5 Essential Qualities to Look Out For Before Hiring a Property Lawyer

5 Essential Qualities to Look Out For Before Hiring a Property Lawyer

So, you are at that juncture to choose the right property lawyer to handle your real estate transaction? That’s okay. The best response is to take your time to read the article to gain the proper knowledge necessary for making an informed decision. 

For the records, this stage will determine whether you will get maximum profits from your real estate investment or spend considerable money without results. That is because real estate investments have something to do with time. Typically, you don’t get all the profits in an instant. That is why you need to strive to get a deal that has long-term value. 

Hiring the right property law professional lawyer will help you make your investment a success. Why? Property lawyers know how to make sure your deal is safe. They have a vast knowledge of the region’s law and will guide you to make safe purchases or sales.

Remember that real estate investment is something that stays for a long time. Hence, It is essential to be sure you are playing by the rules of the land. Otherwise, you may have to forfeit your investment in a few years without remedy or retrieval. 

See also: 5 Real Estate Professionals to Hire alongside Property Lawyers for Home Sales

Don’t Fall For the Packaging 

The great news is that there are several competent property lawyers out there who understand everything about contracts analysis, negotiation and closing. However, the other unfortunate part is that not all of the self-acclaimed property lawyers you see bragging around in brown wigs, and black gowns are worth your hard-earned money.

When choosing the right property lawyer for your real estate investment, it is essential to look beyond the well-decorated office space and the advertised public image. In the true sense, it is hard to find competent property lawyers that will fight for your best interest from start to finish without compromising. But, it is as well possible.

Here are the five best qualities to look out for when choosing a property lawyer to guide you through the sorting process. 

5 Qualities to Consider When Choosing a Property Lawyer 

1. Reputation

A good name is golden as it tells much about what individuals stand for and their capacities. So when it comes to hiring the right property lawyer to handle your real estate transaction is one of the essential qualities you need to check out. 

Expectedly, people with distinct personal reputations would have done something worthwhile to warrant continued praise from people. And that is the most credible review you can ever bank on. Property lawyers with a bad reputation are an automatic red flag and turn-off point. It’s also a warning sign of incapability. 

Hiring a property lawyer with a bad reputation can put your real estate investment at a greater risk. It can be the sole reason you lose much money without retrieval. Hence, it is essential that you first check and ask around about a real estate attorney before agreeing to hire. You can also deduce the lawyer’s reputation by watching how he relates with you as a client during the first meeting. 

2. Experience

No one can ever gainsay the essence of experience in any endeavour. Little wonder it is called ‘the best teacher’. Experience makes a professional identify potential future problems and provide a sure way out in case it happens. 

In that light, it is essential to be sure that the property lawyer you are about to hire has a vast knowledge of the specific area and property you want to invest in. If he starts as a newbie, he doesn’t deserve your money. Of course, every property lawyer has a first time, but it doesn’t have to begin with you necessarily. 

Before you hire a property lawyer, could you find out about their former clients? Find a way to relate with some of them to learn about the outcomes of their previous dealings. If the lawyer has successfully handled several real estate transactions, as confirmed by previous clients, you are good to go. But that’s not all; it’s good to know if the lawyer has handled a transaction similar to yours. Yes, it’s good if he knows the neighbourhood well and can show you some of his investments in specific locations. 

3. Availability

Of course, we have agreed that your prospective property lawyer should be highly experienced. Yet, it is not good to hire the ones who are always busy. Real estate investments are time-based. Great deals and offers can come up at any time; in that case, it is first come, first serve. 

Besides, real estate pricing is fluctuating presently everywhere around the globe. So if your lawyer is not ready to work according to the right timing, there is a huge tendency that you won’t make good profits.

Make sure the property lawyer you are about to hire will be readily available to monitor your transactions when time demands. He must be available for showings, listings, and check-ups.

Remember, the primary responsibility of a property lawyer is to give you on-time legal advice on every step you take. How best can you achieve that if he is somewhere monitoring another client’s business? Your lawyer must dedicate time to work with you every time. It is also a red flag if he is fond of assigning representatives to help you on his behalf. 

4. Human Resources

Your prospective property lawyer must have the right team to carry out every assignment accurately. Good teamwork is a sure way to achieve excellent results. So, if your lawyer has the right human resources, you can be sure of great returns.  

5. Service Charge 

Of course, you must be ready to pay if you want to hire a top-notch property lawyer. Yet, you don’t have to hurt your wallet to pay for legal services. The proposed cost of service of your prospective lawyer counts a lot. For instance, too high a service charge can be nothing but exploitation. At the same time, the meagre service charge cost can mean incompetence. 

