Should you have an attorney review Real Estate documents?

  For most people, the answer to this question, is "yes, but I can't afford it." While it is true that it may not be cheap to have an attorney thoroughly review a document before you sign it, it will most likely cost much more if you sign something that is not in your best interest.

  Real estate transactions vary widely in their complexity. Even if the parties understand what they are getting into, they may be fine print that is not carefully read. Typically the document is drafted by the person who has the stronger bargaining position and the document is designed to protect their interests. For example, in a simple landlord tenant arrangement, the leases are almost always drafted by the landlord (or its attorney) and are given to the tenant on a take it or leave it basis. The tenant doesn't get to negotiate the terms at all. A failure of the tenant to undestand, say an acceleration clause on past due rent may wind up paying alot of money if the tenant breaches the lease. Also, the landlord by waive liability for certain repairs (when allowable). This could creat a tough situation for a tenant.

    On the purchase of a home, the buyer and seller put their trust in their realtors. Most realtors do a good job protecting their clients interests. However, they get paid if the sales closes and only if the sale closes. This creates an inherent conflict. An attorney can provide unemotional advice because he is not being paid only if the deal goes through. Most of the other parties to the transaction; title company, bank, and realtors don't make money unless the deal is closed. Also, while some attorneys get their real estate license to receive proceeds at closing as their attorney fee, keep in mind this too creates a conflict of interest as they only get paid to close, not to advise.

   If you are thinking of selling your home by yourself, an attorney can be a valuable resource in both explaining the  necessary documents you will need, drafting them, and making sure the closing goes smoothly. Don't assume boilerplate documents found online are good enough. Your attorney can draft them to the specifications you need to protect your interest to the maximum extent allowed by law.

   Don't sign or have some one else sign something that turns out to be an unenforceable contract later on because you fear the cost of having a professional look at the documents. The few hundred dollars of an attorney's time can help you recognize pitfuls and avoid problems later on. Being cheap here can cost thousands later.

   I once had clients who had signed a land contract that required them to pay the remaining amount of the contract in one balloon payment at the end of 2 years. That is not an unusual provision. What was unusual was that the contract required them to pay 150% of the then fair market value of the house. Unless that house appreciates dramatically in two years (which wouldn't have happened), they were never going to get a loan for enough to cover the contract, meaning they would lose their entire investment because they would have breached the contract. Fortunately, I was able to negotiate them out of the contract without having to pay a further dime to the seller, but they would have been wiser to call me before signing the document.

For more informatin, see my website at www.maesenlawfirm.com
Ryan Maesen, Real Estate Attorney, Grand Rapids, Michigan

Real Estate Law Basics

  This blog is designed to categorize common real estate issues. While it isn't designed to answer specific questions, it is puts things in a logical context.

   All real estate problems begin with determining:

• Who owns the property?
• Who can possess it?
• Who is financing it?
• Who can use it?
• What documents were signed and by whom?

   All real estate disputes revolve around a dispute on one of these issues. True, some disputes can involve many of these issues, but fundamentally, the law tried to determine real estate rights in regards to these issues.

To see more, please visit
www.maesenlawfirm.com
Ryan Maesen, Real Estate Lawyer Grand Rapids, MI

Why Represent Criminals (Part II)

It's Personal

Growing up I always dreamed of a career in law enforcement. My particular interest was working for the FBI fighting organized crime. It seemed very exciting and glamous to me.

However it was not to be. Something happened that changed the way I viewed things forever.

On May 25, 1996, the night before I was to graduate from high school, I was arrested and charged with Malicious Destructiion of Property over $100, which was a 2-4 year felony in those days. A friend and I had taken BB guns and show at the window of a school. This was a Saturday night and no one was in the building. I fired one shot, he fired fourteen. None penetrated all the way through the double paned glass. We had originally planned on shooting BB guns in my backyard at aluminum cans and the like. For some reason, he pulled into that school parking lot. In any event, some one saw us and called the police.

