Voluntary Payment Doctrine in Georgia

Anyone involved in a dispute in Georgia which involves the demand for or payment of money needs to be familiar with the “Voluntary Payment Doctrine” codified at O.C.G.A §13-1-13. This relatively unknown doctrine can act as a complete bar to recovery to a party seeking to recover a payment that they have made to another. Under Georgia law, with limited exception, a person who “voluntarily” makes a payment, even if done under protest, will be barred from recovering the money so paid.  This is true regardless of whether the party making the payment was aware of the law or their legal obligation to make the demanded payment or not. The exceptions provided for at law, which may allow recovery of such a payment, include: (1) where the payment has been made in the absence of all the facts; (2) where there has been some misplaced confidence in the party being paid; (3) the party being paid has used artifice, deception or fraud to secure the payment; or (4) the payment was made with an urgent and immediate need to release a person or property from detention or prevent seizure of a person or property. There may also be additional factors to consider which may allow voluntary payments to be recovered, such as competing remedies at law or in equity.

 

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Summer in Atlanta

Cool down with some ice cream this weekend at the 4th Annual Atlanta Ice Cream Festival at Piedmont Park in Atlanta on Saturday, July 26, 2014. 

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Here are some other events and festivals to look forward too in Atlanta this month!

Atlanta African Dance & Drum Festival. www.aaddf.org 10 a.m.-7 p.m. July 24-26. Tri-Cities High School, 2575 Harris St., Atlanta. 404-669-8200. 

Slide the City. http://ift.tt/1BWqkM9 10 a.m.-7 p.m. July 25. 100 W. Ponce de Leon Ave., Decatur.

5th Annual Atlanta Ice Cream Festival. atlantaicecreamfestival.com -11 a.m.-6 p.m. July 25. Admission is free. Piedmont Park near the 10th Street and Charles Allen Drive entrance, Atlanta.

Drum Corps International Atlanta Southeastern Championships. www.dci.org Gates open 10:30 a.m.; show at 2 p.m. July 25. $30-$60. Georgia Dome, 1 Georgia Dome Drive N.W., Atlanta. 

Repticon Atlanta Reptile & Exotic Animal Show. www.repticon.com 10 a.m. July 25. $10; $5 ages 5-12. Gwinnett County Fairgrounds, 2405 Sugarloaf Parkway, Lawrenceville.

National Dance Day Celebration. 9 a.m.-Noon July 25. Avalon, 2200 Avalon Boulevard, Alpharetta. 770-765-2000.http://ift.tt/1IrnV4n

Battle of Atlanta.  www.batlevent.org –10 a.m.-5 p.m. June 25. Various events around East Atlanta, Flat Shoals Avenue and Glenwood Avenue.

 

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FAQ’s For Business Owners

 

How do I know what the rental amount will be in any extensions or options to renew the lease?  The amount of any future rental increases should be negotiated at the onset.  The parties should decide what, in their opinions, represents a fair increase over the current rate, if any.  If the parties do not intend for the lease amount to increase, the lease should specifically state such.  A well-crafted lease will specifically identify any rental increases and when any such increases take effect. A little extra effort in lease negotiation helps everyone to understand the Landlord’s and Tenant’s financial obligations.

If my landlord evicts my business, can I still be liable for future rent?  Maybe.  The liability for future accruing rent will be governed by the terms of the lease.   If the lease is properly drafted and meets all of the legal requirements to impose liability for future rent, the courts will enforce such a provision.  If the lease does not so provide for continued liability the general rule is that once a landlord evicts a tenant and takes possession of the premises, the lease is terminated and the right to claim rent which accrues after eviction is extinguished.

If I move out of the space and advise the landlord, am I still liable for the rent? Is the landlord under an obligation to attempt to lease my space to someone else?   Unless  a landlord accepts surrender of the lease space or the tenant has otherwise successfully terminated the lease, a landlord is under no duty to attempt to re-lease the space in an effort to mitigate damages.  If the lease specifically provides for the parties’ intention that the tenant will be responsible for future rent, and the lease provision was drafted appropriately, the tenant will continue to be responsible for the rent.

