Latest / Weekly Docket / TikTok Ban, Fence Law, Dying Without a Will & Verbal Agreements

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TikTok Ban, Fence Law, Dying Without a Will & Verbal Agreements · Weekly Docket

• 0:04
  Track 1: Welcome to the Silberman Law Firm's Weekly Docket, Episode 9.
• 0:08
  Track 1: Where we talk legal news and practical law.
• 0:11
  Track 1: My name is Phil Silberman and today is March 14th, 2024.
• 0:16
  Track 1: I'm your host and I'm joined by my co host, Austin Black.
• 0:19
  Track 1: How are you doing today, Austin?
• 0:21
  austin-black_1_03-14-2024_164903: Doing fine, how about yourself?
• 0:23
  Track 1: Doing pretty well.
• 0:24
  Track 1: What do we have on our weekly docket?
• 0:26
  austin-black_1_03-14-2024_164903: for our legal news section, we're going to spend all of that today talking about the proposed TikTok ban, now whether or not it's a ban is debatable, but it would definitely cause a lot of problems for people who like TikTok and people who run tick tock.
• 0:40
  austin-black_1_03-14-2024_164903: and then moving on to our legal question section, we're going to talk a lot about fences because we have a lot of people call us and ask us about fences and problems they have with their neighbors, problems they have with their neighbors, dogs, problems they have with.
• 0:54
  austin-black_1_03-14-2024_164903: Someone putting a fence one centimeter past the property line and what to do about that sort of thing.
• 0:58
  austin-black_1_03-14-2024_164903: and then we'll answer the question of if it is illegal to pick blue bonnets as it is commonly thought to be.
• 1:04
  austin-black_1_03-14-2024_164903: Are verbal agreements legal?
• 1:08
  austin-black_1_03-14-2024_164903: Are they enforceable?
• 1:10
  austin-black_1_03-14-2024_164903: maybe, if you can prove them.
• 1:12
  austin-black_1_03-14-2024_164903: And then what happens if you die without a will?
• 1:15
  austin-black_1_03-14-2024_164903: so we'll be lightning speed through those, cause that's a lot to cover.
• 1:19
  austin-black_1_03-14-2024_164903: And then we'll get to our rant and raves section where, we are going to have a follow up to the FinCEN discussion.
• 1:28
  austin-black_1_03-14-2024_164903: talking about how a judge ruled against FinCEN to stop burdening small businesses.
• 1:32
  austin-black_1_03-14-2024_164903: With the reporting requirements, that new law putting in place.
• 1:37
  Track 1: Let's go ahead and get started with our legal news.
• 1:39
  Track 1: We're talking about the House just passed a bill.
• 1:43
  Track 1: To effectively ban TikTok and it was overwhelmingly passed.
• 1:47
  Track 1: We've got 352 votes to 65.
• 1:50
  Track 1: So this was a bipartisan bill and here's what it says.
• 1:55
  Track 1: If this passes in the Senate, That ByteDance, who's the owner of TikTok has six months to sell.
• 2:02
  Track 1: Tick tock to some other type of company, presumably a U.
• 2:06
  Track 1: S.
• 2:06
  Track 1: based company.
• 2:07
  Track 1: If it doesn't sell, then tick tock is going to be banned from all U.
• 2:11
  Track 1: S.
• 2:12
  Track 1: servers and app stores.
• 2:13
  Track 1: which would effectively kill TikTok in the United States.
• 2:17
  austin-black_1_03-14-2024_164903: with it being run by bite dance.
• 2:18
  Track 1: yes.
• 2:18
  Track 1: if ByteDance were to sell, then of course they get to, continue on operating no problems.
• 2:24
  Track 1: But that's proposed bill.
• 2:25
  Track 1: Chuck Schumer, who is the Democratic majority leader in the Senate, has to bring it up for a vote.
• 2:32
  Track 1: The Biden administration supports the bill.
• 2:35
  Track 1: I'm not sure what Schumer's hesitation is.
• 2:38
  Track 1: Except to say we know that
• 2:40
  TikTok
• 2:41
  Track 1: has, since 2019 lobbied some big money, something like 21 million since 2019.
• 2:47
  Track 1: I I don't know if that was specifically, Chuck Schumer related or if they were just lobbying dollars focused at the legislature in general.
• 2:54
  austin-black_1_03-14-2024_164903: I bet none of it actually goes to Chuck Schumer.
• 2:57
  austin-black_1_03-14-2024_164903: I bet he is just a Tik Tok fiend.
• 2:59
  austin-black_1_03-14-2024_164903: Like he spent like three, five hours a day on Tik Tok.
