I am often asked “What if I didn’t get an agreement in writing?” This comes up very, very frequently in my practice because we do a lot of litigation. Here is a simple example: you come in and you say ”Somebody sold me a lawn mower on Craigslist and told me that it was going to work and I purchased it and it doesn’t work anymore and it never worked, I plugged it in and it doesn’t work.” My first question to you is going to be, “Did they say it worked in writing? Did they give you an email confirmation that it worked? Did they say that in an email or even a text message?”
Do you have it in writing that they are confirming that it worked when you purchased it because that’s what we need. Otherwise, if you go to court over that, then it’s literally a “he said, she said” situation. If we’re in that kind of situation, it would be in small claims court. The judge would have to decide who is more believable because, of course, the person that sold it to you is going to say “Oh it worked when I sold it. I don’t know what happened.” And then you’re going to say, “Well he actually guaranteed that it worked and it didn’t work.” And If you don’t have anything in writing, the judge has to decide who’s more believable and that’s who’s going to win.
You always want to get things in writing. In that situation, even just a friendly confirming text saying ”Hey, I just spoke to you, great speaking to you on the phone. I am going to purchase that lawnmower. You told me that it worked and you’re guaranteeing that it worked. I’ll see you at 10:00 AM to pick it up.” It’s like a compliment sandwich. You say, Hey, so nice talking to you. And then you confirm what you really care about and then you say something nice at the end. However you want to do it, but you’ve got to get it in writing. Even text messages are admissible in court now. I do that all the time.
People come in, I’ll ask them about what they have in writing. They’ll say, well I did text them back and forth. I said, okay, give me the text messages because that’s absolutely admissible and we’re going to attach it to our motion. Sometimes we even attach it to the complaint because we have to prove our case. We have to prove that what you said is true because inevitably the other side is going to deny it. So you want to make sure everything’s in writing or as much as possible. We have a real estate practice and this comes up a lot with realtors. The classic example is vacation rentals. People, especially in Las Vegas, come here to invest in a house so that they can rent it out as a vacation rental. Well, as most of you may know, vacation rentals are essentially illegal in Clark County, in the City you can have them, but there’s very limited circumstances.
There’s lots of restrictions on them, so the realtors need to make sure that they don’t get into a situation where they have a buyer that buys a house in Clark County and wants to use it as a vacation rental, realizes after they buy it that they can’t, and then sues the realtor saying “You didn’t tell me.” I always tell realtors, if you have one of these buyers that indicates they wanted a vacation rental, you have to make sure you send a nice confirming email after you tell them that they can’t do that in Clark County and you email them and say ”As we discussed today, vacation rentals are illegal in Clark County. I suggest you contact a lawyer if you want to investigate it further.” So that way they can’t come back and say “You didn’t tell me. You enticed me into buying the house and I didn’t know.” That’s just another simple example, and that’s actually something that comes up a lot. I want the message of this blog to be: get things in writing to avoid issues. Please send an email. Please send a text so that you can cover yourself, so that you can avoid litigation. Or if you do get into litigation, then you’re the prevailing party. As always, if you want to discuss this further, or if you do have a litigation file that you’re dealing with, you can always call our office or go to our website and schedule a complimentary 15 minute phone consultation with us.
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