Overall, find out from those who have been investing big in the real estate business for a long to know how much is ideal to pay a property lawyer in your locality.

In Conclusion 

 A good property lawyer must have all the qualities above. If he lacks any of them, your real estate investment may not be as profitable as expected. Meanwhile, it is not difficult to get an all-around quality property lawyer. Some of the best ways to find one easily are to ask a friend for a referral, check online or contact us. 

5 Real Estate Professionals to Hire alongside Property Lawyers for Home Sales

5 Real Estate Professionals to Hire alongside Property Lawyers for Home Sales

Of course, you might have heard about the inevitable essence of hiring a property lawyer when selling a home. Well, that’s correct. Without mincing words, we can put it to you categorically that property lawyers have a lot to offer when selling a home for profit. 

No doubt, property lawyers (or real estate attorneys) can take a huge burden off your shoulders, especially if you operate under the ‘for sale by owner’ principle. They will also help you to handle all the head-aching tasks like contracts analysis, negotiations and closing paperwork. They can also help you with professional advice from the perspective of the region’s law, making sure you are selling your home following the rules and regulations of the locality, state, and country. 

However, a property lawyer will not do everything for you. Remember, you are trying to sell. Your property lawyers are more experienced in contracts, paperwork and anything law related in the home-selling process. However, they know to attract buyers or provide market-based advice. 

Do you still need to work with a real estate agent or broker after hiring a property lawyer? 

Yes. Having hired a seasoned property lawyer, you must involve other real estate professionals in the home sale practice. Let it be in your mind that you need more than a property lawyer to make the best real estate sales. You will need to work with specific people who are experts in their various fields of endeavour. 

5 Real Estate Professionals to Hire alongside Property Lawyers for Home Sales

Typically, every good deal in home sale comes from the combined efforts of different real estate professionals. So, without further ado, we have compiled the unique expertise of five other professionals in the real estate industry and how they can help you achieve your property sales goals.

5 Real Estate Professionals That Works with Property Lawyers In Home Sales 

1. Broker/Agent

A broker or real estate agent will help you sell your property within the shortest time possible. In this context, you can call them seller’s agents or a listing agent. Before you put your property sale, we advise you first to contact a real estate agent to conduct the sales on your behalf – even your property lawyer will recommend you to take that step. 

Real estate agents must use their vast knowledge of the local market to set a good price for your property, list it and find a way to attract buyers on time. 

It is the sole responsibility of real estate agents will help you with the following:

  • Preparation of comparative market research analysis to come up with realistic pricing.
  • Identification of the assets that can sell the most in a given neighbourhood
  • Staging the home properly to make it attractive to potential buyers
  • Preparation of the photograph of the property both inside and out
  • Listing the home on the Multip0=le Listing Service (MLS)
  • Advertising the property on various relevant platforms to attract buyers
  • Supervising and scheduling property showings and open house events.
  • Drafting and preparation of documents like offers, contracts and closing statements
  • Communicate with escrow companies, appraisers, lenders and home inspectors.

Overall, it is the responsibility of the broker to list our home on MLS, facilitate quick sales, and ensure you meet all deadlines. 

2. Inspector

This real estate professional mainly works for buyers. Their specific role is to familiarise the buyer with relevant information about the home listed for sale. In addition, inspectors help buyers know whether there are areas to be repaired in the property listed and provide helpful advice regarding whether the property is suitable for purchase. 

However, inspectors also work for home sellers. Since we know that prospective buyers would come with an inspector to check the property thoroughly, it is, therefore, essential for sellers to hire an inspector to inspect the property for necessary repairs before scheduling a home inspection for buyers. 

An inspector will tell you the specific areas you need to upgrade or improve for better pricing. Unfortunately, if all you are planning to hire a property lawyer, you may not have the opportunity to receive this service. 

3. Appraiser

This real estate professional can also work for both the buyer and seller. Firstly, buyers depend on the expertise of an appraiser to know whether the pricing is proper. An appraiser will work in the buyer’s interest to ensure that he is not paying more than the market value. Hence, the real estate professional would inspect the property and compare the price with the current market value before advising his client on what price to call. 

On the other hand, you, as a seller, can also benefit from the expertise of appraisers by hiring them to check the property and advice you on what to be the fair asking price. Then, you can do personal research to get the current market price. But, the expertise of an appraiser will go a long way.

4. Escrow Manager

The Escrow manager is another real estate professional required to complete a home sale successfully. This officer is a third-party representative in a typical real estate transaction. Escrow managers are responsible for keeping funds during transactions and ensuring all parties get the right amount at closing. 

