Practice Areas and Legal Definitions

Business contracts:
Business contracts are written agreements spanning a broad range of the business relationships that occur in the life of a typical company.  They can include non-compete agreements, non-piracy agreements, non-disclosure agreements, restrictive covenants, employment agreements, producer agreements, sales representative agreements, consulting agreements, management agreements, franchise agreements, licensing agreements, deferred compensation agreements and independent contractor agreements.

Franchises and other types of business marketing:
A great many small businesses in the marketplace today are operated not as purely independent businesses, but as franchises, distributorships, or any of various types of licensing arrangements.  All of these businesses are created through written agreements containing express and implied warranties, and it is not uncommon for issues to arise resulting in litigation.

Licensing and commercial contracts:
Business services attorneys counsel clients in a wide range of commercial and intellectual property (IP) transactions. They provide assistance in structuring, drafting, reviewing and negotiating commercial and IP agreements related to the development, acquisition and commercialization of technology, IP, goods or services. The types of agreements involved in these transactions include:

• Software license, maintenance and support, source code escrow, end user license, patent and other technology license agreements
• Development agreements
• Purchase and supply agreements
• Manufacturing agreements
• Distribution, reseller, value-added reseller (VAR) and original equipment manufacturer (OEM) agreements
• Referral, marketing agreements
• Employment, consulting, technical services and outsourcing agreements
• Joint venture, strategic partner, technology transfer agreements
• E-commerce and Internet-related agreements (including web-based hosting agreements, application service provider (ASP) agreements, web site development, privacy policies and website terms of use)
• Non-disclosure agreements

Sales Commission Disputes:
In avoiding sales commission litigation there is no substitute for an artfully drafted agreement spelling out precisely how and at what rate sales representatives are to receive commissions. Common usage and custom are also taken into consideration by courts in determining the issues, even where there is a written agreement.

Litigation and dispute resolution:
Commercial disputes often become legal disputes, the resolution of which typically proceeds along an escalating scale of confrontation ranging from informal settlement negotiation to hardball litigation.  An effective business litigation attorney must have complete mastery of this complex and challenging field of law, but more than that, he or she must also have the patience and personal skills to operate on an informal level, and the aggressive forensic ability and tenacity to claim victory in the courtroom.

Contract Remedies:
Contracts are the very stuff upon which the marketplace is founded, and they provide the basis for a large share of business litigation.  The remedies for breach of contract include money damages and injunctive relief expressly directing one of the parties to perform a contractual obligation. This remedy involves a form of injunction called a “specific performance” decree.  The remedy of specific performance is often called an “extraordinary” equitable remedy, in that courts will not grant specific performance except in a sharply limited number of circumstances. Punitive damages are not an available remedy in a contract lawsuit.

Business Litigation:
Business litigation is the area of law that provides assistance in the preparation and presentation of a lawsuit or other resort to the courts to determine a legal question or matter in business situations.  Business can be any activity or enterprise entered into for profit, usually a company, a corporation, partnership or any such formal organization. Business lawyers advise and represent businesses and financial institutions in such areas as business torts, class actions, complex contracts, financial forensics, government investigations, international dispute resolution, professional relations, real estate disputes, securities and antitrust, technology and intellectual property, professional malpractice, shareholder and corporate governance and telecommunications.

Business lawyers place an emphasis on achieving or defending against pre-judgment remedies, including pre-judgment orders for writs of possession, attachments, temporary restraining orders, and injunctions, as well as arbitration or mediation settlements and monetary compensation resulting from lawsuits. Transactional business lawyers represent clients in matters relating to, but not limited to, organizational, operational and contractual documents for corporations, partnerships and limited liability companies, commercial transactions, mergers, real estate acquisitions, leasing and development and commercial financing.

Business Formation:
There really isn’t any need for legal counsel in forming a sole proprietorship, but other forms of business organization are a good deal more complicated and are best accomplished with the assistance of a lawyer. These include the formation of partnerships, limited liability companies and corporations.

Business and Corporate Services:
Business and corporate services involves advising companies and investors in the purchase, sale and mergers of businesses.  The services provided include forming and funding start-up companies, buying and selling practices, assets, divisions and companies, engaging in private stock offerings and re-sales, structuring venture capital financing, forming off-shore sales and sourcing entities, structuring commercial and partnering transactions and syndicating real property acquisitions.

