According to the most recent US Census data, more than one third of households in Atlanta and across the state of Georgia are renters. Probably at least that percentage of the calls that we get at our firm are from landlords or tenants who are involved in some type of dispute over their rental property. The first question to them is almost always the same – what does the lease say?
When renting a residence in Georgia having a good, thorough lease is absolutely critical whether you are the landlord (owner) or the tenant (renter). Georgia law provides a few general principles that govern the relationship between landlords and tenants, but the overwhelming majority of the rights and obligations of the landlord and tenant will be determined based on what the parties put into the lease.
In the internet era when you can find a legal form for just about anything through a simple online search, the importance of a good lease is lost on many renters and even many landlords. But when parties are committing to a long term business relationship, it is critical that they contemplate and address as many contingencies as possible in the lease contract so that everyone knows what should be done and what their rights and obligations are when the unexpected happens. Some of the items every good lease should address include:
Length (term) of the lease
Amount of rent
Due date for rent
Late fees for overdue rent
What constitutes default (breach) of the lease
Rights of each party in the event of default by the other
Repairs and maintenance
Lawn care and pest control responsibilities
Damage to the property
Permissible uses of the property
Early termination rights
For example, the Atlanta business attorneys at Boling Rice LLC have had situations where commercial landlords have come to us wanting to enforce a residential lease requiring the tenant to be responsible for all maintenance and repairs. These landlords were not aware that while such provisions are enforceable in commercial leases (commercial rental space), such provisions are unenforceable in residential leases. A landlord in a residential lease cannot require the tenant to make and pay for repairs not caused by the negligence of the tenant.
By properly addressing these things and many others in a good lease, landlords and tenants can save themselves a lot of time, money, and grief later and avoid finding themselves in a dispute over a problem that has arisen that is not covered or not covered clearly by the wording of the lease. Because every state’s laws are different, form leases that are not specific to any particular state often do not adequately address issues unique to Georgia law. Whether you are interested in renting your property or are looking to rent for someone else, it is always a good idea to consult with an experienced landlord-tenant attorney to draft or review your proposed lease agreement to make sure it adequately protects your interests and that you understand its terms.
When a problem arises during the rental period, it is much easier for everyone when the lease clearly tells both parties what can or must be done to solve the problem and, if expense is involved, who must pay for it. An experienced Georgia attorney who knows the important provisions of Georgia law to address in a lease and has seen the problems and legal battles that arise from poorly drafted leases can help you anticipate potential problems before they arise when it is much cheaper and far less stressful to address them through changes to the lease.
How much in attorney’s fees and interest can be collected on an unpaid invoice claim in Georgia? The answer may surprise you. In Georgia, how much a plaintiff can be awarded in interest and attorney’s fees depends on what if any language is contained in the invoice regarding the subject matter.
O.C.G.A. 13-1-11 states that attorney’s fees and interest stated therein are enforceable if collected by an attorney subject to the following requirements:
1. If the invoice provides for attorney’s fees in some specific percent of principal and interest owing then it will be valid up to a maximum amount of 15% of the principal and interest owed. Therefore, if your invoice calls for attorney’s fees in the amount of say 25%, you will receive 15%. If your invoice calls for say 10%, you will receive 10%.
2. If the invoice provides for attorney’s fees but does not specify an amount, the statute will provide the amount as follows: 15% of the first $500.00 and then 10% of the remaining balance of principal and interest.
3. Before attorney’s fees and interest as called for by the invoice and the statute above can be awarded, a notification letter to the debtor is required that puts the debtor on notice that attorney’s fees pursuant to the statute will be sought if payment in full of principal and interest is not made within ten days.
The take away from this statute is two fold: 1) Make sure the invoice has clear language calling for interest and attorney’s fees at a certain rate with the rate of the attorney’s being no more than 15% of principal and interest and that a notification letter giving the debtor ten (10) days to pay all principal and interest before pursuing attorney’s fees pursuant to the statute is sent and the time expires before a lawsuit is filed to collect the debt owed.
If you are in need of an experienced Atlanta business lawyer to review your invoice language or pursue a lawsuit to collect an indebtedness owed to you or your business, contact Boling Rice LLC
As a business attorney at Boling Rice LLC, I am a big proponent of including provisions in my clients’ contracts regarding where lawsuits regarding the subject matter of the contract can be brought. These provisions are officially called forum selection clauses.Atlanta Attorneys Boling Rice LLC
What Do Forum Selection Clauses Look Like
An example of a forum selection clause would be to select to have any lawsuit filed “in the state courts in Forsyth County, Georgia or in the Federal Courts in the Northern District of Georgia.” There is more to the full provision, including a statement that all parties agree to the exclusive jurisdiction over them and all disputes in that forum, however, this gives you an idea of how straightforward these provisions are.
