Uncategorized

Attorney Olivia Kay Mote Joins the Firm!

Eustice, Laffey, Sebranek & Auby, S.C. is pleased to announce that Attorney Olivia Kay Mote has joined the firm as an associate. Olivia is a 2016 graduate of the University of Wisconsin Law School.  She will focus her practice on the areas of Estate Planning, Elder Law, Business Law, Family Law, and Employment and Civil Rights Law (including gender identity and sexual orientation matters).

With locations in Sun Prairie and Waunakee, Eustice, Laffey, Sebranek & Auby, S.C. now boasts nine attorneys assisting financial institution, business, and individual clients in a wide variety of legal areas.  To schedule an appointment with Attorney Mote, please call our Sun Prairie office at (608) 837-7386.

Welcome Olivia!

—————————————————————————————-

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons.

Blog Series: Contingencies – Providing Protection from Uncertainty

To recap: You’ve found an agent (or not).  You’ve found your dream home (hopefully).  You’ve got a signed Offer.  What could possibly go wrong?  Hopefully nothing. However, in the event the house isn’t as great as it looks, isn’t worth what you’ve offered, you can’t actually afford it, or your current house doesn’t sell, you need protection.  If you’ve done it right, that protection will be included in your Offer in the form of a contingency.

A contingency is a future event that might occur, but is not certain.  Essentially, it is a paragraph in your Offer to deal with the uncertainty.

Contingencies have three basic parts:

  1. The action necessary to satisfy the contingency;
  2. A deadline for the action to occur; and
  3. Consequences if the action does not occur.

A well-drafted contingency will clearly state each of these elements.  An example:

Buyer’s obligation to close this transaction are contingent upon Buyer closing on the sale of Buyer’s current home located at 100 Wilburn Road, Sun Prairie, Wisconsin by April 1, 2016.  If the sale does not close by April 1, 2016, Buyer may terminate this contract and Seller shall return to Buyer the earnest money.

As you can see, this clause sets forth the action required (closing), the deadline (April 1, 2016), and the consequences if that doesn’t occur (termination of the transaction and return of the earnest money to the Buyer).  The termination of the contract and a distribution of the earnest money is the most common consequence.  Please note, however, that buyers and sellers may together choose to extend an unmet deadline or waive any unsatisfied contingency.

The most common contingencies in residential real estate transactions are those for financing, appraisal, inspection, title, and closing.[1]  Each of these “standard” contingencies are located in the standard WB-11 form Offer.  Depending on the particulars of the transaction and real estate, additional standard contingencies may be necessary.  These may be included on an addendum to the form Offer.

Financing

The majority of residential real estate purchases will involve some sort of financing.  A financing contingency will set forth not only the basic loan terms (amount, interest rate, payment amount, term, etc.), but also the type of loan.  A financing contingency is satisfied when a buyer provides the seller with a loan commitment for a loan meeting the terms set forth in the Offer.

Inspections

Unless you are intimately familiar with the home you are purchasing (and even if you are), an inspection by a licensed inspector is a vital part of any transaction.  It will inform you of the current condition and any defects in the house you are purchasing.  If defects are found, the inspection contingency will state whether the Seller will be allowed to fix – or cure – the defects at his/her expense.  If so, the Seller will have an agreed-upon time period to make any required repairs.  If not, the Buyer may often terminate the Offer and walk away.  The most frequent disputes regarding inspection contingencies involve who will actually conduct the repairs (we recommend a licensed professional), and whether the defects were sufficiently cured.

Appraisal

An appraisal is a valuation of the real estate (actual land, the home, and any other improvements) you are purchasing.  An appraisal contingency will require that the valuation be at least the amount of the purchase price.  If the appraisal comes back below the purchase price, the Buyer will typically have a right to terminate the Offer.  In some cases, rather than lose the transaction, parties may agree to decrease the purchase price accordingly.  If, on the other hand, the appraisal comes back higher than the purchase price, the contingency is simply satisfied and no action or modification of the transaction is necessary.

