When is "Time of the Essence" in a New Jersey Residential Real Estate Contract

April 24, 2014

house1.bmpBuyers and sellers often think that they will be closing on the purchase or sale of a house on the closing date written in the contract for sale. However, in New Jersey, the closing date is not an "essential" term of the contract. Either party may request, and must be afforded a reasonable extension of the closing date. This can cause angst for buyers or sellers who believe that the contract date is set in stone.

The closing date in the contract is an estimated date for the closing rather than a "hard date". If the parties agree to a "time of the essence" closing date, it can enforceable. It is, however, unlikely that attorneys for either party would agree to make the closing date an essential term, because it could subject their client to liability for breach of the contract if, even due to circumstances beyond their control, they were not able to close on the date stated in the contract. If time is of the essence, then failure to close on the date specified in the contract would constitute a material breach of the contract and subject the party to liability.

As an example for this discussion, let's assume that the date closing is not made an essential term in the contract. Once the closing date specified in the contract has passed, the party who is ready to close can then set a new date for the closing and declare that that closing on that date is "time is of the essence," provided the legal requirements to do so are met. At that point, if the non-declaring party does not close on the new date (usually two weeks after the declaration of time being of the essence), they will be in breach of the contract and subject to liability for that breach. The non-breaching party can seek remedies including specific performance, which compels the breaching party to proceed with the contract, or they can receive monetary compensation for the breach.

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New Jersey Home Purchase Closings

April 22, 2014

house.bmpFinding a home you want to buy and making an offer which is accepted by the seller is only the beginning of the process to purchase a home in New Jersey. The next step is signing a contract to purchase the home. The contract is a written agreement outlining the parties' rights and responsibilities. If your contract was prepared by a realtor, it will be subject to a three day attorney review period which allows three business days for the contract to be reviewed by the parties' respective attorneys. Either attorney may invalidate the contract for any reason whatsoever within the three day period or either attorney may request amendments to the original contract. The amendments will be in the form of a letter addendum or rider to the contract and will require both the sellers' and the buyers' signatures which signify their agreement to the amendments.

After attorney review of the contract has been completed, you now have a valid and binding contract to purchase the home. The next step is to make arrangements for a home inspection as soon as possible and within the time period specified in the contract. Contracts are usually subject to home inspections (structural, water, septic, termite, etc.) and mortgage contingencies. Most purchasers prefer to have a licensed home inspector inspect the premises for defects. This is highly recommended since purchasing a house is a substantial investment. You should select the inspection company and have the realtor arrange for an appropriate time to inspect the house. The attorney will not usually be involved with the selection of the inspection firm nor the scheduling of the inspection. However, if the inspection discloses any problems which need to be addressed, the lawyer will negotiate a resolution with the seller's attorney.

While the inspection process is proceeding, you should select a lender and begin the mortgage application process as soon as possible since the contract only provides for a certain number of days to arrange for a mortgage. If you do not obtain a written mortgage commitment from your lender within the time specified in the contract, the transaction could be placed in jeopardy because you would need to either cancel the contract or proceed knowing that you risk being forced to go through with the purchase even if you cannot get a mortgage loan. A representative of your lender should be able to inform you at the time the application is made how long you can expect the lender to take in issuing a mortgage commitment. You can expect the lender to require at least 30 days from submission of the loan application to issue a commitment.

When you receive your mortgage commitment, read it carefully and in its entirety before signing. Your signature indicates your acceptance of the terms of the commitment. This is a contract made between you and the lender. It outlines the terms of your mortgage; consequently, be sure you understand it before you sign. The mortgage commitment will state a time period or a date after which the commitment is no longer valid. This is a most important date, particularly if you are "locked-in" at an interest rate during a period of rapid interest changes, since your purchase and financing must have taken place by that time.

