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Real Estate Law

A survey of the property conducted by a Registered Land Surveyor is strongly to reveal problems such as encroachments, restrictive covenant setback violations, boundary disputes, deed gaps and overlaps, etc., before you buy. It should be considered an integral part of our title examination and your due diligence investigation of the property. Although it may indeed be a prudent investment, unless it is a specific requirement of your lender, the decision to invest in a survey is yours. Please let us know as soon as possible whether or not you wish us to arrange for a survey to be conducted. The cost of the survey will typically be added to your closing statement and be paid at closing.

Title insurance is a policy of insurance that protects you against defects in the title to your property, such as encroachments, property line disputes, lack of legal access, previously undisclosed easements that impact the value of your property, and a host of other potentially costly matters. It is issued based on the opinion of title issued by your closing attorney based on his or her title research in preparation for the closing. If there is a mortgage loan included in your closing, title insurance will be a requirement of your lender. Even if you are paying cash for your home, it is highly recommended that you purchase title insurance to protect your investment.

Closing on a house or a mortgage loan involves a myriad of legal issues and potential pitfalls. Issues often arise involving contract interpretation, inspection and repair negotiations, and legal interpretations regarding title and survey issues. In addition, in North Carolina title insurance can be issued only upon the legal opinion of a licensed attorney. For these and other reasons, real estate closings in our state have traditionally been the domain of real estate lawyers.

First, you should pay close attention to the instructions given by your realtor and requests made by your lender. In addition, we will send you an engagement letter outlining our process of preparation for the closing, and any information we need from you as well as any documentation that you need to bring to the closing with you. Being prompt in providing all requested information enables us to conduct a smooth and seamless closing transaction for you.

Except in very limited circumstances, the answer to whether your spouse needs to come to closing is a resounding YES. Even if only one spouse is going to be the borrower on the loan, there are a number of documents that must be signed by the non-borrowing spouse. Examples of these documents are closing statements, truth-in-lending disclosure statements, and the deed of trust securing the promissory note. With the approval of your lender, your spouse may give you power of attorney to sign on his or her behalf at the closing.

If neither you nor your spouse can or wish to come to closing and there is someone local who can sign on your behalf, both can give power of attorney to the third party to sign the documents on your behalf. This must be approved by your lender in advance, and the power of attorney must be limited and specific to the transaction.

We will make every effort to have your closing statement prepared for your review prior to closing. Funds brought to closing go into our real estate trust account. North Carolina State Bar regulations require that funds deposited into attorney trust accounts for disbursement in connection with real estate closings be guaranteed funds. Because of this requirement, you must arrange for a certified check or a wire transfer of the funds. Your closing attorney or his staff will provide more detailed information regarding this requirement.

Family Law

While you generally can leave the marital residence, speak with your attorney before you do so. In North Carolina, a spouse who departs may be subject to being locked out by the spouse who stays. Many attorneys will advise a client to remain in the marital residence – at least until a plan to transition is in place – unless in cases involving emergencies and domestic violence.

Resuming marital relations following separation can, in certain cases, materially impact not only the date of separation, but also your pending legal claims. Similarly, foregoing physically, but holding yourself out to the community as a married couple may also give rise to legal defenses. Relationships can be complicated, so speak with an attorney to review your case.

Legal custody refers to a parent’s ability to make decisions for and on behalf of a minor child, whereas physical custody concerns the actual physical custody schedule. The prevailing legal standard is the best interest of the minor children. Absent unique facts, the majority of parents share legal custody of the minor children in some form. Many versions of physical custody schedules exist based on various factors, including the age, maturity and needs of the minor children, the work schedules of the parents and other important considerations.

Most parties use the North Carolina Child Support Guidelines to calculate child support obligations. The key variables include the gross income of each party, the number of minor children and the overnight custody schedule as well as expenses for health insurance coverage, work-related child care and extraordinary expenses for the minor children. While the parties’ present income is typically used, a parties’ earning capacity can be considered in limited circumstances.

If your case involves a disparity in income, your rights to (or obligations for) post-separation support and alimony may need to be determined. The legal factors include the earning capacity of the parties, their employment and education history as well as the length of the marriage, relative health of the parties and occurrence of marital misconduct.

Marital misconduct is generally not relevant in property division cases unless it directly related to a financial component, e.g. the value of the marital estate was reduced to fund an extra-marital affair. Additionally, while courts often distinguish between a party being both a lousy spouse and a good parent, certain forms of marital misconduct, including domestic violence, can be directly relevant in custody cases.

Generally, an aggrieved party can initiate a legal action to enforce the terms of a contract. Options may include claims for breach of contract, specific performance or seeking separate relief pursuant to Chapter 50 of the North Carolina General Statutes.

