Can Construction Permit Fees Relating to Handicapped Improvements Be Waived by a Municipality?

  • Handicapped persons have certain protections under the Americans with Disabilities Act and other laws unavailable to the non-disabled
  • One protection is an exemption from paying fees to local municipalities to improve their home
  • This article discusses exemptions under the New Jersey Construction Code regulation’s concerning permit fees and Mt. Laurel housing contribution fees

Handicap Home ImprovementsHere’s The Background

A client purchased a home in Monmouth County (the municipality and county doesn’t matter for purposes of this article). She knocked the house down and is now building a new home. She is handicapped. The township is charging $5,500 dollars in permitting fees, etc., and she is wondering if she is exempt due to her handicap.

More importantly, they are charging her $14,000 in Mt. Laurel fees, and they have told her that there may be another $7,000 or more due and owing.

My first response was to research the municipal ordinance related to required contributions to an Affordable Housing Trust Fund and research exemptions from the payment of construction fees and permit fees under State law.

How a Handicapped Person Can Obtain a Waiver of Fees

My research disclosed that construction and permit fees apply to all residential and non-residential developments in the State. Another fee goes into the Affordable Housing Trust Fund. Whether or not the exemption from paying these fees depends on if the Municipality believes the home improvement promotes accessibility of the handicapped person to his/her own living unit.

The township has adopted an ordinance concerning waiving permit and development fees. The ordinance states that “a disabled person or a parent or sibling of a disabled person may be granted an exemption from any fees or payments required pursuant to the MLUL in connection with any application for development which promotes accessibility to his/her own living unit.”

The construction official said that the fees will get waived as long as we provide proof of the disability. He cannot waive all construction permit fees, only the fees related to the construction of the handicap accessible areas. He told me to have the builder contact him so they can break the costs down.

As for the COAH/Mt. Laurel fees, I was directed to the tax assessor’s office, who told me that they calculate those fees, but he didn’t  know if there is a waiver available. We are in the process of further researching this issue.

To discuss your New Jersey real estate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Real Estate and Landlord/Tenant Attorney

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Is Suicide Ever Okay?

advance health care directiveThis blog was written by an elder law colleague of mine, Victoria Collier, Esq., who lives in Georgia.  I met Victoria years ago but knew nothing of her personal life.  I did not realize that her life was directly impacted by the suicide of her mother while young.  I encourage you to read her post below.  It is a very thoughtful insight to suicide by a now middle-aged woman with her own children.

“Death is a difficult topic. But death by suicide is a very controversial topic, one that I am going to start here as it is very close to my heart. I grew up hearing, “suicide is the most selfish act” and as an adult I have heard the same sentiment but phrased differently as, the last act of F-You.”

My mother committed suicide when I was six and I barely knew her. However, I knew enough to know that she was struggling with life. She had bi-polar disorder before adequate treatment become a “thing.” I know she was loving and did her best. I know she tried to kill herself several times before she was “successful.” I know that living, for her, was painful without signs of relief no matter how many prescriptions she was taking.

For many of my elderly clients who live with chronic pain, depression, isolation and loneliness, they contemplate suicide. Some actually take action.  Senior citizen males are the highest risk demographic of suicide deaths.

When discussing health care advanced directives and end of life choices, a majority of my clients express they do not want to live if they do not have a quality of life. Everyone defines that differently. For some, lack of quality of life means living with memory loss and they can no longer express any recognition of family members. For others that means they feel they have no purpose or ways to contribute in a meaningful way. Yet, for others that means they feel like they are a burden on loved ones.

Most recently, an elderly male client expressed in our meeting that he would shoot himself if he ever got to a point where he could not take care of himself. I understand the inclination. When I worked as a nurse’s aide in a nursing home, I spent many days with men literally crying when I cleaned them up after a bowel movement because they were so embarrassed.

We have to have meaningful conversations about life and death; about quality of life and death. About the differences of people who are 15, 25, 45, 75, and 95 years old feel about living and dying. We cannot treat everyone with the same “prevention” paint brush. Until we have these real, meaningful conversations, we will continue to have silent death by suicide. We will continue to have separation of those who feel full of life and those who do not. We will continue to have pain while alive, during death, and after loved ones have died.

