LANDLORD AND TENANT LAW: THE EVICTION PROCESS

            Often clients, especially tenants, are confused by the eviction process. The first step in any eviction is to serve a “Notice to Quit” or Eviction Notice. The Eviction Notice spells out the basis for the eviction, and specifies the time period the tenant has to leave. If the eviction is based on failure to pay rent, a Demand for Rent should accompany the Notice to Quit. Both the Notice to Quit and Demand for Rent forms are available online at the NH State website.

            If you are a landlord and are not sure what you should put on the form, and what you should be evicting your tenant for, you should contact an attorney to help you. Our firm handles Landlord and Tenant matters, and would be happy to assist.

            If you are a tenant, the Eviction Notice does not mean you have to leave immediately. Once date you are asked to leave by your landlord passes, your landlord still has to file a Landlord/Tenant Writ in the local district court where you live. It is this filing that starts the Court action. If a Landlord/Tenant writ is filed against you, you should contact an attorney to help you.

            After the Landlord/Tenant writ is filed, and the Tenant files an Appearance in the Court action, the Court will schedule a hearing on the merits. It is at this hearing that the Court will decide whether the landlord or the tenant has the right to use and occupy the premises. If the landlord wins, the Court will issue a Writ of Possession that gives the Landlord the right to use and occupy the premises. This Writ of Possession must be served by a local county sheriff, and once served, the Sheriff will physically remove the tenant from the property. The hope is that the process does not go this far, but often it becomes necessary.

            Landlord Tenant law is wrought with minefields that, if a landlord isn’t careful, can create substantial liability to the tenant. It is strongly encouraged that if you need help with an eviction, or even just a better understanding of the process, that you meet with an experienced lawyer at Parnell, Michels & McKay that can help guide you through the process. If you find yourself in need of assistance, contact our office.  

UPDATE: USING A PHONE WHILE DRIVING: HOW THE NEW BAN IS AFFECTING TORT CASES

                As of July 1, 2015, the State of New Hampshire banned the use of a cell phones while driving, and limited any use of a handheld electronic device. This included not only cell phones, but tablets and GPS devices as well.

                Since the law was passed, the State of New Hampshire has tried to inform all citizens of New Hampshire and those that travel here that such use is banned. Since the inception of the law, police officers have been paying much closer attention to seeking out the use of cell phones while driving. This has led to increased tickets, and escalating fines for those that are using their phones while driving.

                Since the ban, we are discovering that police officers investigating motor vehicle accidents are much more focused on the use of cell phones while driving. The primary goal is to limit and hopefully eliminate distracted drivers from using their phones while operating a motor vehicle. When such drivers are cited for use of a cell phone, this becomes a key part of any motor vehicle accident case and can be used to establish liability in a given case.

                It is always important for any citizen to be aware of the rights and laws that affect them on a day to day basis. If you find yourself injured by a distracted driver, contact the experienced attorneys at Parnell, Michels & McKay.

                

New Hampshire Primary – Get out and Vote!

                Today is New Hampshire’s first in the nation primary for the presidential election. This primary has been a jumping off point for the presidential election each year, and is an important event both from a national perspective, but also from a state perspective. New Hampshire can often surprise the nation in these primaries in terms of who ultimately wins, but the tradition is an important one for our state.

                It is an important part of any citizen’s duty to vote in this country. At Parnell, Michels & McKay we always encourage community involvement, and have a passion for our local community. Voting is just one of the many ways you can go out and be involved in your community and have your voice heard. Moreover, voting is part of our national fabric and everyone having an equal voice is something the founding fathers of our country were proud of.

                So, no matter when you do it, if you are eligible to vote, get out and vote today and do your civic duty and vote!

New Medical Payment Legislation in NH - Why Senate Bill 303 should be passed.

      A proposal in front of the New Hampshire legislature this month was Senate Bill 303. Senate Bill 303 clarifies language in the medical payment statute relative to payment of health insurance liens in personal injury cases. In every private health insurance policy is a provision involving a right of reimbursement, or "subrogation clause". This clause states that if a person receives a judgment or settlement from someone relative to injuries they sustained, then the health insurer has a right to be reimbursed for any bills they paid related to those injuries. This is a complicated provision, so it is important to ensure you seek the advice of an attorney before trying to deal with this on your own.

      The issue that was created by the initial version of RSA 264:16 was that the payment of private health insurance liens was never specifically mentioned in the statute. Auto insurers dealing with medical payment claims took the position that if a medical bill was paid by the health insurer, then that relieved them of their obligation to pay the bill except for any out of pocket costs like co-pays. Plaintiff's attorneys in our office and elsewhere took the position that the private health insurer's had to be paid back, and that the statute prevented double recovery of a medical bill, and the auto insurer would be required to pay either the bill in full, or to pay the private health insurer lien that is created through their subrogation clause in the contract. This created a number of issues with the Courts, and led to fights between Plaintiff's counsel representing the injured, and defense counsel representing the insurance companies.

      Senate Bill 303 clarifies this language, and reaffirms the intent of the legislature that the health insurance lien can be paid by the auto insurance medical payment carrier. While the bill has yet to be passed in full, we see this as a large step forward to protecting the rights of the insured and it is our hope it passes.

      At Parnell, Michels & McKay we have over four decades of combined experience in navigating the complex and difficult personal injury litigation cases with insurers. Coordination of your insurance benefits through the many statutes that regulate the insurance industry is just one of the major issues you may face. If you are injured in an unfortunate accident, contact the experienced attorneys at Parnell, Michels & McKay so we can help you navigate the complex insurance field and make sure your rights are protected.