• 3:03
  austin-black_1_03-14-2024_164903: And he's I just can't, I can't bring
• 3:04
  Track 1: Can't,
• 3:04
  austin-black_1_03-14-2024_164903: vote.
• 3:05
  Track 1: why he, that's, he, Shuck Schumer is addicted to TikTok that he can't live without it.
• 3:10
  Track 1: I'll tell you what that lobbyist money really means to me is that the Chinese own our politicians.
• 3:16
  Track 1: That's what I'm hearing.
• 3:17
  austin-black_1_03-14-2024_164903: you know what, I don't know, I think I might be more okay with the Chinese owning our politicians than the American government owning our politicians.
• 3:23
  Track 1: Ah, that's rough.
• 3:24
  Track 1: you're not, we're not really supposed to say Chinese like that anymore.
• 3:27
  Track 1: we're supposed to say like Beijing.
• 3:29
  Track 1: That's more politically correct.
• 3:30
  austin-black_1_03-14-2024_164903: Sure, the Chinese government, as context, yes, I guess we could say that,
• 3:37
  Track 1: I think the concern is that if you just say, owned by the Chinese, there may be undertones of racism because you're not differentiating between Chinese people and the country, and the Chinese government.
• 3:51
  Track 1: So I think the media has started saying well, Beijing, because.
• 3:54
  Track 1: The Communist Party effectively operates out of Beijing, but for purposes of this show and this podcast, we can just call them the Chinese.
• 4:02
  Track 1: so full disclosure, I have a lifetime ban from advertising on TikTok.
• 4:08
  austin-black_1_03-14-2024_164903: why do you have a lifetime
• 4:09
  Track 1: they,
• 4:09
  austin-black_1_03-14-2024_164903: advertising on
• 4:10
  Track 1: don't, they won't tell me.
• 4:11
  Track 1: I have four, I have around 4, 000 followers on TikTok for the law firm account.
• 4:16
  austin-black_1_03-14-2024_164903: Okay,
• 4:17
  Track 1: I just got a notice from TikTok's, notifications that one day, Oh, you're prohibited from advertising on TikTok because you violated certain policies.
• 4:27
  Track 1: I definitely did some videos they didn't like I, I did.
• 4:29
  Track 1: we remember we did that piece on all the things the Chinese government will kill you for.
• 4:33
  austin-black_1_03-14-2024_164903: Oh, yes.
• 4:34
  austin-black_1_03-14-2024_164903: I'm, I very well remember that section.
• 4:36
  austin-black_1_03-14-2024_164903: Yes.
• 4:37
  Track 1: I think I think I also poked fun at TikTok for all the illegal things that people learn how to do on the platform.
• 4:43
  Track 1: They didn't like that too much.
• 4:44
  austin-black_1_03-14-2024_164903: Sure.
• 4:45
  austin-black_1_03-14-2024_164903: Yeah.
• 4:46
  austin-black_1_03-14-2024_164903: But you gotta learn how to do these things.
• 4:47
  austin-black_1_03-14-2024_164903: they could be useful if a zombie apocalypse
• 4:49
  Track 1: I think the piece I did was real estate related and they were talking, they were teaching people how to defraud landlords.
• 4:56
  austin-black_1_03-14-2024_164903: to defraud landlords, but there was also something, I don't think we discussed that went around recently, about like, how to hotwire a certain type of car.
• 5:04
  austin-black_1_03-14-2024_164903: And there are a lot of kids going around doing it, Kia's specifically.
• 5:07
  austin-black_1_03-14-2024_164903: And it's not a great thing.
• 5:09
  austin-black_1_03-14-2024_164903: I did not have my Kia broken into.
• 5:10
  Track 1: Okay.
• 5:11
  Track 1: Good to hear that.
• 5:12
  Track 1: it's full disclosure.
• 5:13
  Track 1: I'm banned from tick tock.
• 5:14
  Track 1: They don't like me.
• 5:15
  Track 1: I don't like them.
• 5:16
  Track 1: I still post things on tick tock.
• 5:17
  Track 1: I think they purposely.
• 5:19
  Track 1: there are algorithms or organically deflate or bury my post because they don't like me.
• 5:25
  austin-black_1_03-14-2024_164903: Your shadow band?
• 5:26
  Track 1: I'm shadow banned.
• 5:27
  Track 1: That's exactly right.
• 5:29
  Track 1: That's a pretty cool term.
• 5:30
  Track 1: I'm honored to be shadow banned.
• 5:33
  Track 1: So why is there a push to ban TikTok
• 5:35
  austin-black_1_03-14-2024_164903: the logic for the politicians is that the Chinese government is using it to spy on people.
