. This
book will cover: *Creating a blog for free *How to leverage a wide array of
social networking sites (like Facebook, Martindale Hubble, Yelp, etc.) *Best
practices for marketing within the law office *Low-cost and no-cost marketing
activities *Tips to increase your efficiency and reach *And more! Included with
this book is a helpful CD-ROM with digital copies of all the exhibits used in
the book and the various websites that are referenced. Learn how to make the
most the marketing opportunities that exist with Smart Marketing for the Small
Firm Lawyer.
Praise for Smart Marketing for the Small
Firm Lawyer:
"Vercammen's
new marketing book belongs in the tool box and library of every lawyer
regardless of firm size. Ken not only tells the lawyer WHAT to do, he shows the
lawyer HOW to do it."
Jay Foonberg-Author
of How to Start and Build a Law Practice, 5th Ed
Saturday, January 25, 2014
Removing an Executor of an Estate in Monmouth County
Removing
an Executor of an Estate in Monmouth County
By Kenneth A. Vercammen, Esq.
In New Jersey, the court and surrogate
do not supervise how an executor or administrator handles the estate.
Unfortunately, the Executor occasionally fails to timely carry out their
duties. They may fail to file tax returns, fail to keep records, misappropriate
funds or ignore instructions under the Will. If you are not satisfied with the
handling of the estate, you can have an attorney file a Complaint in the
Superior Court. If there is no will, someone can petition the surrogate to be
appointed as "administrator" of the estate.
The New Probate Statute of NJ revised
various sections of the New Jersey law on Wills and estates. law makes a number
of substantial changes to the provisions governing the administration of
estates and trusts in New.
Duty
of Executor in Probate & Estate Administration
1.
Conduct a thorough search of the decedent's personal papers and effects for any
evidence which might point you in the direction of a potential creditor;
2.
Carefully examine the decedent's checkbook and check register for recurring
payments, as these may indicate an existing debt;
3.
Contact the issuer of each credit card that the decedent had in his/her
possession at the time of his/ her death;
4.
Contact all parties who provided medical care, treatment, or assistance to the
decedent prior to his/her death;
Your attorney will not be able to file
the NJ inheritance tax return until it is clear as to the amounts of the
medical bills and other expenses. Medical expenses can be deducted in the
inheritance tax.
Under United States Supreme Court Case,
Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the
Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every
estate is personally responsible to provide actual notice to all known or
"readily ascertainable" creditors of the decedent. This means that is
your responsibility to diligently search for any "readily
ascertainable" creditors.
Other
duties/ Executor to Do
Bring
Will to Surrogate
Apply
to Federal Tax ID #
Set
up Estate Account at bank (pay all bills from estate account)
Pay
Bills
Notice
of Probate to Beneficiaries (Attorney can handle)
If
charity, notice to Atty General (Attorney can handle)
File
notice of Probate with Surrogate (Attorney can handle)
File
first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare
Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File
waivers within 8 months upon receipt (Attorney can handle)
Prepare
Informal Accounting
Prepare
Release and Refunding Bond (Attorney can handle)
Obtain
Child Support Judgment clearance (Attorney will handle)
Let's review the major duties involved-
In
General. The executor's job is to (1) administer the estate--i.e., collect and
manage assets, file tax returns and pay taxes and debts--and (2) distribute any
assets or make any distributions of bequests, whether personal or charitable in
nature, as the deceased directed (under the provisions of the Will). Let's take
a look at some of the specific steps involved and what these responsibilities
can mean. Chronological order of the various duties may vary.
Probate.
The executor must "probate" the Will. Probate is a process by which a
Will is admitted. This means that the Will is given legal effect by the court.
The court's decision that the Will was validly executed under state law gives
the executor the power to perform his or her duties under the provisions of the
Will.
An employer identification number
("EIN") should be obtained for the estate; this number must be
included on all returns and other tax documents having to do with the estate.
The executor should also file a written notice with the IRS that he/she is
serving as the fiduciary of the estate. This gives the executor the authority
to deal with the IRS on the estate's behalf.
Pay the Debts. The claims of the
estate's creditors must be paid. Sometimes a claim must be litigated to
determine if it is valid. Any estate administration expenses, such as
attorneys', accountants' and appraisers' fees, must also be paid.
