Nuts & Bolts of Notice Letters

If done correctly, they save the day. If done wrong, someone is potentially in real trouble. It’s funny that something so important is usually located at the end of the contract (or the lease), written in such small print and is typically treated (in its entirety) over the course of a mere two to three sentences, or less. No wonder the old adage that “big things come in small packages” comes to mind when I think about the concept of notice letters. Accordingly, I want you to walk away knowing three, basic things about the proper drafting and management of notice letters:

First, check the actual notice addresses for the other party (or parties) who are required to receive such notice. These notice addresses are usually set forth in the first few pages of the contract; if not there, look at the end of the document. Keep in mind that these addresses may have already changed. Accordingly, look in your files for any letters, e-mails, contractual amendments and/or other correspondence received from this other party (or parties) which has changed their formal notice address. Remember, it doesn’t do any good to write a fancy letter if the address is wrong….

Second, check the language usually located in the back of the contract which is most often entitled “Notices.” The purpose of this language is to set forth exactly how notice shall be delivered and will commonly talk about how notice letters should be mailed “via certified mail return receipt requested” or by a “nationally recognized overnight courier.” If it says that, be sure and do it. You’d be surprised to know how many people deliver notice letters via first class or registered mail just to find out that they didn’t give the other party good and proper notice (tip: registered is not the same as certified; “registered” means “insured” and is used for insuring the value of parcels such as diamonds, precious metals, etc… while “certified” means “signed-for” which is the purpose of notice letters).

Third, remember that after you send out your notice letter and receive back the “green card” in the mail, you’re still not “out of the woods” as it were. Why? You have to actually keep up with the “green card” or other packaging receipt in order to prove, often months or even years later, that you delivered and the other party actually received the notice letter. Oftentimes, I get calls from people to the effect that they know the other party received their notice letter but the green card (proving such receipt) can’t be found in the files. This can be bad…. What should you do? I recommend that when you get back the green cards, be sure to staple them to the copy of the notice letter that you put into your file. This will keep those small, mint green and oddly shaped pieces of paper from walking away….

What My Clients Are Saying

“I take special care when selecting business partners to represent my company and look for those who exhibit the same levels of professionalism and integrity that I try to achieve. Chris Griswold definitely meets these requirements and is considered a very valuable member of the JOBO Properties team. I have no hesitation in recommending Mr. Griswold to handle your business and commercial real estate transactions.”
Darren Ford / Owner & Developer of JOBO Properties, L.L.C. / Oklahoma City, Oklahoma

What Is Adverse Possession?

Adverse possession (also known as “title by prescription”) is a tricky area of the law. To obtain title by adverse possession, you need to know (in advance) that it is disfavored by the courts. The person claiming title by adverse possession has the burden of proving each of the elements that follow by “clear and positive proof” and, in any cases of ambiguity, the law will favor the actual record title holder (this is the person that owns it according to courthouse records). The elements which prove title by adverse possession are:

1) Hostile (i.e., you possess it under a claim of right or color of title),
2) Actual (i.e., you actually possess it),
3) Visible (i.e., your possession is not hidden from view and can easily be seen),
4) Open and Notorious (i.e., it is so generally known by the public in the area surrounding the subject property so as to give the actual owner notice of your possession),
5) Exclusive (i.e., no one else but you possesses the property) and
6) Continuous for 15 years (i.e., there are no gaps in your possession of the property).

What My Clients Are Saying

“I have been extremely pleased with the legal services provided by Chris. He is an expert on real estate issues; devotes immediate attention to our needs and follows through with all required action. I look forward to a continuing relationship with Chris.”
Harrison Levy / President / Grubb & Ellis / Levy Beffort / Oklahoma City, Oklahoma

Rectangular Survey System

The following hand drawn diagram shows how our rectangular survey system breaks land down into Township “X,” Range “Y” (which consists of 36 square miles) and how Township “X,” Range “Y” is further subdivided into 36 Sections (each Section being 1 square mile and containing 640 acres) and how Sections #1-7, 18, 19, 30 and 31 have “correction lots” to correct for the curvature of the Earth.  In particular, Section #6 uniquely has 7 correction lots, lots #1-4 across the top and #5-7 down the left-hand side.  All other Sections with correction lots just have lots #1-4 (vertical or horizontal) and the other Sections in Township “X,” Range “Y,” other than the riparian acreage, have no lots.  Important Note: each correction lot will have more or less than 40 acres.  The diagram is as follows:

