2053 Woodbridge Avenue - Edison, NJ 08817

Wednesday, April 08, 2009

NJ Laws Email Newsletter E301

NJ Laws Email Newsletter E301
April 8, 2009

In This Issue
1. Real Estate Sales - Spring is the Time for Real Estate Sales.
2. Recent Cases: Trial Judge Must Determine Probable Cause for DWI Stop.
3. Ocean County Jury Awards $17M to Family Hurt in Car Crash.
4. Employer Not Responsible for Employee Intoxicated Outside the Workplace.
5. Press Release: Nuts & Bolts of Elder Law & Estate Administration Seminar - Tuesday, April 28, 2009 from 5:30PM to 9:30PM.

1. Real Estate Sales - Spring is the Time for Real Estate Sales.

To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period after taking numerous classes. Mr. Vercammen is now also a licensed real estate agent, and is affiliated with one of the largest real estate agencies in the country.

We also note Bob Tona of South Brunswick has joined Jersey Mortgage Company. For mortgages and refinances, call Bob Tona at 800-342-6597 or 732-739-4082.

The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.

The Contract of Sale

A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.

Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As Is", make sure they are added to the Contract before signing.

The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.

Read and Understand the Contract Before Signing your Contract of Sale

Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:

1. Read the Entire Contract.
2. Written Down Your Questions and Posed Them to Your Realtor.
3. Made Sure All Your Requested Clauses are Included, Such as the House Being Sold "As Is".

These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.

Work With Your Realtor

Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection.

Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.

The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.

Closing Date is Approximate

You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.

If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.

(To be filled out by seller and returned to seller's attorney)
1. SELLERS NAME: (as it appears on deed)

2. Real Estate being Sold:
Lot No. _________ Block No. __________
Address: __________________________________
3. Present Mortgage Company:
Address: _________________________________
Loan No. ________________
800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company:
Address: ______________________________
Loan No. __________________
800 Telephone No. ________________________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good
5. Social Security Number:
(H) ___________ (W) ________
6. Is any Seller age 62 or over? If so, name and
Date of Birth: ____________
7. Name, Address, Telephone number of Condominium Association, if any
8. Type of Fuel: Gas _____ Oil ______
9. Marriage Information:
Date of Marriage __________
Maiden or Prior Name(s) __________
Prior Marriages _____________________
(Copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale:

2. Recent Cases: Trial Judge Must Determine Probable Cause for DWI Stop.
State v. McDade App. Div 14-2-3257
Following denial of his motion to suppress evidence, defendant entered a conditional plea of guilty to driving while intoxicated. The sole issue on appeal was the validity of the motor vehicle stop where the officer stopped the car because a passenger side rear tail light was out. Defense counsel suggested that there were multiple lights on each side of the car's rear and argued that the malfunctioning of a surplus lamp does not give rise to a reasonable suspicion of a motor vehicle code violation.

Finding that the community caretaking function exception to the warrant requirement does not apply, and that the legality of the stop depends exclusively on whether there was a total of two functioning rear tail lamps, one on each side, a fact that cannot be determined from the record, the panel remands to the Law Division for further fact finding.

Source: Daily Briefing 3/31/2009 NJ Law Journal

3. Ocean County Jury Awards $17M to Family Hurt in Car Crash.

After a defense stipulation to liability and a three day damages trial, an Ocean County jury on Wednesday awarded $17 million to Jennifer and Alvin Roden and their three young children who were hurt in a horrific collision with an oncoming car that strayed into the Roden's lane. Their daughter Madeline, whose legs were paralyzed in the August 2006 crash in Tuckerton, won $10 million and the other riders were awarded amounts ranging from $50,000 to $4 million. The defendant's insurer, New Jersey Manufacturers Ins. Co., paid the plaintiffs' property damage of $20,000 at the outset of the case and offered to pay the remaining $480,000 of the defendant's policy last November, but plaintiffs' lawyer rejected the offer. He says NJM had reason to know from the start that the defendant was liable and that the injuries would be far greater than $500,000. An arbitration panel awarded the plaintiffs $8 million but NJM opted for a trial de novo instead of paying it.

Source: Daily Briefing 4/3/2009 NJ Law Journal

4. Employer Not Responsible for Employee Intoxicated Outside the Workplace. Riley
v. Keenan 4-02-09 A-6054-06T3

The issue in this automobile negligence action is whether an employer may be held liable for injuries to a third party caused by an intoxicated driver acting outside the workplace and outside the scope of his employment. Even assuming the employee's work-related sleep deprivation, as claimed by plaintiff, the court could see no reason to extend the notion of duty to, or create a new theory of recovery against, an employer in circumstances where the employer neither knew nor had control over its employee's "incapacity", nor engaged in any affirmative act to worsen the situation, and where the independent intervening act of the employee's intoxication broke any causal connection between work fatigue and the ensuing automobile accident.

5. Press Release: Nuts & Bolts of Elder Law & Estate Administration Seminar

Time: Tuesday, April 28, 2009, 5:30 PM to 9:30 PM
Location: Pines Manor, Edison


Chair, ABA Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year



This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced estate planners and professionals who help senior citizens.

You'll also gain insight on how Federal Medicaid Reform will impact seniors. Fee includes 330 plus page book, dinner, seminar and opportunity to ask questions. $159.00

Contact: New Jersey Institute for Continuing Legal Education at phone number: (732)

Additional information: Book & seminar elder law & estate administration including:

Why Have a Will?
Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics and who is the client?

Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; Sample Forms

Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool and Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms Basic Tax Considerations Jointly-held property; "I love you" Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document;

Sample Forms/Letters

Estate Administration and New Probate Law in New Jersey Probate process; duties
of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists

Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property;personal residence; Medicaid estate recovery rules and more.