Idaho Law Blog

Residential Lease Agreements and Personal Guarantees

Published on: October 28, 2016 | by Racine Olson

The issue of guarantees and/or co-signers on a lease agreement is related to the issue of who the parties to the lease agreement are. The person who owns the property and is renting the property is the landlord. The person who is renting the property is the tenant. Even though these are the basic parties to a lease agreement there are instances where there might be other parties involved as well. These additional parties include persons who guaranty and/or co-sign the lease agreement but who are not actually tenants renting the property. This happens often when you have a young tenant, such as a college student, who may be renting from a landlord for the first time.

A “‘[g]uaranty’ is an undertaking or promise on the part of a guarantor which is collateral to a primary or principal obligation and binds the guarantor to performance in the event of nonperformance of the principal obligor.” Industrial Inv. Corp. v. Rocca, 100 Idaho 228, 596 P.2d 100, appeal after remand, 102 Idaho 920, 643 P.2d 1090 (1979).

Death Without a Last Will and Testament

Published on: October 28, 2016 | by Racine Olson

By Matthew P. Stucki

When people in the community discover that I am an attorney that practices in the area of estate planning, one of the first questions that they ask is what happens upon my death if I do not have a Last Will and Testament. In response, I inform them that if they die in Idaho, the Idaho legislature has promulgated statutes that provide for the distribution of one’s property upon death if there is not a valid Last Will and Testament.

These statutes can be found in Idaho Code, Title 15, Chapter 2. In essence, all community property of a deceased individual passes to the surviving spouse. (See, Idaho Code § 15-2-102). However, if there is not a surviving spouse, then the deceased person’s property passes according to the following priority:

Disciplining Employees for Off-Duty Misconduct

Published on: October 28, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Generally speaking, in Idaho, there are few statutory limitations for disciplining an employee for off-duty misconduct worth mentioning. The only one worth mentioning is contained in the Idaho Civil Service Act (See I.C. §§ 50-1601 et seq.)

Pursuant to the Civil Service Act, each city council that creates a civil service system has to adopt a civil service ordinance that describes the department or employees that will be subject to the Act. 　In most instances, civil service employees include police and firemen.

Which State Should I Set My Business Up In?

Published on: October 27, 2016 | by Racine Olson

By Lane V. Erickson, attorney

I often have clients ask me which state they should set their business up in. More often this question is, which state should I incorporate in? Many people wanting to set up an LLC or corporation have heard or read on the internet that states like Delaware, Nevada and Wyoming can offer business benefits beyond what most states can offer. So where do you set up your business or corporation? My advice and counsel is that unless you own, or plan to own, a business that is large and doing business in many states, it is almost always best to set up you business in the place where you already live. There are 3 main reasons for doing this.

1. THE COSTS OF REGISTERING A BUSINESS

Executing a Valid Will – Part 4 Proper Execution

Published on: October 27, 2016 | by Racine Olson

By Matthew P. Stucki

This is the fourth of four posts discussing the execution of a valid Last Will and Testament. The first three steps in executing a valid Last Will and Testament include testamentary intent, testamentary capacity, and voluntary creation of the Last Will and Testament free from fraud, duress, or undue influence. The fourth and final step in the execution of a valid Last Will and Testament requires that the Testator execute it under a specific ceremony per state law.

For example, in Idaho, a Testator’s Last Will and Testament must be signed by the Testator and by at least two witnesses who either witnessed the Testator signing or had the Testator acknowledge his or her signature to the witnesses. Both the Testator signatures and the witness’ signatures should be signed or acknowledged in front of a notary public. Once this ceremony is completed, the Testator has a valid Last Will and Testament.

2 Roll-Over Accidents in the News With Very Different Outcome

Published on: October 27, 2016 | by Racine Olson

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Recent news reports of accidents are a reminder of the importance of seat belt use. A head-on crash happened on Tuesday evening, October 18, 2016 near Caldwell on U.S. Highway 20/26 between a 1997 Ford Taurus driven by Joseph Upchurch of Nampa and a 2002 Chevrolet Impala. The Ford crossed the center line while traveling eastbound on the state highway near the intersection of Farmway Road, and struck the Chevrolet driven by Jorge Ruiz of Nyssa, Oregon. The Ford rolled and came to a stop off the side of the road. The driver, Upchurch, who was wearing a seatbelt, was transported to a local medical center. The highway was blocked for almost 2 hours. The crash is still under investigation by the ISP.

