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My Neighbors Start Band Practice at 11p.m.—What Can I Do?

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Joe EscalanteThere are people in my apartment building who start band practice at 11 p.m. many nights. I have tried talking to them, I have tried talking to the manager—no help. What are my rights?

Wendy McConnell

Barely Legal Radio w/ Joe Escalante

Great question Wendy. Even if the exact words are not in your lease, every tenant has the right to the “quiet enjoyment” of their property. Any interference with this could be termed a “private nuisance.” A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. If the landlord has been warned, and does nothing, a court may find that he breached the “warranty of habitability” that is implied in every landlord tenant relationship. Arguably, you could withhold rent, but you would have to have some pretty good documentation of the nuisance, and the landlord’s lack of action to get a judge to allow you to withhold rent. It’s important to document the nuisance with film/video/decibel meters, etc. and even more important to document the notices you gave the landlord.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

January 29th, 2015 at 1:08 pm

Can You Extend A Provisional Patent?

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Joe EscalanteAbout patents – can you extend a provisional patent if you don’t get it together in one year? Am I protected under a provisional patent? How can I assure my idea hasn’t been patented decades ago?

Jenny Cestero

Barely Legal Radio w/ Joe Escalante

Great questions. You can watch a video from the U.S. Patent and Trademark Office on patent searching and other useful things. You don’t have to search that far back because patents don’t last too long, the max is 20 years. You cannot extend the protection of a provisional patent. You can file a second provisional patent, but you will lose your priority date, perhaps to someone else. The only way to preserve your original rights gained by your first provisional patent is to file a non-provisional patent that claims priority to the filing date of the first provisional patent.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

December 24th, 2014 at 12:27 pm

Is it Too Late to Get Visitation Rights for a 14-Year Old Daughter?

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Joe EscalanteI have a daughter whose mom keeps me away from her. She is now 14 and I have done nothing wrong to the mom. The mom all of a sudden had a change of heart. The child is asking who her dad is and the mom refuses to say who I am. Her mom hates me so much she tried to file false charges on me but they never stuck because the detective saw through her lies. Will a judge deny me visitation because I waited so long and in Oregon is there an age that a minor child has to be to decide who she wants to live with?

Allen James Brost

Barely Legal Radio w/ Joe Escalante

You should file a petition with the court stating your wish to have custody of the child or at least be granted visitation rights. If you are granted visitation rights, the mother will be in contempt of court if she denies you those rights. In Oregon, a judge may consider a child’s preference about where the kid wants to live, but a judge doesn’t have to follow the child’s wishes. This is true no matter the age of the child, although the wishes of older kids carry more weight than those of younger ones. Good luck!

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

December 24th, 2014 at 12:26 pm

Will My Homeowner’s Insurance Cover Any Injuries from My In-Home Business?

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Joe EscalanteIf I have a small business run out of my home where people come, and someone gets hurt, would my homeowner’s insurance cover it? I’m located in New York.

Leenie Levitt

Barely Legal Radio w/ Joe Escalante

Hello Leenie, a typical homeowner’s insurance policy does have personal liability coverage as well as coverage for medical payments for injuries. This policy should cover injuries incurred by business visitors to your home. I recommend obtaining commercial general liability insurance if you don’t have it already to protect your business assets. Speak with your insurance agent on the specifics of your coverage.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

December 24th, 2014 at 12:25 pm

Is it Legal to Put “TM” on Your Logo Before You Register the Trademark?

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Joe EscalanteIs it legal to put a TM on your logo before you apply to register the trademark? Thanks!

Cathy Rundell

Barely Legal Radio w/ Joe Escalante

You can use trademark symbol (™) even when your product is not registered, but you are asserting trademark rights. That’s fine. You can even use the service mark symbol (℠) for unregistered services, although this is rarely used and will make people think you are a bit weird. Registered trademarks and service marks are indicated using the registered trademark symbol (®). In some jurisdictions, it is unlawful or illegal to use the ® symbol with a mark which has not been registered, so be careful with that one.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

November 26th, 2014 at 4:02 pm

Can You Be Whited Out of a Will?

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Joe EscalanteWhen my father died, he had a will. But I didn’t attend his funeral. My stepmother whited my name out of the will and excluded me. What can I do to receive what was left to me from my father?