In some instances, escrow managers work at tile companies. They are there to blur the lines through which funds are circulating at closing. Escrow managers work in the best interest of buyers and sellers in a given real estate transaction, unlike property lawyers who work in the interest of the party hired. 

5. Title Company 

This company will send a representative who will underwrite the title insurance and transfer the clean title of the listed property to the buyer.

Finally

Working with a competent property lawyer during a home sale is essential. Failure to hire an attorney can make you spend much and gain little. Property lawyers will also help you avoid potential future losses by ensuring the transaction follows the law of the region. However, only property lawyers cannot do everything you need to have a successful home sale. You need to hire other real estate professionals above to get the best possible deal. 

More to read: 5 Essential Qualities to Look Out For Before Hiring a Property Lawyer

Why Home Sellers Need To Hire a Property Lawyer

Why Home Sellers Need To Hire Best Property Lawyers

Based on statistics, people mostly think of hiring a property lawyer when buying a property. However, they seldom involve a real estate professional when selling a home. Perhaps home sellers think they know how to set the best price that will benefit their pocket having known the purchase price. 

It is also logical to think that involving a property lawyer when selling a home might reduce profits in the long run, as one will have to deduct the service charge from the overall selling price. Well, that’s thoughtful. 

But, from a professional point of view, it is always recommended that you hire the best property lawyers to help you monitor the entire selling process. More interestingly, that is the best way to maximize profit. 

A seasoned property lawyer will certainly charge you a good amount of money. However, you will end up having more profits even after you might have deducted the service charge. How? You will discover the trick as you read on. 

Truthfully, home selling is a very tedious and complex process. It requires you to have a vast knowledge of a region’s local, state and federal laws. You will also have to inevitably review sales contracts, simplify terms professionally and attend closings as when best to avoid financial disasters.

Why Home Sellers Need To Hire a Property Lawyer

So, how do you plan to handle all that without the help of a property lawyer? 

A property lawyer will help you oversee the entire selling process from start to finish. They will e there to help you analyze the contracts and point out every clause written to favour the buyer alone. Not only that, but they will also provide relevant professional advice on setting the right price, negotiating for your business, and ensuring you get the best possible deal.

Do You Need A Property Lawyer To Sell Your Home?

Of course, you do! Property lawyers are required as part of the closing process in some developed countries. If you live in those selected countries, you must hire a property lawyer whether you want to sell privately or with a real estate agent. In that light, we advise that you first check through the law of the region where you want to sell your home to know whether the involvement of a property lawyer is required to close home-selling deals.  

Besides, your buyer will likely involve a real estate attorney in the deal, which may put you at a disadvantage if there is no lawyer to bargain on your interest. 

4 Essential Reasons to Hire a Property Lawyer to Sell Your Home

It’s always good to work with a property lawyer when selling a property. Indeed, the benefits are numerous. First, you wouldn’t have to worry about the tedious process. Typically, your attorney will help you handle the overwhelming paperwork and maximize the available financing options. Most importantly, they will give you professional advice on avoiding potential complications throughout the selling process.

Aside from the benefits, there are certain instances where you will mostly need the service of a property lawyer. Not hiring a real estate attorney in those situations will only make the transaction more complicated and less profitable. Here are four specific circumstances where the expertise of a property lawyer is recommended.

Why Home Sellers Need To Hire a Property Lawyer

1. Joint sale

Of course, you don’t have much to worry about when performing a joint sale with your husband or wife. However, when selling a home with someone other than your spouse, you will need a property lawyer to complete the transaction without headaches. 

From experience, joint sales without the involvement of a real estate attorney result in unending disputes. Moreover, since both parties will strive to suit their interests, the sale might be less profitable. In most cases, the deal might not even be successful. 

Meanwhile, a property lawyer will work in the best interest of both parties. Depending on your relationship with the other partner, you may hire one attorney for both parties or get separate ones.

2. Liens

Home sellers become frustrated in the long run when there are outstanding liens on their homes, which is a general fact. Unfortunately, you are not likely to know the best way to handle liens, even if you are not selling for the first time. 

In that case, you must find a competent property lawyer with vast experience in liens to avoid pitfalls. Property lawyers know how to solve every liens issue. They will use their expertise to clear your path to close with less legwork systematically. They know how to discuss with the title company and ensure every lien holder gets their pay adequately in the shortest time possible. 

Why Home Sellers Need To Hire a Property Lawyer

3. Short sale

Typically, your lender will agree to allow you to sell your residential home for less than you want to repay in a short shale. However, when you find yourself in this situation, you may likely become overwhelmed with the complexities if you handle the sale without a professional guide. That is where the work of a property lawyer comes into play. Your attorney will help you navigate through and jump the hurdles.