How Can They Be Fought
In Georgia, a negotiated agreement that contains a forum selection clause will be upheld absent a showing by the other party of a compelling reason why the provision should not be upheld in the particular situation at hand. The first and most obvious way a party can attempt to hold a forum selection clause invalid is a relatively obvious one, known as forum non conveniens. Otherwise known as an inconvenient forum, the party would have to show that the forum chosen in the contract is so inconvenient that the party would in essence be deprived of his day in court. To do this, the opposing party would have to show such things as the fact that all or most witnesses are residing in a far off state. The mere fact that the forum selected in the contract is inconvenient is not enough and therefore the bar is set very high to overturn a forum selection clause on inconvenience grounds.
The other scenario where a party can challenge a forum selection clause is where he/she/it can show fraud, undue influence or overwhelming bargaining power by the other party in entering into the agreement containing the forum selection clause. As you can imagine, this too is a very high bar not likely to be found in most cases.
What Are The Benefits of a Forum Selection Clause
Therefore, there is a very good chance that a forum selection clause in a contract in Georgia will be upheld. While that is great, you may wonder what is the big deal in having a forum selection clause. If you can get a forum of your selection, it could be a very big deal. Naturally you would want the forum to be in your or your company’s home State and if possible, home county. This will save you money in a lawsuit in not having to compel and pay for witnesses to testify in another state or country, your travel expenses to and from court, not to mention being more convenient in meeting with your attorney if you select one from that forum. Moreover, if you work with a seasoned trial lawyer in drafting your contract and thus picking the forum for this provision, you can select a local forum that is known to be business savvy if that is important or tough on breach of contract issues.
We often find that these provisions are fought over. Especially in multi-state or international contracts because each party whats all lawsuits to be filed in their State or country. Either way, work with an experienced business attorney that also has trial experience or lawyers in his or her office with experience trying contract cases to give you perspective on what forum in your state to select.
The answer is yes and in one of two ways. The first and most straightforward way to waive a contract term by express waiver through a writing to that affect. The second one is more complicated and is fertile ground for a lawsuit to determine whether a waiver has actually occurred. This type is through inference from the actions, conduct or course of dealing of a party or parties after the contract is executed.
As an Atlanta attorney with Boling Rice LLC, we have litigated many cases over the question of whether or not a party has subsequently waived an important term in a contract through its conduct post execution. Depending on what side you are on, the good news is that in Georgia it takes a wealth of evidence to prove that a party has waived a contractual term through its conduct.
At it’s core the case law in Georgia states that ” . . . . all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a wavier may exist.” In other words, the law is not going to allow an unintentional waiver of a contract term through conduct of party— no gotcha waivers.
The case law explains further that an implied waiver is found when the facts show a party has engaged in conduct showing his election between two inconsistent rights. For example, a party claiming a contract did not exist in court can be shown to have waived such an argument by his earlier conduct whereby he was acting on the theory that the contract was still in force by either continuing to perform, demanding or urging the other party to perform or allowing the other party to perform and accepting or retaining benefits under the contract.
Because proving an implied waiver is so difficult, most claims of such waiver are either tossed out on summary judgment or are tried to a jury who must determine based on the particular facts of the case whether the party’s conduct rises to the level of a showing that he or she intended to waive a known contract term.
Businesses across Georgia that use employee drivers to deliver goods and services are facing a growing liability problem that is significantly increasing damages awards in car accident cases throughout the State. As we all know, businesses are liable in Georgia for injuries sustained to third parties by its employees who are on the job at the time of the injury. Companies with large fleets of vehicles often face the inevitability that an accident is going to occur at some point. With the advent of mobile devices such as smartphones and tablets, distracted driving has become a more common occurrence and thus an area of concern for businesses sending their employees out onto the roadways with these devices in hand. Jury verdicts in cases involving distraction due to mobile device use typically are much higher then other car accident verdicts.
The statistics revealed in a recent article I read on the subject are staggering:
1. 49% of adults admit to texting while driving.
2. When mobile devices are provided to employees by businesses, there is a 23 times higher likelihood that an accident will occur.
