121 SW Morrison Street, Suite 1875

Portland, OR 97204

 All other contact information will remain the same.  Please also note that our phones will not be answered from Friday October 27, 2017 at approximately 4:00 PM (because we need to unplug and pack them) until sometime mid-morning on Monday October 30, 2017 when service will be switched over to the new address.  Please leave us a voicemail and they will be promptly returned once telephone service is up and running at the new office.

We sincerely apologize for the inconvenience, chaos and debris associated with this endeavor.

We look forward to serving you in our new office space!

Paddock’s father was a bank robber and escaped fugitive on the FBI’s most wanted list; however, Paddock himself had no criminal record, was a wealthy real estate investor and a high rolling gambler.  It appears that no amount of typical background checks would disqualify someone like Paddock from purchasing guns.

In 2008, the U.S. Supreme Court held that the Second Amendment protects an individual’s right to possess and use firearms for any traditionally lawful purpose without any requirement for the individual to serve in any militia.  As the nation mourns victims of the shooting, will the public demand a closer look at how the U.S. balances the Second Amendment against the public’s desire to be protected from mass shootings?  Only time will tell.

© 10/10/2017 Michael Litvin of Hunt & Associates, P.C.  All rights reserved.

The need for an updated hands-free driving law may surprise some Oregonians.  Most police officers and others in the state had assumed that ORS 811.507 (enacted in 2009) already prohibited touching and using all mobile devices while driving.  However, Oregon’s Court of Appeals concluded in 2015 that the law only prohibited talking and texting on a mobile communication device while driving, without extending to other types of uses.  Given that conclusion, lawmakers worried that using a cell phone to play games while driving did not violate the law, along with many other uses.

The public should be ready for a renewed push by law enforcement to cite drivers for distracted driving due to the updated version of the law.  Legitimate emergency situations and other factors can still serve as exemptions from the requirements of the hands-free driving law; however, police officers will no longer need to wonder whether a driver holding a cell phone is actually using that cell phone to call or text.  Likewise, it will be easier for police officers to articulate a probable cause when stopping a vehicle for suspected violation of the law.

The legislature might unintentionally take time and resources away from cutting down on other types of dangerous driving by focusing on mobile devices at the expense of other distractions. For example, drivers who are eating or driving with pets in their lap will continue to comply with the law so long as they do not commit some independent driving violation.  One can only hope that the greater restrictions of the new law are justified by increased safety for all.

© 10/05/2017 Michael Litvin of Hunt & Associates, P.C.  All rights reserved.

Surely, Senator McCain isn’t worried about an uneven playing field between American ships and their foreign competitors.  He must certainly know that the overwhelming majority of ocean borne commerce between the U.S. and our foreign trading partners enters or leaves our shores on foreign flag vessels.  Such vessels employ lower cost crews and their owners enjoy favorable tax treatment from their country of registry; hence, such vessels operate at cost levels which U.S. operators simply can’t match.  Recognizing this reality, Congress has historically reserved waterborne commerce within the U.S. to American ships as a means of ensuring the survival of some semblance of an American merchant marine.  Call it protectionism or what you will, the Jones Act does serve to ensure the existence of an American commercial fleet of vessels.

My own education and experience in things maritime persuades me that this is a good policy.  A viable American merchant marine is an essential component of our national security, a fact that is generally ignored until it becomes necessary to find the ships to carry the goods to supply the troops who have been sent overseas to protect American interests.

Without the Jones Act’s restrictions against foreign flag vessels carrying domestic cargos, our already minimal merchant fleet risks further shrinkage to practically nonexistent levels. Happily, Senator McCain’s bill appears to have garnered almost no interest on Capitol Hill; no other senators have opted to cosponsor his legislation.  It intrigues me, though, why an ex-Naval officer such as Senator McCain would target the very ships we may need one day to protect interests far distant from our shores.

For additional information, I recommend reading RealClear Defense’s article which expresses views contrary to those of Senator McCain.

© 9/27/2017 Charles A. Ford of Hunt & Associates, P.C.  All rights reserved.

Although the federal Environmental Protection Agency, among others, rejects the notion that climate change was responsible for Hurricane Harvey, many lawyers and the experts they rely on are undeterred.  On the contrary, there’s a growing group of scientists who are busy creating a new “science of event attribution” which will supposedly enable investigators to calculate the proportion of any extreme weather event, such as a hurricane, that’s attributable to man-made climate change.