If you or someone you know is struggling with depression or thoughts of suicide, we are here to provide our full support.  You can also contact the Suicide Prevention Hotline at (800) 273-8255 or visit their website at https://suicidepreventionlifeline.org/.

To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Elder Care Attorney

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Can a Shareholder With a Minority Ownership Interest in a New Jersey Company Be Fired?

• Shareholders are often employees of the company they own
• Majority Shareholder will sometimes “fire” and dismiss a minority shareholder as an employee
• This article discusses a recent New Jersey case where the minority shareholder was fired and then sued the company and her co-shareholders

In a recent N.J. case a shareholder with a 12% ownership interest in a small corporation appealed her dismissal as an employee claiming minority shareholder oppression while employed as an at-will employee. She contended that she had a reasonable expectation of continued employment after a thirteen-year history with her former employer, and that her at-will employment designation was irrelevant. The employee had also signed a Shareholder Agreement which stated that she contracted to be an employee at-will.

Facts of the Case

Plaintiff is a closely held real estate management company. Defendant, an accountant, was employed at the company. As an incentive, she became a twelve percent (12%) shareholder pursuant to a Stock Purchase Agreement. The parties entered into a Shareholders Agreement (Agreement) providing stock options to defendant. The Agreement contained a shareholder’s stipulation that she was an “employee-at-will” and that she could be “terminated at any time for any reason.” She agreed that upon termination of employment, the shareholder would be “deemed to have made an offer to sell the shares to a non-selling [S]hareholder and/or the company in accordance with the process for selling shares. Fair market value was to be determined by averaging the appraisals chosen by each party and a neutral appraiser. The company was entitled to redeem the outstanding shares based upon the appraisal methodology described.

Defendant was later terminated; three months later, she instituted suit seeking reinstatement of her employment. In her complaint, she alleged she was an “oppressed shareholder” under N.J.S.A. 14A:12-7(1)(c), based upon her reasonable expectation of continued employment, notwithstanding her at-will employment status. Her complaint was dismissed with the trial court finding that her termination did not constitute shareholder oppression because her termination was authorized under the Agreement, and she had no reasonable expectation of continued employment. The company then filed legal action to compel defendant to sell her shares in accordance with the appraisal method noted above.

The Court’s Analysis New Jersey Shareholder Law

The court first addressed whether management failed to exercise their fiduciary duty to its former employee family. The trial court said it must evaluate a corporation’s need to manage its daily affairs, yet consider what “frustrates the reasonable expectations of a minority shareholder and employee.” The employee said that the president of the company “negligently and/or intentionally mismanage[d] the corporation in an effort to devalue her shares” to her detriment. The judge found that the president of the company always has the right to make the [d]ecisions as to the basic, day[-]to[-]day operations of the company, particularly those decisions concerning marketing, operations, and employment. The Court went on to state “that minority shareholders who are employees know the limitations of their status at the time they make their investment in a small corporation.” As to the buy-out of her shares, the judge found that she signed a Buyout Agreement if she was terminated from her position.

The court next addressed defendant’s contention that her at-will status implied a continued expectation of employment. The judge recognized there is neither a statute, case law, or rule in New Jersey that addresses whether an employee’s at-will status is a relevant consideration in analyzing whether an employee has a reasonable expectation of continued employment. Here, the record contained ample evidence to support the judge’s conclusion that the parties entered into the Agreement and stipulated that defendant was an at-will employee.

What Constitutes Minority Shareholder Oppression

N.J.S.A. 14A:12-7(1) (c) sets forth the circumstances under which a shareholder oppression action may be brought:

[where] the directors or those in control have acted fraudulently or illegally, mismanaged the corporation, or abused their authority as officers or directors or have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees.

Oppression in the context of an oppressed minority shareholder action, however, does not require illegality or fraud by majority shareholders or directors. Indeed, “[o]ppression has been defined as frustrating a shareholder’s reasonable expectations.

If a court determines that a person is an oppressed minority shareholder, it may in its discretion impose equitable remedies, such as the appointment of a custodian, or the sale of stock. A minority shareholder’s expectations must also be balanced against the corporation’s ability to exercise its judgment to run its business efficiently.

The defendant in this case was not challenging her at-will status. Rather, she urged the court to consider the interplay between at-will status and a minority shareholder’s “reasonable” expectations of continued employment. She asserts that it was error for the court to conclude she was legitimately terminated.

