4th Quarter Review – An Estate Planning Checklist

While I thoroughly enjoy football, I have no idea how to plan the game winning play.  What I do know is that we are in the fourth quarter of the calendar year and it is time to consider your personal game plan.  During the past 20 months, many of us have had to unintentionally evaluate our personal game plan due to the onset of medical issues, staying at home, changes in jobs or just general changes. I am optimistic that rather than looking at every situation through the lens of a crisis, we should take a breath, and be more strategic with our personal planning. As practitioners, we have been responding to clients, on an almost daily basis, who have been confronted with emergency planning situations or are considering the “what if” or “what happens if the unthinkable occurs.” If you have not reviewed your game plan in a while, this is the right time to make sure everything is in order. 

Following is a brief personal and estate planning checklist for you to consider as we start the final quarter of the year: 

1. Do you have the basic estate planning documents, including a Will, Powers of Attorney and Medical Directives? When did you last review the documents?  It may be time to dust off the documents and update them.

2. Has your financial and/or family situation changed since the basic documents were drafted? Have you had more children, grandchildren, marriages, divorces, deaths and has your financial situation changed so that more planning is needed?

3. Identify who you would like to leave your estate to; do any of your family members have an identified long-term disability or special needs? Are trusts needed to protect your beneficiaries?

4. Take the time to prepare a list of assets; are the beneficiary designations correct on retirement accounts or life insurance policies?

5. Who have you named as your Personal Representatives, Trustees, Guardians (do you still need to designate Guardians), and Attorneys in Fact for Powers of Attorney, and Agents for the Medical Directives?

6. Have you made a separate list of all of your passwords so your fiduciaries can access your information?

7. Do you want to consider gifts to charities?

8. Have you purchased a winter residence in another state? 

9. Are all of your assets transferred and funded into your Revocable Trust?

10. Have you completed the list of personal property or are you relying on your family getting along when it is time to distribute the cherished items from your personal property?

11. Check with your team of professionals, including your attorney, accountant and financial planner to review your plans. 

A Will may have been initially sufficient and met your estate planning goals and objectives, but now you own a winter home in California and a primary residence in Minnesota.  Surely, you would not want to go through probate proceedings in both Minnesota and California. In many circumstances, including this example, it is time to consider a Revocable Trust, Will and supporting documents. 

The above list is not all inclusive, but certainly identifies areas to consider.  Coupled with all of the items on the checklist is the continued uncertainty about the pending changes to our State and Federal estate tax laws and supporting regulations.  It is highly likely that the overall exemption at the Federal level will be reduced, but when and how much is still to be determined. 

We have always known that we do not know what tomorrow will bring, but the past 20 plus months have heightened that awareness.  I encourage you to take the time to review your estate planning documents, consider your legacy and create your own checklist. 

Our estate planning attorneys at Bernick Lifson, Sally Forbes Friedman and Richard Bunin, are available to coordinate and work with your team of professionals to evaluate, update and prepare your estate planning documents.  We have returned to the office and are available to meet with you, subject to our COVID protocols.  Call or email us at: 

          Sally Forbes Friedman    sfriedman@bernicklifson.com 

          Richard Bunin   rbunin@bernicklifson.com  

Update on the Minnesota Peacetime Emergency

Pursuant to Minnesota Executive Order 20-12, Governor Walz has extended the peacetime emergency through April 14, 2021. With the extension of the peacetime emergency, all executive orders tied to the emergency have also been extended, including the eviction moratorium, current rules for businesses, and a prohibition on price gouging. For a summary of each of Governor Walz’s COVID-19 Executive Orders, along with an indication of those that remain in effect, click here.

