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My Neighbor’s Smoking Bothers Me. What Can I Do? And More Free Legal Advice – Free Joe 10/29/12

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Marilyn: I live in Yonkers ny. my neighbor smokes in her bathroom and turns on the vent and its unbearable! I’ve asked her in the past to please stop as I have a 1 and 3 yr old. She does not care what I have to say. what are my options?

Joe Escalante: You can always sue in Supreme Court of N.Y. for declatory or injunctive relief to stop your neighbor from doing something that harms you. However, depriving your neighbor the right to smoke in his own stinky castle will be a tough burden. The court is likely to favor the neighbor unless they find evidence that it is egregious.
Some states allow small claims court to handle stuff like this, but it’s rare.

Sparky: I have a question for Free Joe; Before closing my business my main distributor and I had reached an agreement where they would hold a few checks and we would settle up in September. Well, they didn’t hold their end the bargain and cashed the checks anyway (I have the email conversations stating our agreement with the credit department) NOW they are going after me for inventory I did not receive AND fees that they caused by cashing check they said they were holding ….I’m not sure what to do, I’m broke and cannot afford a lawyer, but I don’t want to pay them for fees they caused. I feel trapped can you help?

Joe Escalante: It sounds like the distributor broke an agreement. However, I’m not sure that an agreement to “not cash checks” would be enforceable. It’s one of those things that some states might consider “against public policy” like post dated checks. There aren’t a lot of legal options here. I would try to work it out with them and see how far you get without threatening legal action.

Christopher: Is it possible to “Hold” a Copyright – i.e. hold the rights to a copyright for a given period while you secure funds to pay for it?

Joe Escalante: A copyright only costs $30.00 to register so I don’t get it. However, maybe you are talking about purchasing a copyright from someone else. You could draft an option agreement to have an option to purchase it for a limited term, i.e., the “option period.” You might pay a small amount for the option, or get a gratis option in exchange for doing something else like “shopping it around for buyers.”

Christopher: ahhh sorry I meant, Trademark.

Joe Escalante: Trademark protection is governed by use. It is awarded to those who “use” marks. People who “hold” them, are frowned upon. Society has no interest in protecting hoarded marks. Think about it. Why would that be a thing?
However, if you use your mark in interstate commerce, you are “holding” it in a way, because the mark shouldn’t be registered to another if it is already in use by you, even if unregistered. But this technique is risky. Good luck.

Falan: My assistant is in financial hardship. Should one bankrupt before filing divorce or after the actual divorce? She has two kids.

Joe Escalante: That depends on the situation. It could be a divorce strategy because it causes problems for the spouse if you declare bankruptcy before divorce. This could only be answered effectively by the attorney handling the divorce. It would vary with each scenario.

Anna Marie: If I am passing out candy and my dog snaps at a trick or treater that tries to pick him up… how liable… needless to say all animals are on lock down every Halloween.

Joe Escalante: If the dog causes injury, you are liable for the injury. If you are offering spooky dog rides, get appropriate insurance.

Richard: Can a person In Arkansas sue their land lord if moved into a non smoking place because of health reason the landlord knowing then after moved in find out that he allows them to smoke out side there dorr which makes it worse cause the smoke comes in under the town house into the place more direct than a non smoking place now the landlord thinks i’m trying to tell him how to run the place by telling him they should be told this is no smoking smoke away from where other people live and now he says move and don’t want to do anything I cant move financially and because of health do I have recourse!! thanks for your help

Joe Escalante: Like I said to Marilyn below, there are a few options against the neighbor, and the landlord. Realistically however, your only real hope is getting your lease declared invalid due to a breach of the warrant of habitability. Then you could move. Getting to the courts to force the landlord to enforce these rules is not what courts do effectively.
This is what Yelp is for. You post on that there is a smoke problem, then people wont rent from them until they fix the problem. If it is a problem that affects their ability to collect good rents, it is more likely to be fixed permanently.

Janice: How many times can one keep getting a provisonal patent for the same product…consecutively?

Joe Escalante: You can refile provisional patents. You cannot extend them. But where you get into trouble is if you publicly disclose the invention, then you can’t refile if it was more than a year before the filing date of the 2nd provisional patent. This stuff gets serious so it’s vital that you sit down with a patent attorney to get it straight. It’s worth the money if it’s a serious invention.

Katie: My husband and I live in Florida with our two children. What is the best way to make arrangements so that our kids will be taken care of (by someone we select) in the event that we can no longer be here for them?

Joe Escalante: The simple way is to place all your real property, and any other substantial property into a living trust. You can name a trustee that will administer the trust to the benefit of your named beneficiaries. The trustee can do things like only dole out money if the kid goes to an Ivy League School, or you could say something like “brat must attend a school rated higher than Chico State.” Have fun with it! Or be all serious. The point is, this is what estate planning is all about, controlling your kids from beyond the grave. You can do almost* anything you want with your money. (*see e.g., Rule Against Perpetuities.)