4. Estate sale

If you are selling an inherited property, there is a lot for you to do to complete the sales. For instance, you will have to deal with the headache of amending ownership documents and still manage to avoid emotional decisions. The best thing in an estate sale is to hire a property lawyer to do all the essentials while you focus on other essential things.

Finally

Property lawyers play a vital role in completing home sales without stress. Overall, you need them to make the much-expected profits you are targeting. Whether you find yourself in any of the above-listed situations, selling your property with a real estate attorney is always recommended for the best possible deals. You can get the right property lawyer through a real estate agent or go online to make your choice according to your profile and reviews.

The Roles of Property Lawyers in Sales and Purchase of Property

The Roles of Property Lawyers in Sales and Purchase of Property

Property lawyers were the prominent professionals recognized in typical property sales and purchases when the real estate industry was still crude. At the time, no one knew about the functionality of the various certified real estate entities like brokers, home appraisers, inspectors, and insurance companies, as we have them today. 

It was conventional in the real estate industry to hire the service of a property law firm before a transaction could be successful. As a matter of fact, some developed countries still mandate the involvement of property lawyers as part of a legally confirmed real estate transaction. 

The Roles of Property Lawyers between Buyers and Sellers

Traditionally, property lawyers perform several tasks when buying or selling commercial or residential property. Some of the essential roles of property lawyers in real estate transactions are: 

1. Negotiations

Property lawyers are responsible for negotiating the financing options for a buyer to purchase a property. In difficult situations, buyers may fall short of the opportunity to get loans from lenders. Therefore, the property lawyers may encourage the buyer to go for private funding at that juncture. Sometimes, the attorney may help the buyer get an impressive credit score to attract loans without stress. Learn more how to draft your will without hiring a property lawyer.

The Roles of Property Lawyers in Sales and Purchase of Property

During negotiations, property lawyers help the seller set a standard asking price. They will also critically review the contract agreement between buyers and sellers and provide helpful legal advice on the steps to make the transaction more favourable for the party hired.

2. Title Document Management 

It is among property lawyers’ traditional responsibilities to approve the title document and ensure the validity of the tiles and deed to a property. When it comes to real estate investment, property lawyers are not one-sided. Depending on the party that seeks legal advice, they can work for either a buyer or seller. Apparently, both parties in a typical real estate transaction can benefit from the helpful service of a property lawyer. 

3. Advice on Property Tax Laws 

For the records, property tax laws vary from one locality to another. That means you must comply with the tax principles of the neighbourhood where you plan to buy or sell a property. 

Property lawyers can advise buyers and sellers about specific real estate tax laws of the locality where the transaction is about to take place. For instance, if the government is planning to increase the property taxes of specific properties in some areas, the property lawyer may advise the seller to hold on or ask the buyer to purchase the property before the increase occurs. 

6. Overseeing the Closing 

Property lawyers are responsible for monitoring the closing. The closing is the last stage that a buyer or seller must go through before officially finalizing the sale or purchase of a property. In case there are any irregularities toward the final stage of the transaction, property lawyers know how to manoeuvre the situation to get the deal done without delay.

7. Dispute Management 

It is typical for issues to come up during a real estate transaction. As a matter of fact, it is almost inevitable. When disputes arise between the buyer and seller, it is also the responsibility of property lawyers to settle them before it becomes a barrier to completing the deal. Property lawyers are specially trained in conflict resolution. They will work hard to smoothen things over to achieve success. 

8. Handling Legal Issues

As we have established earlier, a dispute is inevitable in a typical reals estate transaction. For instance, a buyer may opt out of t deal after signing the sales/purchase agreement and choose otherwise. In that case, the seller has no option but to invite a property lawyer to sue the buyer for the breach of the contract. That is a particular area where property lawyers flex their power of attorney. He will defend you in court and recover every monetary damage if you hire a competent one. The buyer and seller must hire property lawyers separately to fight for their rights. 

The Roles of Property Lawyers in Sales and Purchase of Property

9. Sanctioning of Illegal Duties  

At times, other real estate parties such as Title Companies, Brokers, Insurance Companies, and Escrow Agents might fail in their responsibilities in buying or selling a property. For instance, a real estate agent can draft the contract for the sale or purchase of a property instead of filling in the gaps of s contract agreement drafted by a property lawyer. If that happens, it violates practising law without the required credentials. Therefore, property lawyers must arrange for the punishment of the parties involved in the illegal act. 

