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Quiet Title Actions

Today we’re going to talk a little bit about quiet title actions. As you may or may not know, my firm practices in the area of estate planning, real estate and business law. So, quiet title actions are part of our repertoire. We file quite a lot of them each year.

To give you an idea, quiet title actions are needed when you’ve got a cloud on title. If you look at the chain of title for the property at issue, and there’s some kind of problem— let’s say there’s an old lien that shouldn’t be there anymore or there’s a lean that should have been removed but was never removed —then many times you’re going to have to file an action in court for quiet titles to clear the title, so that you can obtain title insurance on the property.

Most of these things come up because an individual goes to sell their property and then finds out that they cannot.  For example:

I had a potential client call me. He has a property that he listed for sale.  He went into contract with a buyer.  He was ready to close when the title company told him that there was a problem with title.  Specifically, there was an old deed of trust in the chain of title that had not been reconveyed.  So, there was this open deed of trust on the property that prevented him from closing on the deal. What we would have to do in this case, because a deed of trust is generally something that is recorded in the chain of title by a bank, in order to remove that from the chain of title, he is going to have to file a lawsuit.

Another example is if there’s something wrong with the chain of title in terms of ownership, like maybe there’s some kind of a rogue deed where the property was deeded to somebody that should not have been on the chain of title. Then, you have to file suit and you’ve got to name all the prior owners on title and try to clear it all out so that you can obtain title in your own name.

Quiet title actions can take a long time or they can be very quick. It all depends on what the person that you’re naming as a defendant is going to do. And that’s true for any litigation case. It all depends on if they’re going to fight back or if they’re going to roll over or if you’re going to get a default judgment against them.

Unfortunately, it is a necessity in many cases where you’ve got some kind of document on the chain of title that hasn’t been cleared and the title company refuses to insure until it is taken care of.

Seller Disclosures in Real Estate Transactions

Today we’re going to talk a little bit about real estate. I bring this up because it comes up so much when I’m talking to potential clients, I get a lot of calls on this subject because most of the time the seller failed to disclose something to them before they purchase the house. When the seller fails to disclose something, what do you do?

In Nevada there’s something called a seller’s real property disclosure (SRPD) form, and it has to be disclosed by law at least 10 days before the purchase is complete. So, before the house transfers to the new owner, the SRPD has to be completed and provided to the buyer. The real estate agent will not sign it or fill it out for you because that is a liability to them since they have no idea the condition of the house.

All you do is check boxes, yes or no, if you know of any problems with certain items including the plumbing, the electrical, the structural. There’s lots of different categories and so if you know that there’s been an issue in the past, even if it’s been repaired, you are required to disclose it. If you do not disclose it, then we may have issues which is exactly why people call me.

For example, I recently got a call where the buyer said “I just bought a house and they didn’t disclose that there was a leak in the roof and my home inspector did not find it when we did the home inspection. What do I do?”

That’s kind of a big open question, so the first thing I ask is what does the SRPD say? Did the seller say anything about the roof? What box did they check? What did they say? Most of the time my buyer says, no, they didn’t disclose it, they said there were no issues with the roof. The next question I always ask is how much did it cost to repair? And I asked this question because a lot of people, this is a theme with litigation in general. You’ve always got away the economics. Does it make sense to file suit? Because filing suit is very expensive. Of course you’ve got to hire an attorney, you’ve got to pay the attorney, you’ve got to pay the court costs. It’s going to take a long time. It’s going to be emotionally draining. So you’ve got to think about whether it’s really worth it.

So the damage question is always the key. How much did you have to spend to repair this? Because that’s going to factor into whether you want to spend money to pursue it. If it’s a small minor repair, of course, common sense tells you that you don’t do anything. You just walk away and forget about it.

Let’s say my potential client says the damages are $5,000. That’s how much it costs to repair the roof. At that point, if we know that the seller didn’t disclose it and we know the damages are 5,000, the next question is do you think the seller knew there was a leak? What evidence do you have that the seller knew that this was happening before he sold, and he intentionally checked the ‘no’ box on the SRPD?

That’s also a key item legally. Like do they know what they did? Did they do an intentionally? In our roof example, the potential client said that when a roofer went up there, they could see evidence that this had previously leaked and there was staining, and so it appeared that the seller would have known.