• 5:41
  austin-black_1_03-14-2024_164903: They're using every time you install TikTok on your phone, they're using it to spy on you.
• 5:46
  austin-black_1_03-14-2024_164903: And I don't know, I saw some people on TikTok say, Man, don't care about the Chinese government having my
• 5:52
  Track 1: or
• 5:52
  austin-black_1_03-14-2024_164903: about the U.
• 5:53
  austin-black_1_03-14-2024_164903: S.
• 5:53
  Track 1: Right.
• 5:54
  Track 1: Let, I'm completely fine with the Chinese having it,
• 5:57
  austin-black_1_03-14-2024_164903: our intelligence industry not wanting someone else taking a piece of the pie.
• 6:01
  austin-black_1_03-14-2024_164903: They're like, we want to be the only
• 6:02
  Track 1: or.
• 6:02
  austin-black_1_03-14-2024_164903: watching Americans.
• 6:04
  Track 1: there's this general idea that the Chinese government will exert control over certain Chinese companies, ByteDance being one of them, and they have a history of doing that.
• 6:18
  Track 1: And the U.
• 6:19
  Track 1: S.
• 6:19
  Track 1: government is a little uncomfortable with that.
• 6:21
  Track 1: We've got a quote from Marco Rubio, who is talking about some of his concerns.
• 6:28
  austin-black_1_03-14-2024_164903: They happen
• 6:28
  Track 1: that
• 6:29
  austin-black_1_03-14-2024_164903: a company
• 6:30
  Track 1: they,
• 6:30
  austin-black_1_03-14-2024_164903: the world's best artificial intelligence algorithms.
• 6:33
  austin-black_1_03-14-2024_164903: It's the one that's used in this country by TikTok and it uses the data of Americans to basically read your mind and predict what videos you want to see.
• 6:41
  austin-black_1_03-14-2024_164903: Marco Rubio.
• 6:42
  Track 1: thank you for reading that quote for me.
• 6:44
  Track 1: I think it's more of a direct threat than that, though.
• 6:48
  austin-black_1_03-14-2024_164903: Okay,
• 6:48
  Track 1: I think that.
• 6:51
  Track 1: It is entirely possible that we could go to war with China.
• 6:54
  Track 1: And if you are actively at war with a country that effectively controls one of your biggest media platforms, you're almost certainly going to lose the war.
• 7:04
  Track 1: Because propaganda is a big part of fighting wars.
• 7:10
  Track 1: I don't mean to sound like a conspiracy theorist, but I think, China is our biggest rival economically.
• 7:15
  Track 1: I think they have a huge military and I think it's entirely possible.
• 7:19
  Track 1: I don't know if it's going to be in our lifetime, but it's entirely possible that.
• 7:23
  Track 1: We're at war with China, and you effectively have a country now, your adversary controlling all the media and is able to push propaganda to your people.
• 7:31
  Track 1: Propaganda is a big part of war.
• 7:33
  Track 1: I've got some examples from World War II.
• 7:36
  Track 1: And I actually didn't know this before I researched this for the show, but one of the things that Nazi Germany did during World War II is they dropped leaflets, propaganda leaflets, on all the British colonies attempting to convince them to revolt against Britain, which would have weakened their fight against Nazi Germany during World War II.
• 7:57
  Track 1: I can easily see the Chinese government being at war with us and using TikTok to push propaganda to sow discord, which I think they already do.
• 8:09
  Track 1: I think their logarithms already are pointedly sowing discord.
• 8:13
  Track 1: among Americans and making our country more divisive, which thereby weakens us.
• 8:18
  Track 1: And I can see the Chinese government using that to their advantage.
• 8:21
  Track 1: So I don't think these politicians are that way off base for wanting to ban TikTok in this country.
• 8:28
  austin-black_1_03-14-2024_164903: sure.
• 8:29
  austin-black_1_03-14-2024_164903: I think there may be less restrictive measures than Just banning TikTok and I very much hope we do not go to war with China in my or your lifetime.
• 8:40
  austin-black_1_03-14-2024_164903: I think with the recent contrasted with ads, for the military in China and the ads that our military is putting out, we're advertising that our soldiers have two moms, whereas they're actually advertising their military power.
• 8:53
  austin-black_1_03-14-2024_164903: So I think it might be
• 8:55
  Track 1: you're worried that we would lose.
• 8:56
  Track 1: it could be something less extreme than war.
• 8:59
  Track 1: It could just be.
• 9:00
  Track 1: influence in our elections or our Democrat.
• 9:03
  austin-black_1_03-14-2024_164903: embargo or calling all of our debt due.
• 9:05
  austin-black_1_03-14-2024_164903: Yeah, all that.