Title

When you are buying real estate, you will want to ensure that you are receiving “merchantable title.”  This means there are not unexpected easements, judgments or other liens, or other encumbrances which would prevent you from fully enjoying what you have purchased.  In order to satisfy this contingency, the Seller provides the buyer with a title insurance policy showing that there are no unacceptable encumbrances on the title.  If there are issues, the Sellers may have to work to remove them from title (e.g., by paying off old judgments or drafting or removing easements)

Closing

As the name implies, a closing contingency will set a deadline for the transaction to close.  It will also state the place the closing is to occur; most often occur at the office of the issuer of the title insurance policy.

Conclusion

As stated above, this is by no means an exhaustive list of the possible or appropriate contingencies for any particular real estate transaction.  In order to determine which contingencies are appropriate for your transaction, we strongly recommend you meet with an experienced real estate attorney.  If you would like to meet with one of our experienced real estate attorneys, please contact us at (608) 837-7386.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons.


[1] Note: This list is by no means exhaustive.  Entire books are written about contingencies for use by real estate lawyers in residential real estate transactions.

Blog Series: Listing Contracts

While there are alternative sales methods, the first step for many sellers is to find and sign a listing contract with a realtor; most often the standard WB-1 “Residential Listing Contract – Exclusive Right to Sell” approved by the Wisconsin Department of Regulation and Licensing.[1]

As the name implies, by signing the listing contract you are promising that your realtor is the only one who will be able to list your home for sale during the period of the contract (hence the importance of finding the right realtor for you).  You are also promising that, if the realtor is able to procure a ready, willing, and able buyer, that you will work in good faith to close on the sale.  In return, the realtor promises to market the property and use his/her resources to bring you a ready, willing, and able buyer.

In exchange for their services, the realtor will earn a commission consisting of a percentage of the purchase price (typically 6.0%).  Notably, they may be required to share this commission with another realtor, especially a realtor who represents a ready, willing, and able buyer.

The standard listing contract states that the commission is earned if, during the term of the contract,

  1. Seller sells or accepts an offer for the sale of all or part of the property;
  2. Seller grants a buyer an option to purchase all or part of the property;
  3. Seller agrees to exchange property with a buyer;
  4. A transaction occurs which causes a change in ownership of the property; or
  5. The realtor procures a ready, willing, and able buyer who offers to purchase the property at the listing price and terms set forth in the listing contract and standard WB-11 Residential Offer to Purchase.

As you can see, under the standard contract the realtor may sometimes earn their commission even if the transaction does not close.  A ready, willing, and able buyer is defined as one who “has the ability to complete the buyer’s obligations under the written offer” delivered to you or your realtor.  If your realtor’s efforts result in the delivery of the offer, he/she will be due a commission.  The only buyers that do not result in the payment of a commission must be identified to the realtor in writing upon execution of the listing contract.

Even if no offer occurs during the term, in some circumstances you may be required to pay your realtor a commission down the road.  All potential buyers who (1) deliver an offer, (2) negotiate directly with you; or (3) attend a showing or discuss potential terms with your realtor during the term of the listing contract are “protected buyers.”  If, during a period (usually one year) after termination of the listing contract you make a deal with a protected buyer, your realtor will be due a commission.  This clause protects realtors against clients “running out the clock” on their listing contracts in hopes of not paying a commission.

If along the way you decide not to sell your property or that your realtor is not the right fit, you and your realtor may agree to terminate the listing contract.  Upon termination you will want to make sure to receive a list of any protected buyers so that you are not surprised by your realtor at closing looking for their commission.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons.


 

[1] There are too many important considerations in selecting a realtor to mention in this post; however, the three most important (to this author) are: motivation, personality, and experience.

Attorney Thomas Griesheimer Joins the Firm!

This gallery contains 4 photos.

Eustice, Laffey, Sebranek & Auby, S.C. is pleased to announce that Attorney Thomas W. Griesheimer has joined the firm as an associate. Thomas is a 2013 University of Wisconsin Law School graduate, cum laude.  Thomas will focus primarily on commercial law, including business formation and transition, financing, transactions, banking, lender liability and business litigation. Thomas also advises clients on matters of local, state, and national regulatory compliance. Prior to joining Eustice, Laffey, Sebranek & Auby, Thomas worked at a business law firm in New Richmond, Wisconsin.

Welcome Thomas!

ELSA Attorneys Organize, Participate in FREE Sun Prairie Legal Clinic

Free Legal Clinic Starts Tuesday

If you live in the Sun Prairie area and have legal questions, there is now another local resource available.  The Sunshine Supper Legal Clinic will open its doors tonight, September 16, 2014, from 5 to 7 p.m. at Sunshine Supper (1632 West Main Street, Sun Prairie), to answer your legal questions free of charge.