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New Jersey's Sales Tax Exceptions and Anomalies

April 17, 2014

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Sales taxes are an inevitable part of life in New Jersey, and indeed, across the country. Sales taxes make it possible for the state to fund important government programs and operations such as transportation infrastructures, aid to schools (to the extent that it supplements local property tax and other funding sources), health and welfare aid programs, licensing and compliance departments, and other general state expenditures.

However, individual taxpayers may also benefit from their payment of sales tax on a more direct basis by claiming sales taxes as an itemized deduction on their tax returns. Generally people who itemize their deductions for their federal taxes also deduct their income taxes. However, taxpayers have the option to elect to deduct any state and local general sales taxes paid during the course of the year instead.

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New Jersey Make Major Revisions to Its Limited Liability Company Law

April 15, 2014

stock-photo-2760185-corporate-seal.jpgThe Legislature has recently made important changes to the laws governing New Jersey limited liability companies, which were effective March 1, 2014. The new revisions make drastic changes to the way New Jersey law treats limited liability companies. The law still allows the owners of a limited liability company to change the way they want their business to be run if they do not want it run in accordance with the law's acts default provisions. However, when the LLC operating agreement is silent, the new Revised Uniform Limited Liability Company Act will govern.

Because these changes drastically alter the way LLCs are operated, profits are distributed, and decisions are made, it is essential to have your operating agreement reviewed by an experienced business attorney knowledgeable in the new Revised Uniform Limited Liability Company Act. Our attorneys are experienced in these areas and we have formed and crafted operating agreements to run hundreds limited liability companies. Please call us to have your LLC's operating agreement reviewed by one of our business attorneys.

The following are some of the important changes.

Distributions. Under the old law, members of an LLC received distributions or profits and losses according to their ownership interest. Therefore, if two owners own the company 75 percent and 25 percent, they would receive profits and distributions of 75 and 25 percent, respectively. The new LLC law, however, requires that profits and losses be shared equally. Thus in that same company, rather than splitting the losses 75 and 25, each member would received half the profits, despite their unequal shares. Of course, this can be changed in the operating agreement, which can provide that distributions be made in proportion to ownership percentages, or based on any other reasonable formula.

Fiduciary Duties. The new LLC law creates an express fiduciary duty of loyalty for all members. Members cannot compete with their limited liability company or engage in self dealing. Thus, leasing property to the LLC or lending it money can be construed as self dealing. But again, this can be changed in the operating agreement.

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New Jersey's Employment Laws Which Protect Against Sexual Harassment

April 11, 2014

New Jersey's employment laws protect employees from workplace sexual harassment. People accused of sexual harassment may be subject to individual liability under both civil and criminal laws. Employers may also be found liable for sexual harassment because of their employees' actions.

Sexual harassment does not need to be sexual in nature. It can take at least two forms: (1) hostile work environment, and (2) "quid pro quo" sexual harassment. Hostile work environment sexual harassment is conduct that has been directed towards someone because of that person's sex. For example, harassment that is based on stereotypes about women or men can be construed to be sexual harassment. Of course, harassment that is sexual in nature is sexual harassment. Therefore, inappropriate sexual propositions, jokes or advances can be construed sexual harassment and result in a civil lawsuit. This type of conduct is prohibited.

"Quid pro quo" sexual harassment is also prohibited. Quid pro quo sexual harassment is the demand by an employer, manager, or supervisor that terms and conditions of employment, such as raises, promotions, or simply keeping the employee's job, in return for sexual favors. For example, if a boss requires an employee to have sex or enter into a romantic relationship to keep her job, get a promotion or avoid discipline, then the employer could be liable for quid pro quo sexual harassment.

Employees complaining about workplace sexual harassment are protected from retaliation. In fact, it is a violation of New Jersey's employment laws for employers to retaliate against employees for their complaints about behavior that that employees reasonably believe is sexual harassment.

Simply, employees should not have to endure the stress or indignity of inappropriate sexual conduct in the workplace. However, not every type of workplace conduct based on gender is unlawful. Instead, to have an actionable claim of sexual harassment the conduct complained of must be serious enough or frequent enough to make a reasonable person believe that her working conditions are hostile or abusive.