• 9:07
  Track 1: they, yeah, certainly when you control something like TikTok, you can effectively control the minds of your adversary, the minds of the people, of your users on this platform.
• 9:18
  Track 1: And I think the U S government has some valid concerns.
• 9:21
  Track 1: What's the counter argument.
• 9:22
  Track 1: So if you're pro TikTok.
• 9:23
  Track 1: what's the counter argument?
• 9:24
  Track 1: it's First Amendment free speech, and Montana tried this.
• 9:28
  Track 1: Do you remember the Montana case?
• 9:29
  austin-black_1_03-14-2024_164903: I do not know
• 9:31
  Track 1: Okay, so it's real simple.
• 9:32
  Track 1: Montana banned TikTok.
• 9:36
  Track 1: It went up to the Supreme Court.
• 9:38
  Track 1: but the federal courts said, Montana, you can't do that.
• 9:43
  Track 1: That's a violation of free speech.
• 9:46
  Track 1: You've got Americans using the platform to express themselves, and you're violating their First Amendment right to free speech.
• 9:54
  austin-black_1_03-14-2024_164903: didn't just say look Montana like even if you're right man You are not important enough of a state to do this.
• 9:59
  austin-black_1_03-14-2024_164903: Like you need
• 9:59
  Track 1: Right.
• 10:00
  austin-black_1_03-14-2024_164903: New York, Texas someone like that not Montana.
• 10:03
  Track 1: maybe that was in the opinion.
• 10:05
  Track 1: but there are, I would submit to you, there are limits to free speech.
• 10:09
  Track 1: So we have tick tock, which is allegedly this dangerous app that controlled by the Chinese.
• 10:14
  Track 1: And the proponents of not banning tick tock are saying, Hey, you've got to protect free speech.
• 10:19
  Track 1: There are limits we've talked about.
• 10:21
  Track 1: yelling fire in a crowded theater.
• 10:23
  Track 1: that's an example of a limitation on free speech.
• 10:26
  Track 1: But my question I'd ask for those that are concerned about free speech.
• 10:30
  Track 1: would you feel like your speech was more free if you were subject and controlled by the Chinese government?
• 10:36
  austin-black_1_03-14-2024_164903: I think that I would consider the speech to be more free if they just let it be.
• 10:41
  austin-black_1_03-14-2024_164903: people know, it, You have to really be living under a rock to not be aware of the potential security concerns of TikTok.
• 10:48
  austin-black_1_03-14-2024_164903: And that everyone says that the Chinese government's using it or something.
• 10:51
  austin-black_1_03-14-2024_164903: So if you have it installed in your phone, you're accepting that.
• 10:54
  austin-black_1_03-14-2024_164903: I, the way I look at it is so many people are online in so many different capacities right now, that even if you don't have to talk on your phone, the Chinese government wants your data.
• 11:04
  austin-black_1_03-14-2024_164903: They can get it unless you really are isolating and not putting it out there at all.
• 11:09
  austin-black_1_03-14-2024_164903: I don't know.
• 11:09
  Track 1: that's an interesting one.
• 11:10
  Track 1: you're arguing a libertarian point of view.
• 11:12
  Track 1: and much to my surprise, and I think if you know anything about politics, Rand Paul is actually, the libertarian senator is against this ban and that's a very libertarian thing.
• 11:26
  Track 1: And I haven't seen any quotes from Rand Paul, but from a libertarian perspective is keep the government out of it, as Austin says, if you're a user on TikTok and you want the Chinese to know what you're doing, then that's your choice.
• 11:38
  austin-black_1_03-14-2024_164903: it's a lot harder to just write a daily letter of your online activities and
• 11:43
  Track 1: Yeah.
• 11:45
  austin-black_1_03-14-2024_164903: than it is just to have TikTok installed.
• 11:47
  austin-black_1_03-14-2024_164903: So if you want to give the Chinese your information, just allow the ease of access.
• 11:51
  Track 1: and I consider myself to have some libertarian principles, but I also think we need things like national security and a military, and we need maybe An electrical power grid system.
• 12:03
  Track 1: Nevermind that the state of Texas has our own power grid system, but that's a different topic, as someone who loves this country, enjoys living here and enjoys the freedoms.
• 12:11
  Track 1: I don't want to let the decisions of the, of individual Americans.
• 12:16
  Track 1: to the extent of the, the mob run amok, by handing our country to the Chinese.
• 12:22
  Track 1: So in the same sense that yelling.
• 12:24
  Track 1: Fire in a theater is a limitation on free speech.
• 12:27
  Track 1: I think upholding the constitution, the first amendment to absurd ridiculousness, and handing our country over to the Chinese, is a problem.