When the police arrived (as a I recall there were four cars and 6 officers total), I was roughly pushed into the hood of my friend's car and searched. I recall that I lifted my hands up off the car about an inch to be more comfortable while the officder searched my pockets. He grabbed me and "put them back on the car, I am not going to tell you again." They put the handcuffs on so tight that my right thumb and index finger went numb. To this day, my right thumb does not have full feeling. They wouldn't grant any my requests to loosen them.

We were never given miranda rights and we both confessed on the spot. I can't into words how quickly I was "scared straight." They kept telling us that we were going to spend 2-4 years in prison for this. That seems awfully harsh to me for what essentially amounted to breaking a window, but I really didn't know any better.

They took us to the Kent County Jail where we were booked and put in a cell for the night. I remember laying in that cold cell unable to sleep, wondering if I was going to get out again. I never could have imagined how much I was simply wanted to get up and walk out the door of the cell. Not to escape but to have some sense of freedom. I really missed the choices I had every moment of every day. I laid there wondering how long that would be jeopardized for. It was incredibly frightening.

The next morning I spoke with a detective who told me that this was not a serious crime and that I was not likely to see any jail from this if I was cooperative and told the truth. He did read me my miranda rights and was a bit more civil. I think he realized that I wasn't a deliquent but a kid who made  mistake.

We were arraigned later that morning and I was released in time to attend my high school graduation. The clerk at the jail told me that charges had been dismissed. Needless to say, some of the joy was taken out of the event.

(Part III forthcoming)

Ryan Maesen, Criminal Lawyer in Grand Rapids, MI
www.maesenlawfirm.com

Why represent Criminals (Part I)

Why do attorneys represent criminals?

     I think most defense attorneys get asked this once in a while. If someone discovers I recently got a jury to return a not guilty verdict in favor of of my client, I sometimes get the follow up question:

How can you do that? You are getting criminals off.

     As those are fair questions, I suppose they warrant a fair response. But first, I need to explain how a criminal proceeding works.

     In our system, each person who is charged with a crime is merely accused of a committing a crime. We have all heard of the presumption of innocence. What that means is that the sole purpose of initiating criminal proceedings against a person  is to see if the State (or whatever unit of government is handling the prosecution) can produce enough evidence to convice a fact finder (judge or jury) that each element of the charged offense(s), offenses of proved beyond a reasonable doubt. Strictly speaking, whether the person actually committed the crime is not the issue, but rather the sufficiency of the evidence. It is not the burden of the accused to provde innocence, but on the State to prove guilt.

     In many instances, an innocence person couldn't prove his innocence anyway. How do you prove you didn't steal something from a retail store? Because nobody found it on you? So what, the state can say, you may have thrown it out your car window on the way home. After all, some one says they she saw you take it and the store says they never found the item. If you did steal it, shouldn't they have more proof than some one claiming to see something. Anyone can claim to see anyone else doing anything. That is why the burden is on those making the accusations.

     The State can come at a person with such awesome resources. The average person can't possibly pay attorneys enough to win a war of attrition with the government. For that reason, our Founding Fathers laid out protections in our Constitution to even the playing field. That is why we are protected from unlawful searches and seizures, the right to not self-incriminate, to confront our accusers, to a trial by a jury of our peers, and the protection from torture and other cruel and unusual punishments that have been historically used to induce confessions.

      These protections are available to everyone accused of a crime, whether he is guilty or not. These are particulary important to a person who is in fact innocent or who knows that the State does not have enough evidence or that is obtained what evidence it does have unlawfully. They give a person a fighting chance. Justice is done with the state can prove its case, not when it can get a conviction. Our Founding Fathers, like most well educated people, understand that it is far better for a free society to let the occassional guilty man go free than for a single innocent person be convicted.

Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Ryan Maesen PLC www.maesenlawfirm.com




    

Consequences of a Criminal Conviction

The penalty for a criminal conviction does not end at sentencing. While most people are relieved to be done with their case; even if they are unhappy with the result, they often do not understand that their conviction may cause numerous problems for them down the road.

