Archive for October, 2013

LANDLORD LIABILITY: CRIMINAL ACTS OF A TENANT OR THIRD PARTY

Tuesday, October 22nd, 2013

By Starling B. Underwood III

Chapter 42 of the North Carolina General Statutes provides a clear picture of the rights and obligations of landlords and tenants. However, Chapter 42 does not address the obligations a landlord may have to protect a tenant or visitor from the criminal acts of another. Whether a landlord may be held liable for damage or injury caused by the criminal acts of another depends on whether those acts are foreseeable.

What criminal acts are foreseeable? In order for a criminal act to be foreseeable, the landlord must have prior knowledge that a similar act occurred or could occur. For example, criminal acts could be foreseeable if a parking lot owned by the landlord had poor lighting and landlord had knowledge of multiple instances of criminal conduct occurring in the parking lot. A landlord could also be held liable for injury occurring because of horseplay, if the landlord had reason to know that such activity had occurred in the past. Most reported cases indicate that when a landlord has knowledge of multiple incidents of criminal activity or horseplay, subsequent acts are foreseeable even if the new act is different in scope, location or parties involved. For example, if the landlord has knowledge of multiple robberies occurring on the premises in the past, then it is foreseeable that an assault could occur on the premises as well.

Can the conviction histories of a tenant be an element of foreseeability? North Carolina has not directly addressed this issue. However, other states which have considered the issue have stated that foreseeability cannot be solely based on conviction history unless the prior criminal history has a connection with the property. For example, if a tenant has never before exhibited any violent behavior towards other tenants or visitors but in fact does harm another on the premises, that act is not foreseeable, even if the landlord knew of general mental instability and prior violent behavior on the part of the tenant.

In order to properly protect against liability, landlords need to be proactive. Ask yourself if there are areas on the premises which are poorly lit or seem dangerous. If so, take the necessary corrective action. Take all complaints seriously and document the measures you have taken to prevent against criminal actions.

Starling Underwood is an Associate in the Litigation Practice Group at McGuire Wood & Bissette, P.A.   He has been named a 2014 Rising Star by Super Lawyers magazine and will be included in the February 2014 publication.

Posted in Landlord / Tenant, Liability, Litigation | No Comments »

How the Federal Government Shutdown Affects Your Tax Matters

Tuesday, October 8th, 2013

By Jeffrey J. Owen

Regardless of your politics, the government shutdown (or “slimdown” as some are calling it) has affected IRS operations. While we all wait for the government to reopen, taxpayers and practitioners are left in the lurch. So what are we to do when the phone is ringing at the IRS, but nobody is home? The IRS issued some helpful information recently in a Q&A.

1. KEEP FILING—Don’t let your return filings lapse the way the federal government may allow its borrowing power to lapse in a few days. The IRS actually will be checking postmarks when they reopen to make sure your return was “timely filed.”

2. KEEP PAYING—The IRS is open enough to accept your tax payments and deposits, whether made electronically or by check. We are told that the processing of paper returns will be delayed, so make sure that you designate your tax payments by jotting on the memo line the tax return and period the taxes are supposed to credit toward. An example is: “SSN #123-45-6789 2012 1040 tax only.”

3. FORGET APPOINTMENTS—If you have an appointment with the IRS, don’t bother to show up. All offices are closed. Your agent will call you when he gets back in the office following his/her paid vacation to reschedule.

4. OPEN COLLECTION LETTERS—Despite the shutdown, automated collections processes continue via computer. You will still receive your nastygrams from the IRS even though they are not equipped to answer your questions about your alleged underpayment.

5. DON’T BOTHER TO CALL—The 800 numbers are all disconnected except for the delightful automated phone advice tree 800-829-1040 for individuals. In other words, don’t expect to speak to a real human until the government reopens.

This blog post is neither intended as legal advice nor to create an attorney client relationship. For help with your tax case, contact Murphy Fletcher at McGuire Wood & Bissette P.A., 828-254-8800.

For a copy of the Q&A, see:    http://www.irs.gov/uac/Newsroom/IRS-Operations-During-The-Lapse-In-Appropriations

Posted in Taxation | No Comments »