• 12:38
  austin-black_1_03-14-2024_164903: But what does the First Amendment mean if it doesn't extend to absurd ridiculousness?
• 12:43
  Track 1: Yeah, I can see that.
• 12:44
  Track 1: But somebody with a brain, somebody with half a brain, or even an entire brain, needs to be thinking about National security and I think there's some valid concerns.
• 12:55
  Track 1: I don't know if Chuck Schumer is gonna bring this to vote I don't know if it's gonna pass We'll see what happens with it and you know what tick tock I don't need you so I'm fine with my lifetime ban
• 13:07
  austin-black_1_03-14-2024_164903: to be clear, I hope it passes just'cause it's funny to follow the news and I don't care about TikTok that much.
• 13:12
  Track 1: the way the winners in this are obviously, meta Instagram Facebook maybe Twitter So the winners are U.
• 13:20
  Track 1: S.
• 13:20
  Track 1: based social media platforms.
• 13:21
  Track 1: YouTube is going to be a big winner in this.
• 13:24
  Track 1: Alright, let's answer some legal questions.
• 13:26
  Track 1: And we've got an assortment of different questions today, but we'll just knock them out one by one.
• 13:32
  Track 1: Let's start with fences.
• 13:33
  Track 1: So Robert Frost said it.
• 13:35
  Track 1: Good fences make good neighbors.
• 13:37
  Track 1: in my experience as a lawyer, doing this area of law, I can tell you that fences make neighbors basically want to get in fights and kill each other.
• 13:46
  Track 1: Maybe,
• 13:49
  austin-black_1_03-14-2024_164903: Do still typically make good neighbors.
• 13:51
  austin-black_1_03-14-2024_164903: A lot of our issues that people come to us with fences are, they're placed improperly, the fence is breaking down and that guy won't put in half to fix the fence between us.
• 13:59
  austin-black_1_03-14-2024_164903: So if it's a good fence, it's there.
• 14:01
  austin-black_1_03-14-2024_164903: It's structurally
• 14:02
  Track 1: maybe,
• 14:03
  austin-black_1_03-14-2024_164903: Might be
• 14:03
  Track 1: maybe going to make a good neighbor.
• 14:05
  Track 1: boundary disputes, that's the classic one.
• 14:07
  Track 1: You either, you have a fence built, maybe nobody knows who built it several owners ago.
• 14:12
  Track 1: The fence is allegedly on the boundary line and it's in disrepair.
• 14:17
  Track 1: Whose fence is it and whose responsibility is it to fix the fence?
• 14:20
  austin-black_1_03-14-2024_164903: If it's on the boundary line, it's both of responsibilities.
• 14:23
  Track 1: Probably, especially if you don't know.
• 14:26
  Track 1: the easier solution is if you're going to have one neighbor that doesn't want to fix it.
• 14:32
  Track 1: One thing you can do is if you want a good fence to make good neighbors, you can just build a fence inside.
• 14:38
  Track 1: of your property line that's a nice new fence with the good side of the fence.
• 14:42
  Track 1: You know what the good side of the fence is, Austin?
• 14:44
  Track 1: it's the fence side with the cedar planks that are facing you, right?
• 14:47
  Track 1: Because you don't want to look at the, and if you really, if your neighbor wants the plank side too, then.
• 14:52
  Track 1: Then maybe you both have planks.
• 14:55
  Track 1: Generally, this isn't a law, but the etiquette was, if you want the good side of the fence, you may pay 60, 70 percent of the cost.
• 15:01
  Track 1: if you just want to look at the bad side of the fence with the two by fours and the posts, then you might only pay 30 or 40 percent of the cost.
• 15:09
  austin-black_1_03-14-2024_164903: sure.
• 15:10
  Track 1: So you can get a boundary dispute, like who owns the fence, and where is the fence located, and you get this battle of the surveyors kind of thing, People don't know this, but you can have three or four surveyors come out and give you three or four different opinions on whose property that fence is located on.
• 15:25
  Track 1: it's not fun.
• 15:26
  Track 1: But those cases are squirrely, and they come out all sorts of different ways.
• 15:31
  Track 1: But if you got a fence party line, generally both sides are responsible for it.
• 15:36
  Track 1: If you're really getting a big fight about it, build a fence on the inside of your property line.
• 15:41
  Track 1: or come to some kind of agreement with your neighbor.
• 15:44
  Track 1: If there's a fence out there that's, you're unsure of, you can always handle that by agreement.
• 15:49
  Track 1: And there are ways to do that, certain provisions we put in the agreement.
• 15:52
  Track 1: Alright, adverse possession and fences.
• 15:55
  Track 1: what you see here happen all the time is.