Note that real estate agents don’t have the authority to provide legal advice to either buyer or seller. That means the dot has the right to answer legal questions about real estate properties even if they know the correct answer. Any real estate professional that provides legal counsel to clients or drafts contract agreements without the approval of a property lawyer could lose their real estate license

Hence, even if a broker has a complete understanding of the real estate transaction process, there is still a need to hire a property lawyer to avoid problems in the long run.

On A Final Note 

Nowadays, several certified real estate entities are emerging to split up property lawyers’ roles in selling and purchasing properties. As a result, most of the traditional tasks of property lawyers have been delegated to other entities such as brokers, company insurance, inspector, and title companies. In addition, some modern-day property lawyers specialize in a specific field of property law, gradually limiting the involvement of property lawyers in the real estate industry. 

Regardless, you will need to hire a property lawyer whether you are buying or selling commercial or residential property. They have the essential advice to guide you through the transaction process from beginning to end. Most importantly, you will need a property lawyer to review your sales or purchase contract agreement.

How to Draft Your Will without Hiring a Property Lawyer

How to Draft Your Will without Hiring a Property Lawyer

One of the most certain financial measures you can take to secure the future of your property is to draft a will. A will allows you to determine what happens to your belongings after you pass away. Besides, it may also guarantee that your loved ones and acquaintances are appropriately monitored.

Working with a property lawyer can be the easiest way to prepare a will for you. The property lawyers can assist you in knowing the legal needs for creating a law-recognized will and managing complicated issues, including what you need to do if you leave properties and funds to kids.

However, not everyone needs legal advice or is willing to pay the expenses. If you don’t, you will need to find out how to prepare a concurrent will without needing a property lawyer to ensure everything is fine. Here is what you need to consider.

See also: Why Home Sellers Need To Hire Best Property Lawyers

What Are The Different Ways To Draft A Will

Paid Online Service

There is no lack of will service providers on the internet, similar to corporations that offer registered agent services or LLCs. In addition, people market paid online services such as Trust. Drafting a will is simply one of the many services these firms provide, making them an excellent option for those wishing to construct powers of attorney, trusts, and other estate planning paperwork. However, we recommend only using a firm like this if competent property lawyers thoroughly evaluate their work to verify the papers will pass legal congeries.

How to Draft Your Will without Hiring a Property Lawyer

Paid In-Person Service (property lawyer)

Hiring a property lawyer to make your will is the path everyone chooses, and there’s nothing terrible about it. Having a property lawyer to help you in your will-making process carefully may provide some security you won’t get anywhere. However, these services are more time-consuming and expensive than alternative possibilities. In addition, finding a property lawyer you can pin your Trust on might be challenging, depending on where you reside. Furthermore, you should visit a property lawyer if you have a considerable estate, complex kike property in numerous jurisdictions, or problems regarding trusts or Medicaid planning.

Buy a DIY Kit or Template

A Do-It-Yourself Will Kit is available for purchase over the web and in some brick-and-mortar retailers. These kits provide all the instructions, samples, and templates you’ll need to draft and legally authenticate your will. Irrespective of location, you may select kits that correspond to your nation of citizenship to ease the procedure. Kit pricing is comparable or less expensive than a paid online will service. However, these kits give only generic wills, so if you know that estate planning is complicated, you must choose a paid legal service to provide you with professional help.

Draft your will

Drafting a will may be complicated, but it’s easy if you have less estate. Before drafting a will, you must understand legal terminologies. You can execute these things if you utilize a template. If you decide to prepare it yourself, consider the legal needs of your region, state and nation before proceeding. Every state and country can have specific rules governing real estate and wills, and your paperwork should fulfil these requirements before it is reasonable and legitimate. Holographic wills are handwritten wills. These wills are not recognized in all regions or states and can be found void by a court. As a result, we do not propose creating the final writing of your will.

How to Draft a Will Without a Property Lawyer 

If you want to draft a will without the aid of a property lawyer, there are several factors to consider to guarantee you have a valid will.

Determine How You Will Draft Your Will

Several offline and online tools exist to assist you in creating a Do-It-Yo will, like blank will forms. One sure thing is to make use of an online will-drafting platform. 

Include the correct Text to Make the Will Legally Binding

Every law-binding will should fulfil certain conditions, irrespective of how you create them. To ensure that the will is legally binding, you should:

  • declare that this is your final will
  • include your legal name so that the law will recognize who owns the paper
  • Declare that you are sound mentally and not under duress to make the will.

The statements mentioned above show that you will desire the paper to be your will. This clarity would help to avoid confusion and prevent others from disputing your will in the courtroom.

