Get EVERYTHING in Writing (And your Lawyer, if you end up needing one, will thank you for it.)
Holly R. Coates, Esq.
Long gone are the hand-shake deals of yesteryear. Lawyers, me included, are increasingly finding their clients in precarious situations that could have been prevented if there was some sort of written agreement or supporting documentation. From renting out a room of your house, to starting a business with a family member, everything should be in writing. Just like you go to the dentist every six months to prevent tooth decay and dental problems in the future, likewise having written documentation in place can likely prevent and/or protect you from legal problems that could arise in the future.
This “get EVERYTHING in writing” mantra should be applied in every aspect of your life – even with family and friends. Actually, even more so with family and friends because those are the very people that you will likely not feel the need for such documentation. Rarely would you make a deal with a stranger without anything in writing, and that same principle should be applied to everyone in your life.
My law office deals with a lot of disputes between family members and former friends, whether it be partnership dissolutions, divorce, estate issues, handshake lease agreements, and the like. Most times, many of the agreements between the parties are not in writing, and there is a he-said, she-said situation. This, in turn, requires attorneys to get creative in finding ways to prove that an agreement did (or did not) exist, and requires clients spend a lot of money in the process.
Tamie Cummins, Esq., a partner at Borton Petrini, LLP, who handles both family law and bankruptcy matters, says it is all too common to see her married clients, who are now divorcing, finding themselves in heated battles over property with their future ex-spouse. An example that she sees quite frequently involves a spouse who owned real property prior to the marriage i.e. separate property. Then, sometime in the future, the spouses decide to refinance the property, and change the deed so that the property is in both spouses’ names. Taking these actions transmutes, or turns, the property from separate property into community property. Then, during the divorce, the spouse who owned the property before marriage wants the property to be considered separate property, and the spouse who was later put on the deed wants the house to be considered community property. To prevent these issues, it is advised to get something in writing at the time the deed is changed, signed by both spouses, detailing the nature of the property, and stating whether it is separate or community. Attorney Cummins opines that a lot of heart-ache and stress can be avoided if married couples took these preventative measures.
Likewise, Philip Avila, Esq., another partner at Borton Petrini, LLP, who handles civil, business, employment, and landlord/tenant matters, says he tells all of his landlord-clients to document all tenant complaints and how the landlords resolved each complaint. These records are very useful when a tenant stops paying rent due to the tenant’s allegations that the property is uninhabitable, or if the landlord is attempting to evict the tenant and the tenant is arguing that he should not have to pay back rent.
Similarly, in the employment field, Attorney Avila tells his employer-clients to always document the material terms and conditions of any employment relationship. These may be set forth in written applications for work, formal employment agreements, employee handbooks, written policies and procedures, and disciplinary notices.
In my own personal experience, I have dealt with clients that have transferred property to family members with the understanding that they would get something in return. However, they did not get the agreement in writing and transferred the property anyway. When the receiving family member did not carry out their end of the deal, the only way for the transferring family member to enforce the agreement, or get the property returned to them, was to file a lawsuit – an expensive, time-consuming, and emotionally draining venture. The lawsuit could have likely been avoided had this agreement been reduced to writing.
Some people are of the opinion that asking their friends or family members for written documentation, or for them to sign something, is too business-like, or downright rude. But, you need to remember that nothing deteriorates a relationship more than having to sue a person, or seek some sort of legal action against them. Keep in mind, too, if someone does not want to provide written documentation, that is a “red flag”, and you probably should not enter into an agreement with that person anyway.
This quasi-public service announcement is not meant to make you wary of entering into agreements with your friends and family members, or anyone else for that matter. On the contrary, it should empower you to protect yourself from potential harm, distress, and expense that you could face in the future.
About the Author: Holly R. Coates, Esq. is an associate attorney with the Modesto Borton Petrini, LLP office. She handles a myriad of civil and business matters, including but not limited to: personal injury, elder abuse, business formations and dissolutions, restraining orders, property disputes, small claims advice and appeals, and contracts. She is a wife and a mother, and resides in beautiful Ripon, California. Contact information: firstname.lastname@example.org.
Disclaimer: All the information is this article is published in good faith and for general information purpose only. The Author does not make any warranties about the completeness, reliability and accuracy of this information.