• 15:58
  Track 1: You have a fence and it's encroaching like three, four inches.
• 16:01
  Track 1: Sometimes it's feet on your neighbor's property and then the neighbor's getting a fight over it.
• 16:07
  Track 1: And the one neighbor realizes that, hey, that fence has been encroaching upon my neighbor's property for X number of years.
• 16:15
  Track 1: let's say 10 years, because that's an important time frame for adverse possession.
• 16:19
  Track 1: And the neighbor says, guess what?
• 16:21
  Track 1: I've mowed that one foot, inside.
• 16:24
  Track 1: I've taken care of it.
• 16:26
  Track 1: I've planted a garden.
• 16:27
  Track 1: I think that I own your one foot.
• 16:30
  Track 1: By virtue of the fact that, my fence is encroached upon it, and after all these years, I now own that property by adverse possession.
• 16:37
  austin-black_1_03-14-2024_164903: we
• 16:38
  Track 1: Is that a
• 16:38
  austin-black_1_03-14-2024_164903: and say that
• 16:40
  Track 1: All the time they call us that.
• 16:42
  austin-black_1_03-14-2024_164903: the time.
• 16:43
  Track 1: Let me say this.
• 16:44
  Track 1: Common fence encroachments in residential neighborhoods of a matter of inches usually do not give rise to your neighbor taking your property via adverse possession.
• 16:56
  austin-black_1_03-14-2024_164903: And even if they normally would, there's still a problem, Because one of the elements of adverse possession is that the possession has to be hostile, So if the other person is not aware that there's an encroachment for a super long time, and the neighbor who's encroaching.
• 17:12
  austin-black_1_03-14-2024_164903: I'm just secretly possessing this property over these 10 years and then I'll come be like, hi, I've adversely possessed this oh, I
• 17:18
  Track 1: Yeah
• 17:18
  austin-black_1_03-14-2024_164903: know that was mine.
• 17:20
  austin-black_1_03-14-2024_164903: And now I know.
• 17:21
  austin-black_1_03-14-2024_164903: And so your possession wasn't hostile.
• 17:23
  Track 1: Yeah encroachments of mere inches aren't gonna get it because if you're just taking a look as you're like no one's gonna know this fence is off by a couple inches.
• 17:31
  Track 1: So that's a common misconception
• 17:33
  austin-black_1_03-14-2024_164903: by more and you have a sign that says, this is your property.
• 17:36
  austin-black_1_03-14-2024_164903: I'm taking it up there for 10 years.
• 17:39
  austin-black_1_03-14-2024_164903: You're probably okay.
• 17:40
  Track 1: Yeah, that's okay.
• 17:40
  Track 1: Or if it's like a huge encroachment, I've never seen this, but you could have a 10, 000 square foot lot and an encroachment of like 25 feet.
• 17:47
  Track 1: I don't know.
• 17:47
  Track 1: So that's a big encroachment.
• 17:49
  Track 1: At some point you rise to the level of hostile inventories and you get into an adverse possession claim.
• 17:55
  Track 1: The common adverse possession claims you see with fences are really typically on rural properties where you've got You know, fences encroaching or in the wrong location by matters of, many feet.
• 18:08
  Track 1: So, you see that there a lot.
• 18:10
  Track 1: Alright, deed restrictions and HOA rules.
• 18:13
  Track 1: This one's kind of a short one.
• 18:15
  Track 1: You can have deed restrictions that prohibit certain types of fences.
• 18:18
  Track 1: You can have HOA rules.
• 18:19
  Track 1: Usually you see height.
• 18:21
  Track 1: Like you can't build any taller than an 8 foot fence.
• 18:25
  Track 1: sometimes it's 6 foot.
• 18:26
  Track 1: You can even have HRA rules and deed restrictions that put the burden of maintenance on the property owner So that's all generally upheld and legal as far as explicit specific deed restrictions about fences.
• 18:40
  Track 1: Last thing we're talking about is encroachment agreements.
• 18:42
  Track 1: Oftentimes you have fences in the wrong place And you're trying to get a property closed and a title company is trying to close it and the buyer is getting a certain type of title insurance where there's an endorsement on that policy and the title company is not going to insure it because there's an encroaching fence.
• 19:00
  austin-black_1_03-14-2024_164903: I'm
• 19:01
  Track 1: one of the ways we cure that is we call it a boundary line agreement or an encroachment agreement.
• 19:06
  Track 1: The agreement usually just says, Hey, I know that fence is where it is and I give you permission to do that and everything's okay.
• 19:14
  Track 1: And the reason that works is because once you have expressed permission, that defeats any potential adverse possession claim.
• 19:22
  Track 1: So you're not gonna lose your property because they know it was permissive, I gave them permission, therefore no adverse possession.