Does my landlord need to obtain a writ of possession before I can be lawfully evicted?  Not necessarily, it would depend upon the lease terms.  In commercial leases, if the landlord has been given the right to reenter and take possession of the leased space without the necessity of legal proceedings, he may do so.  A “self-help” eviction may only be done if it can be accomplished without a breach of the peace.  Although such “self-help” is available, there are risks inherent to any landlord who exercises this remedy.

Do I have the right to sublet the leased premises if my lease does not provide for subletting?  The rights and responsibilities of a tenant, including the right to sublet, are governed by the lease terms.  If the lease says that the tenant has the right to sublet, then the tenant has the right to sublet, under the terms and conditions specified in the lease.  Similarly, if the lease does not provide for the tenant to sublet or otherwise assign the leased premises, or if the lease specifically prohibits subletting, then the tenant has no such right.

If my lease provides for subletting, does the landlord have to accept any prospective sub-tenant I bring them to sublet?  Not necessarily.   Generally, the lease terms will provide for the landlord to approve any prospective sub-tenant.  It would be rare for a lease to provide the tenant with an unequivocal right to sublet.  It is common for the lease to give the landlord the right to approve any prospective sub-tenant.  Likewise, the lease usually states such approval “may not be unreasonably withheld”.    In the absence of clearly defined rights and restrictions, the Landlord or Tenant may find themselves in a situation they did not intend.    For instance, if the original lease provided that the space was to be used for a particular purpose, the landlord could refuse a prospective sub-tenant if their business was not identical to that stated in the original lease.   Even if the original lease was not for a specific purpose, if the prospective sub-tenant intended to use the leased space in a different manner than the original tenant, and such use would have a negative impact on the landlord, the landlord can reject the sub-tenant.  Additionally, if a prospective sub-tenant was not financially stable, a landlord could reject the sub-tenant.  It is imperative that the rights of assignment or subletting be clearly defined in the original lease, and such rights should be clearly understood by the tenant.

As the foregoing discussion demonstrates, it is highly advisable for both Landlords and Tenants to engage the services of an attorney to help negotiate lease terms.  There are so many variables present in each landlord tenant relationship that a form lease rarely works for the best interest of either party.  An attorney can help both parties reach a beneficial result, saving time and money in the long run.

from Richard C. Wayne http://ift.tt/1HSdOzY

FAQ’s For Business Owners

 

How do I know what the rental amount will be in any extensions or options to renew the lease?  The amount of any future rental increases should be negotiated at the onset.  The parties should decide what, in their opinions, represents a fair increase over the current rate, if any.  If the parties do not intend for the lease amount to increase, the lease should specifically state such.  A well-crafted lease will specifically identify any rental increases and when any such increases take effect. A little extra effort in lease negotiation helps everyone to understand the Landlord’s and Tenant’s financial obligations.

If my landlord evicts my business, can I still be liable for future rent?  Maybe.  The liability for future accruing rent will be governed by the terms of the lease.   If the lease is properly drafted and meets all of the legal requirements to impose liability for future rent, the courts will enforce such a provision.  If the lease does not so provide for continued liability the general rule is that once a landlord evicts a tenant and takes possession of the premises, the lease is terminated and the right to claim rent which accrues after eviction is extinguished.

If I move out of the space and advise the landlord, am I still liable for the rent? Is the landlord under an obligation to attempt to lease my space to someone else?   Unless  a landlord accepts surrender of the lease space or the tenant has otherwise successfully terminated the lease, a landlord is under no duty to attempt to re-lease the space in an effort to mitigate damages.  If the lease specifically provides for the parties’ intention that the tenant will be responsible for future rent, and the lease provision was drafted appropriately, the tenant will continue to be responsible for the rent.

Does my landlord need to obtain a writ of possession before I can be lawfully evicted?  Not necessarily, it would depend upon the lease terms.  In commercial leases, if the landlord has been given the right to reenter and take possession of the leased space without the necessity of legal proceedings, he may do so.  A “self-help” eviction may only be done if it can be accomplished without a breach of the peace.  Although such “self-help” is available, there are risks inherent to any landlord who exercises this remedy.