Civil Litigation

You need to talk to an experienced attorney. If the value of your claim is $10,000.00 or less ($5000.00 in some counties), you might be able to sue in small claims court. If the value of your claim is over $10,000.00 you should consult with an attorney.

Try to think about your situation objectively. Ask yourself if it is worth spending thousands of dollars to sue. Filing a lawsuit because of “principle” is rarely worth the time and expense.

On the other hand, there are plenty of situations where filing suit makes sense. In most cases it is worth trying to reach a resolution before pulling the trigger on litigation.

If someone has sued you, you need to consult with an experienced attorney ASAP. The law imposes tight deadlines on filing a response – usually only 20 or 30 days from the date you were served with the summons, and sometimes even less than that. Often your attorney can request and obtain a 30 day extension, but you must follow proper procedures. The Rules of Civil Procedure are strict, and litigation is not a place for amateurs to play lawyer.

The defendant will be served with your complaint and instructed on how to file an answer. We also conduct discovery — the legal process for investigating the facts of your case — to obtain important information and evidence from the defendant. We may file pre-trial motions and conduct several pre-trial hearings and/or depositions.

Yes. The law sets strict statutes of limitations for filing a complaint — the timeframe depends on the type of civil action. If you miss the deadline, you may permanently forfeit your right to pursue your legal remedies.

Some civil actions are resolved very quickly and others take years. Upon reviewing your individual circumstances, we give you our best estimate as to when we expect to resolve your disputes. A typical lawsuit takes approximately one year between filing and trial.

You have the right to certain documents and information from the defendant. We serve written discovery, and if necessary subpoenas on the defendants that demand they produce specific items or explain to the court why they think the law does not require them to comply.

Maybe. Many civil actions settle before trial, in part because civil litigation is a very expensive and inefficient way of resolving disputes.

Mediation often saves the parties the costs of litigation, expedites resolution and gives the parties more control over the outcome of the case. Most civil actions filed in North Carolina are required to go through a mediated settlement conference, in an effort to settle the case before trial.

This standard is applied to criminal cases, not to civil actions. Your standard is lower, but depends on the type of case.

A civil judge cannot impose criminal sanctions on the defendant as a result of your winning your case. However, these same defendants may be charged with a crime and be subject to incarceration or other criminal penalties if found guilty in criminal court.

Unfortunately, you do not receive your money immediately. The defendants have a specific amount of time to pay the judgment. However, if the defendant avoids paying, we have several legal remedies available to us — including placing liens on property, freezing assets and selling personal property. There are no guarantees that you will recover the amount of the judgment, however.

Personal Injury

If you have been seriously injured in a car, truck, motorcycle or bicycle accident, or any other type of accident due to someone’s negligence, it is probably a good idea to speak with an attorney who regularly handles injury claims. We provide free case consultations to injured persons and their families. The initial discussion is usually via telephone. If it appears that your case meets our criteria for representation, we will schedule an in-person meeting with an attorney, either in our office, at your home or in the hospital, as necessary.

Often our clients have begun the claims process themselves. Sometimes clients find it intimidating and stressful dealing with the adjuster, and for that reason they seek our assistance. Once we are retained by a client, we immediately begin gathering the necessary information and we instruct the insurance carriers to direct all communication to our office. It is our goal to alleviate as much stress as we can from our clients so they can concentrate on getting healthy again, both mentally and physically.

Sometimes this is the case. It is important to remember, however, that your interests and the interests of the insurance company are not the same. While it is improper for an insurance adjuster to provide legal advice, sometimes they do. This is rarely a good thing. You should always seek an opinion from attorney to get a legal opinion regarding your legal rights.

The first thing anyone should do is to make sure you receive appropriate medical care. In addition, it is generally preferable to make sure that the accident is reported to the local police, sheriff or highway patrol, and that an accident report is completed.

Generally, you have three years from the date of the accident to either settle or file suit. There are exceptions to that rule, however – in particular, if someone is killed the statute of limitations is only two years. Also, if the driver who caused the accident dies, you may have only 90 days from the day the notice to creditors is published in the paper to file suit or you may lose the right to go after estate assets (you still can recover from the insurance policy).

This depends largely on the type of case and the damages sustained. Most of our clients require significant medical treatment as a result of their injuries. Past and future medical treatment is recoverable, as are all past and future lost wages. Injured clients can also recover general damages, which include pain and suffering, loss of enjoyment of life, and inconvenience associated with the injury. In some cases, our clients are entitled to punitive damages – these are damages which are intended to punish the wrongdoer, when that wrongdoer’s actions were intentional or reckless. In auto collision cases, our clients are also entitled to recover the damage to their vehicle, as well as the loss of use of that vehicle for the time the client was without the use of the vehicle because it was damaged.