Foreclosure Redemption Period in Light of New Bill

In response to the Covid-19 pandemic, the Minnesota legislature passed a bill, HF4556/SF 4462, in April 2020 signed by Governor Tim Walz the following day. The bill extends numerous deadlines that would otherwise apply, but for the pandemic, such as the next language found in Article I, Section 16:

“The running of deadlines imposed by statutes governing proceedings in the district and appellate courts, including any statutes of limitations or other time periods prescribed by statute, is suspended during the peacetime emergency declared on March 13, 2020, in governor’s Executive Order 20-01 and any extensions authorized under Minnesota Statutes, section 12.31, subdivision 2, and for 60 days after the end of the peacetime emergency declaration.”

The peacetime emergency has been extended through November 12, 2020, by Executive Order 20-92. However, there was confusion over what deadlines the bill covered and whether or not the bill extended the time when a homeowner could redeem property after a mortgage foreclosure.

Our firm represented a lender who foreclosed a mortgage, and after the homeowner’s six-month redemption period expired, the homeowner argued the redemption period was extended based on the bill.

Whether or not the redemption period was extended pursuant to HF4556/SF4462, it was litigated in Ramsey County district court. The court held that the bill did not extend the deadline to redeem from mortgage foreclosure and that the statutory six-month period still applies.

The court found that the bill is inapplicable to foreclosure by advertisement as that is a non-judicial proceeding. The bill only relates to those matters in district or appellate court.

Suppose you are looking for advice on the rights of a lender to a property where the mortgage is in default given the Covid-19 pandemic. In that case, Bernick Lifson has the practical experience to advise you on the law, as well as what various courts have ruled on the issue.

Find more information about the Executive Orders issued by Governor Walz since the declaration of the peacetime emergency.

Reopening Minnesota Phase III

Minnesota has entered Phase III of a four-phase plan to reopen the state, issuing Executive Order 20-74 on June 5, 2020. This order allows Minnesotans to participate in additional activities, increases the size of permissible gatherings, expands capacity and allows indoor service for bars and restaurants, and more. To view all the new permitted activities, you can refer to the order (Executive Order 20-74) or the Stay Safe Minnesota website (Stay Safe MN) chart. With the extension of the peacetime emergency on June 12, 2020, the requirements within Governor Walz’s Executive Orders for Minnesotans, including businesses and residents, will remain in effect until July 12, 2020, with possible modifications by further order. Bernick Lifson has seen the most questions related to reopening plans with businesses reopening their doors to employees and customers and multi-housing properties.

If your company is considered a non-critical business, this order will not impact how you operate under a preparedness plan. As mentioned above, restaurants, bars, and personal service businesses are now allowed increased capacity. Additionally, fitness centers, indoor events and entertainment centers, outdoor events and entertainment centers, and public pools can reopen under the requirements specified in Executive Order 20-74.

As for critical businesses, including multi-housing properties, specific guidelines were never provided for employee and resident safety beyond following the Minnesota Department of Health (MDH) and Centers for Disease Control and Prevention (CDC) guidelines. However, this is changing with Executive Order 20-74. Critical businesses will now be required to prepare a COVID-19 preparedness plan by June 29, 2020, with industry guidance being provided on the Stay Safe Minnesota website on or before June 15, 2020 (Stay Safe MN). While these plans will likely be similar to what is required for non-critical businesses, it is essential to review the additional guidance, once received, and include it within your plan.

In creating your COVID-19 Preparedness Plan, whether a critical or non-critical business, be sure to refer to the Occupational Safety and Health Administration (OSHA) guidance on preparing workplaces for COVID-19 (OSHA guidance publication). This will allow your business to protect employees from the increased risk of contracting COVID-19 and limit safety concerns for employees. Multi-family property employees will most often be considered lower risk for exposure, and safety protocols should be put in place under OSHA’s guidelines within that category. OSHA guidance should not be used to replace the CDC and MDH but rather to supplement the procedures recommended by both these organizations.