Real Estate Financing and Transactional Services:
Typically, as they expand, growing businesses become more and more involved in real estate transactions, ranging from office space to retail store properties to warehouses and shopping mall syndication.  A qualified business lawyer can provide valuable assistance in traditional real estate purchase, sale and leasing transactions, and in dealing with environmental and various other issues arising out of industrial and agricultural redevelopment projects.

Real Estate Negotiations:
In major financial transactions, especially those involving real estate properties, it’s important to have a knowledgeable negotiator working for you, one who knows the law and whose loyalty to you is undivided.  Real estate brokers and agents depend on sales commissions for their livelihood.  If the sale does not occur they receive nothing for their time and energy, and this can create a conflict of interest.  You need someone representing you who is less concerned about a particular sale going through than with making certain your legal rights are protected.

Title Clearance Issues:
In large urban centers title insurance has reduced the need for in-depth title searches by real estate lawyers, but this is not necessarily the case in rural areas of the state.  As with any other insurance policy, title insurance documents are usually packed with disclaimers of one kind or another, all in highly technical real estate jargon and legalese, and all set forth in the tiniest of fine print.  Failure to fully understand the import of a particular clause or disclaimer in the policy can result in financial consequences at some later date, when it may be too late to do anything about it.  If you find things in the title policy you don’t understand, your real estate attorney can explain them to you and can also point to you any items that need to be challenged and resolved.  Given the amount of money involved in modern real estate transactions, it is critical to make certain that title problems are not going to make the deal a disaster.

Quiet Title Matters:
Sometimes a particular piece of real property has title defects of such significance that no sale or other transfer of ownership can occur until they are resolved.  The usual method of clearing title defects is a lawsuit called a “Quiet Title” action.  In the Quiet Title action, the Court would receive and consider evidence on the issue, and if satisfied that the judgment had been discharged, would issue an order dissolving (removing) the judgment lien.

Mechanic’s Liens:
When doing building construction or repairs, building contractors often utilize a legal device called a “mechanics lien” as a means of making certain they will be paid for their labor and materials.  The creation of a mechanic’s lien involves written notice to the owner of the property and other formal requirements, and its enforcement is subject to strict procedural rules. Once a valid mechanic’s lien attaches to the property, however, it operates as a claim against the property which, if it remains unpaid, can ultimately result in foreclosure proceedings.

Real Estate Document Preparation:
Whatever may be said during real estate negotiations, whatever promises may have been made, it is the final written documents that will control what happens.  Many of the closing documents involve the completion of pre-printed forms, but sometimes the details of a particular transaction require modification of a form to provide adequate protection.  Your real estate attorney can either prepare all of the documents, or can review the documents that have been prepared, explaining them to you and suggesting changes, as needed, for your benefit.

Closing Attorney Representation:
The majority of transactions are concluded routinely, with no unanticipated problems and as it may well appear after the fact, no need for legal representation during the closing.  There is no legal requirement for representation by counsel at the closing, but most lenders and prudent investors will do so.  It is at closing that critical disputes often arise concerning the language in a particular clause or some other technical aspect of the transaction.

Sales Breach Issues:
Once a written agreement has been executed by both parties to a real estate transaction its provisions are legally binding.  Which judicial remedies, if any, may be available for the breach of the agreement depends on a variety of factors.  There may, for example, be remedies available to the Buyer if the Seller breaches that are not available to the Seller, if the Buyer is the breaching party.

Land Development Issues:
Land development projects grow more difficult and complex with each passing year.  Your real estate lawyer can guide you through the labyrinth of zoning regulations, environmental agency requirements, building, fire and safety codes and the various other requirements for doing business in this complicated field of real estate.

Landlord/Tenant Issues:
As with any other agreement, if one side fails to perform obligations under a lease, the other side may bring a lawsuit to enforce the obligations.  The most common cause of litigation between Landlord and Tenant involves the non-payment of rent.  Pennsylvania law tries to provide a speedy legal remedy for landlords, featuring a sharp reduction in the time permitted for a defendant to respond, and giving the case preference over most other types of cases on the court calendar for an early hearing date.  The procedure is called an “Unlawful Detainer.”