There’s another step involved before you get to court. If the SRPD was from the Greater Las Vegas Association of Realtors (GLVAR), the form says that the parties agreed to mediate. So, you’ve got to go to GLVAR mediation first before you get to court. A lot of times this is a good idea because it’s very inexpensive and maybe you can resolve it without having to actually file suit.

Another thing to remember is that travel damages can be awarded. What does that mean? Well, if the seller fails to disclose something that they know they knew on SRPD and you incurred damage, then you may be able to recover travel damages, which is basically triple damages for the actual amount it costs you to repair. That’s, that’s the key. So in our roofing example, he theoretically could potentially be able to recover three times the amount of damage.

It would only be on the amount of actual damage. And when I say actual damage, I mean the actual cost of repair. So we’re not talking about the roof was leaking and you had to go sleep somewhere else for the night. I mean, we might be able to get that in, but that’s not as clean and clear as just the actual cost that it was to repair the roof.

If you buy a home and you discover a defect that you didn’t know about before and that wasn’t disclosed and you think the seller knew about, then you may have a case and you can always call our office and talk to us about it.

 

Moving to Strike Fees in a California Quiet Title Action

Issue: Can a defendant in a quiet title action in California properly move to strike a claim for attorney’s fees in a complaint before discovery?

Conclusion: Yes, a defendant in a quiet title action in California can move to strike a claim for attorney’s fees in a complaint before discovery if the claim is irrelevant, false, or an improper matter in any of the pleadings.

Rules and Application:  

In the absence of some special agreement, statutory provision, or exceptional circumstances, attorney’s fees are to be paid by the party employing the attorney. Cal. Civ. Proc. Code § 1021 (2019) [1]; Prentice v. N. Am. Title Guar. Corp., 59 Cal. 2d 618, 620, 30 Cal. Rptr. 821, 823, 381 P.2d 645, 647 (1963); Reid v. Valley Rests., Inc., 48 Cal. 2d 606, 610, 311 P.2d 473, 475 (1957).

Relevant portions of Cal. Civ. Proc. Code (“CCP”) § 435(b) states: “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .”

Following the above statute, CCP § 436 states:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

California courts have generally been hesitant to find implied waivers of attorney fees. In Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 671 (1982), the Supreme Court concluded that an agreement silent as to fees does not bar a motion pursuant to CCP § 1021.5. Rather, statutory attorney fees are properly awarded “unless expressly or by necessary implication excluded by the stipulation.” (32 Cal.3d at p. 678, italics added.) Absent “affirmative agreement of the parties to the contrary,” the trial court retains jurisdiction after the filing of a compromise agreement to consider a statutory fee motion. (Id. at p. 679; see also Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578 (1987)

Federal courts have been similarly loathe to infer fee waivers. In Wakefield v. Mathews, 852 F.2d 482, 484 (9th Cir. 1988), the court noted that, “Waiver of attorneys’ fees should not be presumed from a silent record.” It then held that while “general releases of all claims and costs” do not waive attorney fees (Ashley v. Atlantic Richfield Co., 794 F.2d 128, 140 (3d Cir. 1986), El Club Del Barrio v. United Community Corporations, 735 F.2d 98, 100 (3d Cir. 1984)), an express release which includes “‘costs or expenses of any nature whatsoever, known or unknown, fixed or contingent'” does. (Wakefield, supra, at p. 484.)

Additionally, Mabee v. Nurseryland Garden Centers, Inc., 88 Cal.App.3d 420 (1979), states “[Where] attorney fees are incurred in a prior action, or sought in a proceeding as damages — as for example in false imprisonment or malicious prosecution suits — or where recovery is sought in an action by an attorney against his client for an agreed or a reasonable fee, then the claim for attorney fees is part of the damage sought in the principal action. Only in such circumstances would the attorney fee be required to be pleaded and proven — as any other item of damages — at trial. No similar procedural and evidentiary base is required where ‘the attorney fee was not the cause of action but an incident to it.'” (Id. at p. 425, citing Huber v. Shedoudy (1919) 180 Cal. 311, 314.)