ELSA Attorneys will be on hand to answer your questions regarding various fields of law, including employment law, family law, immigration law, and landlord-tenant issues.  Individuals whose questions are not fully resolved will be referred to outside resources, including the State Bar’s Lawyer Referral & Information Service, Community Justice, Inc., Legal Action of Wisconsin or the State Public Defender’s Office.

The clinic is the result of months of hard work by ELSA attorney and shareholder Joshua J. Kindkeppel, as detailed in this article from The Star, as well as ELSA attorneys Kathleen Curran and Kevin Henry, and other local practitioners.

Attorney Kindkeppel practices in the areas of business, real estate, employment, and civil litigation.  He was elected and served as president of the Dane County Bar Association in 2012-13, and collaborated with long-time Madison attorney Joseph Melli to create the Joseph A. Melli Mentorship Program to assist young Dane County attorneys. Kindkeppel is also active in the Sun Prairie Rotary Club, and serves on the planning committee for the Sun Prairie Kindness Retreats.

Attorney Curran practices in the areas of family law, estate planning, civil litigation, employment law, and personal injury.

If you cannot make it to tonight’s clinic, it will return on October 21, 2014, and on the third Tuesday of each following month.

Title: What Exactly are you Buying?

The previous post in this series briefly discussed the “title” or “merchantable title” contingency.  Simply put, a contingency requiring that the seller provide “merchantable title” means that the property received by the buyer is not encumbered (read: limited) by any conditions or restrictions not acceptable to the buyer.  Typically, in order to provide proof of merchantable title, the seller will order and provide the buyer with a title insurance commitment.

A title insurance commitment will have two main parts, or schedules.  Schedule A typically lists the following information:

  • A commitment number;
  • The name of the proposed insured party (the buyer);
  • The policy limit.  Typically the purchase price;
  • The current owner (the seller); and
  • The legal description, tax parcel number and address of the property.

In reviewing Schedule A, it is important to verify each of the above items to make sure they match up with your understanding of the transaction (for instance, that the seller really can sell the property).

Schedule B is broken up into two subsections: Requirements and Exceptions.  As the name implies, Requirements section provides the reviewer with a list of items to be complied with before the title company will provide insurance.  These typically include satisfying any existing mortgages on the property, and the provision of a deed in proper form.

The aptly-named Exceptions section provides a list of items that will not be covered by the title insurance policy once it takes effect.  Some exceptions may be removed by providing the title company with certain proof, usually in the form of affidavits or statements from knowledgeable parties.  Some may not be removed.  It is vitally important that buyers review these exceptions carefully, and if you are unfamiliar with any of these items, this would be a great time to contact a real estate attorney.  If a buyer does not satisfy any listed requirements to get the exceptions removed before the closing, the exceptions become permanent.

Some of the most common encumbrances include:

  1. Real Estate Taxes.  You will want to ensure that all taxes are paid on the property before taking ownership.  If not, even if the taxes accrued prior to your ownership, the taxing agency may hold you responsible for their payment.
  2. Judgments.  If someone is sued, and they lose, the victorious party will sometimes obtain a judgment for an amount of money.  They can then “docket” this judgment against real estate owned by the losing party.  Once a judgment is docketed it can only be released by payment, voluntary removal or court order.
  3. Easements.  Easements are agreements to allow certain parties access or use of some or all of the property.  It is fairly common for a title commitment to include easements for utilities or municipal services if the property is located in a city, village, town, etc.  Some other examples include access easements allowing for access to the property or to waterways, or joint-driveway agreements.  You may or may not be able to remove an easement depending on the type of the easement and the circumstances involving the sale.
  4. Protective Declarations or Covenants.  If the property is located in a municipality, it may be subject to certain covenants or rules.  These rules may govern any of a number of items, from the size and location of buildings on the property, to acceptable paint colors (like this), and even the scope and types of acceptable landscaping.
  5. Unpaid Assessments or Condo Fees (if applicable).  If the property is part of a condominium, or if there has been recent work by the municipality, these charges may be linked to the property’s title.  As a buyer you will want to ensure that any unpaid assessments or condominium fees are paid prior to your taking ownership of the property.