“World Weather Attribution” (“WWA”) is apparently comprised of both “researchers” and a “journalism organization Climate Central”.  WWA recently claimed it had established that recent torrential rains which flooded Louisiana had been made twice as likely due to man-made climate change.

Some lawyers apparently hope that with the use of such calculations, they will be able to make damage claims in court against the government agencies, businesses and others for what WWA calculates is their proportionate contribution to each extreme weather-related injury.

Without mentioning questions concerning the scientific validity of an attribution process relying on any journalism organization, it is absurd to second guess the policy decisions of governments for any reason solely in light of what are extreme, i.e., highly unusual and improbable, events.  Yet negligence is defined as the failure to pay attention only to reasonably foreseeable risks of loss.

© 9/22/2017 Lawrence B. Hunt of Hunt & Associates, P.C.  All rights reserved.

This post is intended to provide a quick guide to some key terms and issues that are relevant in the area of contract law.

What is a contract and how is it formed? 

In general, a contract may be defined as a bargained for exchange.  The typical contract formation process involves an offer, acceptance, mutual assent and consideration for a promise to do or not do a particular thing that may be done or omitted.  In general, an acceptance needs to unambiguously accept the terms and conditions of an offer in order for a contract to arise.  Mutual assent is often called a “meeting of the minds”.  If the parties did not agree to the same essential concepts of a deal, then there was no mutual assent because no meeting of the minds occurred.

 What counts as consideration for a contract? 

Consideration consists of a party acquiring either: (a) some right, interest, profit or benefit; and/or, (b) some forbearance, detriment, loss or responsibility.  Consideration is a necessary element of a valid contract partly because its absence can help reveal that one party’s promise to do something was actually gratuitously given.  If a court finds that one party’s contractual promises were gratuitously given, then the contract is generally invalid and cannot be enforced in accordance with its terms.

What if someone orally promised something that is not written into the contract?

In such a case, one question is whether the oral promise preceded the written contract.  If the oral promise preceded the written contract and the written contract was intended to be the final expression of the agreement, then the parol evidence rule generally prohibits introducing evidence of oral communications that would contradict or supplement the written agreement terms.  Therefore, it is very possible that testimony regarding oral promises will be inadmissible in the case of litigation relating to a written contract.  However, various exceptions and nuances exist that allow attorneys to craft a strategy to best advance a client’s interests depending on the nature of the dispute.

Another question is whether the statute of frauds applies.  The statute of frauds generally prohibits enforcing the following types of agreements if they are not evidenced by a writing that is signed by the party against whom it would be enforced:  Agreements for the sale of interests in real property, agreements that by their terms cannot be performed within a year, agreements to pay another’s debt and other types of agreements as may be listed under state law.  For example, ORS 41.580 codifies the statute of frauds under Oregon law.  Again, an attorney can help navigate the various nuances and exceptions that exist with respect to the statute of frauds.

What are covenants, conditions, representations and warranties? 

These terms often get mixed up, but the general definitions are as follows: A covenant is a promise of action or inaction that applies with respect to future events.  A condition is a future and uncertain event whose occurrence or nonoccurrence can destroy, create or modify the right and obligations of one or more parties to the contract.  A representation is a purported statement of fact relating to the past or present.  A warranty is a statement or promise regarding some present or future quality of goods or services.  The nature of a contractual clause heavily impacts how that clause is interpreted and applied.  Therefore, it can be crucial to identify whether a specific contractual clause is a covenant, condition, representation, warranty or some combination thereof.

What is a choice of law provision?

A “choice of law” or “governing law” provision of a contract states the parties’ intent for which jurisdiction’s substantive law will govern in the event of a dispute.  For example, this type of choice of law provision indicates that in the event of a dispute, the parties want the court or arbitrator to apply Oregon substantive law to determine the parties’ rights and obligations: “This agreement is governed by the laws of the State of Oregon, without giving effect to any conflict of law principle that would result in the laws of any other jurisdiction governing this agreement.”