Following Mabee, California courts have consistently “distinguish[ed] between” attorney’s fees that are sought as “the allowance … to the prevailing party as an incident to the principal cause of action,” and those that are sought as “part of the cause of action.” (Mabee, 88 Cal.App.3d 420, 425, superseded by statute on another ground as stated in Santisas v. Goodin, 17 Cal.4th 602, 629.) When sought by the “prevailing party … as an incident to [the] judgment” (Mabee, at p. 425), attorney’s fees may be “properly awarded [as a form of cost] after entry of a . . . judgment” (Khavarian Enterprises, Inc. v. Commline, Inc., 216 Cal.App.4th 310, 327 (2013)). However, when “fees are part of the relief sought[, they] must be pleaded and proved at trial.” (Id.) As explained by our Supreme Court: “‘[W]here attorney fees are . . . sought in a proceeding as damages . . . , then the claim for attorney fees is part of the damage sought in the principal action. … [I]n such circumstances … the attorney fee [would] be required to be pleaded and proven—as any other item of damages—at trial. No similar procedural and evidentiary base is required where “the attorney fee was not the cause of action but an incident to it.”’ (Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 678, fn. 16 (1982), quoting Mabee, supra, 88 Cal.App.3d at p. 420.)

Here at the MLC, we love to discuss technicalities of attorney’s fees. Give us a call if you want to discuss further.

[1] Cal. Civ. Proc. Code § 1021: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”

 

Is Judge Judy Enforceable? Or is The Entire Show Fake For TV?

Most people who have been channel surfing know who Judge Judy is – a daytime TV judge, who is quick to insult and reprimand people while dishing out justice. Many of us have wondered if Judge Judy is genuinely a magistrate, or if the entire premise of the show is just another fake reality program designed for entertainment. The answer may not be as simple as one would think.

Judy Sheindlin is a retired Family Court Judge from Manhattan. She first passed the New York state bar exam in 1965 and practiced as an attorney until she was appointed as a judge in 1982. After retiring in 1996, she began filming Judge Judy. So over 20 years ago, Judge Judy was in fact a real judge, presiding over real cases, in a real courtroom. Today, however, Judge Judy Sheindlin acts as an arbitrator. The cases she arbitrates are real cases from real courtrooms, but the plaintiffs and defendants in her cases have both agreed to a Binding Arbitration Agreement with Judge Judy instead of pursuing their cases in front of an active judge. 1

Appearing on this daytime hit doesn’t just mean being on TV – if you are contacted by one of Judge Judy’s 60+ researchers/producers, not only will you receive a paid trip to Los Angeles, CA, you will be compensated to appear on the show. It has been said that participants are given anywhere from $100-$500 just to appear on the show! Aside from this, the producers will also pay any fines or fees that Judge Judy awards to either side of the dispute. You only must be willing to let the world watch your drama and have a Judy-ism or two yelled at you to receive a free trip to the coast. You’ll get some extra money in hand, and ultimately resolve your dispute – which is what it’s all about!

So, to answer the burning question: Is Judge Judy enforceable? Yes… and no. The cases shown are real cases, with the participants being persuaded to give up their lawsuit in a real court of law. The courtroom audience members, however, are reported to all be paid actors (at a much lower rate per hour than Judy herself). Judge Judy was once a real judge but is now an arbitrator – a very high paid arbitrator. It’s been reported that Judge Judy gets paid over $45 million a year, while working approximately only 52 days!

Do you have your own dispute that you’d like to keep off TV, but still have resolved? We’ll be here for you more than 52 days a year!

As we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!

 

6 Things to Know About Employee Privacy in The Workplace

Former Associate Justice of the Supreme Court of the United States, Louis Brandeis, called the right to privacy, “the right to be left alone.” Privacy can also be defined as, “the state or condition of being free from being observed or disturbed by other people.” Many of us thoroughly enjoy our privacy at home. In fact, we usually expect it. However, at work, you won’t get to enjoy that level of privacy. There are six areas of privacy that we want to discuss.

1. WORK COMPUTERS

An employer owned computer is most commonly known to have little privacy attached to it for the employee. Your employer can monitor all activity on your computer including internet activity and email. There is even software available to monitor and log every keystroke you make, and how long you are idle at your workstation. Everything you do on your computer can be monitored by your employer to protect its business interests and thus there is no expectation of privacy. One thing an employer cannot monitor and should remain private to you is third-party personal email accessed from your work computer. It may be against company policy to view personal emails at work; however, your employer is not allowed to monitor your personal email account.