Manage the Estate. The executor takes
legal title to the assets in the probate estate. The probate court will
sometimes require a public accounting of the estate assets. The assets of the
estate must be found and may have to be collected. As part of the asset management
function, the executor may have to liquidate or run a business or manage a
securities portfolio. To sell marketable securities or real estate, the
executor will have to obtain stock power, tax waivers, file affidavits, and so
on.
Take Care of Tax Matters. The executor
is legally responsible for filing necessary income and estate-tax returns
(federal and state) and for paying all death taxes (i.e., estate and
inheritance). The executor can, in some cases be held personally liable for
unpaid taxes of the estate. Tax returns that will need to be filed can include
the estate's income tax return (both federal and state), the federal estate-tax
return, the state death tax return (estate and/or inheritance), and the
deceased's final income tax return (federal and state). Taxes usually must be
paid before other debts. In many instances, federal estate-tax returns are not
needed as the size of the estate will be under the amount for which a federal
estate-tax return is required.
Often it is necessary to hire an appraiser
to value certain assets of the estate, such as a business, pension, or real
estate, since estate taxes are based on the "fair market" value of
the assets. After the filing of the returns and payment of taxes, the Internal
Revenue Service will generally send some type of estate closing letter
accepting the return. Occasionally, the return will be audited.
Distribute the Assets. After all debts
and expenses have been paid, the executor will distribute the assets.
Frequently, beneficiaries can receive partial distributions of their
inheritance without having to wait for the closing of the estate.
Under increasingly complex laws and
rulings, particularly with respect to taxes, in larger estates an executor can
be in charge for two or three years before the estate administration is
completed. If the job is to be done without unnecessary cost and without
causing undue hardship and delay for the beneficiaries of the estate, the
executor should have an understanding of the many problems involved and an organization
created for settling estates. In short, an executor should have experience
At some point in time, you may be asked
to serve as the executor of the estate of a relative or friend, or you may ask
someone to serve as your executor. An executor's job comes with many legal
obligations. Under certain circumstances, an executor can even be held
personally liable for unpaid estate taxes. Let's review the major duties
involved, which we've set out below.
In General. The executor's job is to
(1) administer the estate--i.e., collect and manage assets, file tax returns
and pay taxes and debts--and (2) distribute any assets or make any
distributions of bequests, whether personal or charitable in nature, as the
deceased directed (under the provisions of the Will). Let's take a look at some
of the specific steps involved and what these responsibilities can mean.
Chronological order of the various duties may vary.
Probate. The executor must
"probate" the Will. Probate is a process by which a Will is admitted.
This means that the Will is given legal effect by the court. The court's
decision that the Will was validly executed under state law gives the executor
the power to perform his or her duties under the provisions of the Will.
An employer identification number
("EIN") should be obtained for the estate; this number must be
included on all returns and other tax documents having to do with the estate.
The executor should also file a written notice with the IRS that he/she is
serving as the fiduciary of the estate. This gives the executor the authority
to deal with the IRS on the estate's behalf.
Pay the Debts. The claims of the
estate's creditors must be paid. Sometimes a claim must be litigated to
determine if it is valid. Any estate administration expenses, such as
attorneys', accountants' and appraisers' fees, must also be paid.
Manage the Estate. The executor takes
legal title to the assets in the probate estate. The probate court will
sometimes require a public accounting of the estate's assets. The assets of the
estate must be found and may have to be collected. As part of the asset
management function, the executor may have to liquidate or run a business or
manage a securities portfolio. To sell marketable securities or real estate,
the executor will have to obtain stock power, tax waivers, file affidavits, and
so on.
Take Care of Tax Matters. The executor
is legally responsible for filing necessary income and estate-tax returns
(federal and state) and for paying all death taxes (i.e., estate and inheritance).
The executor can, in some cases be held personally liable for unpaid taxes of
the estate. Tax returns that will need to be filed can include the estate's
income tax return (both federal and state), the federal estate-tax return, the
state death tax return (estate and/or inheritance), and the deceased's final
income tax return (federal and state). Taxes usually must be paid before other
debts. In many instances, federal estate-tax returns are not needed as the size
of the estate will be under the amount for which a federal estate-tax return is
required.
Often it is necessary to hire an
appraiser to value certain assets of the estate, such as a business, pension,
or real estate, since estate taxes are based on the "fair market"
value of the assets. After the filing of the returns and payment of taxes, the
Internal Revenue Service will generally send some type of estate closing letter
accepting the return. Occasionally, the return will be audited.