Khametica Aspired

Barely Legal Radio w/ Joe Escalante

Sorry to hear about this, Khametica. The proper procedure would be to petition the court with jurisdiction over the estate to contest the validity of the will. It’s hard to imagine a will with white out being judged valid, but if no one stepped forward to raise any issues with it, the ship may have sailed. It all depends on how much time has passed and what was done in that time. If the will looked terrible and invalid, the court would throw it out and use what are called “intestate succession” laws to distribute the funds. That’s what they do when there is no will at all. In most cases, without a will, the court would award all your father’s stuff to his evil bride. It’s up to you to contest the will and demonstrate that your father’s true wishes were to leave property to you. If you don’t do this, and the estate is formally probated, which takes a year or two, then the ship has sailed and there’s not much you can do unless you can prove fraud. You could prove fraud maybe if she really did use the will with white out in it, but it would be an uphill battle. Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

November 26th, 2014 at 3:48 pm

How Do I Protect My Idea?

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Joe Escalante

I have an idea that I want to take into production and protect that idea…how do I go about it?

Garry Edwards

Barely Legal Radio w/ Joe Escalante

Hi Garry. If you are talking about something that might qualify for patent protection, I would check into filing for provisional patent protection. That will give you a year to prepare your utility or design patent application and gives you the immediate right to label your product “patent pending.”

However, if it’s not patentable, e.g. if it’s an idea for a movie, or a song, or some other kind of creative “idea” there is no protection available for it in copyright or patent law.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

October 21st, 2014 at 11:47 am

How Do I Stop My Ex’s New Partner from Posting Photos of My Child?

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Joe Escalante

Please help me, I was wondering if there’s anything I could do law-wise to stop my ex-husband’s new partner from posting pictures of our son on her Facebook? She’s posting pictures of him with comments such as “our beautiful boy.” I know my ex-husband has no problem with this as it’s his partner but I find it hurtful and offensive. That’s my son and I know she posts these pictures to get my back up. Please help me.

Sarah Bargainkidstuff

Barely Legal Radio w/ Joe Escalante

In most cases it only takes one parent to be able to consent to the posting of pictures of minor children in public. However, if you took the picture you are the author for purposes of copyright so you could object on copyright grounds. You could also petition the court to enjoin your ex-husband from posting pictures on Facebook but that would be hard to get for a variety of reasons. But if you did petition the court to change custody in this way it might be such a bother for the woman and your ex that they just agree to not do it anymore. But the bottom line is that if you have shared custody, the father can consent to stuff like this.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

October 17th, 2014 at 6:19 pm

Is it Better to Have a Will or a Living Trust?

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Joe EscalanteIs it better to have a will or a living trust?

Bernadine Anderson

Barely Legal Radio w/ Joe Escalante

The main reason most people establish a trust is so that their property will pass to their heirs without going through the cumbersome process of “probate” with the courts.

If you don’t have any houses, or don’t have any kids, it’s not that important. A will can suffice.

However, if you have houses and kids, it’s wise to protect them from having to wait so long and spend so much money until they get the property you want them to have. To do that, you need to place your property in a trust. When you die, the trust will live on and “give” your property to your heirs.

If you have a spouse, but no kids, your house may just transfer to your spouse automatically when you die if it is held as a joint tenancy with rights of survivorship (as opposed to “tenants in common.”) Make sure you check out how your property is held. It makes a big difference.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

September 30th, 2014 at 3:19 pm

Posted in Free Joe

Is an LLC the Best Structure for a Small Business?

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Joe EscalanteHow do I know LLC is the best structure for my small business? Assuming I won’t have staff for at least 18 months and I’ll be working from my home and driving to customers to provide them with their desired service.

Roland Paguirigan

Barely Legal Radio w/ Joe Escalante

This question is best answered by your tax professional. Remember, an LLC in many states has a minimum tax level you must pay even if you are making zero dollars. In California, that is $800.00.

You might be better off starting as a sole proprietorship with some liability insurance and then move to an LLC or corp. down the road when your tax advisor feels it’s time. Get your tax person on board ASAP because an LLC is a great entity, but it has to be the right time. Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

September 30th, 2014 at 2:55 pm

Posted in Free Joe