Some other terms related to surveying (which you’ve probably heard before but may not fully understand) can be quickly summarized as follows:

1 Link = 7.92 inches
1 Rod = 16.5 feet
5.5 yards = 25 Links
1 Chain = 66 feet = 4 Rods = 100 Links
1 Furlong = 660 feet = 40 Rods
1 Mile (5,280 feet)  = 8 Furlongs = 320 Rods = 80 Chains
1 square Rod =   272.25 sq.ft. = 30.25 sq.yards
1 Acre =   43,560 sq.ft. = 160 square Rods (which can be 8 Rods by 20 Rods or any other 2 numbers whose product = 160)

What My Clients Are Saying

“Chris Griswold has a unique skill set for a Real Estate attorney.  He is equally adept in the courthouse as well as in a transactional setting.   We have worked with him in lease negotiations where we found him to be pragmatic and fair minded while representing his client.  As result of working on the other side of the table with Chris, we engaged him to assist us with various lease enforcement issues.  We have used many attorneys to assist us with FED’s, collections etc. and Chris has by far been the most efficient and cost effective counsel we have ever used.”
Jeff Norman /  President / JAH Realty, L.P. / Oklahoma City, Oklahoma

Emails and Electronic Communications as Liabilities

When we email on the weekends, at night or at any other time when we’re past tired, we’re not “mentally” at our best.  These are the times when we can say something online or in an email (or fail to say something online or in an email) that creates trouble for ourselves and/or our clients.  What’s the big deal?

Emails are admissible as evidence in judicial proceedings.  While you probably already knew that, it’s easy to forget when you get really busy and stop thinking about the big picture.  A colleague of mine in Texas had a corporate client. This client was a large manufacturer and was being sued for products liability after an explosion occurred involving one of its products.  During the course of litigation, my colleague came across some emails that were internally exchanged between employees of the corporate client.  One of them contained the following language:  “…did that damn thing blow up again??”

Same thing with Facebook, Twitter, MySpace, LinkedIn and the other mediums.  Although there isn’t any current, controlling case law which addresses the admissibility of the content of these sites in Oklahoma, I am told that these types of mediums are beginning to be admissible in Texas (and there do appear to be some pending cases here in Oklahoma which touch on this subject).  Accordingly, it’s probably just a matter of time….  Let’s all just slow down, think about what we’re saying (when we’re saying it) and stay out of trouble.

What My Clients Are Saying

“I was referred to Chris from a friend of mine who has used him for years. I have 23 offices nationwide and tons of legal items that I don’t have time to deal with myself (nor would I trust just any attorney).  What a blessing to find Chris…. Here is someone I know will get it done right, day or night.  Chris’ good legal services free me up to run the day to day operations of my business with the peace of mind that the legal details are covered; all at an honest, fair price.”
James Gray / President & CEO / Full Circle Financial Group / Oklahoma City, Oklahoma

Chris Griswold, P.C. strives to provide outstanding legal representation to all clients whether individuals or corporate entities.  Moreover, Chris has extensive experience in communicating with large corporations and their boards and officers to achieve desired results while serving clients in the area of general corporate law.  At Chris Griswold, P.C., providing legal expertise with honesty, integrity, constant communication and respect is paramount while acting in the client’s best interest(s).

Click to view Material Breach Article from Chris Griswold.

Click to view Feature Article on Chris Griswold.
Click to view Feature Article on New Ventures.
Click to view Feature Article on Tenant Leases.

Click to view Feature Article on Tenant Leases.

Click to view Feature Article on Tenant Leases.

LLC’s vs. Partnerships

Absent certain language within the documents and/or certain circumstances, the foregoing table quickly summarizes the basic, legal discrepancies between each type of entity. What practical effect do these differences have on you?

Limited Liability vs. Joint and Several Liability: This is the big one…. Basically, with an LLC, each member/manager is, subject to certain exceptions, liable to the general public, the LLC and the other members only to the extent of the amount of their capital contributions made to the LLC. With general partnerships, each partner is individually liable, in full, to everyone, for any amount the general partnership owes – no limitations or caps like with LLC’s.

Formation: This one is a little scary. With LLC’s you have to, among other things, actually file paperwork with the State, pay fees and draw up an operating agreement. With general partnerships, there are no documents that have to be filed (which can also be a good thing), although documents can be filed. What this all means is that a partnership can be deemed to exist by virtue of one’s actions and/or spoken words. So, depending on the circumstances, you may already be deemed to be operating under a general partnership arrangement in the eyes of the law and already owe a fiduciary duty to your other partner(s), but not yet know it.