Do I have the right to sublet the leased premises if my lease does not provide for subletting?  The rights and responsibilities of a tenant, including the right to sublet, are governed by the lease terms.  If the lease says that the tenant has the right to sublet, then the tenant has the right to sublet, under the terms and conditions specified in the lease.  Similarly, if the lease does not provide for the tenant to sublet or otherwise assign the leased premises, or if the lease specifically prohibits subletting, then the tenant has no such right.

If my lease provides for subletting, does the landlord have to accept any prospective sub-tenant I bring them to sublet?  Not necessarily.   Generally, the lease terms will provide for the landlord to approve any prospective sub-tenant.  It would be rare for a lease to provide the tenant with an unequivocal right to sublet.  It is common for the lease to give the landlord the right to approve any prospective sub-tenant.  Likewise, the lease usually states such approval “may not be unreasonably withheld”.    In the absence of clearly defined rights and restrictions, the Landlord or Tenant may find themselves in a situation they did not intend.    For instance, if the original lease provided that the space was to be used for a particular purpose, the landlord could refuse a prospective sub-tenant if their business was not identical to that stated in the original lease.   Even if the original lease was not for a specific purpose, if the prospective sub-tenant intended to use the leased space in a different manner than the original tenant, and such use would have a negative impact on the landlord, the landlord can reject the sub-tenant.  Additionally, if a prospective sub-tenant was not financially stable, a landlord could reject the sub-tenant.  It is imperative that the rights of assignment or subletting be clearly defined in the original lease, and such rights should be clearly understood by the tenant.

As the foregoing discussion demonstrates, it is highly advisable for both Landlords and Tenants to engage the services of an attorney to help negotiate lease terms.  There are so many variables present in each landlord tenant relationship that a form lease rarely works for the best interest of either party.  An attorney can help both parties reach a beneficial result, saving time and money in the long run.

from Richard C. Wayne Commercial Real-Estate http://ift.tt/1SAoGYm

Property Taxes

Every year each county in the State of Georgia collects property taxes for all non-exempt real and personal property.  Real property is anything attached or growing on land and personal property is anything else that is owned that is not real property.  Real property is taxed by the county wherein it is located and personal property is taxed by the county wherein the owner resides, unless the law provides otherwise.

Property taxes are based upon the value of the property, sometimes called ad valorem taxes.  Generally, businesses are required to file a personal property tax return annually for all personal property with the county tax commissioner or tax assessor.    The personal property tax return provides specific instructions for calculating property values.  A sample of the Business Personal Property Tax Return can be found here.

The calculation of real property taxes is generally assessed at 40% of the fair market value of the property.  Counties must send out annual assessment notices to all tax payers.  The assessment includes the fair market value of the property as well as the assessed value.  The assessment only provides an “estimated tax” because the prior year’s net millage rate is used and the actual millage rate may increase or decrease from year to year.  Taxpayers have the right to appeal the value of the property as stated on the notice of assessment.  The exact process for filing the appeal may differ by county.  It is recommended that property owners consult with a legal professional if they are considering filing an appeal to ensure compliance with the specific requirements.  A successful appeal can freeze the value of the property for three years.  Failure to conform exactly with the appeal process or any administrative requirements may result in a loss or denial of the appeal.

from Richard C. Wayne Commercial Real-Estate http://ift.tt/1OkZ802

Scuba Diving in Atlanta!

PADI Open Water Diver Course in Atlanta, Georgia.

 

You can now become an open Water Scuba diver and meet new people in Atlanta that you can discover extraordinary places with. Become a PADI Open Water Scuba Diver and learn how to scuba dive while meeting awesome lifetime friends. The experience can be a lot of fun!  The class takes place in a classroom and pool conveniently located in Woodstock, Ga within Metro Atlanta Area. The class utilizes their own Dive Georgia Open Water Quarry in White, GA.