3. Distracted driving accidents cost billions of dollars each year.
In Georgia, the legislature has passed a law making it a driving infraction to text while driving. This is problematic for businesses because now a car accident involving an employee texting while driving will subject the employer not only to liability for the injuries inflicted but expose the business to potential liability for punitive damages because the employee broke the law at the time of the accident by texting while driving. Even more troubling is the fact that auto and general liability business insurance will typically not cover the business for any punitive damages awarded against it. What is a business to do when it needs to provide the employee with a mobile device to do his or her job and his or her work entails driving a company vehicle?
There are several steps that likely should be taken by every business to try to insulate themselves as much as possible from large distracted driving damages. The first is to implement a well thought out policy regarding the use of mobile devices while driving. It is recommended that this policy simply be directing employees not to use a mobile device at all while driving, however, that is often not practical. Many businesses allow employees to use mobile devices for navigation. If this is the case, a non-use policy should be very specific with regard to what activities are considered a violation (texting, searching the internet, talking on the phone etc.) and which are not (using device for navigation). Where it gets tricky and why you need specificity is in those situations when the employee needs to change directions on the device in the middle of driving. The policy should clearly dictate that the employee is to set the navigation feature of the device before driving and only use the device again if the vehicle is pulled over in a designated area (parking lot etc.).
The second thing that can be done is to purchase technology to be downloaded on each device given to employees that will conform to the company’s use policy. A company by the name of Aegis provides technology that will make mobile devices compliant with whatever instructions the client gives them to download onto the devices. It all works based on the speed of the vehicle. Once the vehicle and thus the device is moving at a preset speed limit, the technology engages the device so the device will only work in a way that is compliant with the employer’s use policy. For example, its navigation feature is the only available use once the device is going over 10 mph.
The final step would be to check your business’ liability coverage and get as much coverage as possible. Unless products have changed, you wont be able to get punitive damage coverage but you can at least max out your liability coverage for those cases where the jury awards a lot of general damages money to the plaintiff because they are mad that your employee was using a mobile device at the time of the accident.
Our lawyers at Boling Rice LLC have seen quite a few distracted driving cases where large awards were sought both because of the punitive damages aspect of the case and because the attorneys on the other side know they likely can get a jury upset with the corporate defendant over the employees use of a company device while driving a company vehicle. These awards are often amplified by the fact that many commercial vehicle accidents involve very heavy trucks versus smaller personal vehicles. Therefore, it is imperative that businesses become as proactive as possible to stop distracted driving from occurring in the first place and adequately protect the company if and when such a tragedy occurs.
Source: Fulton County Daily Report, April 10, 2013, p. 7.
As with distributions to members of a limited liability company (LLC) before dissolution, the first place to look for how distributions are to be made and more importantly, split amongst members upon dissolution is the company’s articles of organization or written operating agreement. The controlling statute in Georgia regarding distributions before and after dissolution is O.C.G.A. 14-11-404.
Unfortunately, most businesses do not provide for distributions in their articles of organization. Pursuant to the statute this leaves it entirely up to the operating agreement. What happens if your business does not have an operating agreement? O.C.G.A. 14-11-404 states that when there is no provision in the articles of organization and nothing in the operating agreement or no operating agreement at all, distributions at the time of or after dissolution are to be shared equally among the members.
This can be a huge problem when for example you have no agreement in writing regarding the distribution share amongst members during the business relationship. For example, lets say you and your partner have no written operating agreement or other written agreement amongst yourselves memorializing your verbal agreement to split distributions 70% (you)-30% (her). All is well with the running of the company and your verbal agreement about your split of distributions until one day you two have a falling out. You agree the mechanism to resolve your differences is to dissolve the LLC and move on. Your partner suggests the split of the remaining assets should be 50%-50%. Your position is understandably it has always been 70-30 and it should be that way upon dissolution.
Under Georgia law, your partner could for a 50-50 split upon dissolution and could even force a dissolution in the Superior Court of the county of your business’ principal office. The take away– 1). Get with an Atlanta business attorney from the very beginning to properly set up your LLC with a solid operating agreement; (2) get all agreements with partners in writing.
Most, including some Atlanta lawyers, automatically assume that a contractor has the right to file a lien on a project for failure to pay for services performed for the full value of the unpaid improvements to property. This is not necessarily the case. It is an absolute defense to a lien action in Georgia to assert the contract price for the improvements claimed. In other words, when there is a contractual agreement setting the price to be paid for services performed, a subcontractor cannot place a lien on the project for more than the agreed upon price called for in the contract. This is an important point to remember both for subcontractors looking to place a lien on a property for unpaid work and a project owner/general contractor looking to defend against a lien action. The parties are always bound by the agreement struck for services performed, good or bad.