Our attorneys handle a wide variety of injury cases, from soft tissue injury auto accident cases to catastrophic injury and wrongful death cases. We are equipped to handle most personal injury cases resulting from negligence. We are happy to review any case free of charge. At Bagwell Holt Smith, we provide free, no risk case consultations to injured persons and their families.

We generally handle injury cases on a contingency fee basis, meaning that if we do not recover any money for you, we do not get paid. Our contingency fee is in line with other lawyers who handle serious personal injury matters. There are no up front costs or fees with our firm unless we are in litigation, and those costs can be discussed when you meet with our attorneys.

Yes. The information you share with us is protected by the attorney-client privilege and will remain confidential. This protection will apply even when our legal representation terminates or if you do not retain our firm. Because your communications with us are privileged, it is important that you make full disclosure of all pertinent facts with respect to your personal injury claim (such as prior injuries) so that we can fully access your case.

The timeframe that you have to file a lawsuit is referred to as the statute of limitations. If you fail to file a lawsuit before the statute of limitations expires, your case will be forever barred. For most personal injury actions in North Carolina you have three years from the date of your injury to file a lawsuit against the responsible parties. However, in some situations such as an action against the State or against the Estate of a decedent, the statute of limitations is much shorter. Therefore, due to the time-sensitive nature of personal injury claims, you should promptly contact an attorney regarding your injury.

You should bring all documents that are in your possession related to your injury. For example, you should bring a copy of the police or incident report, a copy of your automobile insurance declaration page, photographs of your automobile, photographs of your injuries, copies of medical records and bills for treatment related to the accident, correspondence from the insurance companies, estimates and repair records and receipts for your automobile, receipts for towing and car rental, and any wage loss information. During your meeting, we will make photocopies or scans of all of your documents so that you can retain a copy for your records.

Business Law

Business law encompasses the many statutes, rules, codes and regulations which govern commercial relationships and provide a legal framework within which businesses may be conducted and managed. Business law is very diverse and can include areas such as:

- Business formation and organization
- Transactional business law
- Business planning and negotiations
- Mergers and acquisitions

A non-profit corporation is a corporation created to carry out a charitable, educational, religious, literary or scientific purpose. A non-profit corporation does not pay federal or state income taxes on profits it makes from activities in which it engages to carry out its objectives.

The primary reason to incorporate your business is to protect the partners from personal liability, referred to as “the corporate shield.” Incorporation shields the owners from personal liability. This provides a great deal of protection for business owners who might be sued for negligent acts. Incorporating is easy and relatively inexpensive.

It is important to know about all your potential options when it comes to the different kinds of businesses. For instance, there are limited liability companies (LLC’s), limited liability partnerships (LLP’s), S-Corporations, C-Corporations, general partnerships, limited partnerships and sole proprietorships, among others forms of business. Discussing your options with one of our attorneys can help you make a more informed decision about which form of business is right for you and your business goals.

Buy-sell agreements are contracts between the shareholders of a corporation. These provide for an orderly succession of stock ownership if a shareholder leaves the corporation or becomes unable to perform his or her duties.

Community Association Law

In its most basic terms, a community association can be considered a neighborhood. That neighborhood can be made up of single-family homes, townhomes or condominiums. There are typically rules and regulations in these neighborhoods, with an established homeowners association – or HOA – to enforce those rules and provide for the betterment of a community.

In many older, established neighborhoods, there are no rules, restrictions or regulations. For instance, who mows the medians? The town. Who trims the hedges and maintains the flowers? The town. Who operates the pool a few blocks away? The local government.

In these times of tightening government budgets, these services are typically the first to go. The grass gets mowed only once per month. Then every other month. Then whenever there is funding. Then the property values start declining because the neighborhood looks ragged when potential buyers come through. All the while, your taxes stay the same as the funds are diverted to other “priorities.”

That is where HOAs can step in. They are the most local form of local governance, without being tethered to a multitude of other priorities. The HOA hires landscapers to keep the community looking immaculate. The HOA hires the right vendors to keep the pool in pristine condition, and enforces rules to make sure that the pool is a peaceful, recreational place.