These are just a few of the examples of items to be aware of with regards to the title of the property.  If you have any questions regarding whether your seller is providing merchantable title, or would like someone to assist you with your real estate transaction, feel free to contact one of our experienced real estate attorneys at (608) 837-7386.

P.S.  Go Brewers!

Is Your Office Bracket Pool Legal?

This is one of my favorite days of the year.  In addition to the green beer that is flowing, sports fans (and non-sports fans) get to spend an inordinate amount of time completing NCAA basketball tournament brackets in hopes of besting their friends, colleagues and often complete strangers.  The range of bracket pools varies nearly as much as the participants, from high-stakes pools involving fanatics with big money on the line, to office pools competing purely for bragging rights.

It seems like everyone completes a bracket.  But have you ever wondered if your bracket pool is legal?

According to this article on Forbes.com, free-to-enter pools are generally legal, but pay-to-enter pools are not.  As the article details, pay-to-enter pools may run afoul of at least three federal laws, and may be illegal in some states.  What about Wisconsin?

The answer comes down to whether your bracket entry is a “bet” and your pool is a “lottery.”

By statute, anyone who “makes a bet” is guilty of a Class B misdemeanor.[1]  Wis. Stat. § 945.01(1) defines a “bet” as “a bargain in which the parties agree that, dependent upon chance even though accompanied by some skill, one stands to win or lose something of value specified in the agreement.”  There are several exceptions from this definition (actual business transactions, prizes to actual competitors, etc.), unfortunately, they do not appear to exclude bracket pools.  Thus, the ability to win or lose “something of value” determines whether your bracket entry is a “bet.”  If you can win or lose money, it is a bet.  If it is for office bragging rights, it may not be (a very lawyerly answer, I know).

“A lottery is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.”  Wis. Stat. § 945.01(5)(a).[2]  There is at least a strong argument that success in bracket pools is determined by chance.  (Do you think Warren Buffet would be putting $1 Billion if the odds for winning were better than 1 in 9 quintillion?  How many times has your friend who picked based on uniform colors won?)  Similar to the “bet” discussion above, if money is required to enter the bracket pool, and if the winner receives a prize (usually money), the bracket pool is a lottery.

Now what about those trusted friends or colleagues who take time from their busy schedules to run your bracket pool?  These pool administrators may be engaging in “commercial gambling” and guilty of a Class I felony[3] if they do any of the following:

  • For gain, operating a bracket pool;
  • For gain, becoming a custodian (holding) of entry fees or records;
  • For gain, setting up an online pool; or
  • Conducting a lottery where the entry and prize is money.

As you would suspect with laws regulating gambling, it appears that money is the principal issue in determining whether your bracket pool is illegal gambling.

Thus, while money makes many things more exciting, if you are going to engage in a bracket pool, it may be better to put the checkbook away and stick to bragging rights.


[1] The maximum penalty for a Class B misdemeanor is $1,000 and 90 days imprisonment.

[2] As an aside, a lottery does not include bingo or certain raffle contests.  Good job Lutheran churches!

[3] The maximum penalty for a Class I felony is $10,000 and 3 years and 6 months imprisonment. Yikes!

Blog Series: Buying or Selling Your Home

Spring is in the air (well, sort of).  Traditionally, the coming of spring brings to Wisconsin a number of things: the ability to occasionally go outside, renewed hope in our Milwaukee Brewers, and the start of the real estate season.  Traditionally, the spring and summer months are the busiest times of year for residential home transactions – and the times when our firm is contacted most frequently by prospective buyers and sellers.

Whether you are a first time homebuyer, or a seasoned veteran, the process of buying and selling a home – replete with deadlines, stacks of paperwork, and legal and technical jargon – may be intimidating.  Fear not!  We are here to help.  Over the next few weeks, this Blog will discuss the home buying or selling process, including the following concepts:

  • Listing Agreements,
  • Why and When to Hire an Attorney,
  • The Offer to Purchase,
  • Contingencies,
  • Title and Title Insurance, and
  • The Closing.

Along the way, we hope to not only inform you, our readers, of the basics, but also to discuss some common misconceptions and pitfalls, answer your questions, and show you ways that we can help.