As you can see from the sample language quoted above, the conflict of law principles of state laws also need to be considered.  This is so because the failure to address such principles in the contract could mean that one state’s substantive law (e.g., Oregon) ends up directing the court or arbitrator to apply another state’s law (e.g., Delaware) to ultimately decide the dispute.  For example, under ORS 81.135 a contract that merely indicated that it is “governed by the laws of the State of Oregon” might end up being decided on the basis of Delaware law if the contract was one for personal services that were primarily rendered in Delaware.

What is a venue provision? 

A venue provision of a contract states the parties’ intent for where a dispute related to the contract should be litigated or arbitrated.  The venue can be different from the choice of law.  For example, the appropriate venue may be any state and federal courts located in Multnomah County, Oregon, but the governing law could come from the State of Washington.  In such case, the Oregon court that will decide the dispute will generally apply Oregon procedural rules, but Washington substantive laws to adjudicate the dispute.

What are some common defenses to enforcing a contract?

Contractual defenses are often split into two categories: Defenses to contract formation and defenses to contract enforcement.  For example, if a valid contract never arose because the offer and acceptance were unclear and no meeting of the minds occurred, then there is no valid contract to enforce.  Other examples of defenses to formation include fraud in the execution of a contract, misrepresentation, concealment, mistake, duress, undue influence and unconscionability.  All of these terms require a showing of specific legal and factual elements that your attorney can help you analyze.

If a valid contract arose but defenses to enforcement exist, then a court or arbitrator might conclude that the contract cannot be enforced as written.  Some examples of defenses to contract enforcement are prior material breach and termination of the contract, impossibility, frustration of purpose, a nonoccurrence of a condition and unenforceability on grounds of public policy.  For example, if one party’s obligations under a contract are conditioned upon the happening of an earthquake but no earthquake occurs, then the corresponding obligations should not be enforced.  Once again, any of these types of defenses require specific factual and legal analysis before they can be successfully asserted and used.

If a contract is invalid or unenforceable, does that mean that no legal remedy exists for a dispute?

Not necessarily.  If there is no valid or enforceable contract, then the area of law concerned with “quasi contracts” or “implied contracts” might still provide a legal remedy for an aggrieved party.  Terms such as promissory estoppel, unjust enrichment and quantum meruit are the frequently used legal principles that might allow recovery in this area of the law.  In general, an aggrieved party can obtain restitution on quasi-contractual grounds if a benefit has been conferred, the recipient of the benefit is aware that the benefit was received and under the circumstances it would be unjust to allow retention of the benefit without requiring the recipient to pay for it.

What should you do in a contract dispute?

For a high value contract, you would ideally work with an attorney to prevent many types of disputes that could have been anticipated by negotiating and carefully reviewing the contract before execution.  If a dispute is brewing (for example, if you are asking yourself whether and how to get out of the contractual relationship), you should consult with an attorney as quickly as possible.

How a party communicates its dissatisfaction with a contractual relationship heavily affects where the chips will fall in the event that the dispute goes to litigation.  An attorney can help you get the most out of your communication with another party by researching applicable statutes and case law to recommend your strongest path forward.  The attorney might recommend negotiating with the other party for a settlement or the attorney might advise you that you have an immediate legal right to terminate the contract without liability for damages.

If you receive notice that the other party is dissatisfied with the contractual relationship or has already filed a lawsuit in court, then it is important to obtain qualified legal representation as well.  Whether you are aggrieved and want to sue, or are forced to defend a contracts action, the attorneys at Hunt & Associates, P.C. stand ready to evaluate your case.

© 9/18/2017 Michael Litvin of Hunt & Associates, P.C.  All rights reserved.

The following are among the most common questions we receive from tenants:

How much of a deposit can a landlord require?

Neither the Washington Act nor the Oregon Act place a limit on the amount of the security deposit a landlord can require.

What is required of a landlord in order to receive a deposit?

Oregon: The landlord must provide a receipt for any security deposit paid by a tenant.  If there is a written lease agreement between the parties, the agreement must list the security deposit paid by the tenant or required by the landlord.

Washington: If a tenant pays a security deposit in cash, the landlord must provide a receipt; for payments made other than in cash, a landlord is to provide a receipt upon tenant’s request.  The Washington Act also requires:

• A written lease agreement which includes the terms and conditions under which any portion of the deposit may be withheld by landlord upon termination of the lease; and,

• Landlord must provide a written checklist or statement which specifically describes the condition and cleanliness of the premises and furnishings at commencement of the lease, including the walls, floors, countertops, drapes, furniture and appliances. The checklist or statement must be signed and dated by landlord and tenant and tenant must be provided with a copy of the signed checklist or statement.