PROPERTY LAW: ADVERSE POSSESSION

                At Parnell, Michels & McKay, we handle a fair amount of property litigation cases. One such type of litigation are claims made through adverse possession. It is one of the oldest forms of law in property, and involves the taking of title to property without having to execute a written deed. It most commonly arises in boundary line disputes, and can involve something as innocuous as the misplacement of a fence by a friendly neighbor. However, the effects this doctrine can have on people’s property can be immense, so it is important to try to understand the concept of adverse possession and to seek legal advice as soon as possible.

                Basically, the initial test is whether the person claiming adverse possession has acted as the true and lawful owner of the property. The reason being is an adverse possession claim must be open, notorious and continuous throughout the statutory period.  Open means that the claim is obvious. In our sample above, it is the placement of a fence across the boundary line of a neighbor. This can also be done in the form of farming, building an addition on a house, or just simple planting bushes and trees and tending to them over time.

               

                The claim must also be “notorious”, which is a nicer way of saying that use of the neighbor’s property cannot be by that neighbor’s permission. It is ok to be operating under a mistake of where the true boundary line is, but if the neighbor is aware of the issue and says its ok, then there is no “adverse” possession.

                The final part is the use must be continuous for the statutory period. In New Hampshire, this means for twenty years. So, in our example above, the neighbor (or his predecessors) would have had to have the fence on his neighbor’s property for twenty continuous years.

                Adverse possession can also be found in roads, paths or even beaches. In each situation, the factual circumstances become integral to the case. In these situations it is always important to consult with an attorney who handles boundary dispute litigation. Our firm regularly handles boundary dispute litigation, including adverse possession cases.  So, if you believe an adverse possession issue exists on your property, contact the experienced attorneys at Parnell, Michels & McKay to discuss your rights.

Revocable Trust v. Will: What is the best choice for you and your family?

            We often get questions on whether a client should have a will or a trust, and what the benefits of each are. For each client, there are benefits to both types of estate plans.

            Wills are simple and can be much cheaper to complete then trusts. They direct where your property goes when you pass into the great beyond, and they can provide direction to your family when they deal with your passing. However, wills can sometimes be inefficient to deal with the property in a way that you want, and they require the will to be probated in Court. They are also public documents that can be viewed at Court, and for some more private people that can be a problem.

            Revocable trusts provide clients with more options on how to deal with their property. A trust can avoid the problems of probate, and address specific situations like what happens if you become incapacitated. Trusts are private agreements and do not become public records. They can provide a trustee to make decisions if a beneficiary is not properly prepared to receive the property. A trust can be effective for life, and most importantly you can maintain control over your assets during your life. Trusts also can provide protections for situations like divorce or drug abuse, and allow a person to maintain control over their assets during their life. There are some cons to trusts as well, like the cost which is more expensive than wills. Trusts can be time consuming, and may involve other potential costs as part of the trust’s creation.

            There are also ways to essentially combine a will and trust with what is called a “pour over clause” in your will. In this situation, you can create a trust through that provision which effectively funds the trust at the time of your passing. Any such provisions need the careful attention of an estate planning attorney who understands the estate process.

            No matter what you choose for yourself and your family, it is always important to get proper legal advice on which options would benefit you the most. The experienced estate planning attorneys at Parnell, Michels and McKay can help you determine which options are best for you, and prepare an estate plan tailored to your needs. Should you be interested in finding out which options work best for you, contact our office to schedule an appointment. 

Mounting Debt: Is Bankruptcy an option?

                 During the housing crisis in 2008 and 2009, many people started losing their homes to foreclosure. The job market tumbled, and people all over the country found themselves unemployed and unable to pay their mortgages. Some people had their home values plummet, causing them to be “under water” on their mortgage in that their mortgage balance was higher than the property value of their homes. This caused substantial strife and stress for many Americans as they slogged through the recession in our economy.

                During that time, many individuals turned to bankruptcy to try to save their homes. They also faced aggressive debt collectors and creditors trying to take property and bringing lawsuits against them. Faced with a mountain of debt and no way to pay, many people did not know how to deal with these problems. During that time, the amount of bankruptcy’s filed skyrocketed as people looked to the law to save their homes. Today, the amount of filings has lowered, but the economy has not fully rebounded and people are still facing significant issues paying their mortgages and other bills. Those lucky enough to do loan modifications today find sometimes that even then they can’t pay the mortgage.

                At Parnell, Michels & McKay, we offer over three decades of experience in navigating the difficult bankruptcy and debt collection fields. Our bankruptcy professionals will help you determine the right type of relief for you, whether it is Chapter 7 or Chapter 13 bankruptcy. We offer hands on advice, and will go through all of your finances to determine what the best method is for you to address your climbing debt. As many people may not be aware of, bankruptcy was incorporated into our very constitution. It was one of the pillars in which our country was founded. The concern in colonial times was with people suffering in debtor’s prisons, which happened often prior to the Revolutionary War. The founders of our country, including Thomas Jefferson, created the right to file a bankruptcy to address when American citizens face the very real pressure and stress of owing more money than they can pay. This is why bankruptcy is an important part of our American jurisprudence, and anyone faced with escalating bills should consider whether it is an option for them.

                If you find yourself concerned about your financial future, contact the experienced attorneys at Parnell, Michels & McKay today to see how we can help you navigate your debt problems.