Many amenities such as party rooms, decks, business centers, and coffee stations for multi-housing properties could be reopened under the previous phase of the Stay Safe Minnesota plan, Phase II. This required capacity limits of 10 or fewer people within each amenity, operating under the guidance of the MDH and CDC. While fitness centers and pools within multi-housing properties could be reopened under Phase II (when only for use by residents and guests), it was logistically challenging to ensure social distancing, maintain cleanliness and meet capacity limits under MDH and CDC requirements. However, now that capacity has been increased, and additional guidance has been provided under Phase III of the Minnesota reopening plan, it is far more feasible to reopen these amenities.

Minnesota Executive Orders do not require private pools and fitness centers within multi-housing properties to follow all the requirements of public facilities. Though many requirements are consistent with the MDH and CDC guidelines, it is advisable to follow the guidelines relevant to your property. This would include capacity limits of 10 people for indoor spaces and 25 people for outdoor spaces, 6 feet of social distancing, and 50 percent capacity within the pool. Fitness centers would include a capacity limit of 10 people or 25 percent of allowed capacity within the space, whichever is less, and 6 feet of social distancing. As with all other amenities, MDH and CDC guidelines should be followed, including hygiene and cleaning of those sites, and posting guidelines for use by residents and their guests is recommended.

We can assist you and your multi-housing properties with preparedness plans, plans for reopening amenities, guidelines for residents and guests to follow, and any other needs you have related to meeting the requirements of Executive Order 20-74 and all other relevant orders. Contact Bernick Lifson today for additional information on the above orders and specific questions related to your businesses and properties.

Timeline for rental properties: Getting back to “Normal”

When Governor Tim Walz issued Executive Order 20-14 on March 23, 2020, placing a moratorium on specific actions by owners and managers of residential rental properties, it was much clearer what conduct was allowed and prohibited during the peacetime emergency. Since that time, Minnesota Executive Orders, the Federal CARES Act, Minnesota Court Orders, and Minnesota legislation have made it more challenging to determine what options owners and managers have related to managing their properties during the COVID-19 pandemic. To understand this, you need to know what orders and legislation affect your properties, how these orders and legislation affect your properties, and the timeline for when you can expect your management responsibilities to more closely resemble what they were before this pandemic.

Executive Orders

Executive Order 20-14 placed a moratorium on owners and managers of residential rental properties sending notices to vacate and terminating a lease or filing an eviction under most circumstances. In addition, officers will not execute a writ unless it has been designated a priority writ by the court. At this time, based on Executive Order 20-53 dated May 13, 2020, the peacetime emergency and the moratorium are set to expire June 12, 2020. It is uncertain at this time whether the moratorium will be extended upon its expiration. There are still options when dealing with serious misconduct from residents or providing options for tenants struggling during the COVID-19 pandemic until the moratorium expires.

When a tenant commits certain offenses on the premises or seriously endangers the safety of other residents, an eviction can still be filed on an expedited basis. These hearings will take place between five to seven days from when the court issues the summons. An order from the court for the tenant to vacate the premises should include issuing a priority writ.

While owners and managers cannot terminate leases during a peacetime emergency, they can provide options for residents who have fallen on hard times, including agreements to terminate leases without early termination fees and/or forgiving some or all of an outstanding balance. If approaching tenants with options such as the ones stated above, it is essential to clarify that you are not providing notice to vacate or attempting to terminate their lease. Making this point clear will help avoid confusion on behalf of residents and ask whether your actions violated the moratorium under Executive Order 20-14.

The CARES Act

The CARES Act further delays many of the items discussed above when your rental property meets specific qualifications. This includes properties that participate in a covered housing program (Section 8, Vouchers, Section 42, etc.), rural housing voucher programs, or a federally backed mortgage loan. If your property falls under any of these categories, you must abide by the terms of the CARES Act.

The conditions of the CARES Act include a moratorium on filing evictions and charging late fees for nonpayment of rent for 120 days from March 27, 2020. Additionally, you may not issue a notice to vacate until the moratorium concludes or require a tenant to vacate until 30 days after providing the tenant with the notice to vacate. The moratorium is set to end on July 24, 2020.

