Scooter Stuff

Last Updated on Monday, 7 January 2019 06:01 Written by Chris Griswold Monday, 7 January 2019 06:01

Scooter/Sidewalk Liability:  So what happens if you injure a pedestrian? Who’s liable if you take a fall? What’s the real risk to your wallet?  See below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material). 

Scooter Stuff

Riding up Main Street on a Lime or Bird Scooter, and all of a sudden you wreck and hurt yourself and another guy and his small son (on their way to drop his son off at school).  What now?  Not much law or precedent out there, but the thought process follows….

Question  #1:  If it happened after you were still drunk from the night before (i.e., out late; going to bars and various parties), what then?

Answer:  There’s a possibility you might be found more than ordinarily negligent (perhaps, criminally negligent, since the wreck becomes more than reasonably foreseeable).  Accordingly, your homeowner’s or renter’s personal liability coverage might not cover the accident (although they most likely would, without argument, if you hadn’t been out late the night before).  However, they might still cover you, then go subrogate your rights (whatever they are) against Bird or Lime.

Question #2:  Same facts above, except you went to bed early the night before, and hadn’t had any drinks, yet the wreck still happened. What then?

Answer:  Well, under these facts, your homeowners or renter’s personal liability coverage would probably pay (unless you have no such coverage), however, the facts would then turn towards an investigation of the scooter.  Was it well maintained, built to certain, public, commercially viable standards or defective somehow (or damaged after Bird or Lime dropped them off the back of a delivery truck way too hard, in the middle of the night)?  If any of the foregoing are a “yes,” then, the injured Dad (and his son) wouldn’t just sue you personally, but now very likely Lime or Bird too….

Question #3:  Same facts as #1 or #2 above, who does the Dad sue under each fact pattern (respectively)?

Under Question #1:  The most apparently culpable person is you (i.e., the “drunk scooter rider”).  So, you’d definitely be sued personally (and you homeowner’s or renter’s insurer would respond on your behalf – unless they think that your getting drunk was, somehow, an “intervening wrongful or criminal act,” in which case, they wouldn’t cover).  However, even under Question #1, the reality is that the Dad would sue the “deep pockets” of Lime or Bird too, just to ensure a decent monetary recovery for his son.

Under Question #2:  The Dad would have much less reason/basis to sue you personally, instead, he’d very likely pursue just the “deep pockets” of Lime or Bird.

Question #4:  Same facts as above, but, hey, you’re injured too!  Who do you go after?

Answer:  You go after Bird or Lime under #2 for sure, since you apparently did nothing wrong (unless you were driving wreckless – while sober?).  However, under #1, Lime or Bird would seemingly have a defense against your negligence of getting drunk and operating a scooter – while in reality, your health insurance company might pay all of your claims/medical bills, then go subrogate any of your rights of recovery against Lime or Bird later on (after you’re already made whole by your health insurance carrier).

Question #5:  What’s the real risk to your wallet here folks?  What do you need to do when renting/using a scooter on a regular basis (like living/working downtown full-time)?

Answer:  You need to ride a scooter with the same degree of etiquette/safety/reasonableness with which you drive a car (eventhough you can’t yet add scooter use to your auto liability policy).  If you do unreasonable/wreckless stuff, you’ll wind up under fact pattern #1 above – going through this analysis.

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Harrison Levy / President / Grubb & Ellis I Levy Beffort / Oklahoma City, Oklahoma

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1031 Exchanges

Last Updated on Wednesday, 10 October 2018 09:43 Written by Chris Griswold Wednesday, 10 October 2018 09:43

1031 Exchanges.  We’re sure to see a few more between now and the coming, end-of-year, accounting deadline.  Good stuff for everyone.  When it comes to the handling and treatment of real property in planning to later qualify for a 1031 exchange (or at least be eligible to qualify for an exchange, should the unforeseen or surprise need arise), see below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

1031 Exchanges

Question #1:  If you’ve thus far held properties for the use of either sale or development, and you’d now like to convert them over to a qualifying use of either investment or appreciation, what’s one of the first/best things you can do to accomplish this conversion?  

AnswerDeed the properties over into new entitiesOnce deeded, there’s obviously a strong argument that a new use has occurred.

Question #2:  Before doing a deeding drill, is there anything you might want to consider?

Answer:  First get confirmation from your accountant that the deeding over from the current entity to a new one (or new ones) won’t constitute an adverse, taxable triggering event!  If there’s danger lurking, go down to Question #4 below. 

Question #3:  However, even the foregoing “deeding procedure” can possibly require a little more diligence in order to well accomplish a more ironclad change of use to later ensure 1031 eligibility.  Why??

Answer:  There’s an IRS case where a developer held property for 12 years.  The property was mostly all held for sale and development, however, there were a few lots in the project (way back in the rear of the development I believe) that the developer held for investment and appreciation.  Later on, the IRS didn’t believe this intent, and the case went to tax court.  During the testimony being given, the IRS attorney asked the developer exactly when the few lots (in the rear of the project) had been switched over from being held for development and sale purposes over into investment and appreciation purposes?  In response, the developer was speechlessHe didn’t even have an answer; much less had it even (or ever) occurred to him that such use should have changed over from one to the other.  Take away?  Even though a “deeding over” didn’t occur here, it’s still important to combine a deeding over strategy with an actual change of use strategy – which I’ll describe more below.

Question #4:  So, if it’s not possible (or a bad idea) to deed over the properties to a new entity, what needs to happen?

Answer:    As I’ve said above, while it’s great to deed properties over into new entities, it’s not always possible or desirable.  So, you need to always demonstrate a change of use” – even with or without a deeding procedure.  The 3 things below are how you strategically substantiate this “change of use.”

Question #5:  What are the 3 things that must be done in order to accomplish a “change of use?” 


A) Change of Physical Handling:  The first thing you must do is take down the “for sale” signs, as well as taking them out of industry journals, and off of online exchange mediums.  In otherwords, globally take the property(ies) off the market.

B) Change of Intent to the Public:  This is done by sending emails to your attorney, your accountant, your friends and your brokerage/listing partners that the property’s use is, as of a certain date, being changed over from being held for development and sale over to investment and appreciation.  This isn’t necessarily something you need to take out an advertisement for in the local newspaper, however, sending out an email and/or letters to these key people is a great way to have an “Exhibit A” to produce to the tax court, come time.

C) Change of Bookkeeping:  This one is overlooked sorely, by too many.  It involves good communication to your accountant or bookkeeper of your intent and desire to change such use of the properties.  However, unless the actual way the properties are handled/treated on the accounting books is actually changed, there is still a huge opportunity for your 1031 Exchange to be contested, due to the fact that the property’s accounting treatment was never ALSO changed over from one use to the other.  Don’t make this mistake!  Make sure you don’t stumble here and lose your ability to qualify for a 1031 exchange.

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Nuts & Bolts of Notice Letters

Last Updated on Tuesday, 11 September 2018 12:32 Written by Chris Griswold Tuesday, 11 September 2018 12:31

Notice Letters.  We all have written and gotten them.  We might even be waiting on one in the mail right now (I know I am).  From time to time, we all have something come up in one of our deals that requires that we either write one or cause one to be written.  In fact, during these turbulent economic times, you may find yourself writing or receiving these types of letters a little more often than you’d like!  Accordingly, I’d like to shed some light, in general terms, on what constitutes a good notice letter….  Good stuff for everyone.  See more below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

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….

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David Ostrowe / Owner, O & M Restaurant Group, Inc. / Oklahoma City, Oklahoma

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