This article is meant to highlight some of those possible consequences. It is not intended to be a detailed discussion of these issues, but should at least make people aware of how a criminal conviction can have a lasting impact. Hopefully, it will make some people think twice about just "pleaing out" and opt to put up a more vigorous defense regardless of guilt or innocence.

Career Consequences - Generally only for a Felony Conviction

It would be impossible to state all the possible careers that could be jeopardized by a criminal conviction, some common ones include: firefighter, law enforcmeent, most government employment, working in a school (or even volunteering), certain types of truck drivers, and working in the airline field. It can also prevent or create obstacles in obtaining a nursing license, a license or practice law and other professional licenses. A misdemeanor involving dishonesty (think theft or fraud) can prevent a person from working the banking, insurance, securities or accounting fields.

Immigration

Any criminal conviction can affect citizenship status of a non US citizen. Certain felonies make deportation and option. As this area is complex and keeps changing, it is beyond the scope of this article to go any further on this subject.

Possession of a Firearm

Depending on the nature of the charge, a felony conviction can prevent a person from possessing a firearm for either three or five years from the time of sentencing or releae from a jail or prison. (See MCL 750.224f) In Michigan, a person can get a hunting license with a criminal conviction.

Public Housing

A conviction of ANYONE who committed a crime in a public housing tenant's apartment, will result in the loss of public housing benefits. This can lead to some very unfair outcomes when the person is just a visiting relative who gets caught with a joint, but this does happen.

Driver's License Revocation

A person can have his driver's license revoked or suspended for a conviction of certain crimes. These crimes primarily deal with drug and alcohol offenses but can also occur in other situations such as not paying child support.

Sex Offender's Registry

A conviction of any number of criminal sexual misconduct charges can result in having to register with the State of Michigan pursuant to the Sex Offenders Registration Act (SORA). In addition, a person required to register under this act must meet strict guidelines in keeping the state informed of moving, changes in employment and registrants are forbidden from being within 1,000 feet of a school (with some exceptions). These are the primary issues with being a convicted sex offender; there are other ones beyond the scope of this article.

Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
For more information, please visit me at www.maesenlawfirm.com

Michigan Felony Procedure

Here is the basic Felony Procedure in Michigan. This will vary somewhat from county to county.

A felony is any charge that carries a maximum penalty of over 1 year in jail. Most felonies start with a minimum maximum penalty of 2 years.

Step One: District Court Arraignment. At this stage, a District Court judge will read the accused the charges including the maximum penalty. At this point, most people simply plead not guilty for the same reason cited in the previous article on misdemeanor procedure. At this time, the judge will also determine is the accused is to remain in custody (jail) or if a bond may be posted for her release.

Step Two: Preliminary Examination. This a like a mini trial at which the prosecution can (and will) call witnesses to testify on the State's behalf. The purpose of this hearing is to see if 1) there is probable cause that a crime was committed and 2) if the accused commited it. It does not mean that an accused person actually did it or that a jury will later agree. The burden of proof at this stage is "probable cause" not "beyond a reasonable doubt." In truth, judges virtually always find probable cause at this hearing. Most of the time, the defendant and his attorney decide to waive this hearing to save the time and trouble. Some prosecutor's will make a plea offer at this point if the defendant agrees to waive the preliminary examination. This offer will be held open until the next court date even if the defendant does not wish to accept the offer at that time. Some counties hold a "pre-preliminary exam" before the actually exam. At this hearing, your attorney and the prosecutor meet to discuss the case and decide of there is a need to run the preliminary exam.

Step Three: Circuit Court Arraignment. The District Court, where the first arraignment was held, only has limited jurisdiction in criminal matters. It can not hear proceedings related to felony charges other than an arraignment or preliminary exam. For that reason, the accused must now be arraigned at the Circuit Court level. This does not mean that the charges are different. It is just a formality. In practice, this arraignemnt is usually waived at the same of the preliminary examination is waived.

