How Does a Parent of an Adult Protect Their Assets from the Child's Reckless Behavior?
04/06/2010 - Category:Minors - Age of Majority - State: CA #21701
Full Question:
Our 19 year old son puts us in harms way of loosing our home due to being sued. He drives his friends cars without a driver's license and sometimes ours without our knowledge. He does drugs and many other things that could contribute to an accident. He lives at home and currently pays $150.00 rent. He is not on our medical insurance. Would an LLC protect us? We're not a business, but there must be a way to prevent us from loosing everything? My husband is incorporated as he is self employed.
Answer:
While an asset protection plan may be considered, it is not guaranteed, as creditors may still reach assets through claims of fraudulent conveyance, alter ego, etc. In some cases, it is possible to sue a person individually under an alter ego theory, in which the court will "pierce the corporate veil" to find that person liable when there is really no separate identity of the individual and corporation. Whether the alter ego theory applies will be a determination for the court, based on the facts and circumstances in each case. Tough love is a suggested approach in dealing with a child whose behavior is not desired to be encouraged. That means not enabling the child through financial support, housing, and other enabling behaviors of parents. If a drug or alcohol problem is suspected, contacting the local Al-anon chapter is a good resource for getting support and resources on how to best deal with a child's behaviors and avoid being manipulated into enabling the child through guilt and other pressures. It is possible that you may be liable as a landlord if you allow a tenant that you know poses a threat to the neighborhood, such as knowing of criminal behavior and allowing break-ins to occur. Without a written lease, a tenant is generally considered a month-to-month, at-will tenant. A landlord can terminate a month-to-month tenancy simply by giving the tenant 30 or 60 days' advance written notice. A landlord can end a periodic tenancy (for example, a month-to-month tenancy) by giving the tenant proper advance written notice. A landlord must give 60 days' advance written notice that the tenancy will end if the tenant and every other tenant or resident have lived in the rental unit for a year or more. However, the landlord can give 30 days' advance written notice in either of the following situations: Any tenant or resident has lived in the rental unit less than one year; or The landlord has contracted to sell the rental unit to another person who intends to occupy it for at least a year after the tenancy ends. In addition, all of the following must be true in order for the selling landlord to give a 30-day notice: The landlord must have opened escrow with a licensed escrow agent or real estate broker, and The landlord must have given you the 30-day notice no later than 120 days after opening the escrow, and The landlord must not previously have given you a 30-day or 60-day notice, and The rental unit must be one that can be sold separately from any other dwelling unit. The landlord usually isn't required to state a reason for ending the tenancy in the 30-day or 60-day notice. In California, the landlord can terminate the tenancy by giving the tenant only three days' advance written notice if the tenant has done any of the following:
(1) that the owner entrusted the vehicle to the driver;
(2) that the driver was unlicensed, incompetent, or reckless;
(3) that the owner knew or should have known that the driver was unlicensed, incompetent, or reckless;
(4) that the driver was negligent in the operation of the vehicle; and
(5) that the driver's Negligence resulted in damages.
-Failed to pay the rent. -Violated any provision of the lease or rental agreement. -Materially damaged the rental property ("committed waste"). -Substantially interfered with other tenants ("committed a nuisance"). -Used the rental property for an unlawful purpose.If the landlord gives the tenant a three-day notice because the tenant hasn't paid the rent, the notice must accurately state the amount of rent that is due. In addition, the notice must state:
-The name, address and telephone number of the person to whom the rent must be paid. -If payment may be made in person, the usual days and hours that the person is available to receive the rent payment. If the address does not accept personal deliveries, then you can mail the rent to the owner at the name and address stated in the three-day notice. If you can show proof that you mailed the rent to the stated name and address (for example, a receipt for certified mail), the law assumes that the rent payment is received by the owner on the date of postmark.Instead, the notice may state the name, street address and account number of the financial institution where the rent payment may be made (if the institution is within five miles of the unit). If an electronic fund transfer procedure was previously established for paying rent, payment may be made using that procedure. The landlord normally cannot require that the tenant pay the past-due rent in cash. If the three-day notice is based on one of the other conditions listed above, the notice must either describe the tenant's violation of the lease or rental agreement, or describe the tenant's other improper conduct. The three-day notice must be properly served on the tenant Depending on the type of violation, the notice may specify
If the violation is something able to be corrected, such as late lpayment of rent, the notice must give the tenant the option to correct the violation. However, the other three conditions listed above cannot be corrected, and the three-day notice can simply order the tenant to leave at the end of the three days. Please see the following CA statute: 1714.1.
(1) that the tenant correct the violation or leave the rental unit, or
(2) that the tenant move out.
(a) Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.
Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000). The liability imposed by this section is in addition to any liability now imposed by law.
(b) Any act of willful misconduct of a minor that results in the defacement of property of another with paint or a similar substance shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, including court costs, and attorney's fees, to the prevailing party, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct, not to exceed twenty-five thousand dollars ($25,000), except as provided in subdivision (c), for each tort of the minor.
(c) The amounts listed in subdivisions (a) and (b) shall be adjusted every two years by the Judicial Council to reflect any increases in the cost of living in California, as indicated by the annual average of the California Consumer Price Index. The Judicial Council shall round this adjusted amount up or down to the nearest hundred dollars. On or before July 1 of each odd-numbered year, the Judicial Council shall compute and publish the amounts listed in subdivisions (a) and (b), as adjusted according to this subdivision.
(d) The maximum liability imposed by this section is the maximum liability authorized under this section at the time that the act of willful misconduct by a minor was committed.
(e) Nothing in this section shall impose liability on an insurer for a loss caused by the willful act of the insured for purposes of Section 533 of the Insurance Code. An insurer shall not be liable for the conduct imputed to a parent or guardian by this section for any amount in excess of ten thousand dollars ($10,000).
Please see the information at the following links:
http://minors.uslegal.com/age-of-majority/california-age-of-majority-law/
http://definitions.uslegal.com/n/negligent-entrustment/
http://definitions.uslegal.com/f/family-purpose-doctrine/
http://definitions.uslegal.com/a/alter-ego/
http://definitions.uslegal.com/f/fraudulent-conveyance/
Please see the forms at the following link:
http://www.uslegalforms.com/landlordtenant/california-landlord-tenant-forms.htm
http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-C-CA-B-lease~termination~residential
Please see the information at the following link:
http://alanonla.org/html2/index.html
04/06/2010 - Category: Age of Majority - State: CA #21701
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