LAW BLOG

Super Lawyers selects Severson Porter Law attorney, Mark Severson, as a Minnesota Rising Star in 2020.  Mark Severson has been previously selected as a  Minnesota Rising Star.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. Only the top 5 percent of attorneys in Minnesota are included in the annual Super Lawyers list.

Rising Star candidates must go through the same selection process as Super Lawyers but need to be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of attorneys in Minnesota are named to the Rising Stars list.

As we all navigate these current events, please know that Severson Porter Law will remain ready, willing, and able to serve your legal needs throughout the crisis.

The Firm is following all recommendations from the CDC in maintaining a clean work space. The Firm has the technology in place to work remotely, if necessary, without losing any efficiencies or abilities.

Take care of yourselves and your loved ones. If anything from this crisis requires an adjustment to our service levels, scope of representation, or timing of performance of legal services, please let us know and we will accommodate. If anything is needed do not hesitate to contact Mark or Kurt to answer your questions.

Mark A. Severson & Kurt W. Porter

The previous post in this series, “What Are CICs”, introduced a few of the most basic concepts related to common interest communities, or “CICs”. As was briefly discussed, all CIC’s in Minnesota are one of three types: (1) a “Condominium”, (2) a “Cooperative”, or (3) a “Planned Community”.  This post explores the three types of CICs and some of the factors that may be considered in determining which type of CIC to use. With this, however, comes the obvious disclaimer that each individual situation is different and the factors listed here are only some that may be applicable in a general sense.

The first type of CIC is the most frequently used, likely because it is the most broadly defined. Any CIC that is not a Cooperative or a Condominium (the other two types of CICs) is a “Planned Community”.  In a planned community the owner owns the unit.  Units are generally defined to include at least the structural residence (if not also the land around the structure).  There is an owner’s association tied to the planned community; the owner’s association will own and maintain all other property in the planned community that is not a unit.  This other property is known as the common property.  Another reason planned communities tend to be used more frequently is because the ownership structure of a unit in a planned community is generally easier for potential buyers to understand.  The homeowner owns his or her unit, and the owner’s association owns everything else.  For the same reason, financing to purchase units in a planned community tends to be easier than, for instance, in a cooperative.  Planned communities work well for, among other things, townhomes and single family detached homes.

In a Condominium-type CIC, a unit owner owns his or her unit, which is typically defined as the space between the walls, ceiling, and floor (and, thus, does not include the structure around the unit, i.e., the building in which the unit is located).  This is a drawback for those if the condominium CIC is new construction; a condominium unit does not physically exist until all the floors of all the buildings (if there is to be more than one residential building) are framed in.  Unlike a planned community, where a separate entity (the owner’s association) owns the common elements of the CIC, in a condominium CIC unit owners share an undivided percentage of interest in the common elements. This may be a marketing point for the sale of units, as some potential buyers will undoubtedly enjoy the idea that they own an interest in the common elements of the property.  Similar to planned communities, condominiums are fairly easily financed, which may make them more marketable to the consumer.

Cooperatives are relatively rare in Minnesota.  This may be for a number of reasons.  For instance, instead of owning a unit (or any real property), a person owns a membership interest or share in the cooperative.  It should be noted that the ownership interest in a cooperative is more often than not deemed as personal property but in rare instances may be couched as real property.  As a member of the cooperative, the member is entitled to lease a particular unit in the cooperative.  Because the individual units are not separately legally defined, financing can be troublesome.  A lender does not have a separate legal description to which it can attach a mortgage as security.  Instead, the lender must use the membership interest in the cooperative that is merely pledged as security against the loan by the owner.  Only a minority of lenders in Minnesota will have the experience or ability necessary to finance a cooperative.  Obviously, this can make marketing membership interests in a cooperative difficult.