We hope you will join us for this discussion.  If along the way you decide you would like to meet with one of our real estate attorneys, please contact us at (608) 837-7386.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

The “S” is for Super Lawyers: Two ELSA Lawyers Named as Super Lawyers

Eustice, Laffey, Sebranek & Auby, S.C. is proud to announce that Kevin M. Laffey and Kimberly P. Sebranek have been named by Wisconsin Super Lawyers Magazine as two of the top attorneys in the state for 2013.  Each year no more than 5% of lawyers in the state receive this honor.

From the Super Lawyers website: (www.superlawyers.com/about):

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Attorney Laffey is a shareholder in the firm and has significant experience representing financial institutions, businesses and individuals in the areas of business law, creditors’ rights, civil litigation, commercial transactions, and real estate law.  He is a graduate of the University of Wisconsin-Eau Claire, received his law degree from the University of Wisconsin Law School, and has been named a Super Lawyer in each of 2011, 2012, and 2013.

Attorney Sebranek is a shareholder in the firm with significant experience representing financial institutions and commercial clients.  Attorney Sebranek focuses her practice in the areas of creditors’ rights, bankruptcy (creditor side), banking, lender liability, business litigation, and business formation.  She is a graduate of Berea College in Berea, Kentucky, and received her law degree from the University of Wisconsin Law School. This is Attorney Sebranek’s third year as a Super Lawyer as she was selected in each of 2011, 2012, and 2013, after being honored twice as a Rising Star in 2006 and 2007.

Congratulations Kevin and Kym!

If you would like to meet with one of our Super Lawyers or one of our other experienced professionals about your legal needs, please contact us at (608) 837-7386.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

A Good Year for the Dane County Bar Association

June 1 is here and Lis Shea is the new president of the Dane County Bar Association! While I am sad to see my term end, I can assure you that the Bar is in great hands with Lis at the helm. She is organized, smart, creative, a good listener, and, most of all, she is dedicated to making the DCBA the best it can be.

This year (the DCBA fiscal year is from June 1 through May 31), the DCBA, by the hard work of its committee and section chairs and members made numerous advancements to the Association for the benefit of its members, the legal community, and the community at large. Here are some of the most notable accomplishments:

• Joseph A. Melli Mentorship Program launches its 6th year with 70 mentee/mentor participants (September 2012)
• Law for the Public Committee launches a Jury Outreach Program in conjunction with the Chief Justice’s Courts Connecting with Communities initiative (September 2012)
• Bob and Le Jordan’s 20th Anniversary of being the Bar’s executive coordinators (October 2012)
• Judicial Selection Committee rewrites poll and has largest response turnout in years (Spring 2013)
• Newly designed and user friendly DCBA website (May 1, 2013)
• Law Day celebration includes keynote address by Judge Colás, three free CLEs for DCBA members, mock trials with juries made up of middle school and Madison College paralegal students, and a well attended pro-bono fair (May 1, 2013)
• The Program Committee hosts an outstanding Electronic Discovery Summit (May 10, 2013)
• First time Largest voter turnout for officer positions in at least 20 years (May 2013)
• Long Range Planning and Membership Committees begin comprehensive review of the Bar’s governance structure and plans for the future
• Relationship between DCBA and the UW-Madison Law School continues to grow and become stronger
• Case Mediation Program continues to be a “best buy” and a wonderful resource to resolve disputes
• History and Memorial Committee generates revenue for Bar through the sale of its Lawyers Who Shaped Dane County book published in May 2012
• ‘Fridays at 4’ socials help build camaraderie amongst members of the Bar and gives old and new friends a great opportunity to meet. Thank you for all those firms that hosted!

Congratulations to Sarah Zylstra, David Friedman, and Janice Wexler on their election as president-elect, treasurer, and director-at-large, respectively.

As president, I was able to work alongside many of you to make Dane County a better place to practice law and to live. My belief that Dane County has the best judges, attorneys, and court personnel has only been strengthened during this past year.

I strongly encourage each of you to get involved in DCBA section/committee work. Numerous opportunities exist to make a difference. My involvement in the DCBA has enriched my experience as an attorney and has introduced me to so many wonderful attorneys, commissioners, judges, justices, and court personnel. Serving as president of the DCBA is a great honor, and it is an experience I will take with me wherever I go in life.

Thank you for allowing me to be your president.

All the Best,

Josh Kindkeppel