Minnesota Court Orders

Many court proceedings, including housing court matters, were initially suspended by Minnesota Chief Justice Gildea’s order on March 13, 2020, and have just recently resumed as of May 18, 2020. Since restarting hearings, counties have been converting a significant amount of hearings to virtual appearances or appearances by phone. Housing Court has continued to hear expedited evictions throughout the pandemic and resumed hearing rent escrow, commercial eviction, and expungement matters as of May 18, 2020.

Once the peacetime emergency ends, the courts will start by hearing residential evictions filed just prior to the issuance of Executive Order 20-14, and then the evictions filed afterward. All Minnesota courts have 60 days from the end of the peacetime emergency to catch up on timelines for backlogged cases. With procedures being put in place to promote social distancing by smaller calendars and virtual hearings, this likely means a lengthy delay for many cases from the ordinary timelines for scheduling evictions.

Minnesota Legislation

The Minnesota legislative session concluded recently without any laws relating to evictions, late fees, termination, or non-renewal of rental agreements and assistance for tenants. However, both the House and Senate have considered all these issues at times since the start of the pandemic, and will likely consider some, if not all, during a special session. One residential rental housing factor that will almost certainly be passed is assistance for tenants towards rent, utilities, and other expenses. This will likely involve assistance payments directly to owners or managers of rental properties to aid residents struggling to pay past due balances.  

One bill that passed the House included a postponement on most lease terminations and non-renewals during the peacetime emergency, which is already a requirement of Executive Order 20-14. This bill also prohibited charging late fees for late payment of rent for 90 days following an emergency declaration. It required a 30 day written notice before filing an eviction following the conclusion of the emergency. It remains to be seen what the final law will look like as it relates to rental properties.

Contact Bernick Lifson today for additional information on the above legislation and orders and specific questions related to your properties.

A Step Toward Reopening Minnesota

Governor Tim Walz issued a number of Executive Orders related to the COVID-19 pandemic this week, including Executive Orders 20-53 and 20-56. Governor Walz has issued fifty-seven Executive Orders since the peacetime emergency was declared for the State of Minnesota on March 13, 2020. For a summary of each of Governor Walz’s COVID-19 Executive Orders, click here.

According to the numbers published on the Minnesota COVID-19 Response website, Minnesota has had over 14,000 confirmed cases of COVID-19 and over 600 fatalities. With the recent Executive Orders, as with previous ones, Minnesota must balance public health needs with economic considerations. Executive Orders 20-53 and 20-56 expands upon Executive Order 20-48, allowing certain “non-critical” businesses to reopen and resume operations after implementing adequate safety measures.   

Here are the 7 important takeaways from Executive Orders 20-53 and 20-56:

1. The COVID-19 Peacetime Emergency has been extended through June 12, 2020.

2. The stay-at-home order has been replaced by a stay-safe Minnesota order through May 31, 2020, with new permissions discussed below.

3. You may leave your homes for certain activities.

While Minnesota is still encouraging the limitation of social interactions, you may leave your home for activities so long as you follow the requirements of the Minnesota Department of Health, the Department of Natural Resources, and the Center for Disease Control. Unnecessary travel is still discouraged. Gatherings of more than 10 people are prohibited. Find more information for engaging in activities outside of the home at https://mn.gov/covid19/.

1. Bars, restaurants and other places of public accommodation may be opening beginning June 1, 2020.

The Commissions of Health, Employment and Economic Development, and Labor and Industry are developing a plan to reopen bars, restaurants, and other places of public accommodation by June 1, 2020. The plan will be presented to the public by May 20, 2020.

1. Certain Non-critical businesses may reopen.

Certain Non-Critical Exempt Businesses may resume operations, including retail stores and malls. Customer-facing businesses must allow no more than 50% of the establishment’s occupant capacity inside the business at any time. Guidance for what constitutes Non-Critical Exempt Businesses can be found at https://mn.gov/deed/safework/.