What must a landlord do with the security deposit it receives?

Oregon: There is no specific requirement under the Oregon Act other than that the landlord must “hold the security deposit for the tenant” who is a party to the lease agreement.  If the landlord sells the premises, it remains responsible to the tenant for any security deposit it previously received.

Washington: The Washington Act requires landlord to place the security deposit in a trust account it maintains with a financial institution or licensed escrow agent located in Washington.  Landlord is to provide tenant with written notice of the name and address of the location of the trust account.

Can the landlord require tenant to increase the security deposit during the lease term?

Oregon: Landlord may not increase the deposit during the first year of a tenancy. After the first year, if landlord does require a new deposit or increases the amount, tenant must be allowed at least three months in which the pay the new or increased deposit.

Washington: There is no corresponding provision, so landlord’s right to require an increase would depend on the terms of the lease agreement.

Under what circumstances can landlord use the security deposit?

Oregon: Landlord can apply the security deposit to: (1) remedy tenant’s defaults in the performance of the lease, including unpaid rent; and, (2) to repair damages to the premises caused by tenant, but not for damages attributable to ordinary wear and tear.

Washington: The Washington Act is somewhat less specific and states that the landlord can use the deposit “for performance of the tenant’s obligations” under the lease agreement.

When must landlord return the security deposit?

This is among the most common questions we receive in regard to security deposits.  The requirements governing the release of security deposits by landlords are strictly enforced by courts.

Oregon: The landlord must provide tenant with a written accounting of, and refund the unused portion of, the security deposit within thirty-one (31) days after the end of the lease. If any portion of the security deposit is withheld by landlord for purposes of repairing damages to the premises or remedying other tenant defaults under the lease, the written accounting must include the basis for the amount withheld.

Washington: Landlord has twenty-one (21) days after termination of the lease to mail to tenant’s last known address any refund due and “a full and specific statement” with respect to amounts withheld.

What if landlord doesn’t comply with these requirements?

Oregon: Landlord can be liable for twice the amount of the security deposit withheld if it fails to provide the written accounting within 31 days or if withholds amounts in bad faith.

Washington: Landlord is liable for the full amount of any deposit if it fails to provide the required statement in the required time.  The landlord is also barred in any legal proceeding brought by the tenant to assert any claim or raise any defense for keeping any of the deposit.  The court has discretion to award a tenant up to two times the amount of the deposit if the landlord intentionally refuses to provide the statement or issue the correct refund.

Both the Washington Act and the Oregon Act provide for an award of attorney fees to the prevailing party in any such dispute.

Where can I find these statutes?

Oregon: The Oregon Act’s requirements regarding security deposits can be found at ORS 90.300.

Washington: See RCW 59.18.260 through 59.18.280.

© 8/23/2017 Charles A. Ford of Hunt & Associates, P.C.  All rights reserved.

Thankfully, the eclipse is not expected to last nearly as long as Portland’s 2016-17 snowpocalypse, so there should be relatively few cars stuck on the road and waiting for ODOT tow trucks.  If you’re driving and the sky goes dark, you should remember to turn on your headlights for however long the eclipse lasts.  In Oregon, the total eclipse is expected to last about 2 minutes at approximately 10:15 AM on August 21.  In many states to the east the eclipse will last for approximately 30 seconds longer, but will arrive later in the day.  More eclipse details here and here.

Police in other states are preparing to keep law and order on the day of the eclipse as well.  However, nobody really knows how things will go.  In Idaho, Lieutenant Paul Manning of the Pocatello Police Department put it like this: “It would be nice if this turned out to be like Y2K from years ago where you make tons and tons of preparation and then everything goes smoothly. . . . But if you don’t prepare, it could come back to haunt you.”

© 8/16/2017 Michael Litvin of Hunt & Associates, P.C.  All rights reserved.

The new immigration plan is formally titled Reforming American Immigration for Strong Employment Act (RAISE Act).  By selecting this title, the President and lawmakers appear to communicate their intent to improve American employment and give Americans a wage raise by limiting immigration.