The factors discussed above are only some of the many considerations one should undertake before delving into the arduous process of creating a CIC.   The CIC statutes are extremely complex and ever changing, and strict compliance by the developer is legally required to avoid potentially severe adverse consequences.  The absolute necessity of advice from an experienced real estate attorney at the inception of the development cannot be overstated.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

On average, I probably talk to at least one business person each week who asks me whether I think it would be appropriate or necessary for him or her to incorporate his/her business. (By incorporating, I mean operate the business as a corporation, limited liability company or other type of recognized business entity, all of these specific issues will be addressed in a separate blog. For purposes of this blog, when i say “incorporate”, I mean operate my business through a separate legally created business entity, regardless of the type of entity selected, rather than through the individual as a sole proprietorship.) Let me start by saying that it is almost never absolutely necessary to incorporate, the question is more whether it would be appropriate or prudent to incorporate.

The primary legal reason for incorporating your business is to protect your personal assets from claims or liabilities that are incurred by your business. The importance of this fundamental concept is not fully appreciated or understood by many business owners.

Incorporating your business essentially creates a different “person” that is responsible for the debts of the business. Subject to certain exceptions, most of which you as the owner of the business entity will control, the corporation is exclusively liable for the debts and obligations of the business operated by the corporation, not you individually as the owner (shareholder) of the corporation. Conversely, the individual owner of an unincorporated business generally will be held individually liable for the debts of the business.

That does not mean that all persons who operate a business should always incorporate. In addition to the initial costs of setting up the corporation, there are other expenses caused by operating as a corporation which could militate against incorporating. For example, a corporation must file its own separate income tax returns and maintain separate financial books and records, all of which cost money.

Although there certainly are businesses for which it probably does not make sense to incorporate, I think it is fair to say that it makes more sense for most businesses to incorporate. There are a few rules of thumb that I use in helping clients decide whether it makes sense to incorporate. Just a few of these are as follows.

Does the business have any employees (other than the owner) for whose actions the owner could be held personally liable? It generally makes no sense for a business owner to expose his/her personal assets to claims asserted against the business owner based only upon claims for the conduct of a third party employee. Creating a protection barrier against such claims against the owner and his/her individual assets is a sound basis for incorporating.

Does the business use vehicles that are operated by either employees or independent contractors in the operation of the business? Your insurance agent will tell you not to worry about this element. But with all due respect to the insurance business, insurance companies are in the business of accepting premium payments from customers and then denying coverage/claims whenever there is a legal basis for doing so. Whether the claim is covered by insurance is not nearly as threatening if the claim is against your corporation rather than against you individually.

What is the nature of the business you are operating and what is the nature of the claims that can be reasonably anticipated to arise from the business? Some businesses, by their very nature, should not be expected to generate claims that cannot be “fixed” by the business, if they arise at all. For example, a painter or sheet rocker (who has no employees) is likely to be able to repair or otherwise “fix” a customer complaint based only upon the quality of his/her work. Simply, repaint the defective workmanship. Conversely, an electrician, whose defective wiring burns down the house, probably has a bigger problem, and is likely not protected by insurance coverage.

There may also be tax reasons to incorporate, but I am not trained in tax matters and do not provide tax advice. I defer to other professionals in connection with the analysis of this issue. But, I know enough to advise that it is worth looking into whether incorporating will provide deductibility for expenses that not otherwise be deductible if the business were not incorporated.

In sum, I think it is fair to say that most businesses, especially as they become more and more successful, are probably better off being incorporated. If you would like to discuss with us whether it is reasonable to incorporate your business contact us at your convenience.

Most land developers may be familiar with the basic concepts of common interest communities, or “CICs”.  Often when one thinks of CICs, the first thought that comes to mind is townhomes: each person owns his or her residential unit and contributes (usually through an association fee) to the taxes, insurance premiums, maintenance costs, or construction costs associated with a different area of land that is generally available for use to all others in the CIC, often called “common area.”  While townhomes are often cited as the quintessential CIC, not all CICs need be set up as townhomes.  In fact, CICs need not be residential land developments at all and may be used to create storage units, boat slips, and many other types of non-residential uses.