1. Non-Critical Exempt Businesses must create a COVID-19 Preparedness Plan.

All Non-Critical Exempt Businesses must create and implement a COVID-19 Preparedness Plan prior to resuming operations. All employees returning to work must be trained on the employers’ COVID-19 Preparedness Plan and its procedures. Click here for more information on creating a COVID-19 Preparedness Plan. 

1. Certain Outdoor recreational activities and associated facilities may reopen.

Executive Order 20-56 provides a list of outdoor recreational activities and facilities that may reopen, including parks, golf courses, camping sites, and more. All outdoor recreational activities and facilities that are reopening must adhere to the limitation of the number of individuals that can gather as well as the Outdoor Recreation Guidelines found at https://www.dnr.state.mn.us/covid-19.html. 

Note, the Executive Orders continue to require all workers who can work from home to do so. 

These most recent Executive Orders are a step towards reopening Minnesota and allowing more Minnesotans to return to work. It is important to remember that, as with the previous Executive Orders, failure to comply with Executive Orders 20-53 and 20-56 may result in a fine or imprisonment and potential civil penalties.

Reopening Your Business: COVID-19 Preparedness Plan

Governor Tim Walz issued Executive Order 20-56 on May 13, 2020, extending the stay-at-home order and providing for the reopening of certain “non-critical” businesses and outdoor recreational activities and facilities. For more information on Executive Order 20-56, click here.

All those who can work from home must continue to do so. Still, workers in the following non-critical business sectors are exempt from the stay-at-home order to travel to work: industrial and manufacturing businesses, office-based businesses, and retail businesses. This exemption is subject to restrictions, including requiring each non-critical business resuming operations to create a COVID-19 Preparedness Plan. All non-critical businesses that are primarily customer-facing are required to establish additional provisions to incorporate into your Plan. All employees must be trained on the contents and procedures of your Plan. 

Pursuant to Executive Order 20-56, your COVID-19 Preparedness Plan must address the following: 

1. Ensure that all employees work from home whenever possible.

2. Ensure that sick employees stay home and establish policies and procedures that prevent sick employees from entering the workplace.

3. Ensure that all employees practice social distancing in the workplace pursuant to current CDC, Federal, and State standards.

4. Establish employee hygiene and source control policies for all employees.

5. Establish cleaning and disinfection protocols for the workplace.

Additional protocols must be established in your Plan for drop-off, pick-up, delivery, in-store shopping, and malls. Non-critical front-facing businesses and common areas within commercial retail buildings must operate at 50 percent of standard capacity.

If not extended by future legislation or executive order, the above requirements will remain in place until May 31, 2020. The Minnesota Department of Labor has provided a template COVID-19 Preparedness Plan, which can be found at https://mn.gov/deed/safework/. It is important to note that while your Plan does not need to be submitted to the Department of Labor for approval, it must be available upon request. For help preparing your COVID-19 Preparedness Plan in anticipation of reopening your business, contact Bernick Lifson today. 

Breaking down the recently-enacted Coronavirus Aid, Relief, & Economic Security Act

The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act is a $2 trillion stimulus package recently signed by President Trump aimed at shoring up the U.S. economy. At the same time, it navigates the worst of the COVID-19 pandemic. Much of the media attention has been concerned with the individual aid measures to provide an infusion of cash through direct payments and expanded unemployment insurance, small and large businesses in the form of loans, grants, tax deferments, and other measures. Below is a summary of some of the key provisions for owners and managers of businesses to be aware of while navigating the coming weeks.

Small Businesses

• All businesses under 500 employees are eligible for loans from the Small Business Administration. The total loan amount can be up to:

  • Four months of average payroll, mortgage, rent, and debt expenses; or

  • $10,000,000

• The portion of these loans spent on payroll from March 1 to June 30 may be forgiven; less any reductions if the business’ workforce or payroll has been reduced in that time period.

• Temporarily waives fees and guarantees the total amount for all SBA loans.

• Grants deferral of loan repayments for up to a year

• The SBA will also provide grants of up to $10,000 to help pay operating costs in the near term.