How to Draft Your Will without Hiring a Property Lawyer

Make a Solid Guardian Choice for your Minor Children

If you have a few minor children, this can be a crucial thing you must carry out in your will. A guardian has the legal power and mandate to care for your kids if you are incapacitated. You can name a reliable individual in your will to care for your kids if you expire. Choosing a backup guardian is an excellent idea if your initial option cannot complete their responsibilities.

List Your Possessions

In your will, you should list all of your belongings. It includes the following:

  • Financial assets – retirement accounts, investments, and bank
  • Physical property – home, family heirlooms, and automobiles

It’s beneficial to be detailed when you are listing your assets. Instead of saying, “my automobile goes to my son”, put down the vehicle’s colour, make and model, and your son’s legal name.

Determine Who Receives Each of Your Belongings

After making an explicit enumeration and identifying your properties, you must select the persons or organizations to get each item. These heirs are called “beneficiaries”. Once again, be explicit – use the legal name of your recipients. 

Determine a Residuary Recipient

The balance of your inheritance goes to your residuary recipient. And it might include properties that other recipients didn’t claim or assets for which you did not identify as a recipient. For example, your residuary recipient might be a charitable organization.

Make a Decision on What will Happen to Your Pets

Since pets are also members of our families, they are assets per the law. Therefore, it implies you can’t count them as recipients or leave them properties. However, you may nominate a pet guardian to fare for your pet when you pass away, appointing a recipient of the pet. You can also separate money from your estate to pay for the service. 

Select a Will Executor

The executor of a will is the individual who reads the will and executes the last desires. In addition, they will conduct the probate procedure and transfer assets to your recipients, among other things.

In the Presence of Witnesses, Print and Sign the Will

This step is critical because your holographic will is not recognized as legitimate unless you sign it. When you sign the will, you must also have some witnesses to sign it.

Keep Your Will in a Secure Place

As soon as your will becomes drafted, duly signed, and witnessed, it must be kept in an accessible but safe location. You should inform the will executor and those closest to you where your duplicate original wills are stored so they can find it easily when it comes.

In Conclusion

Drafting a will is a necessary procedure in property planning. First, consider whether you can manage it yourself or seek legal advice. You may safeguard your loved one’s well-being by making an educated decision after your death. Also, even if no significant changes occur, it can be a good idea to set aside a period to revise your will every year.

"Strict Scrutiny" Standard of Review is Applicable

“Strict Scrutiny” Standard of Review is Applicable

The “Strict Scrutiny” Standard Of Review Is Applicable Because: A) The Fundamental Right Of Access To The Courts Is Affected; B) The Discrimination Against Pro Se Litigants Is “Invidious”; C) The Pro Se Classification Is Itself A Protected Class; D) Speech Is Being Regulated In A Public Forum; And, E) §391 Et Seq Discriminates Against A Suspect Classification (Those Too Poor To Afford Attorneys’ Fees)

At the threshold of any equal protection analysis, the court must determine the level of scrutiny or standard of review which is appropriate to the case at hand. Gould v. Grubb (1975) 14 Cal.3d 661. If legislation involves a fundamental right or affects a suspect classification, the statute is closely scrutinized and will be upheld only if it is necessary for furtherance of a compelling state interest. County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246.

Fundamental Right. The right to defend one’s property in court (and to be free of government stigmatization) is a fundamental First Amendment right. California Motor Trans., supra.

In Pro Se. The right to do so in pro se is a further protected right.  “. . . the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.” (Elmore v. McCammon (1986) 640 F.Supp. 905,911).

Invidious Discrimination. Section 391 et seq invidiously discriminates against so-called “vexatious litigants”. The label “vexatious litigant” is clearly a mark of discredit — a stigma. The word “vexatious” has been said to mean the same thing as “malicious”. See 92 C.J.S., s.v. “Vexatious”. The public branding of an individual implicates interests cognizable as either “liberty” or “property”.  Jenkins v. McKeithen (1969) 395 U.S. 411. Where the State attaches “a badge of infamy” to the citizen, due process comes into play. See Wieman v. Updegraff (1952) 344 U.S. 183,191.

[Note: The actions for which a “vexatious” label may be affixed need not be malicious or truly “vexatious” in any way. “A State cannot foreclose the exercise of constitutional rights by mere labels.” (NAACP v. Button 371 U.S. 415,429).]

In Skinner v. Oklahoma (1942) 316 U.S. 535 a statute requiring sterilization of “habitual criminals” — but which exempted those convicted of white collar crimes such as embezzlement — was held to be invalid under the equal protection clause. So too here, §391 et seq exempts only those vexatious litigants who happen to hire a lawyer. It makes an invidious discrimination when it “lays an unequal hand on those who have committed intrinsically the same quality of offense” and punishes one and not the other. Skinner at 541.