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Pregnancy Discrimination Under New Jersey's Law Against Discrimination

April 9, 2014

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New Jersey's Law Against Discrimination (the "LAD") covers a wide variety of activities and relationships, including employment relationships. It makes it unlawful to discriminate against an employee or potential employee on the basis of race, national origin, nationality, age, gender, sexual orientation, religion, and several other specified classifications.

In January of 2014, Governor Christie signed into law a bill (S2995) that both protects pregnant employees from discrimination and requires employers to provide pregnant employees with reasonable accommodations so that they can continue working. The Act applies both to women who are currently pregnant and those who have recently given birth. Therefore, if the pregnant woman, or woman who recently gave birth, requires accommodations in the form of, for instance, a modified schedule, additional breaks, or less strenuous work duties, as long as those accommodations are reasonable under the circumstances, the employer must allow them and cannot retaliate against the employee for needing, using, or asking for those accommodations.

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New Jersey's Sales Tax

March 31, 2014

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Sales taxes are imposed on all sorts of goods and services sold or provided in New Jersey. Generally the tax rate for most of those goods and services is seven percent (which was increased from six percent in 2006).

Most goods and services are taxed, including, for example, tangible personal property; digital products' the production, installation, or maintenance of tangible personal property or digital products; storage of personal property; mail processing services; utility services; tanning services; tattooing; investigation and security services; information services; non-prescription massaging services; limousines and other transportation services; telephone answering services; radio subscription services; prepared foods (such as in restaurants); food provided through a vending machine; landscaping; entertainment (movie tickets, amusement parks, sports events, plays, etc.); gym memberships; and parking garages.

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Permissible Tax Deductions

March 25, 2014

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On the federal level, income taxes, and indeed all taxes to some extent, are regulated and enforced by the Internal Revenue Service ("IRS"). While there are numerous statutes, regulations, and other laws which mandate the payment of taxes on any number of goods, services, and activities, the tax bible is the Internal Revenue Code ("IRC"). The IRC has been further expanded upon and interpreted in the regulations adopted by the United States Department of the Treasury located in Title 26 of the Code of Federal Regulations ("CFR"). The IRS also issues numerous publications in an attempt to provide further guidance for people, companies, and tax professionals, typically referred to as Internal Revenue Bulletins ("IRB").

Oftentimes people frustrated with paying income taxes, while pulling their hair out or throwing their hands up, wonder if there is some way they can avoid the tax altogether. They might start devising some strategy to argue against the very concept of paying income taxes. However, rest assured, the power of the government to enforce the payment of income taxes is legal and valid, and its not going away.

Indeed, the very first section of the IRC imposes tax on income. The IRC goes on to define taxable income as gross income after permissible deductions are subtracted, and requires everyone (with limited exceptions) to file their tax returns every year. However, when calculating personal income taxes, there are certain ways that a taxpayer may make deductions upon the tax that they would otherwise owe. In doing so, people may either itemize their deductions or accept the "standard deduction."

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Income and Expense Verification Requests in New Jersey Property Tax Appeals

March 19, 2014

A law known as "Chapter 91" allows municipal property tax assessor's to request income and expense information from a New Jersey property owner in order to assist in determining property "values" for its tax assessment. While this, standing alone, does not seem overly burdensome, if the property owners fail to respond to the assessor's request pursuant to Chapter 91, property owners are barred from appealing their property tax assessment.

However, the law has strict provisions which must be followed by municipal assessors and taxpayers. The municipal assessor must send the request for income and expense information in writing, and the request must be sent via certified mail. The assessor must include a copy of the applicable statute with the written request. Moreover, the assessor's request can only be made for properties which are producing income. The property owner must respond in writing to the assessor's request within 45 days, and if he fails to do so, will not be permitted to file an appeal of the assessment. However, if the taxpayer fails to respond, the municipal assessor is still required to determine the full and fair market value of the property utilizing all available information. Additionally, the statute does include an exception, wherein if the property owner had good cause for being unable to provide the requested information, the applicable county tax board may take that into consideration.