Another accident which occurred on Saturday afternoon October 22, 2016 on Notus Road near Red Top Road was a single car crash with tragic results. A 65 year-old woman from Parma, Martha Booth, who was driving a 1998 Dodge pickup on Notus Road, went off the road onto the left shoulder, returned to the road and overcorrected, causing the pick-up to roll. A child who was a passenger in the pickup was ejected and died at the scene. Ms. Booth was transported to St. Alphonsus Regional Medical Center by air ambulance. Neither the driver nor the child was a wearing seat belt. The ISP investigated the crash scene for 3 ½ hours.

The Office of Highway Safety-ITD reports that seatbelts are estimated to be 50% effective in preventing serious and fatal injuries. 80% of Idahoans used their seat belts in 2014 according to the National Highway Traffic Safety Administration’s (NHTSA) statistics. A large number of the fatalities involving children indicate they were unbelted at the time of the crash.

The 4 Disadvantages of Probate

Published on: October 26, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Probate is an essential part of the process where property is passed through a court process from a person who dies to those individuals he has chosen or who the law prescribes are entitled to receive it. The probate process is used whenever title to property needs to be transferred away from the person who died to another person, and for creditors to be paid. A probate occurs whenever a person has either a written Will or who dies without a will and any additional type of an estate plan such as a trust. The 4 disadvantages of completing a probate are as follows:

1. COSTS AND FEES

What is my duty to keep my business property free of snow and ice?

Published on: October 26, 2016 | by Racine Olson

By Rachel Miller

With winter weather comes some enjoyable things – snowmen, skiing/snowboarding, Christmas. However, winter weather also brings the not so fun – snow and ice on our roadways, sidewalks, and other common walkways. Business owners have a natural incentive to keep their sidewalks and entryways free of snow and ice – they want customers to have easy access to their establishments. However the possibility of litigation and liability should be another incentive for business owners to do their best to keep their property ice and snow free.

Idaho law places different duties on owners of property depending on the status of the person entering the property. Most individuals that enter a business property are termed “invitees” – the business invites them for the purpose connected with the business. This is true even for individuals that do not buy or do not intend to buy something. They are the invitees of the business. The duty that the business owner owes to its invitees is to inspect and make the premises safe. Therefore, a business owner must actively try to keep its property free of snow and ice so that an invitee does not fall. It is not enough if the business owner does not know of a dangerous condition (think black ice), a business owner has a duty to inspect the premises and remove the dangerous condition – i.e., inspect the premise for slippery conditions and do the best he can to remedy the situation. During a snowstorm, you are not likely able to keep the property completely free of snow and ice and the law is cognizant of this and also places a duty on the invitee to use ordinary care. However, as soon as it becomes possible, a business owner has a duty to treat and remedy snowy and icy conditions.

Can an Employer Use After Work Employee Conduct to Terminate?

Published on: October 26, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Opening scene from the movie Swordfish:

STANLEY (Referring to the changes to the movie Dog Day Afternoon, Gabriel just suggested) You know, this movie of yours, I don’t think it would have worked.

Disability Protections Under the Fair Housing Act

Published on: October 26, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

The federal Fair Housing Act (FHA) provides protections to those with disabilities. A person qualifies under the FHA disability protections when: (1) they have a physical or mental disability that substantially limits one or more major life activities; (2) have a record of such a disability; or (3) are regarded as having such a disability. When a tenant qualifies for a disability under any of these three the landlord is prohibited from:

Refusing to let the tenant make reasonable modifications to the dwelling or common use areas, at the tenant’s expense, if necessary for the disabled tenant to use the housing. (Where reasonable, the landlord may permit changes only if the tenant agrees to restore the property to its original condition when the tenant moves.