2. TELEPHONE

Your desk telephone can also be monitored. Employers can listen in on all phone calls made and received by their employees. Some states require notification that calls are being recorded to both employees and callers.  In Nevada, state law requires that all parties on the line consent to being recorded during a phone call. The only exception to monitoring phone calls is on personal calls. It is usually understood that when an employer realizes that a phone call is personal, they must stop listening. However, this can be circumvented by telling employees that personal phone calls from work phones are not allowed. Having this policy means the employee risks their personal call being listened to.

3. MOBILE DEVICES

In today’s day and age, mobile devices are widely used in the workplace. If a smartphone or tablet is provided to you by your employer, an employer is usually free to monitor your text messages, email, internet activity, phone calls, photos, videos, and apps used. This can be done by installing monitoring apps that will secretly record all this information. Be careful of using a work phone for any personal business that you would rather an employer not know about.

4. VIDEO SURVEILLANCE

According to PrivacyRights.org, “Federal law does not prevent video monitoring even when the employee does not know or consent to being monitored.” This means that video surveillance can be in the workplace to monitor employees, maintain security, and protect assets. Some states have more restrictions on video surveillance of employees, however in general your employer is free to do so.

5. U.S. MAIL

One area of workplace privacy that is not often thought about is the mail. If you have mail sent to your place of employment, once it is delivered, you employer is free to open the mail without violating any laws prohibiting this practice. If you are concerned with your mail remaining private, it might be better to have anything personal sent to your home instead of the office.

6. SOCIAL MEDIA

Social media has become a large part of society, and the information you post online is becoming increasingly difficult to keep private. Many companies have some kind of social media policy limiting employees on what can be posted online regarding their work. Public posts about your job is generally not considered to be private, and if the post has the potential to be damaging to the company in some way, the employee can be disciplined based on the employer’s policy.

As you can see, there isn’t a lot of privacy to be had at work apart from your personal belongings, and certain places such as restrooms and locker rooms. It’s unlikely that an employer will be found to have violated an employee’s privacy while that employee is on the clock at work, but it does happen. There have been cases decided where an employer has violated an employee’s privacy, but those are generally based on specific facts to the cases. If you think your privacy has been violated, contact an employment attorney for more information.

And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!

How Can I Fly With My Pet?

Animals play a large part in many of our lives, and we can’t imagine going anywhere without them for long. Over two million pets are transported in an aircraft each year, showing that people are more attached to their pets than ever before. When it comes to flying, because most airports are owned by local municipalities, there are few mandatory laws regarding how airlines and airports must handle our furry friends.

Taking your cat, dog, or household bird with you may have certain restrictions depending on what airline you fly with, and it is important to remember to check these restrictions before booking your ticket. Pets are permitted in the cabin on a first-come, first-serve basis. When you begin making travel arrangements, instead of booking online, call the airline you will be traveling with to reserve priority for traveling with your animal; many airlines have a certain allotment of pets allowed for each flight.

The U.S. Department of Agriculture (USDA) does require certain records and certificates for the pet or pets you will be traveling with, and they must be endorsed by an accredited USDA Animal and Plant Health Inspection Service veterinarian to be considered valid. As outlined on their website, the process for taking your animal either domestically or overseas may take weeks, or even months, so it is strongly advised to begin planning for this endeavor as far in advance as possible.

Furthermore, the U.S. Department of Transportation (USDoT) stipulates that “dogs and cats must be at least eight weeks old and must have been weaned for at least five days.” There are also mandated guidelines that each traveler must meet regarding crates or kennels, instructions given on when and how much to feed your pet before travel, and even temperature regulations that owners and airlines must follow for a pet to fly. To ensure you are meeting all U.S. Department of Agriculture and U.S. Department of Transportation policies, visit their respective websites so you don’t run into any issues the day you are set to leave.