Courts have construed the requirements imposed on the municipal tax assessor very strictly, due to the property owner's resultant loss of the right to appeal if she fails to respond. New Jersey's Tax Court has ruled that if the assessor does not comply with every requirement of the statute, "renders the statute inapplicable." SAIJ Realty, Inc. v. Town of Kearny, 8 N.J.Tax 191, 197 (Tax 1986), including the provisions requiring the request be sent by certified mail and that a copy of the statute be included with the request. However, if the municipality meets the requirements of the law, the burden shifts to require the property owner to strictly comply with her obligations under the law, particularly responding in writing within 45 days.

New Jersey courts have consistently construed the law against property owners even in situations where it seems unjust. For example, even if the assessor's request is overbroad or illegal, as long as the assessor has met the statute's requirements, a property owner's failure to respond can still result in loss of the right to appeal. The taxpayer is then required to respond to those requests which are not objectionable and advise the municipal assessor as to why the remaining requests are improper. Moreover, a property owner must still respond the properly sent request even if the request is made of a non-incoming producing property. The Tax Court has even held that failure to respond to a request, even when the request is made as to non-income producing property, will result in the taxpayer's loss of its right to appeal the assessment. Furthermore, the Appellate Division of New Jersey's Superior Court upheld the loss of the right to appeal where the taxpayer sent a response after the 45 days had expired. The Appellate Division also ruled that an appeal was properly dismissed where the requested information was provided to the attorney for the municipality, but not the assessor. These decisions were all justified because of the important governmental interest and the statute's mandatory wording.

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Independent Contractor or Employee: How Do I Properly Classify My Workers?

March 17, 2014

stock-photo-20612112-woman-leading-business-team.jpgOne of the most common areas in which business owners make a mistake is with the hiring and properly classifying new workers. Classifying a person as an independent contractor can have appealing benefits for an employer, but it can have detrimental tax consequences and other legal implications under both federal and New Jersey law.

For example, employers maybe tempted to classify workers as independent contractors because they would then not have to pay the employer portion of social security and Medicare taxes for their workers. Employers will also not be required to comply with the Fair Labor Standard Acts and New Jersey Wage and Hour Law, both of which provide for minimum wage and overtime pay requirements. Instead, a worker who is an independent contractor will be considered "self-employed," and will be required to pay the taxes as well as their full social security and medicare income tax. This has the effect of transferring seven percent of the cost of worker from the employer to the worker.

Before determining if a worker is an independent contractor or an employee, it is essential to seek advice from an experienced New Jersey employment attorney. Proper classification of a worker must be made on a case-by-case basis. Factors have been set forth by the United States Appellate Court for the Third Circuit and the New Jersey Supreme Court, which must be reviewed in making the determination.

The New Jersey Supreme Court explained that there are at least twelve factors that should be considered in determining if a worker is an employee. First, and most important, a worker is more likely to be considered an employee if the employer controls the means and manner her performance. Second, a worker can be considered an employee if her occupation is one that an employer can be required to supervise. Third, a worker who has the skill set that matches what the employer normally seeks of its employees to perform a job can be considered an employee. Fourth, a worker who is provided with equipment and a workplace by the employer is more likely to be considered an employee. Fifth, a person who continuously provides service to an employer can be construed as an employee. Sixth, workers who are paid directly by the employer can be construed as an employee. Seventh, a person who is actually terminated by the employer is more likely to be construed as an employee. Eighth, a worker who is provided annual leave is probably an employee. Ninth, a worker who is an integral part of the business of the employer is more likely to be construed as an employee. Tenth, a person who accrues retirement benefits will normally be considered as an employee. Eleventh, if a worker's social security tax is paid by the employer then, she will probably be construed as an employee. Finally, the intention of the parties can help establish if a relationship is that of an employee-employer.