Can a Corporation Fire a Minority Shareholder Employee?

Termination of a minority shareholder’s employment may constitute oppression under N.J.A.A. 14A:12-7(1)(c), because a person who acquires a minority share in a closely-held corporation often does so ” for the assurance of employment in the business in a managerial position.” Such a person can have a reasonable expectation that they will enjoy “the security of long-term employment and the prospect of financial return in the form of salary,” and will have “a voice in the operation and management of the business and the formulation of its plan for future development.” If these expectations are frustrated by majority shareholders or directors, a court may find that oppression has occurred.

The trial judge correctly concluded that defendant had no reasonable expectation of continuing employment with the company and dismissed defendant’s claim. It ordered the buyout of shares as provided for in the Shareholder’s Agreement.

To discuss your NJ Shareholder matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon, Niemann & Wright, a Freehold Township, Monmouth County NJ Shareholder Litigation Attorney

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Trade Secret and Confidential Information Litigation:  It’s All About the Facts

  • Most companies require employment agreements for important executives, high-level management and key personnel to protect trade secrets and confidential information.
  • Employment Agreements which prohibit disclosure of trade secrets and confidential information are legal in NJ and will be enforced, if not unreasonable.
  • New Jersey law allows for issuance of an injunction by the courts to protect a company’s trade secrets even without a post-employment agreement.

trade secretsState and Federal Trade Secret Laws

The New Jersey Trade Secrets Act and the Federal Defend Trade Secrets Act of 2016, provide New Jersey businesses with some powerful laws protecting trade secrets.   The New Jersey Trade Secrets Act offers strong remedies to businesses in the event an employee sets up to leave with confidential information to use in his/her new position.  The remedies available under the New Jersey Law include injunctive relief, damages, and, if the misappropriation is particularly malicious, punitive damages and attorneys’ fees.   Most trade secret litigation begins with an immediate application for injunctive relief.

Without an injunction, the former employee can continue to use confidential information prior to the entry of a restraining order.  Acting quickly to obtain restraints is critical.

How to Get an Injunction to Prevent Trade Secret Disclosure

To get an injunction, an employer must show that the misappropriated information constitutes a “trade secret”.

Customer lists, for example, have been found to be a trade secret where they contain private information that is not open to and ascertainable by everyone.

To obtain a preliminary injunction in trade secret litigation, our courts have ruled that a plaintiff need not prove at the preliminary stage that misappropriation has already occurred, but only that “it is sufficient that the circumstances give rise to an inference that substantial threat of disclosure exists”.

This means the former employee has accumulated a level of intimate knowledge of the business that he or she will be able to replicate the confidential information from memory, and that it is inevitable that he or she will disclose trade secrets in his or her new venture.   This requires a thorough discussion of the facts of the case, highlighting the former employee’s intimate knowledge of and experience with the confidential information.

Critical questions to ask in connection with litigation are:

1) the extent to which the former employee has already misappropriated the confidential information;

2) extent of the access the former employee had to the confidential information throughout his or her employment; and 3) all communications the former employee had with third parties that reflect, relate to, or otherwise concern the confidential information.

If an employee is able to obtain temporary and/or preliminary restraint, the case gets much simpler, focusing on the economic damages suffered by the employer.

To discuss your NJ business, commercial or restrictive covenant matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Business Law Attorney

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Leaving an IRA to a Loved One? How to Avoid a Tax Bomb

  • An IRA trust is a terrific way to protect your IRA from wasteful spending by beneficiaries if you die
  • Federal IRA tax laws require that an IRA trust be set up correctly to avoid costly mistakes
  • This article explains the in’s and out’s of setting up an IRA trust to reduce Federal and New Jersey income taxes

Income Tax Planning for Your IRA

I recently read an interesting article on IRA’s and the importance of tax planning with beneficiary designations including the creation of IRA trust for protecting wealth from wasteful spending.  If this article speaks to you, call me and let’s discuss.

Here Are Excerpts from the Article Which Explains a Trust for an IRA

You wouldn’t leave your toddler with a pile of cash, right? A little known, but effective estate-planning technique may allow you to safely pass your IRA on to future generations — if you do it right.

When it comes to naming a beneficiary to a retirement account, the first person to come to mind is (likely) your spouse. Your kids, if you have them, might be a close second.