As for planning, don’t forget to ask if your airport has a pet relief area where your fur baby may relieve themselves before and after the flight. For our local travelers, there are three pet relief areas stationed inside McCarran International Airport: two inside Terminal 1 and a third in Terminal 3, as well as three located outside of the airport itself. For all of those flying with their animal for the first time ever, be sure to google tips and tricks from experienced travelers to help you along the journey.

In addition, before traveling with your pet, always remember that many animals are unable to manage their stress and anxiety levels the same way we do. Be sure to consult with your vet about ways to manage your furry friend’s emotional and physical health if flying is the only option for you and your pet. If your pet doesn’t have to travel with you, it may be better to leave them at home with a friend where they will happily await your return.

For more information and regulations on traveling with your pet, check out the websites for the USDA and USDoT, as well as the airline’s website you would like to fly with to review their policies to travel with your precious pet.

And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!

Using Regulation Crowdfunding For a Real Estate Fix And Flip Without Violating Securities Laws

As the internet developed, investors and real estate fix and flip companies have turned to “crowdfunding” for investments. While crowdfunding can provide great options for all involved, there are still legal requirements for the investor and the fix and flip business. This short guide provides some information about the federal and Nevada regulations involved in some crowdfunding scenarios.

“Regulation Crowdfunding” Exemption

Typically, any company or individual that wants to offer or sell securities to investors must be registered with the United States Securities and Exchange Commission (the “SEC”) in order to comply with the Securities Act of 1933. When a real estate flip and fix business seeks investors they are very likely issuing securities, and their activity may be regulated by governmental agencies like the SEC. However, the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) allows for exemptions from registration for crowdfunding. Accordingly, in 2015, the SEC issued an agency rule adopting “Regulation Crowdfunding,” permitting some investments without requiring SEC licensing. This allows businesses to use crowdfunding without registration under certain limitations.

“Regulation Crowdfunding” Basics: Limits on Securities Sold, Limits on Investors, and Licensed Intermediary

The most significant limitations for Regulation Crowdfunding include limitations on how much can be raised, how much investors may contribute, and requiring the involvement of an SEC registered broker-dealer or funding portal. Regulation Crowdfunding caps the total amount of securities that may be sold to investors to $1,070,000.00 during a 12-month period, including amount sold by entitles controlled by or under common control with the issuer. This limitation means that Regulation Crowdfunding would likely be unavailable to a fix and flip company that created several securities opportunities in different LLCs. For example, if ABC Fix and Flip, LLC created three LLCs, each of which sought $500,000 in investments during a 12-month period, the aggregate total would be $1,500,000.00 and would exceed the securities sale cap, making Regulation Crowdfunding unavailable as on option.

Regulation Crowdfunding also limits the amounts investors can provide. Investors with an annual income or net worth under $107,000.00 may invest the greater of $2,200.00 or five percent of the lesser of their annual income or net worth. If the investor’s annual income or net worth is in excess of $107,000.00, the investor may invest the lesser of 10% of their annual income or net worth. No investor may be sold more than $107,000.00 in Regulation Crowdfunding securities in a 12-month period.

Finally, Regulation Crowdfunding requires the use of either a broker-dealer or portal that is registered with both the SEC and the Financial Industry Regulatory Authority (FINRA). So, even though the company seeking investments does not need to be SEC registered, the transaction will still involve an SEC licensed intermediary. This offers the company seeking investments the benefit of relying upon the intermediary’s determination that the investor limitations (see above) are followed.

Disclosures in Regulation Crowdfunding

While the issuer of a security taking advantage of Regulation Crowdfunding does not have to be SEC licensed, they must still provide information to the SEC in conjunction with the broker-dealer or portal intermediary. Issuers of securities must file “Form C” with included attachments on an annual basis. Form C requires disclosing information about officers, directors, and owners, information about the business including its financial condition. Financial information will include income tax returns. Additional disclosure requirements vary depending on the amount the business offers under Regulation Crowdfunding.

In addition to the annual reporting, the security issuer must also file progress updates under Form C-U when reaching 50% of its target offering amount, and again when it reaches 100%. Other SEC disclosures may be required on a case-by-case basis. State regulatory disclosures may also be required.

