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September 27, 2011 In Business Litigation, Civil Litigation, Contracts

Are Oral Contracts Enforceable?

Elements of a Contract in Tennessee

With a few limited exceptions oral contracts are enforceable in Tennessee just like a written contract.  Of course, a written contract is much easier to prove because there is hard evidence of the agreement.  However, an oral contract IS enforceable in most cases.  The parties and/or their witnesses can testify about the terms of the agreement, and things such as partial performance or “normal course of dealing” can serve as powerful circumstantial evidence of the terms of the deal.

A contract is a contract – oral or written – so long as it has the following elements:

  1. A legal purpose (e.g. Tennessee courts will not enforce a contract between neighbors to illegally use one cable box);
  2. A mutual agreement that is free from fraud or undue influence;
  3. Terms that are definite enough to be enforced (e.g. a promise to work for a person’s lifetime would be too vague because a lifetime is not a definite duration); and,
  4. Adequate value exchanged by both parties (referred to as “consideration” in legal terms).

Contracts Required to be in Writing

There are certain contracts that are required to be in writing under a legal doctrine called the “Statute of Frauds.”  In Tennessee, the six types of contracts that must be in writing include contracts for the following:

  1. Marriage;
  2. Contracts with a term greater than 1 year (i.e. a 2 year lease must be in writing);
  3. Sale of land/property;
  4. Executor’s/Administrator’s promise to pay debts of the estate;
  5. Sale of Goods/Personal Property that costs $500 or more; and
  6. Suretyship agreements (i.e. a promise to guarantee payment of the debts of another person).

Even after you have successfully navigated all of the above requirements, you should still be careful to file a lawsuit for a violation of an oral contract within 6 years in Tennessee – the same statute of limitation as a written contract.  Additionally,  oral contracts often require the testimony of a witness to verify the terms of the agreement.

We advise avoiding oral contracts.

While oral contracts are enforceable, you should avoid them, if at all possible, simply because written contracts are so much easier to prove and enforce.  Contracts can be difficult to navigate, and if you have any doubts when drafting or entering into a contract, it is best to consult an experienced contract attorney.  If you need help in negotiations, contract drafting, or even contract disputes, please give us a call at 901-372-5003.

 

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.pattersonbray.com

September 9, 2011 In Civil Litigation, Contracts, Personal Injury

Smoke Detectors in Apartments

Smoke Detectors in Apartments

Let’s talk about the law on smoke detectors in apartments and rental homes in Tennessee. What should a landlord do? What about a tenant? Do you have a case? Below are questions some of you might have:

Q:  I own and lease a rental house in in Memphis, Tennessee.  Am I required to provide smoke detectors for the tenants who live in the house?

Q:  I rent a house in Germantown, Tennessee, and there was a fire at night.  There were no smoke detectors in the house, and by the time I woke up and called 911 the fire had spread so far that the firemen weren’t able to save anything.  What are my legal rights?

Law on Smoke Detectors in Tennessee

Under Tennessee law, a landlord must install and maintain smoke detectors in any residential unit offered for lease or rent.  Specifically, Tennessee Code Annotated 68-102-151 provides that it is:

unlawful to…[o]wn or operate a one-family or two-family rental unit without installing an approved smoke detector in each living unit; when activated, the detector shall initiate an alarm that is audible in the sleeping rooms of the living unit….

Law on Smoke Detectors in Memphis

The Memphis City Code of Ordinances  Sec. 14-4-88 further provides that

A. No person shall occupy as owner-occupant, or shall let another for occupancy, any dwelling, multifamily dwelling, dwelling unit, rooming house unit, lodging house or lodging unit which does not comply with the applicable provisions of the fire prevention code or the building code and other ordinances of the city and the additional requirements set out in this article for safety from fire.

B. Smoke detectors shall be installed in all residential properties in accordance with National Fire Protection Association Standard No. 74, 1989 Edition, and shall be maintained in an operable condition.

Memphis City Code of Ordinances  Sec. 9-44-6 also states that:

. . .  Smoke detectors are required…[i]n every existing dwelling unit within an apartment house, condominium complex, dormitory, townhouse or duplex….; and [e]very existing guest room in a motel and hotel. . .

*Other municipalities may have similar local ordinances.  The Memphis ordinances referenced here are merely offered as an example of additional law that may or may not apply to a particular situation.

What happens if a landlord does NOT provide smoke detectors?

First — a quick distinction.  There may be legal claims arising out of  how the fire originated.  For example,  there may be an underlying claim against a manufacturer for a defective product (i.e. appliance) that caught fire, or against a contractor for improper construction or wiring, or against the landlord or management company for negligent maintenance of the house itself.