Kaye: Y stepfather just passed and I am my *^ y.o. Mother’s POA. The marital home fell to Mother via the Survivorship deed. Do I need to have the deed changed to remove my Stepfather’s name and have the deed recorded in my Mother and my name. I have two adult siblings one says he will “sign” his part to me since I care for Mom. I have not discussed it with the other. Should I just leave it the way it is until Mom passes to avoid duplicate fees for no reason? State of VA.Thanks K

Joe Escalante: File a “change of ownership” form with the county registrar / recorder to get it placed in her name. To get it into your name, she will issue a quit claim deed to you for an undivided interest. Register that. You need to have rights of survivorship so it passes to you upon her death without going through probate.

Melody: Mr. Joe, If a person has a joint custody agreement in force along with a support order and the father is not paying the support and hasn’t seen the children in over 6 months, can the mother refuse to allow him to come get the children for a visit?

Joe Escalante: No. To change his visitation rights, she would have to petition the court (with the evidence that he doesn’t pay or visit). The state could view her as an unfit mother if she’s not vigilant with the enforcement of the support decree. The kids are depending on her to look out for them. If she’s not, who will? She must use the court to do these things. She can’t just randomly enforce and penalize willy-nilly.

Daniel: What costs are accumulated in, I’m sure a no contest, divorce via city public paper in Sunnyside Washington? Haven’t seen her in 6 years. My hometown paper. Easy I hope. Thank you

Joe Escalante: Best thing to do is start the process with Legalzoom. Then you will know exactly how much it is going to cost. It will be the court’s fees plus something like $299.00. Click the link below:

LegalZoom: Here’s the link, Daniel:

Meg: This may be a lost cause, but want to pick your brain – well, not literally … I had a “friend” of mine store some of my items in her carport for an eventual garage sale. In the meantime, within the next week, I located and obtained my own storage unit and went back to get my stuff. She indicated she had a garage sale and what was not sold got donated to St. Vincent de Paul (um…checked – not).
So, she made out on my misfortune (plus went through all MY donations for her own use when she was at my house waiting for MY donation pickup). I contacted the police, and they said it was a matter of she said/she said. What are your thoughts/views of me wasting my time in a civil suit? The item I am most interested in retrieving (she has her OWN storage unit(s) – 5 of them – she’s a “hoarder”) is my lighted etched glass cherry curio ($500.00 – which she says she donated). Um….I think not. Thoughts at your convenience, thx.

Joe Escalante: It will all come down to what the judge decides was her “duty of care” for your things. Since she was a friend and offered to help, she probably had a pretty high duty of care. If your curio falls off your truck because you make crazy turns, and it falls onto my yard, and you take off, I have a “low” duty of care to look after it. See the difference? If you took her to small claims court and she couldn’t explain herself adequately you are likely to get a $500.00 judgment against her.

Laura: What if you buy a car plus the extended warrenty, car breaks down within a month and not covered under warrenty. The cost to fix car is more than car is worth. Take car back but they will not give money back. All within a month? anything i can do to get my down payment back?

Joe Escalante: You need to check with your state’s Lemon Laws. And google “Lemon Law Attorneys” in your state. A quick phone conversation with one will set you straight on what your options are. Good luck.

JJ: Hi! I have a question for your afternoon question/answer session… We’re currently fighting with our HOA regarding safety screening we put up in our 3rd floor balcony. The railings are not to code (code states they must be 4″ apart on center, they are 6″ apart), and we have a small child and do not feel safe with the current spacing so we put up a very discreet, clean -looking screen to protect her. The HOA says this is against their rules and regulations for aesthetic reasons. I think building and safety codes trumps HOA regulations. Do I have any legal rights here?

Joe Escalante: You sound like you have them over a barrel. There are lawyers that specialize in HOA stuff as well. It might be worth paying $500 to get a scary letter from one threatening litigation and putting them on notice that if a baby drops, it’s not going to be pretty for them, or the baby. They would be really stupid to pull the screen and assume all that liability, and all in violation of the code.

Kylie: Joe, my ex sister-in-law got a restraining order against me a few years ago and lied to the judge telling him I was trying to kidnap her daughter, my niece. (Her daughter kept telling her that she wanted me to be her mom and her mom retaliated…against me?) Anyway, it is STILL on my record even though it was thrown out of court. I worry about prospective employers seeing this. What can I do?

Joe Escalante: That is terrible. You should talk to the court clerk and tell them you want to file a petition with the court to get the record sealed. I don’t know the procedure for this in your county but it’s a normal question that the clerk in that court probably gets every day. Good luck.

Paula: My ex husband owes a lot of back child support. He is working and the company is paying him under the table. How can I catch him, I do not live in the same state as he works. I have no funds and the District Attorney seems to be limited in resources to find and collect from him. Any suggestion Mr. Joe????

Joe Escalante: This is the kind of thing that would cost several thousand dollars in legal fees, or private investigator fees to prove. However, it would be cheap to stir things up by writing a letter, sent by registered or certified mail, that asks the company to tell you how much he is being paid. Make them aware that you are going to involve them with the court and the IRS unless they tell the truth.
You can always ask them to pay you the money directly. If you keep pestering them for the money, they will get sick of having him around.
It’s about applying pressure against all parties. Be careful though, if he loses his job over this, he may lash out at you in a dangerous way.

LegalZoom: Joe will be back on Friday for more legal Q&A. Join us then and bring your questions!

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November 1st, 2012 at 5:58 am