This series addresses the concept of CICs in Minnesota.  It is an ever-changing area of law that is complex and laced with numerous pitfalls for the unwary developer.  This is true from the very beginning of a land development when one must determine what type of CIC is the best fit for the intended use of the property. It is also important to note that the laws regulating CIC’s are very dynamic and materially change regularly, both by changes in statutes and Court decisions.

To begin, a CIC may be “flexible”, which merely indicates that land may be added to the CIC at a later time.  While the designation may seem inconsequential, a flexible CIC has additional requirements that must be considered before the CIC is even created.  An informed decision as to whether or not a CIC should be designated as flexible can help save many headaches down the road.   As a buyer, the purchaser of a CIC unit in a flexible will want to know whether the purchased unit is part of an existing unit that will not expand, or may be only a less important unit in a larger and ever expanding project.

Whether or not a CIC is flexible, all CIC’s must be one of three types of CICs in Minnesota: (1) a “Condominium”, (2) a “Cooperative”, or (3) a “Planned Community”.  These three types of CICs are distinguished and characterized by the level of ownership afforded to the individual property owners in the CIC.  For instance, in a cooperative, a homeowner’s association owns all the real estate, which is divided into “units”, and each member of the homeowner’s association is entitled to lease a unit (this is very important for finance purposes because the leasehold interest is personal property and cannot be mortgaged, which complicates buyers obtaining financing for lenders who are not familiar with cooperatives).  Whereas the owner in a condominium CIC owns his or her unit, but the unit is typically defined as the space between the walls, ceiling, and floor (and, thus, does not include the structure around the unit, i.e., the building in which the unit is located).  In a planned community, again the owner owns the unit, but units in planned communities are generally defined to include at least the structural residence (if not also the land around the structure).  Planned communities are the most frequently used type of CIC in Minnesota.

There are both short term and long term considerations that must be taken into account for each of the three types of CICs.  The Minnesota legislature has taken great pains to draft the CIC statutes to favor and protect unit purchasers (including prospective unit purchasers).  As was mentioned earlier, the CIC statutes are extremely complex and ever changing, and strict compliance by the developer is legally required to avoid potentially severe adverse consequences.  The absolute necessity of advice from an experienced real estate attorney at the inception of the development cannot be overstated.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

This op-ed in the Star Tribune penned by a teacher in Lino Lakes proposed an end to inheritance.  In other words, that the government impose a 100% death tax.  The basic idea promoted was to allow the government to take all assets in the name of the decedent and redistribute those assets to individuals the government deems worthy or in need.  After reading it I thought it may be appropriate to offer some background of inheritance in our culture.

The so called death tax dates back as far as 700 B.C., when decedents in Egypt were subject to a 10% tax on the transfer of property at death. The history of the death tax in the United States reveals that the tax was a vehicle to fund war. The first death tax in the United States was imposed in the Stamp Act of 1797 to pay off war debts.  Ironically, the Stamp Act inspired a Revolutionary War, leading to Congress repealing the Stamp Act in 1802.  Over the next hundred years the inheritance tax was enacted to cover wars, and then repealed when the war ended or when the war debts were paid. In 1862, Congress passed the Tax Act imposing a federal death tax to finance the Civil War.  The need for increased revenues dissipated when the Civil War ended in 1865, and the death tax was subsequently repealed in 1870.  Finally, with the passage of the Revenue Act of 1916 (primary purpose was to create the income tax), Congress imposed a death tax that was not directly legislated to fund wars.  Although, not even one year later the tax was increased to fund the United States involvement in World War I.  Following the end of World War I in 1918, Congress never repealed the death tax and Americans have been paying it ever since.  Currently, there is both a federal inheritance tax and a Minnesota inheritance tax.