Yes. Although the foreclosure process may seem like an extreme step, the state of North Carolina has approved it for the simple reason that if homeowners stop paying dues, it can be very injurious to the community. An HOA is similar to a government. If a significant group of homeowners stopped paying taxes to the Town of Cary and there were no efforts made to remedy this, how would the roads and landscaping look? Would people want to move to Cary, as they do now? How would the property values be affected if Cary became known for its poorly maintained roads and overgrown landscaping? It’s the same in an HOA – if a large percentage of the homeowners stop paying dues, how would the landscaping, pool, clubhouse, entrance features, etc. look? What would happen to property values? Accordingly, an HOA is given similar duties and remedies that a government is given. The system that we have implemented at Bagwell Holt Smith not only serves to maximize the efficient recovery of delinquent accounts in a cost-effective manner, but does so with compassion to struggling homeowners in a way that factors in the

HOAs have substantial regulation authority. Fences, paint colors, condition of homes, above-ground swimming pools, garbage cans and nearly every exterior addition to a home can be regulated by a homeowners association. This does not mean that you should turn your community into a mini-dictatorship. Reasonableness, consistency and cautiousness are the hallmarks of a successful community, and we can help you draft and enforce covenants, by-laws and rules and regulations to help your community prosper.

We have seen it all – unauthorized construction of dangerous structures, threats of violence against board members, wanton criminal activity. Situations involving unreasonable homeowners seem to be our forte. The HOA has numerous options at its disposal, including fining and judicial action. Every circumstance is different though, so feel free to give us a call and set up a consultation with our Community Association attorneys.

Keep in mind that an HOA is a corporation. Just like any other business with budgets in the six- and seven-figures, the board of directors typically works closely with their attorneys. There are many situations in which the HOA may require the assistance of counsel. For example: pursuing litigation, defending litigation, negotiating vendor disputes, reviewing contracts, arbitrating disputes between homeowners or between homeowners and the board, attending meetings, research, drafting opinion letters, interpreting covenants, revising covenants and determining maintenance responsibilities.

Estate Planning & Probate

If you die without a will (intestate), the state of North Carolina has statutes that dictate how your property will be distributed. Distribution will vary by your circumstances and is a reflection of how the legislature thinks a typical person would want their estate distributed.

A will allows you to choose who will receive your property upon your death. Generally, you may dispose of your property in any manner you choose. Further, a will allows you to designate a personal representative for your estate and recommend a guardian for your children under 18.

Certain assets held with rights of survivorship or beneficiary designations are not part of your probate estate and do not pass through your will. These assets pass automatically to the designated beneficiary or beneficiaries.

Trusts are legal arrangements that allow a trustee to hold assets for a beneficiary or beneficiaries. The trustee is the legal owner of the trust property, and the beneficiaries are the equitable owners of the trust property. Trusts are very adaptable and can provide detailed rules about when and how assets pass to beneficiaries.

Probate is the legal process for proving a will and appointing a personal representative to administer the estate and distribute the assets of the decedent. Depending on the situation, some estates will be able to qualify as small estates and use an expedited process for closing out the estate.

Probate is necessary to transfer title to property held in the name of the decedent. Moreover, probate gives creditors an opportunity to receive payment for any outstanding debts and taxes of the estate. However, most significantly, probate makes sure that the decedent’s wishes are followed and that property is distributed to the designated devisees (if decedent died with a will) or heirs (if decedent died without a will).

Workers' Compensation

No, in order to be compensable, there must be either an “injury by accident” or an “occupational disease.” In some circumstances – such as when you are doing your normal job in your normal manner – your injury may not be compensable, even though it occurred on the job.

You should notify your supervisor immediately and ask to fill out a written accident report. You should then follow up, either on your own or with the assistance of an attorney, and file a Form 18 with the North Carolina Industrial Commission. This way your claim is opened even if your employer did not file the appropriate forms.

It is against the law for an employer to fire or demote an employee for filing a valid workers’ compensation claim; however, unfortunately this does occur. If you are fired because you filed a workers’ compensation claim, you must act promptly to preserve your legal rights.

In some situations, such as when an employee is driving as part of his job and is involved in an accident caused by someone else, there can be both a workers’ compensation claim and a third party civil claim against the person who caused the injury. Such cases can be complicated because of the workers’ compensation carrier’s subrogation rights, including the right to be repaid what it has paid in workers’ compensation benefits. An attorney can minimize these issues and ensure that you keep more of your settlement with the third party.

Typically, an employee is entitled to receive medical treatment for his or her injuries, plus pay at two-thirds of his average weekly wage for time out of work, except there is NO pay for the first week out of work UNLESS the employee misses a total of 21 days or more of work. In addition, an employee is entitled to a lump sum payment if he or she has a permanent disability to a body part after recovering from the injury.

The North Carolina Industrial Commission is the agency that oversees workers’ compensation in our state. The Industrial Commission’s website contains a wealth of useful information: You may also contact Bagwell Holt Smith P.A. at 919-401-0062 and ask to speak to a workers’ compensation attorney. All initial consultations regarding injury claims are free.

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