What My Clients Are Saying

“Chris Griswold has a unique skill set for a Real Estate attorney. He is equally adept in the courthouse as well as in a transactional setting. We have worked with him in lease negotiations where we found him to be pragmatic and fair minded while representing his client. As result of working on the other side of the table with Chris, we engaged him to assist us with various lease enforcement issues. We have used many attorneys to assist us with FED’s, collections etc. and Chris has by far been the most efficient and cost effective counsel we have ever used.”
Jeff Norman / President / JAH Realty, L.P. / Oklahoma City, Oklahoma

The Biz of Buying a Business

Without attempting to cover everything, if you’re buying a business which includes both real estate and hard-assets (and assuming you’ve already come to agreeable terms and price with Seller), you, your lawyer and your other business advisors would proceed as follows:

First, you need a Purchase/Sale Contract drafted for both the real estate and the assets to be acquired which should include a listing of all the inventory (Note: For tax purposes, this listing should entail a physical description and a corresponding dollar value for each asset. Why? Just like buying milk at Wal-Mart, the dollar value of the assets purchased will be taxed by the Oklahoma Tax Commission and paid at closing). Once the contract is finalized, both parties sign it and deliver it to a Title Company (along with an earnest money check) so an escrow account can be established. If you haven’t already formed/incorporated your proper, legal entities which you’ll be using to: i) conduct business operations, and ii) hold and take title to the real estate you’re buying, now is the time….

Second, the Title Company will order an ALTA Survey (usually around $1,500) so that title insurance on the real property can be obtained (required by most lenders). Also at this point, an environmental study of the real property needs to be ordered (usually requested and ordered by the lender) so that a “Phase I” environmental report can be generated.

Third, the General Warranty Deed (or Special Warranty Deed) which will convey marketable title to your legal entity should be prepared. Also, your lawyer will be reviewing/examining/making title report objections to the commitment for buyer’s title insurance policy (which will have already been issued by the Title Company). Finally, you attend closing.

What My Clients Are Saying

“Chris Griswold has always been proactive and professional. He takes the time to work with us and tailors his approach to our situational needs. My favorite thing about Chris is that he will let me know if there is an easier, less-expensive approach. We look forward to working with him well into the future.”
Carl S. Milam / President / Western Concepts Restaurant Group / Oklahoma City, Oklahoma

Trust Talk

Without getting too complicated, the best way to get a handle on how Trusts (a/k/a joint, living, revocable trusts) and Wills (a/k/a Last Will and Testaments) differ is to set it out like this:

1)      Probate.  If you have a Will and (for the lack of a better word) “die,” the ones you love and leave behind will have to “probate” your will.  Probate is a court-driven process whereby a personal representative is appointed and letters testamentary (the written authority of such personal representative to act on behalf of your estate and approved by the judge) are issued, along with other required procedures.  The deal with probate is that it usually takes a lot of time.  With a Trust, there is no probate.  In essence (and outside of minor, legal procedures), the transfer of your assets (which are set forth in your Trust) to the successor trustee of your Trust (or the transfer of same immediately to your designated beneficiaries) is automatic.  In other words, no waiting.

2)   Money.  As a rule, lawyers will generally charge you more money to draw up a Trust than a Will.  Why? There’s a lot more paperwork to a Trust than a Will, a lot more….  However, the amount of money you’d have to spend probating a Will is, as a rule, a lot more than it costs to have a Trust drawn up.  So, although you’ll spend less money getting a Will done initially (as opposed to a Trust), the amount of money your family members will ultimately have to spend probating your Will (after you die) will more than make up for whatever you initially saved (when they ultimately have to hire a lawyer to probate your Will).  Accordingly, in the long run, Trusts are cheaper (and arguably do a much better job of setting forth and accomplishing your intentions after you die).

3)   Public Record.  One of the most sensitive issues associated with probating Wills is that, since probate=a court proceeding, all the information related to a probate is of “public record.”  This means that, if someone wanted to search through court house records, they could find out how much you are/were worth, how much of it was distributed, and to whom.  Pretty scary stuff….

What My Clients Are Saying

“Chris Griswold has a way of simplifying complex legal issues.  He is quick to respond, efficient and professional in his delivery of services and fair and up front with his cost.  Professional Insurors considers Chris an asset to both our business and our clients.  Our trust in Chris grows each and every time we call upon his expertise.”
Kelly Miller / President / Professional Insurors Agency, LLC / Oklahoma City, Oklahoma