Businesses and Corporations

• Corporate tax filings are extended to October 15, 2020

• Up to fifty percent of payroll taxes due can be deferred until January 1, 2021

• Loosened restrictions on a business’s ability to deduct operating losses and interest payments on debt for the tax years of 2019 and 2020

Economic Stabilization Measures

• Creates loan funds of $50 and $8 billion for passenger and cargo domestic air carriers, respectively

  • Airlines are also exempt from excise taxes on fuel for the rest of 2020

• Creates $150 billion loan fund for other businesses not eligible for relief under other provisions of the Act

• Businesses that take these loans are subject to certain conditions.

  • Executive compensation is capped at 2019 levels for two years.

• All money and programs distributed under this section are subject to oversight by an inspector general and reporting requirements by the Treasury.

• Otherwise, qualifying businesses owned by the president, vice president, the cabinet, Congress, or family members are specifically barred from receiving these funds.

Expanded Retaliation Defense: A new hurdle to evicting tenants

In recent judicial news, there has been a significant change to landlord-tenant law in Minnesota. Last month the Minnesota Supreme Court in Central Housing Associates, LP v. Olson, issued a ruling creating brand new common law for tenants to utilize in defense of eviction actions.

In this case, the tenant complained to the landlord about maintenance issues, and after he claimed, a maintenance staff member harassed his daughter. Sometime later, the landlord gave the tenant notice that the tenant’s one-year lease would be terminated two months early. The tenant objected to the eviction, claiming the eviction was due to the tenant’s earlier complaints.

Minnesota landlord-tenant law provides tenants with a “retaliation defense.” Minnesota Statutes Section 504B.441 states:

A residential tenant may not be evicted, nor may the residential tenant’s obligations under a lease be increased or the services decreased, if the eviction or increase of obligations or decrease of services is intended as a penalty for the residential tenant’s or housing-related neighborhood organization’s complaint of a violation. The burden of proving otherwise is on the landlord if the eviction or increase of obligations or decrease of services occurs within 90 days after filing the complaint unless the Court finds that the complaint was not made in good faith. After 90 days, the burden of proof is on the residential tenant.

However, as interpreted by the Minnesota Supreme Court in this case, the statutory defense is only available to tenants that make a formal complaint of misconduct against the landlord, such as filing a lawsuit or making a complaint to a housing inspector.

The Court was dissatisfied with the limitations of the statutory retaliation defense and created a new law to fill in the gaps it felt the Legislature unintentionally formed. The new law created by the Court established a common-law retaliation defense for tenants to utilize when they have made complaints to the landlord and not a more formal complaint.

What does this mean for landlords moving forward? It means the potential for an increase in cost and difficulty in evicting tenants. When considering eviction, landlords must now be prepared to defend against any complaints made regarding real or perceived misconduct, regardless of whether those complaints impacted the landlord’s decision to evict the tenant. In short, landlords must now be ready to expend more time, money, and effort to evict tenants.

The pitfalls associated with Letters of Intent

Outlining the basic terms of a real estate transaction in a letter of intent can help prevent future disagreements between parties — it can also lead to them. When this type of document is incomplete, self-contradicting, or up for interpretation, problems often arise. The most significant is confusion as to whether the letter is binding or non-binding. While one party may see the document as a simple guideline designed to build momentum towards a final deal, the other party may believe the terms in a letter of intent are set in stone.

Most of our clients would like to create a letter of intent that is non-binding and unenforceable, as their circumstances could change before the deal is finalized. It is critical to create a letter of intent that explicitly states this fact in cases like these. Any language that refers to the letter as an “agreement” should be omitted from a letter of intent since a court may interpret this language as a binding agreement. While Minnesota law states that any agreement to enter negotiations in the future is unenforceable, it’s better to be safe than sorry when drafting a letter of intent.

Want to learn more? Attorney At Law Magazine has published an in-depth article explaining the precautions to take when drafting a letter of intent. Please read it here to get information that could prevent legal problems down the line.