Step Four: Pre-Trial/Status Conference. Like a misdemeanor pre-trial, the prosecutor meets with the defense lawyer to discuss the case including the possibility of a plea bagain. In some counties, the pre-trial in a felony case is called a Status Conference. And while some counties have two pre-trials, many have just one. Most of the time, if a plea bargain will be entered, it must be at this time, though judges often make exceptions and let a defendant plea on the day of trial. It is a risky strategy to assume you will get one more chance though. If you are going to plea, this is the time.

Step Five: Jury Pick/Trial. Unlike a misdemanor charge where a jury is picked several weeks ahead of time, a felony jury is picked that morning to hear a case that afternoon. There are 12 jurors for a felony plus one or two alternates. A trial proceeds much like a misdemeanor trial, though there are often more witnesses.

Step Six: Verdict. If the jury says "not guilty," the case ends and the defendant goes home (much relieved). If the jury says "guilty" a sentencing date will be set. If the defendant has been in custody awaiting trial, he will remain there. If he is out on bond, the bond will continue.

Step Seven: Post Trial Motions/Appeals. There are a number of different motions that can be filed. They are beyond the scope of this article. Keep in mind, that most appeals lose. There are no free do overs.

Step Eight: Sentencing. Felony sentencing is Michigna is governed by the Sentencing Guidelines. This fairly complex statute scores a number of "variable" in computing the mandatory minimum and maximum sentence. The most important factor is the defendant's prior record. Each previous conviction may contain a number of variables that can quickly add up to alot of time. On the other hand, a first offender or a person with just one or two prior misdemeanor convictions can get very little. I recently had a client who plea guilty to a charge that carried a maximum penalty of 5 years. But, through careful negogiating and decent sentencing guidelines, he not no jail at all. It all depends on each individual person.

Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Visit me at www.maesenlawfirm.com for more information

What do do if arrested

  There is no one right way to respond when arrested, but there are certain things that will assist your defense at a later time.

1. Don't make any statements to the police. You don't need to admit anything. Despite what the police say, talking is not going to help you. Why help them make their case.

2. Do not discuss your case with anyone other than an attorney. You don't need friends called as witnesses against you. This includes not posting things on Facebook and places like that. If there is anything incriminating on there, take it off right away.

3. Don't plead guilty at your arraigment. You can always plead guilty later. At that point, you don't ever know how strong the case against you is. Even if you are in fact guilty, that doesn't mean there is enough admissible evidence to convict you.

4. As hard as it is, face your case aggressively and as quickly as possible. Proscrastinating is not going to help you.

5. Understand you have constitutional rights designed to make sure you are not wrongly convicted. While these rules are perfect nor always followed properly, the State is responsible for proving your guilt, you are not responsible for trying to clear your name.

Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Please see more at www.measenlawfirm.com

Child Custody Determination

  Child custody is determined by the Circuit Court (Family Division) in accordance with the Child Custody Act of 1970 (MCL 722.21). The act requires that the judge make he determination regarding custody "in the best interests of the child." The statute defines the "best interets of the child" as the sum of the 12 factors listed in MCL 722.23. The judge is required to hold a hearing and state on the record the facts and reasoning he or she is applying to each of the applicable factors. It is not as simple as deciding how many factors favor one parent or the other. The totality of the circumstances are looked at carefully. "Winning" on 8 of the 12 factors is not necessarily going to get some one custody.

   If a parent seeks to modify or change custody or parenting time at a later date, the statute allows the court to change its previous orders for "proper cause or a change of circumstances." Of course, the change must still be in the child's best interests.

    However, before a court can look into whether there is proper cause or a change in circumstances, it must first determined whether or not there is an "established custodial environment." An established custodial environment is "established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." (MCL 722.27). If such an environment exists, the parent seeking to change or modify custody must show by "clear and convincing evidence" that the change is in the best interests of the child. If no established custodial environment exists, then the burden of proof is only "a preponderence of the evidence." The clear and convincing standard is much harder to show and demonstrates the State's unwillingness to bounce children around with a good reason.