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Why Do I Have to Pay Income Taxes?

March 14, 2014

taxes 1.jpg Taxes have been a vital part of our nation since its very founding. Indeed, even prior to the nation's independence, local taxes were imposed upon the colonies.

Even under the Articles of Confederation, the predecessor to the United States Constitution, the states had power to tax their residents. However, that power was a loosely enforced power, and did not mandate that taxes collected be turned over to Congress. Then, with the adoption of the United States Constitution in 1787, the federal government obtained the power to "lay and collect taxes."

However, even with the ratification of the Constitution, income taxes made up a very minimal amount of the government's total revenue. In response to significant revenue concerns, the Sixteenth Amendment was adopted in 1913. The Amendment expanded the power to lay and collect taxes without apportionment among the states and without regard to each state's population. However, it took time for the Bureau of Internal Revenue to organize the income tax. The need for revenue only increased with the beginning of World War I, which, even prior to the U.S.'s involvement, caused a decline in international trade and revenue. WWI thus became one of the main catalysts that molded income taxes into the general form that we recognize now.

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The Filing Deadline for some New Jersey Property Tax Appeal is changing

March 12, 2014

Thumbnail image for watching-time-860275-s.jpgIf you own property in Monmouth County the property tax appeal deadline has changed. While the new date in the rest of the state remains April 1st, Monmouth County has volunteered to test out a new law changing the appeal date to January 15, 2014 or within 45 days of the bulk mailing of the municipal assessments, whichever is later. If your property is in Monmouth County and you did not file your petition to appeal your property tax assessment on or before January 15th, you will not be able to file and appeal this year unless the notice was mailed within the last 45 days or there was a town-wide revaluation.

New legislation was enacted and the governor signed into law, P.L. 2013, c. 15, creating a demonstration program which allows up to four counties to opt into the new law, two in the first two years and two more in the following two years. At the present time, only one county has opted in, Monmouth County.

This is a significant change because the deadline to file a petition to appeal a property tax assessment in the rest of the state of New Jersey remains April 1, or within 45 days of the bulk mailing of the property tax cards, whichever is later. While property tax cards are traditionally been mailed out in February, most Monmouth County municipalities have already mailed out their property tax cards. The appeals hearings in participating counties are expected to be conducted by the end of April.

The stated purpose of the new law is to establish a collaborative system of property assessment between the county board of taxation and the municipal assessors which it is hoped will result reductions in cost and increases in accuracy and consistency of assessments. The stated purpose of the change in the appeal deadline is to assist in municipal budgeting and to more evenly distribute tax losses to municipalities which result from tax appeals across the various governmental entities on whose behalf taxes are collected (i.e. school, county). However, the change appears suspiciously timed to limit property owners' right to challenge their assessments and make more money for the towns.

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Can I Sue My Employer If I Quit My Job?

March 10, 2014

Thumbnail image for quit.jpgNew Jersey employment law provides some of the strongest protections in the nation for New Jersey employees. A typical employment lawsuit involves an employee who has been fired in violation of some type of legal right. Employers, however, are now more sophisticated and do not always terminate their employees. Instead, employers now try to "force" their employees to quit by creating a hostile work environment.

Thus, a common question I am often asked is: "Can I still sue my employer who violated my rights if I quit?' The answer will typically depend on a case-by-case analysis and the particular reasons behind the resignation. However, courts have now recognized a principal known as "constructive discharge." Constructive discharge occurs when an employer make an employee's job so miserable that the employee is forced to quit. Constructive discharge cases are often very difficult because the burden is on the employee to show that the work conditions were so unpleasant or difficult that a reasonable person would have felt compelled to quit, and the employer created them a hostile work environment for a prohibited reason, such as discrimination or retaliation against a "whistle blower."