That being said, in the case of abandonment of a contract– the subcontractor walks off the job before completing the work– the contract price agreed upon no longer sets the maximum amount of the lien. Instead, the owner can hired new contractors to finish the work abandoned by the subcontractor asserting a lien and deduct the cost of the new contractors work from what is owed under the lien. In some circumstances it could cost more than the lien amount to finish the work.
This scenario is an important one to remember as well whether you are a subcontractor who hasn’t been paid or a project owner or general contractor. If you are the sub, it may not be advisable to abandon the job just because you have not been paid on time for work already completed. You could end up getting nothing. If you are thinking about abandoning the job, it may be best to speak to a lawyer first before making a decision.
If you are the owner or general contractor, get the abandoned job completed and keep good records of what it took to get it done in defense of the lien action. This will allow you to have two potential defenses to the lien action — first, the contract price is the max owed and second, it is the contract price minus what it took to get the abandoned contracted for work completed.
A Georgia Supreme Court ruling from this summer has paved the way for homeowners to now be able to receive diminished value damages after their home is damaged. This is similar to the diminished value damages Georgians have long been able to claim when their vehicles are damaged in a wreck. As Alpharetta, GA attorneys, we are pleased to see the Court rule in favor of Georgia consumers.
The ruling makes sense and now closes a gap that has long existed between homeowner claims and claims available in other types of property damage cases. For too long, homeowners who have faced such situations as severe flood damage or other catastrophic damage to their homes have only been able to get replacement cost damages but had to make sure to disclose the previous damage caused by the incident when selling their homes. This led to severe losses to homeowners in the form of lost value of their home even after all repairs were made.
This ruling means insurance companies in Georgia now have to make homeowners whole just as they long have had to do in other types of claims.
I recently read a very well written article to lawyers on a lawyer marketing website that properly encourages lawyers to actively engage with their clients by making sure all of the client’s questions are answered, that as an attorney you make sure your client is well informed about his or her case and most importantly that attorneys remember that they work for their clients and therefore need to remain accessible and approachable. The link to the full article is here.
I cannot count how many times I have had phone calls similar to the one described by the author where a prospective client is calling me asking questions about their claim or lawsuit to only tell me that they have an attorney presently but either cannot get them on the phone or simply have not been given the chance to ask their lawyer questions so they understand their case and what is about to transpire. This article should be read by every client at the beginning of their engagement of a lawyer to handle their case.
At Boling Rice LLC, our attorneys in Cumming, GA strive to always remember that we work for the client. The client is the boss and therefore, we remain approachable and accessible to each and every one of our clients. We don’t say this simply to gain business but because this is the only way to properly represent our clients.
A choice of law provision is a provision in a contract directing the parties to what state’s law will apply to the provisions of the contract. Jurisdiction clauses dictate which state and usually which county within that state a lawsuit can be brought. As an Alpharetta business attorney, I am often asked whether these provisions are enforceable. Choice of law provisions are typically enforceable. Jurisdiction clauses in contracts almost always are enforceable.
Choice of law provisions usually are enforceable except in certain situations. For instance if the UCC (Uniform Commercial Code) applies to the contract because, for instance, the contract is a secured transaction (think bank loan), there may be a conflict with those laws and your choice of law provision. In addition, if the subject of the contract is such that your state wants to regulate it, a choice of law provision will not be enforceable because it will be against the public policy of your state’s laws. Another example of an unenforceable jurisdiction provision is found in most corporate governance contracts. These contracts typically must be litigated in the state where the corporation is incorporated.
Often choice of law provisions are not the most hotly negotiated aspect of a contract but certainly are very important. Contract law can be significantly different from state-to-state and choosing the governing law that best protects your rights is very important. I often find that jurisdiction clauses are more important in negotiations. This is because each party understandably wants to keep any litigation over the contract in their back yard where their attorneys and employees are to save of time and costs in litigation.
In light of the nuisances associated with including choice of law and jurisdiction clauses in contracts, it is always advisable to employ experienced business attorneys to draft and review your contracts. If you would like to learn more about various contract provisions to keep in mind when negotiating an important contract,visit our site for more useful legal information on Georgia contract law or call one of our experienced contract lawyers today.