Advertising Limitations in Regulation Crowdfunding

The issuer of a security in Regulation Crowdfunding is strictly limited in its ability to advertise offering information. Generally, only facts about the issuer and offering terms may be provided. Issuer’s may still communicate with potential investors, but should do so through the intermediary broker-dealer or portal, clearly identifying itself as the security issuer. In sum, advertising should be done through the intermediary, and the issuer must direct investors there.

State “Blue Sky” Laws

In addition to SEC regulation, many states have laws regulating securities, often referred to as “Blue Sky” laws. It is important to make sure an investment offering will comply with relevant blue sky laws, which could include protecting an out of state investor (for example, if an investor is from another state than the state of the company offering the security, the investor’s state may seek to regulate that transaction for the protection of the investor).

Nevada requires anyone seeking to sell or offer to sell securities in Nevada to register, unless exempt. NRS 90.460 et. seq. Nevada allows for registration by filing, registration by coordination, or registration by qualification. NRS 90.470 – 90.490. However, Nevada exempts some types of securities from registration altogether, while exempting other particular transactions. (NRS 90.520(2) provides the list of exempt securities, while NRS 90.530 provides the list of exempt transactions.)

One exemption, NRS 90.530(11) has similarities to Regulation Crowdfunding. Nevada does not require registration if the transaction is part of a series where there are less than 35 investors in a 12-month period, there is no general advertising or solicitation related to the securities sale, no commission or compensation is provided for the investment (except a licensed broker), and the seller reasonably believes the purchase is for investment. Id.

Conclusion and Additional Information

Crowdfunding offers new options for issuers of securities and investors alike. While regulatory compliance is narrower than a public offering scenario, regulations still apply. As always, if you think you might need an attorney, you probably do, and you can contact us here.

Mediation vs. Arbitration: What is The Difference?

Some people may mistakenly think that mediation and arbitration are synonymous with one another, and while it’s true there are some similarities between these two processes, the differences are considerable. Both mediation and arbitration utilize a neutral third party to oversee the dispute outside of the court system, and both are alternatives to traditional litigation. In some cases, both mediation and arbitration can be binding on the parties.

In mediation, a single agreed upon mediator is selected to assist in facilitating a discussion between two disputing parties to ultimately come to an agreeable resolution on both sides in a more informal environment.

Arbitration, however, has an agreed upon arbitrator taking on the role of a judge, hearing evidence, making decisions, and issuing opinions. In some arbitration cases, the neutral third party is a panel with both sides of the dispute selecting their preferred arbitrator, then the arbitrators themselves selecting a third to join the panel so a majority vote would prevail if necessary.

While mediation seeks mutual agreement through facilitated discussion between the parties, arbitration imposes rules by the arbitrator making decisions on their behalf. In arbitration, one of both of the parties may end up dissatisfied with that decision of the arbitrator.

In some cases, a judge may order a dispute to go through an alternative dispute resolution before continuing in the courtroom. Alternative dispute resolution generally indicates arbitration or mediation, and can many times lead to an acceptable and agreeable resolution for all involved without the need for time consuming and costly litigation in a formal court setting.

In the Eighth Judicial District Court every contested civil case is reviewed by the Alternative Dispute Resolution Office, with 75% of cases that are assigned to arbitration being successfully resolved. Parties in District Court can bypass assigned arbitration by agreeing to participate in mediation. According to the United States Department of Justice, in 2017 55% of cases were resolved by court-ordered alternative dispute resolution, and 75% of cases were resolved by parties voluntarily seeking alternative dispute resolution.

For more information on Alternative Dispute Resolution in Clark County, CLICK HERE.

So, mediation and arbitration, although having a different procedure, has a similar and fairly successful goal of resolving disputes between parties.

Our Las Vegas estate planning attorneys at Morris Law Center would love to assist answering any questions about your dispute and obtaining a resolution to it. Contact us today to set up your complimentary consult.

What’s The Difference Between Medical And Recreational Marijuana in Nevada?

Now that recreational marijuana has been legal in Nevada for some time, many of you may be wondering what differences exist between the two. While the legalization of recreational weed didn’t change how the medical marijuana program was governed, legal differences between the two may affect whether you decide to apply for a medical card.