• 19:27
  Track 1: that not hostile, that should give everybody a good flavor of the crazy stuff we get about fences coming into the firm.
• 19:35
  Track 1: So if you're at your neighbor's throat over your fence, try to work it out.
• 19:38
  Track 1: they're not fun cases to work on as real estate attorneys, but we do them.
• 19:42
  Track 1: Let's talk about blue bonnets, and my daughter gave me this idea in some months ago.
• 19:48
  Track 1: before we're in season, but in Texas Happy blue bonnet season.
• 19:52
  Track 1: We're officially in spring, the blue bonnets are blooming.
• 19:56
  Track 1: as a kid growing up in Texas, I always heard that it was illegal to pick a blue bonnet.
• 20:02
  austin-black_1_03-14-2024_164903: I heard that too.
• 20:03
  austin-black_1_03-14-2024_164903: I went ahead and picked them.
• 20:04
  austin-black_1_03-14-2024_164903: So I know that even if it is illegal, it's not enforced,
• 20:07
  Track 1: So you, you were a rebellious child.
• 20:09
  austin-black_1_03-14-2024_164903: a very rebellious child.
• 20:11
  Track 1: heard it was illegal and it made sense as a kid.
• 20:13
  Track 1: It made sense to me now.
• 20:14
  Track 1: I thought maybe there's a law, it's the state flower.
• 20:17
  Track 1: It's a sacred flower.
• 20:18
  Track 1: Don't pick it.
• 20:20
  Track 1: it turns out that is a complete myth in the state of Texas is it is not explicitly illegal to pick a blue bonnet.
• 20:28
  Track 1: However, there are some cases where it could be illegal.
• 20:32
  Track 1: Like for example, you can't trespass onto somebody else's property and pick the blue bonnet.
• 20:37
  Track 1: In the same way that, you can't just, show up on somebody's property and start cutting down all their trees and selling the timber, right?
• 20:46
  Track 1: That would be trespass, maybe conversion.
• 20:49
  Track 1: So you can't do that with a blue bonnet.
• 20:52
  Track 1: here's another case where it's illegal.
• 20:53
  Track 1: You cannot destroy plant life on a Texas state park.
• 20:59
  Track 1: So if you walk into a Texas state park and you pick a blue bonnet, that could be construed as destroying plant life.
• 21:04
  austin-black_1_03-14-2024_164903: Yeah, it probably is destroying plant life if you pick them and don't instantly go repot.
• 21:10
  Track 1: I don't think these are things that we're prosecuting.
• 21:12
  Track 1: I really don't think the picking of them.
• 21:14
  Track 1: Now I can imagine if you like drove a tractor into a state park and you just roll the tractor through and you cut like the entire field of bluebonnets down.
• 21:25
  Track 1: I can see the state law on violating plant life in a Texas state park being enforced at that point, but I don't know that's ever happened.
• 21:33
  Track 1: I think we've beat this one too.
• 21:35
  Track 1: I think this is officially a dead horse.
• 21:37
  Track 1: what if you die without a will in Texas?
• 21:39
  Track 1: And
• 21:40
  austin-black_1_03-14-2024_164903: will create a will for you,
• 21:43
  Track 1: what do we call that?
• 21:44
  austin-black_1_03-14-2024_164903: your estate would, it's called the default intestacy law.
• 21:46
  austin-black_1_03-14-2024_164903: Your estate will
• 21:47
  Track 1: Yeah.
• 21:48
  austin-black_1_03-14-2024_164903: to the laws of intestacy.
• 21:49
  austin-black_1_03-14-2024_164903: So if you call us and you tell us that one of your relatives has passed away.
• 21:54
  austin-black_1_03-14-2024_164903: we will first ask if they have a will or not.
• 21:56
  austin-black_1_03-14-2024_164903: and if they have a will, then we know what we're doing is called a test date probate.
• 22:00
  austin-black_1_03-14-2024_164903: So that's with
• 22:01
  Track 1: Okay.
• 22:01
  austin-black_1_03-14-2024_164903: and if they don't have one, it's an intestate probate.
• 22:03
  Track 1: Okay.
• 22:03
  Track 1: so intestacy is not always such a bad thing.
• 22:06
  Track 1: If you're a nuclear family, mom, dad, couple of kids, Husband dies first.
• 22:11
  Track 1: All of this stuff goes to mom or goes to wife, wife dies.
• 22:15
  Track 1: And then everything goes to the kids equally.
• 22:16
  Track 1: That's the intestacy default.
• 22:18
  Track 1: But if you don't have a will and you're a blended family, that becomes a little bit trickier.