 

According to Dive Georgia, you can become a Scuba Diver in two weeks by following these 3 easy steps.

 

 

Step 1: Check Out Their Shop!

Go to the Dive Georgia shop and meet their phenomenal staff. They will help you get signed up and walk you through the entire process.

Step 2: Check Out Their facilities!

Spend your free time discovering their facilities. Dive Georgia will  provide you with hands on knowledge from professionals while participating in 5 dives in a state of the art pool. The experience provides you with preparation to acquire all the  learning you would need. Dive Georgia works to ensure you have every skill down pat and ready for the Open Water!

Step 3: Congratulate yourself!

Spend a weekend at the water dive resort. At this point you will be ready to do 4 open water dives with an instructor showing proficiency on the skills you learned during your class. Congratulations you will then be a certified PADI Open Water Scuba Diver!

 

 

(Richard C. Wayne, Scuba Diving)

from Richard C. Wayne Atlanta http://ift.tt/1HUqytE

An Employers Responsibility

As an employer, how do I know if I am subject to or in compliance with all Federal or State Laws ?

There are a multitude of governmental agencies who are responsible for the enforcement of a variety of Federal and State laws and regulations governing employment. Which laws and regulations apply to your business will require an individual analysis of your business and will be impacted by a variety of factors including, but not limited to, the nature of your business and the number of employees you employ on a full or part-time basis.

The U.S. Department of Labor (DOL) administers and enforces most federal employment laws, including those covering wages and hours of work, safety and health standards, employee health and retirement benefits, and federal contracts. Some more popular legislation, both in terms of media coverage and generated litigation, administered by the DOL, includes the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Both the ADA and the FMLA can have profound and dire consequences upon an employer if they fail to follow the specific requirements.

The Internal Revenue Service (IRS) is responsible for the assessment and collection of taxes owed to the Federal Government. The IRS is also responsible for ensuring employers are in compliance with the Affordable Care Act (ACA).

The U.S. Equal Employment Opportunity Commission (EEOC) enforces many of the laws ensuring nondiscrimination against protected classes in the workplace. The EEOC also is in charge of ensuring employees do not have to work in “hostile work environments”.

The National Labor Relations Board (NLRB) administers the primary law governing relations between unions and employers.

The State of Georgia has its own Department of Labor with additional and more specific rules and regulations applicable to the businesses which transact business within the state. Specifically included are those rules regarding unemployment compensation and child labor.

Additionally the State Board of Worker’s Compensation is responsible for compliance with the rules and regulations governing on the job injuries. Georgia has specific laws governing an employer’s obligation to obtain insurance for workers compensation as well as detailed reporting requirements.

 

 Are my employees independent contractors?

Whether a particular individual providing services to your business will be classified as an employee or independent contractor is evaluated on a subjective standard which can change depending upon the law under which the evaluation is made. For instance, the determination of independent contractor status under Georgia law differs from that under the rules and regulations utilized by the IRS. Different sets of laws, such as the Employment Retirement Income Security Act (ERISA) and the Fair Labor Standards Act, contain varying definitions for “independent contractor”. Therefore, a detailed analysis of a particular individual under a particular set of facts should be made. The failure to properly classify an individual as an employee could prove to be a costly mistake to an employer.

Am I required to pay my employees an hourly rate or can I pay a fixed salary?

The primary reason most employers desire to pay employees on a salary basis is that it removes the necessity of tracking and maintaining the hours worked by particular employees. The issue, however, is that under the Fair Labor Standards Act (FLSA) and Georgia law many “salaried” individuals who are not classified as “exempt” must still be paid “overtime” for each hour they work in excess of 40 hours during a given workweek.  The laws governing which employees are exempt from overtime compensation and which ones must be paid overtime can often be unclear and difficult to decipher. While there are three broad exemptions for employees whose principal duties are executive, administrative, or professional in nature, it is not always clear if the employee falls into one of these categories. Failure to evaluate an employee’s status correctly can result in liability to the employer for unpaid overtime compensation, often over many years.

from Richard C. Wayne http://ift.tt/1Fn3vkZ