Public Forum. The courts are a public forum. “When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” (Carey v. Brown (1980) 447 U.S. 455,461-2).

“In a public forum, by definition, all parties have a constitutional right of access and the State must demonstrate compelling reasons for restricting access . . .” (Perry Education Assn. v. Perry Local Educators’ Assn (1983) 460 U.S. 37,55)

Suspect Classification. Sec. §391 et seq. discriminates against poor people who cannot afford attorneys’ fees to litigate civil or probate matters. The Supreme Court has overturned laws because of their impact on the poor. See Boddie, supra at 389.

Wealth is a suspect classification deserving of special scrutiny. See Douglas v. California (1963) 372 U.S. 353. The Supreme Court has ruled against wealth discrimination when fundamental rights would be conditioned on making payments beyond a person’s means.

[Note: “The discriminatory aspects of the vexatious litigant provisions would be most apparent in a situation involving a plaintiff who had been forced to proceed in propria persona because he lacked the funds to hire an attorney, and who was then forced to abandon his cause of action because he could not afford the required security. It might be argued with considerable force that while a state may apply a wide range of criteria in classifying persons or groups, financial capacity is not a permissible standard for conditioning access to the judicial system.” (Note: California’s Vexatious Litigant Legislation 52 CAL.L.REV. 204 (1964) at 205-206 — later citing Griffin v. Illinois (1956) 351 U.S. 12 and Burns v. Ohio (1959) 360 U.S. 252).]

More to read: Why Home Sellers Need To Hire Best Property Lawyers

"Vexatious Litigant" Statute

“Vexatious Litigant” Statute

Under California’s novel “vexatious litigant” statute (California Civil Procedure Code section 391.7), the name of any litigant who fails to hire a lawyer (i.e., any pro se litigant) may be put on an official blacklist distributed by Judicial Council of California (Administrative Office of the Courts) for the purpose of being barred for life (see sec. 391(b)(4)) from filing any litigation in California (except in small claims court) and to be stigmatized for life as a “vexatious litigant”. This can result from conduct which is not at all blameworthy – something as inconsequential as having filed one or two motion papers in a single litigation which a judge deems to be unmeritorious (see 391(b)(3)) – or having been unsuccessful in five litigations in a seven year period (see 391(b)(1)) – regardless of the merit of those litigations.

Some Facts About California’s “Vexatious Litigant” Statute

  • The penalties of the statute apply only to those who fail to hire a lawyer
  • The statute was sponsored by the Los Angeles County Bar Association (a trade union for lawyers)
  • The statute may apply to someone who has had only one lawsuit in his entire life (if a judge deems any one of his court papers to be “without merit”)
  • The statute also applies to those who have lost 5 lawsuits in a 7 year period even if those lawsuits were completely meritorious

Victims of the Statute:

The phrase “vexatious litigant” conjurs up an image of someone filing zillions of groundless lawsuits. In a few isolated cases that may have been true. Those are the cases that were published. Those are the cases held up by the bar associations to lend dignity to the statute. [Note that the bar associations originally sponsored this statute which applies only to those who fail to hire a lawyer.]

The reality however is very different. In the vast majority of the cases (at least based on our initial research of court records) it is simple, ordinary people who are victims of the “vexatious litigant”statute. Unscrupulous lawyers use it as a tactical weapon. Most of those on the Judicial Council’s blacklist did nothing “vexatious”at all. Most of them are too poor to hire a lawyer. Some of them had never before been involved in any litigation. Some of them were the Defendants in the action (contrary to the letter and spirit of the statute intended to protect defendants not plaintiffs).

Constitutional Analysis of the Statute

The Statute is Overbroad

The threat of being blacklisted chills the right to petition for all California pro se litigants. In addition, regarding those already blacklisted, the prefiling order sets up a lifetime threat of punishment for exercising their First Amendment right to file a lawsuit

Taliaferro Was Decided Before the 1990 Amendments

Taliaferro was decided before the 1990 amendments to the statute and before boddie v. Connecticut qualified cohen v. Beneficial loan corp

Even Temporary Loss of Right to Sue is Prohibited

Wolfgram’s due process analysis overlooks that even a temporary deprivation of a protected right (the right to file a litigation) is constitutionally prohibited (as in fuentes v. Shevin)

There Need Not e a Showing of Blameworthiness

The exclusion of blameworthiness from consideration at the §391.2-, or §391.7-, hearing is contrary to the rule of bell v. Burson