However, your children or grandchildren won’t always be in an ideal position to receive a windfall, particularly if they are minors, disabled or spendthrifts. That’s when a trust might make sense. “The real reason for having a trust as an IRA beneficiary is because there’s some element of control. It’s easy to mess up this, however.

In the first place, not all IRA custodians permit you to list a trust on your beneficiary form.

Second, the tax code has a specific list of conditions for trusts that act as beneficiaries to retirement accounts. Failure to closely follow the IRS rules could result in an accelerated distribution of your IRA and a raft of taxes.

Here’s What You Should Know about Setting Up an IRA Trust

In order for a trust to be viable as a designated beneficiary, it must meet a four-part test.

  1. It must be valid under state law.
  2. It must be an irrevocable trust — a trust that generally can’t be changed once it’s established — or one that will become irrevocable at your death.
  3. The beneficiaries must be identifiable from the trust document.
  4. The IRA custodian or retirement plan administrator must have received a copy of the trust by Oct. 31 of the year following the year of the IRA owner’s death.

There is an unofficial fifth rule. All of the trust beneficiaries must be actual people — not charities and not your estate. That’s because if your beneficiaries aren’t people, then your IRA may not have a designated beneficiary at all.

If your trust fails the test, it’s subject to the rules that kick in when you have no designated beneficiary for your IRA. That means your retirement account will be depleted earlier than you would have intended, your IRA must be distributed within five years after you’ve died unless you die after you started your RMDs, then your distributions will continue to pay out over what would have been your remaining (and presumably shorter) life expectancy.

Multiple Beneficiaries and the Importance of Beneficiary Designation to Your IRA Trust

Perhaps you have several children, and you’d like to pass your IRA proceeds through a trust for their benefit. The best way to proceed is to consider creating a trust for each child. Separate trusts allow each beneficiary to have distribution based on his or her own life — and they also reduce conflicts among heirs. Be sure that your trust documents clearly state the names of the beneficiaries, so that it meets the IRS four-part test. “It’s better to name the kids individually than to do something like ‘for the benefit of my three children. Avoid these mistakes Review your beneficiary forms: Why go through the work of setting up a trust if you’re going to omit the key step of naming it as the IRA beneficiary? Revisit your beneficiary designations and make sure they reflect your wishes.

If you have separate trusts for your beneficiaries, name them on the form. Don’t be vague about your trust details:   Specificity is everything. Be sure that your trust beneficiaries are identifiable by name, and make sure that they are people — not charities and not your estate.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Estate Planning Attorney

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Selecting The Right Person(s) to Be the Guardian of Your Child(ren)

  • Deciding who should be the guardian of your kids is a tough decision
  • Close family members are not always the best choice
  • This article discusses “What To Think About” when selecting a guardian for minor children

Questions Parents Should Ask About Guardians for Their Children

Here’s a good question I was recently asked by a father when discussing his last will. “We’re worried about what will happen to our minor child(ren) if anything happens to my wife and I”, he said “Are grandparents automatically her guardians?  We don’t want that for our daughter because my parents are too old, and my wife’s mother is in very poor health.  Our daughter is 8.”

So what does N.J. law say about the guardianship of minor children if you die while they are young?

You Can Name One Person(s) to Be the Guardian of your Child’s Property and Inheritance and a Different Person to Raise Your Child

In your will, you can select your minor or disabled child’s guardian(s). But,  if anything happens to you, a judge in New Jersey will decide who should be your child’s guardian based on the best interest of your child(ren) and N.J. laws on the guardianship of minor Children.  Generally speaking, the court honors parents’ wishes unless the nominee is unfit.  When selecting a guardian you should also consider a guardian of his/her property, i.e., someone to handle your daughter’s money until she reaches legal age and beyond. In N.J. a child is legally entitled to retrieve his or her inheritances at age 18 absent a written will or trust to the contrary.

Guardian of a Minor Child’s Property

A guardian of a minor’s property need not be the same individual as the guardian of her person.  Better yet, consider establishing a trust for her funds so that you can set conditions on when and how your daughter gets the money.  Otherwise, she’ll get it while young and potentially lose it, squander it and make poor choices with it.

Your Child Should Have a Healthcare Directive

Lastly, I suggest you create a Designation of Health Care representative for your Minor child.  This legal instrument is recognized by New Jersey law.  It allows you to name someone to make your child’s healthcare decisions if you are incapacitated or otherwise unavailable.  Our clients with children find that having this document provides great peace of mind.