By comparison, a claim for lack of a working smoke detector would be a claim independent of other claims.  It could potentially constitute an additional claim on top of a fire-origination claim, or it could constitute a stand-alone claim — for example, where the underlying fire was not necessarily due to the fault of any third-party, but where the lack of a smoke detector led to enhanced damages or injuries.

Do I have a case against my landlord?

Under the law, a failure to follow a statutory requirement would likely constitute negligence per se.  Of course, a finding of negligence would not in and of itself result in liability for damages.  There would also need to be proof that the lack of a smoke detector actually resulted in a delay in the detection of the fire, and which caused damages attributable to that delay, and not just due to the underlying fire itself.

Example:  Our firm filed a $10 million lawsuit arising out of the wrongful death of a 2 year old little girl in a house fire.  The fire allegedly occurred because a child innocently knocked over a space heater.  The lack of a smoke detector, however, allowed the fire to spread for several minutes and ultimately rage out of control before an adult in the back of the house discovered the blaze.  Unfortunately, it was too late for the little girl.  Had there been a smoke detector, that little girl would be alive today.  So, the lawsuit claim in that instance is not about the origination of the fire, or for recovering damage that would have occurred from a “regular” fire.   The lawsuit claim is only about the enhanced damage and loss of life that occurred only as a result of the lack of a smoke detector.

Tips for Landlords

INSTALL. Make sure that smoke detectors are installed in EVERY single rental unit you lease out.  Ideally, you should have smoke detectors that are hard-wired into the electrical system of the rental unit, and that use batteries simply for backup.  Landlords arguably also have the duty to maintain smoke detectors, so hard-wired detectors reduce the need for constant landlord inspection and replacement of batteries.

TEST. If you do not have hard-wired smoke detectors, periodically inspect and push the “test button” on the detectors, and also replace batteries as needed.

LEASE PROVISION. Include a provision in your Lease (and require your tenant to specifically initial it) stating and acknowledging that there are working smoke detectors in the rental unit at the time of move-in,  that the tenant has personally had the opportunity to inspect and test the smoke detectors, and that the tenant acknowledges and agrees that her or she is responsible for replacing the batteries and periodically testing the smoke detectors.

Tips for Tenants 

Never, ever live in a dwelling unit that does not have working smoke detectors, even if you have a difficult landlord and unfairly end up having to purchase and maintain the smoke detectors yourself.  The danger to life and property is simply too great.  Indeed, I can tell you from experience in dealing with clients — a great lawsuit is little comfort for the loss occasioned by a devastating fire.  No amount of money can replace the irreplaceable.

Need a lawyer in Memphis on a Smoke Detector Case?

We’d be honored to help you. Call us at 901-372-5003 or email us here.  We represent clients in Bartlett, Cordova, Germantown, Lakeland, Millington, Atoka, Memphis, Nashville, and the surrounding areas.

Patterson Bray. Small Firm. Better Focus. Big Results.  To meet our team, click here.  To learn what we do, click here.

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May 25, 2010 In Business Litigation, Civil Litigation, Contracts

What’s a Public Adjuster? Ask the Insurance Lawyer

What’s a Public Adjuster? Ask the Insurance Lawyer

Have you ever heard of a public adjuster? Most people have not. When you file a claim with your homeowner’s insurance carrier, the company assigns an employee–called an “adjuster”– to investigate and handle the claim.   The adjuster’s duties might include, among other things, to visit the damage site, to take photos, to hire and analyze data from cause and origin investigators, to parse what part of your damage is covered vs. what is not covered, and to coordinate with damage estimators and/or potential contractors.

At some point, the adjuster will arrive at some plan of action to ultimately resolve your claim. This could range from supervising re-construction or repair, to simply giving you a check and letting you oversee your own repairs.

What if you disagree with the insurance company adjuster?

But what happens when you disagree with the adjuster?  What if you believe the amount you’re being offered is a low-ball offer, is based on estimates from contractors who you think aren’t “up to snuff” so to speak, or  is based on a scope of repair that you don’t believe fully remedies your problem?

What do you do?

Well, you can always call a lawyer.  That’s a given.  However, you might be better served to first consider a less “nuclear option” than going legal.   Indeed, you might first consider utilizing the services of a public adjuster.

What is a Public Adjuster?

A public adjuster is a licensed professional who works exclusively for the public as a counterweight to the in-house adjuster who is employed by your insurance company.

Need an Insurance Lawyer?

If you have an insurance claim that you’ve been unable to resolve, call us at (901) 372-5003 or email us here.  Do not delay. There are deadlines in insurance policies that you don’t want to miss. Visit out website to learn more about us.