The Statute Presumes Blameworthiness of Pro Se’s

The statute’s presumptions regarding the blameworthiness of pro se litigants is contrary to stanley v. Illinois

The Statute Denies Equal Protection to Pro Se Litigants

The pains and penalties of section 391 et seq apply only to litigants who fail to hire a lawyer (attorney-represented litigants are exempt) therefore it denies equal protection under the 14th amendment to all California pro se litigants

“Strict Scrutiny” Standard of Review is Applicable

The strict scrutiny standard of review is applicable because: a) the fundamental right of access to the courts is affected; b) the discrimination against pro se litigants is invidious; c) the pro se classification is itself a protected class; d) speech is being regulated in a public forum; and, e) §391 et seq discriminates against a suspect classification (those too poor to afford attorneys’ fees)

Statute Not Necessary for Compelling State Interest

Sec. 391 et seq is not necessary for the furtherance of a compelling state interest

Irrational Presumption of Statute Regarding Lawyers

Even under a lenient standard of review the classification fails the presumption that a lawyer-represented litigant is less likely to file groundless litigation is irrational

Justice is Not for Sale (Magna Charta)

Section 391.7 violates due process by offending the guarantee of the magna charta that justice is not for sale litigants cannot be required to pay tribute to officers of the court in order to be heard

The Blacklisting Scheme of Sec.391.7 is Prior Restraint

The blacklisting scheme of sec. 391.7 constitutes government censorship by an unlawful prior restraint on the right to petition impermissible under the first amendment – wolfgram’s licensing scheme paradigm is flawed

Sec.391.7 Circumvents Criminal Procedural Protections

Section 391.7 circumvents the criminal procedural protections of california’s barratry statutes

The “Punishment” is Disproportionate

Lifetime loss of a fundamental constitutional right is punishment unconstitutionally disproportionate to the offense of losing five litigations in a seven-year period

Due Process: No Res Judicata for a Mere Finding

§391(b)(4) denies due process by applying a mere finding made in one action as res judicata for all future actions

Void for Vagueness

Section §391.7 denies due process by requiring an action to be taken without specifying the procedure for accomplishing that action

The Statute Constitutes a Bill of Attainder

Section 391 et seq constitutes a bill of attainder — prohibited by article i, §10, united states constitution

  • Tour: California’s “Vexatious Litigant” Statute
  • “Vexatious Litigant” Statute Information Center

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The "Punishment" is Disproportionate

The “Punishment” is Disproportionate

Lifetime Loss Of A Fundamental Constitutional Right Is Punishment Unconstitutionally Disproportionate To The “Offense” Of Losing Five Litigations In A Seven-Year Period

The Eighth Amendment to the U.S. Constitution prohibits “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.”.

The gravity of the offense and the harshness of the penalty are two of the criteria used for determining whether a punishment is unconstitutionally disproportionate. Solem v. Helm (1983) 463 U.S. 277.

A California statute making it a crime merely to be addicted to the use of narcotics without any further blameworthy conduct, was held unconstitutional under the Eighth and Fourteenth Amendments. Robinson v. California (1961) 370 U.S. 660

“. . . imprisonment for ninety days is not, in the abstract, a punishment which is cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.” (Robinson,supra at 667).

In other words, any significant punishment for conduct that is not at all blameworthy is unconstitutional. The §391 punishments are significant. However, the “offense” is no more blameworthy than having a common cold. The gravity of the “offense” is zero [Losing five lawsuits in a seven year period (§391(b)(1))], or near-zero   [A single “tactic” deemed to be “frivolous” (§391(b)(3))]. Therefore the punishment is disproportionate.

Another criteria used for determining  constitutionality is comparison with the punishments imposed on other offenders in the same jurisdiction. Solem. In California, lawyer-represented litigants receive no punishment whatsoever for having lost five litigations in the previous seven year period.

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Dimov v. U.S.Dist.Ct.

Dimov v. U.S.Dist.Ct.

Jim Dimov was named a “vexatious litigant” although he had been involved in ONLY ONE PREVIOUS LITIGATION. The quality of his “legal craftsmanship” was not up to the standards of Los Angeles County Superior Court Judge Robert H. O’Brien (In the matter of Jim Dimov, case number BP 008800 (1993)).

On March 10, 2000, represented by attorney Gary Coutin (himself a victim of the statute), Mr. Dimov filed COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Dimov v. United States District Court for the Central District of California, case number 00-02590) in the United States District Court for the Central District of California challenging the constitutionality of District Court Local Rule 27a, which incorporates or permits the incorporation of California’s “vexatious litigant” statute as part of the federal rules of court.

More to read: The “Punishment” is Disproportionate