In many ways, Unlawful Detainer actions are tilted, procedurally, in favor of the landlord over the tenant.  Because of this, Courts are extremely strict in the enforcement of the landlord’s procedural obligations.  A very slight technical violation on the part of the landlord can cause an Unlawful Detainer action to be dismissed by the Court. It can be re-filed, of course, but the unpaid rent continues to mount while that is being done.

Foreclosure Issues:
When mortgage payments fall behind, the lender may ultimately take steps to foreclose.  Sometimes the best course is to seek temporary relief in the United States Bankruptcy Court.  Since the mortgage is a “secured” debt, it cannot be discharged in bankruptcy.  The filing of a bankruptcy petition triggers an automatic federal court order temporarily staying (suspending) any pending foreclosure sale.  With the additional time provided by the stay, the defaulting borrower can often make arraignments to sell the real property for a much higher price than would be obtained in a foreclosure sale.

Essentially, a foreclosure sale involves sale of the real estate at public auction.  The proceeds of the sale are then applied against the debt owed on the mortgage.  Any funds remaining after the mortgage (and the foreclosure costs) are paid will be transferred to the defaulting borrower.  What happens when the proceeds of the auction sale are insufficient to pay off the mortgage and/or the foreclosure costs depends on the law where the property is located.

Eminent Domain Proceedings:
Eminent Domain proceedings are used by governmental agencies to acquire real estate (even when the owner doesn’t want to sell it) for use in a project of some kind for the general public benefit.  A recent decision by the United States Supreme Court has greatly expanded the discretion of state and local governments to seize property, even when they do so for the benefit of a private company, if they feel the project contemplated by the private company will benefit the public.  In mounting a defense to an eminent domain action, the landowner can resist the seizure itself, and can also challenge the dollar amount the agency is willing to pay for the land.  The landowner in an eminent domain proceeding is entitled to the fair market value of the land.

1031 Exchanges:
Internal Revenue Service Code §1031 provides a means for deferring the capital gains tax consequences of a real estate transaction when the proceeds of sale from one transaction are to be promptly reinvested in another similar type property.  The key word here is “deferral".  What happens is that the tax basis of the old property is transferred to the new, so that when the new property is ultimately sold, the tax will be due.  Of course, if the second property is also sold under a 1031 exchange, the tax will be deferred yet again.

Zoning & Land Use Issues:
Zoning and land use laws come into play in every real estate development, whether large or small.  Before buying real estate property or making major improvements to property you currently own, it is absolutely essential that you know about and understand the existing zoning and land use restrictions.

As a general rule, specified land uses are compatible.  You cannot, for example, put in a dairy herd, a shopping mall or an office building on land zoned for residential use.  It is sometimes possible to persuade local authorities to change the zoning for a particular area, but it can be very difficult, very expensive and it can take a long time.  In some cases it is possible to secure a zoning variance.  A variance is in the nature of an “exemption” for the particular parcel of real estate, from a particular zoning requirement.  Zoning changes and variances both involve extremely complex and difficult legal and political skills and often require public hearings before governmental agencies.

Condominium Conversions:
The upsurge in land values in recent years has contributed to the growing popularity of condominium living.  More and more people, especially first time home buyers, are turning to condominiums for their first real estate investment.  As the cost of building materials and construction labor has increased, so has the interest in the conversion of mobile home parks and apartment buildings into condominiums or cooperative corporations.  Condominium conversions can be extremely profitable, but they are long-term projects, sharply regulated by state and local legislation.

Condominium Association Matters Including Common Area Fee Recovery:
While Condominium Associations are autonomous, they must comply with state and federal law and with the provisions of their own bylaws.  A qualified real estate lawyer can provide timely and useful advice to Condominium Associations so that they may accomplish this purpose.  Association officers can be held individually responsible if the Association fails to comply with the law.

If you or someone you know in Southern California needs the assistance of an experienced San Diego Business and Real Estate Lawyer, call Foundation Law Group today at 866-772-1994, or complete the contact form provided on this site to schedule your initial consultation.