Idaho Law Blog

Disability Protections Under the Fair Housing Act

Published on: October 26, 2016 | by Racine Olson

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.

Am I liable for winter falls on my residential property?

Published on: October 25, 2016 | by Racine Olson

By Rachel Miller

Winter. Ugh. (Unless you are a winter sports fan, of course). However, even winter sports fans have to deal with the messiness that comes with Idaho winters – including snowy and icy driveways, sidewalks, and stairs, and the obligatory shoveling and de-icing of those surfaces. Of course it is good neighborly to clear your driveways and sidewalks of ice and snow, and certainly will keep you safer as you enter and exit your property. However, some times you are absent from home, may not have the time to get to it right away, or may have property that creates unique challenges to keep it entirely snow and ice free.

Many people want to know what their duties and liability would be if someone were to slip and fall on ice or snow at there residential property. (Note: The law is different for business owners, and not covered in this blog). In Idaho, everyone has a general duty of care for the safety of themselves and others. However, owners of property have more particular duties of care towards the persons entering their property. First, if the person is a trespasser, there is no duty to her other than to not willfully create conditions that will injure her (think an intentional trap). Next, most people enter a residential property for social purposes – what the law terms a “licensee.” A licensee is also a visitor who enters the property in pursuit of the visitor’s purpose. A property owner’s duty towards licensees is to disclose to the visitor only concealed dangerous conditions on the property of which the owner has knowledge. Additionally, a visitor must take the land as the possessor uses it, and is expected to be alert and to protect himself from the risks he encounters. Consequently, as snow and ice on Idaho driveways is likely not a concealed condition, and a visitor has the duty for her own care, a person is not likely to be held liable if someone slips and falls on snow and ice on residential property.

Is My Will From Another State Valid In Idaho

Published on: October 25, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

We live in a wonderful world where people are constantly on the move. Whether it is work, or family, or simply a need for a change, many people move from state to state during their lives. I often have clients who have move to Idaho asked me whether the will they had created in a different state will be valid in Idaho. Idaho has a specific statutes that answers this question.

Idaho Code § 15-2-506 states specifically that “[a] written will is valid if executed in compliance with section 15-2-502 or 15-2-503 of this Part or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.”

A Written Employment Contract and Termination

Published on: October 24, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Scene from the movie Atlantis: The Lost Empire

HELGA: You said we were in this together! You promised me a percentage!

Default and Remedy Clauses in Residential Lease Agreements

Published on: October 24, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

An area of lease drafting that should be considered when preparing a residential rental agreement involves the default and remedy clauses. These are simply the paragraphs in a rental agreement that identify when a default occurs by either the landlord or the tenant and what the remedies will be for the non-defaulting party.

Many times a default and remedy clause is contained in the same paragraph although this is not required and is not always the case. In other rental agreements, there is no specific remedy clause by itself. Rather, the remedies available to the landlord or tenant are often described within the paragraph that identifies and describes other terms or conditions of the rental agreement.

My neighbor’s dog bit me

Published on: October 24, 2016 | by Racine Olson

By Rachel Miller

Some people love their furry household friends, and treat them like family members. Others… not so much. Whether you are a dog person, cat person, or people person, no person likes being intimidated or injured by another person’s pet.

In Idaho, all persons have the duty to use ordinary care for the safety of themselves and others. Consequently, pet owners have a duty to see that their animals, whom they have responsibility, do not injure others. Under Idaho law an “at-risk dog” is any dog that without justified provocation bites a person without causing serious injury. A “dangerous dog” is any dog that without justified provocation inflicts serious injury on a person or that has previously been found to be at-risk and thereafter bites or injures a person. “Justified provocation” means any act that a reasonable person with common knowledge of dog behavior would know is likely to instigate a bite or attack by an ordinary dog. Consequently, a dog is justly provoked when it dog is defending another from an attack, it attacks a person committing a crime on the property of the owner, the person was tormenting or abusing the dog, the dog was protecting offspring, the dog was a service animal or other hunting or herding dog that was performing its trained function, the person was intervening between two or more animals engaged in aggressive behavior or fighting.

If I am Young and Healthy, Do I Need to Complete an Estate Plan

Published on: October 24, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

I’ve been an attorney now for several decades and have heard many of my clients who are young ask this very question. Many of us, myself included when I was young, believed that since we were young and healthy, that it really wasn’t necessary for us to complete our estate planning. However, the truth is just the opposite. Estate planning is much more than deciding who to give your property away to after you die. In fact, estate planning has much more to do with your life while you are alive, than it does with what happens to your property after you die.

Taking capacity and disability as an example. According to current morbidity tables, the chances of a young and healthy person becoming incapacitated or disabled in the next year is significantly greater than the chance of them dying. So even the young and healthy need to have an estate plan in place where they determine what’s going to happen to them if they suddenly become disabled or incapacitated.

A Will and Community Property

Published on: October 23, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Many of my clients who are married, often wonder what property they will actually be able to give away in their Will (last will and testament) to the people they choose when they die. The reason they ask this question is because they recognize that Idaho is a community property state but they don’t really understand what this means. Here are a few things you need to know about your Will and the property you can give away in Idaho.

In Idaho all property acquired after marriage by either the husband or wife is presumed to be community property. Idaho Code § 32-906(1). The presumption is rebuttable but the party asserting that property is not community bears the burden of proving that the property is separate with reasonably certainty and particularity. Matter of Freeburn’s Estate, 97 Idaho 845 (1976). However, in Idaho all property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either gift, bequest, devise or descent, or that which either he or she acquires with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property. Idaho Code § 32-903. The income of all property, separate or community, is community property. Idaho Code § 32-906(1). Property conveyed by one spouse to the other shall be presumed to be the sole and separate property of the recipient. Idaho Code § 32-906(2).

4 Reasons People Like Trusts More Than a Will

Published on: October 22, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

When it comes to estate planning there are a myriad of options available. The type of estate planning that is completed for a person really depends on what it is they want to accomplish and the size and type of the estate they own. Through my experiences in helping individuals create a customized estate plan I’ve come to learn that there are 4 specific reasons why people like having a Trust more than a Will.

1. MULTIGENERATIONAL BENEFICIARIES

Why Does My Idaho Worker’s Compensation Case Take So Long?

Published on: October 21, 2016 | by Racine Olson

By: Fred J. Lewis

I have been practicing workers’ compensation law for almost 30 years. It comes as a surprise to most injured workers how long their Idaho workers’ compensation case takes to get resolved. The first hurdle that we have in every Idaho worker’s compensation case is that the Idaho Workers’ Compensation Law requires that the injured Idaho worker has to heal completely or come to a place in their healing process that the American Medical Association Guides to the Evaluation of Permanent Impairment 6^th Edition defines as “Maximum Medical Improvement”. The Guides define Maximum Medical Improvement (MMI) as “where patients are as good as they are going to be from the medical and surgical treatment available to them”.

The writers of the Guides go on to explain that “(MMI) can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change”. The writers of the Guides also state that “MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment”. I have often heard doctors refer to this idea of Maximum Medical Improvement as to when their patient reaches a plateau in their recovery and their injured body part has pretty much healed to the extent that it becomes functional again and it’s not expected to change in the future to any significant degree. If an injured Idaho worker is at MMI it does not necessarily mean that there’s an elimination of symptoms or subjective complaints. It just means that more surgeries or more medical procedures will not result in any significant improvement in the healing of the injured body part. Injured workers can still benefit from palliative care in the form of pain medications, massage therapy, and other pain relief treatments.