Before considering proposals such as a 100% death tax from well-meaning citizens, it is important to understand why as a culture we generally value inheritance.  Historically, inheritance in Western Civilization has had a direct relation to the family structure.  In Western Civilization, property has long been intended for not only the good of the individual but of the family. Therefore, the law has encouraged that the family should be supported from the property of a deceased owner. If a person dies without a will and without declaring heirs, the family always has the first claim on the property, and civil law has always reflected that primary responsibility of the family. It has also been a fixture in the law that a person may make any disposal of his or her property that would have been legitimate when that person was alive. Implied inheritance, therefore, is the natural right to dispose of one’s property not only during life but also after death.  That has been the understanding of inheritance in our culture for thousands of years.  However, if the President were to follow the advice from the LinoLakes teacher and impose law that all property of the decedent at the time of death shall become the government’s, it would effectively abolish thousands of years of jurisprudence.

Whether you form a position on the issue or not, it is always important to be well informed before reaching a conclusion and advocating for the same.  For what would seem like a boring issue, the history of “the death tax” is fascinating as it is woven with the history of wars, tenets of religion, Western Civilization culture, and development of tax laws in the United States.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

More often than not, if anyone has signed a non-competition agreement, it is because it was included in their initial employment packet of documents to sign before the first day on the job. It is rare to negotiate the terms of a non-competition agreement, and even if the new employer is open to negotiation there exists an obvious unequal bargaining position. Accordingly, non-competition agreements are generally disfavored in Minnesota. However, that does not mean that following termination of employment that one may not be effectively enforced by the former employer.

Non-competition agreements have long been carefully scrutinized by Minnesota Courts and have been traditionally disfavored as restraints on an individual’s ability to make a living. As the Minnesota Supreme Court said almost one hundred years ago, “[o]ne who has nothing but his labor to sell, and is in urgent need of selling that, cannot well afford to raise any objection to any of the terms in the contract of employment offered him, so long as the wages are acceptable.” Menter Co. v. Brock, 147 Minn. 407, 411, 180 N.W. 553, 555 (1920). So, if enforcing a non-competition agreement is so difficult why bother?

In Minnesota, a Court may enforce a non-competition clause if it is necessary to protect reasonable interests of an employer, and does not impose unreasonable restraints on the rights of the employee. In determining whether the restraint is valid, Minnesota Courts analyze whether the restraint is for a just and honest purpose, for the protection of a legitimate interest of the party in whose favor it is imposed, reasonable as between the parties, and not injurious to the public.

Non-competition agreements are typically enforced through the filing of a motion for a temporary restraining order and temporary injunction. The former employer can usually request attorney’s fees pursuant to the agreement. Some of the most common reasons a non-competition agreement may fail is because it lacks consideration (nothing received by employee in exchange for agreeing to the restriction), the geographic scope may be too unreasonably expansive, or the restriction is for too many years.

Depending on the business, it may be worth it to enforce the non-competition agreement to protect the business from a former employee joining a competitor while revealing trade secrets, client lists, business and marketing plans, and myriad other forms of confidential information. Furthermore, even if the restriction is deemed to be too excessive, Minnesota allows the Court to modify the contract under what is called the “blue pencil doctrine” to enforce a particular provision in a reasonable manner. Under the blue pencil doctrine as it has developed in Minnesota, a Court can take an overly broad restriction and enforce it only to the extent that it is reasonable.

Litigation over non-competition agreements can be costly. Whether you are a former employee subject to a non-competition agreement trying to find a new job to make a living, the former employer trying to protect its business interests by possibly enforcing the non-competition agreement, or the new employer hiring the former employee, these issues should not be taken lightly.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

Did you know that your home may be under warranty per Minnesota Statute Chapter 327A? The warranties within the statute must be in every contract for the construction or sale of a dwelling by a Vendor to a Vendee in Minnesota. The warranty provisions cannot be waived by any of the parties. Under the warranty statute, Minnesota defines a dwelling as a new building not previously occupied and built for the purpose of habitation. Vendor typically means the general contractor and not any subcontractors or material suppliers. Vendee typically means the one buying the new home but also includes any subsequent purchasers within the warranty time period.