Here are the key objectives of the President’s immigration plan:

1. Reduce overall immigration by 41% in the first year after passage and by 50% within 10 years;

2. Eliminate the Diversity Immigrant Visa program also known as the Green Card lottery;

3. Restrict family based visas to eliminate preferences for relatives other than spouses and minor children;

4. Cap offers of permanent residency (Green Cards) for refugees at 50,000 per year; and,

5. Create a new temporary visa program for parents of U.S. citizens on the condition that such parents cannot work or receive public benefits in the U.S. and must be guaranteed support and health insurance by their sponsoring children.

The RAISE Act now heads to Congress for review and possible voting on passage.  Some lawmakers in Congress have expressed strong opposition, although the ultimate fate of the RAISE Act is not yet known.

Given the President’s push to curb immigration levels, the President is not particularly popular with many potential immigrants to the U.S.  However, certain countries such as Canada view the President’s reform agenda as an opportunity to heighten their own immigration recruitment efforts to attract qualified workers in the high-tech industry and other fields who might have otherwise been seeking to immigrate to the U.S.

In response, President Trump has indicated his belief that the RAISE Act will actually reorient America’s Green Card system to favor immigrants who are most qualified to have a beneficial effect on the U.S. economy.  More on this can be found here.

© 8/3/2017 Michael Litvin of Hunt & Associates, P.C.  All rights reserved.

A more sophisticated version of a sweetheart plan incorporates the use of a joint revocable living trust.  There are many variations to an estate plan utilizing a joint trust.  Basically, though, all of the couple’s assets are held in the name of the trust with both spouses serving as co-trustees.  Upon the death of the first spouse, all of the assets remain in the trust with the surviving spouse continuing to serve as the trust’s sole trustee.  During the surviving trust’s lifetime, she or he is free to modify or even revoke the trust agreement, change beneficiaries and otherwise dispose of trust assets as he or she sees fit.  Among the advantages to using a trust, instead of reciprocal wills, is probate avoidance. However, this model may not serve well in a blended family situation where each spouse may have different natural heirs because of the surviving spouse’s ability to favor his or her own children when disposing the trust’s remaining assets.

A variation on the above is a joint trust which incorporates a survivor’s trust which is created following the death of the first spouse.  The survivor’s trust is funded with the surviving spouse’s separate property and his or her share of the couple’s community property.  Meanwhile the assets in the joint trust which were owned by the deceased spouse are used to pay administrative expenses, debts and liabilities of the decedent and any specific bequests made by that spouse. So, for example, in the blended family situation, the first spouse to die can provide for his or her own children, while also providing for the surviving spouse by directing that the remainder of the decedent’s share passes to the survivor’s trust.

Another alternative for a married couple’s estate plan is the use of separate trusts.  In this arrangement, each spouse places his or her separate property and an equal share of the couple’s community property in a separate trust. Each spouse is treated as the owner of the assets in that spouse’s trust.  By naming both spouses as co-trustees of both trusts, both spouses can maintain control over the community assets in the respective trusts.  On the death of a spouse, his or her trust becomes irrevocable and is distributed in accordance with his or her instructions in the trust instrument.

A couple considering the use of a trust in their sweetheart plan should weigh the advantages and disadvantages of separate, as opposed to joint, trusts.  A joint trust is created by a single trust document which serves to reduce the initial costs of establishing the estate plan.  A joint trust may better reflect how the married couple views their assets, i.e., as ours as opposed to his and hers.  Separate trusts, however, offer better asset protection from creditor claims, particularly in cases in which only one spouse is vulnerable to such claims.  The use of separate trusts can protect the assets of the other spouse and prevent those assets from being reached by creditors of the debtor spouse.  Separate trusts also serve to avoid the problems of asset tracing which can arise with the use of joint trusts.  When the couple has their assets in a joint trust, the surviving spouse will need to itemize and value trust assets following the death of his or her spouse, which can be a difficult process if assets have been commingled over the years.

Married couples have many alternatives insofar as creating an estate plan that meets their mutual needs and ensures that their respective estates will pass to their intended beneficiaries.  Separate trusts may offer enhanced asset protection and ease of administration following the death of the first spouse.  By contrast, the psychological benefits of a joint trust may outweigh the advantages of separate trusts for a married couple who are of one accord as to how they want their estate to pass.

© 8/3/2017 Charles A. Ford of Hunt & Associates, P.C.  All rights reserved.