   Keep in mind that courts tend to favor joint custody and may reccomend this. Also, if one party pushes hard for this, the other party needs to be prepared to prove that sole custody with him or her is in the child's best interest.

   Also, it is important to remember that it is more persuasive to a judge to show why one person is a good fit for the children. It is not an effective strategy to simply say that the other parent is a bad person or unfit somehow. That is certainly relevant, but dont make the choice between the lesser of two evils.

For more information or assistance, please visit www.maesenlawfirm.com

Proving guilt beyond a reasonable doubt

  To convict some one of a crime, the state has the burdend of proving guilt "beyond a reasonable doubt." More specifically, each element of the charged offense or offenses must be proved beyond a reasonable doubt.

  Reasonable doubt does not mean beyond all doubt but rather is means " a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that—a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case."
 
  An element is a subpart of a crime. Each crime requires proof of several things in order for a person to be guilty. For example, to prove larceny in a building, a prosecutor must introduce evidence  beyond a reasonable doubt for the following 7 elements:

Larceny in a Building

(1) The defendant is charged with the crime of larceny in a building. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant, took someone else’s property.

(3) Second, that the property was taken without consent.

(4) Third, that the property was taken in a [state type of building] ¹.

(5) Fourth, that there was some movement of the property. [It does not matter whether the defendant actually kept the property or whether the property was taken off the premises] .

(6) Fifth, that the property was worth something at the time it was taken.

(7) Sixth, that at the time the property was taken, the defendant intended to permanently deprive the owner of the property.²

 

 Elements 5 and 7 are the most difficult for the prosecution to prove and for the defense to dispute. Element 7 is almost always shown by circumstancial evidence. Rarely will a person admit to stealing something. Element 5 is much too generous to the prosecution. A person could try on a coat and then put it down and that could constitute movement. It is very weak. I think a person should at least have to attempt to take the property off the premises to be charged.

 

  One important thing a criminal defense lawyer does is makes sure the jury understands that there will always be some evidence. But some evidence is not enough. I own a copy of the Koran. That is some evidence that I may be Muslim but certainly not enough to say I am Muslim beyond a reasonable doubt. (I am Catholic FYI).

 

  Recently I had a case where a department store thought my client was shoplifting. Even though he purchased alot of merchandise, the loss prevention department stopped him after he had left to store to search him. He was fully cooperative and the search found nothing stolen, only the stuff he bought. He was released. However, a few days later, he received a letter from the Walker police saying they were charging him with shoplifting because a camera caught him allegedly taking something. Naturally, after a month of asking for this tape, I have yet to receive a copy of it.

 

  The state would have a tough time convicting him at trial, but there is enough there for charges to be filed.

Ryan Maesen, Criminal Lawyer, Grand Rapids, MI

For more information, please see my website at www.maesenlawfirm.com

 

Why people go to jail

  Very few people charged with a crime actually go to jail. This is particulary true with first time offenders and repeat offenders who repeatedly committ minor crimes. However, any criminal conviction in Michigan (with some rare exceptions) can result in jailtime so it should never be assumed that you won't go to jail. It is ultimately up to the judge. Not the prosecutor and certainly not the police, no matter what they say.

  Some of the factors that can deterime if jail is given, and if so, how long include:

• prior criminal convictions
• repeatedly getting caught doing the same thing
• drug offenses sometimes result in more jail time
• any risk of violence to the community
• attitude through the course of proceedings
• arguing with the judge
• lying to the judge
• evidence of a productive life outside of court (think a job, volunteer work, strong family to go home to, active in church, getting drug or alcohol counseling etc.)
• In felony cases, sentencing is determined by the Michigan Sentencing Guidelines, a fairly complex piece of legislation that gives "points" for things like if the crime involved drugs, weapons, and violence. It is also heavily punishes a defendant for past felony convictions.

  While not an exhaustive list, this covers the major factors. For more information, feel fee to contact me at www.maesenlawfirm.com

Ryan Maesen