First, medical users can possess up to two and a half (2.5) ounces of “usable marijuana” in a two-week period, while recreational users can only possess one (1) ounce.[1]  Basically, if you don’t have a medical card and you’re caught with more than an ounce of marijuana on you, it’s a felony charge. [2] Significantly, medical users also don’t have to pay a hefty 10% tax that recreational users pay.

A restriction that applies to recreational users that doesn’t necessarily apply to medical users is the right to grow your own marijuana. Medical users can grow their own pot even if they live within 25 miles of a retail store as long as they are too ill, don’t have the ability to travel, or if they are grandfathered in as a cultivator prior to July 2013[3]. Furthermore, while recreational users can only grow 6 plants per person, medical users can grow 12.

Another difference between recreational and medical use is the legally allowable age. As many of us are familiar with, a person must be over the age of 21 in order to use and buy recreationally, but not so for the medical side of things. Persons under the age of 21, and even 18, may use marijuana if they have qualified for the card.[4] Those under the age of 18 just need to have an official care-giver. Of course, qualifying for a medical marijuana card requires written affirmation from a healthcare provider.[5]

One of the most notable differences is the Medical Marijuana Registry. While those over the age of 21 can purchase marijuana somewhat anonymously in Nevada, those who have a Medical Marijuana license will be on the state’s database of cardholders. There’s no way around this, since the Medical Marijuana program is run by the state. There are also some nuances involved with the registry, since the information technically falls under HIPPA; while HIPPA protects a person’s medical information, it won’t necessarily stop the fact that you’re on the registry from showing up on background checks.

The law does not prevent employers or landlords from discriminating based on the fact that a person uses marijuana. Furthermore, being a Medical Marijuana Cardholder means you won’t be able to apply for gun licenses, or purchase guns. A Nevadan woman actually appealed this very issue all the way to the 9th U.S. Circuit, but the court ruled that the ban of gun sales to cardholders does not violate the Second Amendment.[6]

However, with more states slowly legalizing recreational marijuana, and with the huge amount of tax revenue it’s brought in for the government, the overall stigma will probably fade. The recreational market has also made purchasing marijuana a much easier task for medical users, as more and more legal dispensaries open to support the growing market. Marijuana is still a new industry, so there’s a way to go before all the kinks are ironed out, but for now, there are some significant differences between being a cardholder and buying recreational marijuana.

And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!

 

By Winnie Wu, Legal Assistant at Morris Law Center, Former UNLV Undergraduate Research Scholar and 2018 University Libraries Lance and Elena Calvert Undergraduate Research Award Winner


Sources:

[1] NRS. 453A.200 3(b)(1)

[2] NRS. 453A.200 3(b)(vb2)

[3] NRS 453A. 200 (6)

[4] NRS 453A.210

[5] Id.

[6] Thanawala, Sudhin. US Court Upholds Ban on Gun Sales to Marijuana Card Holders. (August, 2016). Associated Press. Retrieved from https://apnews.com/bbb3ef37357d4799bec33cb2d36a7bae

7 Steps to Take if You Are in an Accident

Being involved in an accident, whether a car accident or a slip and fall, can be a difficult experience. Here are the steps you should take in case you are in an accident.

    1. Seek medical treatment immediately if you are injured.
    2. Obtain contact info for witnesses.
    3. File a report/call the police.
      a. If you slip and fall, report it to the establishment immediately.
      b. If you are in an auto accident and there are injuries, call the police.
    4. Take pictures at the scene.
      a. Before the cars are moved or the substance you slipped on is cleaned, take pictures.
      b. For a car accident, these pictures should include a picture of the insurance card for the other driver(s). Also, don’t forget to include license plates in pictures of the cars.
    5. Stay off of social media. Do not talk about the accident or your injuries on social media as this can be used against you in a lawsuit.
    6. Report the claim to your insurance.
      a. You may need to eventually give a statement, but for now just get the claim open.
      b. The other driver’s insurance might cold call you to “take a statement.” They are only looking for one thing: a reason to deny your claim. Don’t talk to them until you consult an attorney.
    7. Contact an attorney.  We are here for you whenever you need us. From communication with insurance adjusters to gathering medical records, we are here to take away the stress of being in an accident so that you can focus on healing.

 

Feel free to print this blog out and keep it in your glove box. We hope you never need it, but we want you to be prepared.