The New Jersey Supreme Court has explained that to sustain a claim for constructive discharge an employee must prove that the conduct complained of was so egregious that any reasonable person would be forced to resign rather than continue to endure it. For example, a typical case of constructive discharge can be sexual harassment by a supervisor. Another common example is when an employee makes a reasonable complaint that the employee believes another employee, typically one in a supervisor position, is violating the law. As a result, the employee that made the complaint begins to get unfavorable work assignments, is given poor reviews, and is otherwise subjected to a hostile work environment. If the employee quits as a result of the hostile work environment that employee could potentially sustain a claim for constructive discharge.

Employees who quit should not get discouraged by the fact that constructive discharge cases are difficult. In fact, New Jersey courts are quick to point out that decisions in constructive discharge cases are heavily fact-driven. It is therefore recommended to seek guidance from an experienced New Jersey employment attorney.

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Pregnancy Now Protected Under the New Jersey Law Against Discrimination

March 7, 2014

Thumbnail image for depositphotos_4730220-Happy-pregnancy.jpgOn January 21, 2014, Governor Chris Christie signed legislation amending the New Jersey Law Against Discrimination to include pregnancy, childbirth, and related medical conditions among employees receiving protection against discrimination. The law is effective immediately.

Introduced as bill in September 2013 to combat discrimination against pregnant women and women with medical needs after childbirth, the Act requires employers to make reasonable accommodations to pregnant women and those recovering from childbirth. Accommodations can include restroom breaks, breaks for increased water intake, periodic rest, help with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or less hazardous work. The bill referred to reports that women who requested an accommodation in the workplace to help them maintain a healthy pregnancy or who needed a reasonable accommodation as they recovered from childbirth were being removed from their positions, placed on unpaid leave, or fired.

In urging the New Jersey Senate to pass the bill, the American Civil Liberties Union of New Jersey (ACLU)identified some examples of women who were denied reasonable accommodations because of their pregnancy. Before the amendment of the New Jersey Law Against Discrimination, those employer actions were legal. Examples include a pregnant security worker who was denied a stool to sit on at her job, a pregnant cashier who was not allowed to keep a water bottle at her workstation and collapsed at her register, and a pregnant line cook who was denied additional restroom breaks.

The ACLU Public Policy Director also cited a New Jersey Supreme Court case that held that it was legal for a casino to fire a pregnant worker whose doctor instructed her not to return to work after discovering a serious problem with one of the twins that she was carrying. Said the Director, "What does it say about our state's values that our laws ask a woman to make the choice between doing what's needed to protect her pregnancy, and keeping her job?"

Employers are not to apply workplace accommodations "in a manner less favorable than accommodations or leave provided to other employees not affected by pregnancy but similar in their ability or inability to work." Further, the Act does not intend to impact the amount of employees' rights to paid or unpaid leave under the law.

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New Jersey's Tough Stance on Cyber-Harassment

February 18, 2014

typing.jpg In the last several years, many states have passed laws prohibiting cyber-harassment, cyber-stalking, and cyber-bullying to reflect the evolution of today's society which, more and more, is becoming centered around electronic communications.

While New Jersey has been a strong advocate of anti-bullying and harassment laws, it has only recently passed a law which specifically criminalizes cyber-harassment. The law was considered to be, in large part, a reaction to the increase in the number of teens who have committed suicide after suffering online harassment. It passed both houses of the state legislature unanimously and was signed into law shortly thereafter by Governor Christie.

This law makes cyber-harassment a crime of the fourth degree, unless the harasser is 21 years old or older and the targeted person is a minor. In that case, it is considered a crime in the third degree. New Jersey's Criminal Code provides that a third degree crime may result in 3 to 5 years of imprisonment if convicted and a fourth degree crime may result in up to 18 months of imprisonment. The law specifies that these crimes could also be penalized by either a $10,000 fine (for a fourth degree offense) or a $15,000 fine (for a third degree offense) either in addition to or instead of the jail time.

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