Within one year of the warranty date, the warranty statute covers defects caused by faulty workmanship or defective materials due to noncompliance with the Minnesota Building Code.

Within two years of the warranty date, the statute covers defects caused by faulty installation of plumbing, electrical, heating and cooling, again, due to failure to comply with the standards laid out by the Minnesota Building Code.

Within ten years, the statute covers major construction defects. Minnesota defines major construction defect as actual damage to the load-bearing portion of the dwelling, which includes damage to the subsidence (gradual sinking of an area of land), expansion or movement of the soil affecting load bearing function, also affecting use of the dwelling for residential purposes.

In addition to new construction, the statute also covers home improvements. The same warranty time periods discussed above apply to home improvements. Generally speaking, depending on the scope of the home improvement, the statute covers workmanship and materials within one year, installation of plumbing, electrical, heating and cooling systems within two years, and major construction defects within ten years.

If you have a claim under the Minnesota Warranty Statute, damages (money) are limited to the amount necessary to repair the defect or the difference between the dwelling without the defect and the value of the dwelling with the defect. Typically, the cost of repair is the measure of damages.

Minnesota also protects home owners against judgment proof contractors. If you are in the unfortunate circumstances of having to assert a claim under the warranty statute the Minnesota Department of Labor and Industry set up a contractor’s recovery fund that can pay money to a home owner that successfully obtains a judgment against a contractor that is unable to pay the amount of the judgment awarded. Once you obtain a judgment, you can apply to the recovery fund and Minnesota may pay up to $75,000.00 depending on the facts of your claim.

Any potential claims under the Home Warranty Statute must be brought within a certain amount of time from the date of discovering the defects. If you are experiencing problems resulting from new construction or home improvements, it is always best to communicate directly with the builder you hired to attempt to resolve the issues. However, if the builder and you are unable to resolve the problems, you can always consult with a construction law attorney to learn about your rights. Other legal claims may be applicable to your particular situation.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

Working in Real Estate Law in beautiful Greater Minnesota with a proud reputation for simply being nice, I often wondered why a Real Estate attorney would ever be necessary to resolve boundary line disputes. However, I quickly discovered that Greater Minnesota is inundated with confusing property lines, complex legal descriptions, and unclear boundaries. Many times the layout of the land is the true culprit to a property line dispute as opposed to neighbors not getting along.

What is the most prudent course of action when a property line dispute arises with your neighbor? If you are lucky and the circumstances are fitting, you may be able to resolve the dispute without having to hire an attorney. The first recommended action may sound simple but is often disregarded: communicate with your neighbor. For example, perhaps you have been struggling for the past year wondering why your neighbor mows five feet into your lawn. In those circumstances, a simple neighborly conversation may resolve the confusion and encourage the neighbor to not encroach onto your lawn if it is a concern of yours. However, what happens when the friendly conversation turns into a dispute over where exactly the property line is located? Most of the time a survey can resolve such a dispute, but not when the survey reveals overlapping boundaries. The discovery of overlapping boundaries is a situation that can ultimately lead to a bitter property line battle.

If boundary lines overlap, both properties have title issues that must be resolved prior to any attempted sale or transfer of title. If this situation is discovered, you should at least consult with a real estate attorney to learn all of your options in your particular situation. Upon learning that your property line overlaps with your neighbors, you or your attorney should look at the legal description on your warranty deed and confirm with the surveyor that the practical boundary line is the same as the line described in your deed. If it is, then compare the legal description to the one in your title insurance policy. Your title insurance company may have to resolve the issue for you if it insured the line despite the overlap.

If there is a general agreement as to the location of the property line, then you could share costs for a survey company to mark the new boundary and provide a legal description. Then, the neighbor and you could resolve the issue by exchanging quit claim deeds that fix the new boundary line. That is likely the easiest, fastest, and cheapest resolution. There are other options available, but generally speaking, if the neighbor and you cannot agree to exchange deeds, then a lawsuit may be necessary to determine the actual boundary line for your property (legalese: lawsuit causes of action typically involve practical location of a boundary and/or adverse possession).