To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq., a Freehold Township, Monmouth County New Jersey Guardianship Attorney 

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Hanlon Niemann & Wright Attorney Named to 2020 NJ Super Lawyers List

On October 18, 2019, Christopher J. Hanlon, Esq. of Hanlon Niemann & Wright was once again selected for the New Jersey Super Lawyers List.  Because Mr. Hanlon has demonstrated excellence in the practice of law, he has received this honor that is limited to no more than 5% of the attorneys within New Jersey based on a rigorous multi-phase selection process.

To contact Christopher J. Hanlon, Esq., please email him at CHanlon@hnlawfirm.com.

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Can I Give My Dead Father’s Long Time Girlfriend a Gift if She Is Not Mentioned In His Will

    • NJ imposes an inheritance tax to non-exempt beneficiaries.
    • A girlfriend of a deceased NJ resident is not an exempt beneficiary.
  • How can the estate representative honor a decedents dying wish that a portion of his estate go to his girlfriend?

I was recently asked to comment about the following case. A client is the only child of her deceased Dad, who died unmarried and without a Will, making the estate intestate because there is no signed Last Will.  His daughter has been appointed Administrator of his estate. She intends to honor her father’s dying wish that many of his assets go to his long-time girlfriend and companion. The value of the gift will be around $300k going to the girlfriend. The total value of the Estate is under $750,000.00.

There are no legal documents creating any legal obligation to give the girlfriend anything. The daughter has no reasonable expectation of ever coming close to having an estate large enough for her having to pay estate taxes upon her death.

The questions posed to me are:

  1. If the client as administratrix of dad’s estate writes a check to the girlfriend from the Estate account would NJ inheritance tax be due?
  2. Or is it best (meaning the most tax effective way) to transfer estate assets to the daughter as an exempt beneficiary who can then gift a portion of the estate to the girlfriend directly after the child has administered the estate, writing a check from personal funds to the girlfriend?

The best answer, in my opinion, is a choice number 2. This option will avoid NJ inheritance tax and honors her father’s wish.

To discuss your NJ Estate Administration & Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Administration & Probate Attorney

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If You Live Together with Your Spouse While Filing For Divorce, Medicaid Counts Both of Your Income

  • Income of both spouses is counted for Medicaid health coverage and medical payments

I recently had a client who filed a fair hearing appeal because of the termination of NJ Family Care Medicaid health insurance. He was in the process of a divorce but living in the same household as his spouse. Both federal regulation 42 CFR §435.119 (b) (5) and state regulation N.J.A.C. §10:78-4.3 assert that countable income for purposes of determining eligibility “shall include the income of all members of the household unit.”  The federal regulations define two different tests to determine a household’s income.  The first, the modified adjusted gross income test, which the State used to calculate your income, defines a household “[i]n the case of a married couple living together, each spouse will be included in the household of the other spouse, regardless of whether they expect to file a joint tax return…or whether one spouse expects to be claimed as a tax dependent by the other spouse.”  42 C.F.R. § 435.603 (f) (4).  The second test, which applies to applicants 65 or older, SSI recipients, or applying for MLTSS, Medicare cost-sharing assistance, or medically needy insurance, states specifically that “[e]xcept for a spouse of an individual or a parent for a child who is under age 21 or blind or disabled, the agency must not consider income and resources of any relative as available to an individual.”  42 C.F.R. § 435.602 [emphasis added].  The state regulation N.J.A.C. 10:78-3.5 defining household unit models the federal regulation, defining a household unit “[i]n the case of the couple without dependent children, the couple only.”

No matter what test you look at, a spouse’s income is attributable to the total income that a person has available for purposes of determining Medicaid health insurance eligibility.  While the client didn’t indicate that she refuses to support him, he did admit that the two of them live together.  Had he been living in a nursing home or rehabilitation center, or the two of you were living under separate roofs, and he made that same argument when applying for benefits, her income would not matter.  But because he is looking for Medicaid health insurance, her income is part of her “household” and attributable to you for purposes of determining eligibility.

For these reasons, your fair hearing appeal will likely be unsuccessful.

To discuss your NJ Medicaid  matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Administration & Probate Attorney

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