Distribute the Assets. After all debts
and expenses have been paid, the distribute the assets with extra attention and
meticulous bookkeeping by the executor. Frequently, beneficiaries can receive
partial distributions of their inheritance without having to wait for the
closing of the estate.
Under increasingly complex laws and
rulings, particularly with respect to taxes, in larger estates an executor can
be in charge for two or three years before the estate administration is
completed. If the job is to be done without unnecessary cost and without
causing undue hardship and delay for the beneficiaries of the estate, the
executor should have an understanding of the many problems involved and an
organization created for settling estates.
COMPLAINT FOR ACCOUNTING
A Complaint for Accounting is filed with the Probate
Part to request on accounting, removal of the current executor and selection of
a new person to administer and wrap up the estate.
A signed certification of one or more beneficiaries
is needed. In addition, an Order to Show Cause is prepared by your attorney.
The Order to Show Cause is to be signed by the Judge directing the executor,
through their attorney, to file a written answer to the complaint, as well as
appear before the court at a specific date and time.
As with a litigated court matter, trials can become
expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450
per hour, with a retainer of $4000 needed. Attorneys will require the full retainer
to be paid in full up front.
The plaintiff can demand the following:
(1)
That the named executor be ordered to provide an accounting of the estate to
plaintiff.
(2)
Defendant, be ordered to provide an accounting for all assets of d1 dated five
years prior to death.
(3)
Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4)
Declaring a constructive trust of the assets of the decedent for the benefit of
the plaintiff and the estate.
(5)
That the executor be removed as the executor/administrator of the estate and
that someone else be named as administrator of the estate.
(6)
That the executor be barred from spending any estate funds, be barred from
paying any bills, be barred from taking a commission, be barred from writing
checks, be barred from acting on behalf of the estate, except as specifically
authorized by Superior Court Order or written consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors
are entitled to receive a commission to compensate them for work performed.
Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are
entitled to receive a commission on both the principal of the estate, and the
income earned by assets.
However,
if you have evidence that the executor has breached their fiduciary duties or
violated a law, your Superior Court accounting complaint can request that the
commissions be reduced or eliminated.
SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally,
a family member is living in a home owned by the decedent. To keep family
harmony, often this family member is permitted to remain in the home
temporarily. However, it may later become clear that the resident has no desire
on moving, and the executor has neither an intention to make them move nor to
sell the house. The remedy a beneficiary has can be to have your attorney
include in the Superior Court complaint a count to
1)
remove the executor
2)
remove the tenant and make them pay rent to the estate for the time they used
the real property since death without paying rent
3)
compel the appraisal of the home and, thereafter, the sale of the property
4)
make the executor reimburse the estate for the neglect or waste of assets.
CONCLUSION
As
a beneficiary, you will probably eventually be requested to sign a release and
refunding bond. If you have evidence of misappropriation, you may consider
asking the executor for an informal accounting prior to signing the release and
refunding bond. If you have concern regarding the handling of an estate,
schedule an appointment to consult an elder law attorney.
Kenneth A. Vercammen is a Middlesex County, NJ trial
attorney who has published 125 articles in national and New Jersey publications
on Probate and litigation topics. He often lectures to trial lawyers of the
American Bar Association, New Jersey State Bar Association and Middlesex County
Bar Association. He is Chair of the American Bar Association Estate Planning
& Probate Committee. He is also Editor of the ABA Elder Law Committee
Newsletter
He
is a highly regarded lecturer on litigation issues for the American Bar
Association, ICLE, New Jersey State Bar Association and Middlesex County Bar
Association. His articles have been published by New Jersey Law Journal, ABA
Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in
Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a
recipient of the NJSBA- YLD Service to the Bar Award.
In
his private practice, he has devoted a substantial portion of his professional
time to the preparation and trial of litigated matters. He has appeared in
Courts throughout New Jersey several times each week on many litigation
matters, Municipal Court trials, and contested Probate hearings.
KENNETH
VERCAMMEN
Attorney
at Law
Legal
Resume
2053
Woodbridge Ave.
Edison,
NJ 08817
732-572-0500
www.centraljerseyelderlaw.com
Subscribe to:
Posts (Atom)