In the end, communication and treating your neighbor with respect will very likely save you from a devastating and expensive lawsuit as well as years of misery from not getting along with a neighbor.

A Trust is oftentimes associated with wealth. The reason for this is that selecting the appropriate Trust based estate plan could save one’s estate from excessive death taxes. However, there are many more benefits to having a Trust. Before identifying some of those benefits, it is helpful to know what a trust is and whether it is the same thing as a Will.

In simple terms, a Trust is an agreement as to how your assets should be handled and eventually distributed. A Trust is a powerful tool that gives the person creating the Trust complete control over his or her assets. The most fundamental difference between a Will and a Trust is the potential avoidance of Probate Court. While a Will is necessary and provides a clear set of instructions as to what to do with the estate, it still must pass through Probate Court. A properly drafted and funded Trust avoids Probate Court.

So what are some of the benefits of having a Trust that may apply to everyone? As mentioned, a trust avoids probate and potential public scrutiny. If privacy is a concern of yours then you would want a trust based plan as opposed to a will based plan. A trust is completely private and, unlike a probated will, a copy cannot be obtained at the Courthouse. There are typically no Court filings with a Trust plan. A trust can also plan for disability. In the event that you become disabled, the person you appoint as Trustee (the one taking care of your property) may exercise the powers given by you to take care of property owned by the trust. In other words, a Trust can also avoid guardianship or conservatorship legal proceedings. A trust makes it easy to place conditions on the distribution of any inheritance. For example, rather than an heir receiving one lump sum of money, a trust could direct that your grandchildren receive a certain amount of money for educational purposes. Finally, if you are a small business owner, a trust may make it easier to distribute ownership interests in that business.

A trust can be a powerful document that offers enough flexibility to control and ultimately distribute your assets. However, a trust is not by any means a cookie cutter form and can become very complex. There are myriad types of trusts to meet your specific needs. If you think a trust may be the right estate planning tool for you, you should discuss the option with your estate-planning attorney before setting one up.

Many Minnesotans own a second property in Florida or Arizona. How does title to that second home pass to loved ones after you die? First, the good news: If you own the home in a joint tenancy with another person (most of the time a spouse), then that person would obtain title to the home without having to go through that state’s Probate Court. If you transferred title to that home into a Revocable Living Trust, then the terms of the Trust would direct what happens to the home free from the Probate Court in that state. However, what if a Trust does not own the property or you do not currently own the home in a joint tenancy with a right of survivorship?

When you die the personal representative of your estate would be responsible for making sure the home goes to whomever you wanted it to go to according to your Will, if you had one. If you reside in Minnesota, your personal representative will very likely go through the probate process in Minnesota. Although there is nothing inherently wrong with probate, the process can make settlement of the estate and transferring property to your heirs more difficult.

The Minnesota Probate Court has absolutely no jurisdiction over property in other states. Therefore, to be able to transfer title on a second home located in another state, the personal representative of your estate would have to go through the probate process in the state where the second home is located (legal term “ancillary probate”) in addition to going through the probate process in Minnesota. Going through the probate process in one state is expensive and difficult enough. Add another probate filing in another state with different laws and procedures and the expenses can become enormous.

If you own property in another state, you can easily avoid probate issues with a quality Estate Plan. The surest way to protect your estate and surviving family members from these issues is by transferring title to all of your properties into a Revocable Living Trust. By doing so, your estate avoids potential ancillary probate difficulties and likely saves a lot of money. All property, including your second home in another state, gets passed as directed by the terms of your Trust. Such a Trust based Estate Plan could be set up entirely in Minnesota by a licensed attorney. You do not need to set up one Trust to own the Florida home and another Trust to own your Minnesota home. Moreover, once you establish a Living Trust, all of your other assets and properties may be owned by the same Trust.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.