• 22:23
  Track 1: It's much more important to have a will in Texas if you're a blended family or you've had multiple marriages.
• 22:31
  austin-black_1_03-14-2024_164903: just
• 22:31
  Track 1: sure,
• 22:32
  austin-black_1_03-14-2024_164903: as an example, If, say dad has, one kid from his current marriage, And then
• 22:38
  Track 1: yeah,
• 22:42
  austin-black_1_03-14-2024_164903: and then he passes away.
• 22:44
  austin-black_1_03-14-2024_164903: There's a family house, When he passes away.
• 22:46
  austin-black_1_03-14-2024_164903: 50 percent of his interest in that property, which he already had, 50 percent will go to his current wife and then 50 percent will go to his child from the other marriage.
• 22:56
  austin-black_1_03-14-2024_164903: So the child from the other marriage would have 25 percent interest in that house, whereas the current wife would have 75 percent interest in that house.
• 23:03
  austin-black_1_03-14-2024_164903: Creates for some complicated situations sometimes.
• 23:05
  Track 1: exactly.
• 23:05
  Track 1: That's a good example of why having a will is important.
• 23:08
  Track 1: And maybe blended family is the wrong word.
• 23:10
  Track 1: I think it's still important for everybody to have a will.
• 23:12
  Track 1: But Certainly, if you have children, from multiple spouses, that's important to have a will as well.
• 23:19
  Track 1: Otherwise, the state of Texas will make one for you via intestacy.
• 23:23
  Track 1: nothing to do with wills.
• 23:25
  Track 1: Are verbal contracts binding in Texas?
• 23:28
  austin-black_1_03-14-2024_164903: Yes.
• 23:29
  Track 1: Yeah, generally, yes.
• 23:30
  Track 1: unless it's required to be in writing by the statute of frauds.
• 23:34
  Track 1: And I want to point out.
• 23:35
  Track 1: It's not the one we get all the time.
• 23:37
  Track 1: It's not a statue of fraud.
• 23:38
  Track 1: It's not like the Statue of Liberty, This is a statute,
• 23:42
  austin-black_1_03-14-2024_164903: Yeah.
• 23:42
  Track 1: like a law.
• 23:43
  Track 1: we hear that all the time.
• 23:44
  Track 1: Chapter 26 of the Business and Commerce Code, that's the Statue of Frauds.
• 23:49
  austin-black_1_03-14-2024_164903: and are we going to spend the rest of this podcast explaining the statute of frauds
• 23:54
  Track 1: no, I'm just going to tell you there, there are several types of contracts required to be in writing.
• 23:59
  Track 1: here are the important ones.
• 24:01
  Track 1: if you're going to answer for the debt of another, that's like a personal guarantee that's required to be in writing.
• 24:06
  Track 1: Agreement for the marriage or non marital conjugal cohabitation.
• 24:11
  Track 1: What is an agreement for non marital conjugal cohabitation?
• 24:15
  Track 1: What does that mean, I think that's an agreement for two people who are unmarried to live together and have sexual relations with each other.
• 24:24
  austin-black_1_03-14-2024_164903: So a joint venture agreement.
• 24:26
  Track 1: that's a nice way of putting it.
• 24:28
  Track 1: When I first read it, I'm like, is that prostitution?
• 24:30
  Track 1: Are we saying that we have to have a groom
• 24:32
  austin-black_1_03-14-2024_164903: they're living together, so yeah, I
• 24:35
  Track 1: how many days does she have to live with you until it's not prostitution?
• 24:38
  austin-black_1_03-14-2024_164903: I would not be able to answer that.
• 24:40
  austin-black_1_03-14-2024_164903: Maybe that's in the
• 24:40
  Track 1: Here, here's another one, if you're gonna have a lease, a real estate lease, like an apartment or a house or something for longer than a year, that needs to be in writing.
• 24:48
  Track 1: any contracts for the sale of real estate.
• 24:50
  Track 1: Buying, selling houses.
• 24:52
  Track 1: Loan agreements over 50, 000.
• 24:55
  Track 1: Those are all the main things that we require to
• 24:58
  austin-black_1_03-14-2024_164903: or an
• 24:59
  Track 1: in writing in Texas.
• 25:00
  austin-black_1_03-14-2024_164903: or an agreement where performance takes over a year to happen.
• 25:04
  Track 1: Yes, I missed that one.
• 25:05
  Track 1: So if you, if you have some type of contract and you have to do something that over a year that has to be in writing, Those are the major things required to be in writing to be enforceable in Texas.
• 25:16
  Track 1: Under the statute of frauds, so there's a lot of room for a bunch of verbal agreements out there In Texas, so I don't recommend it.
• 25:23
  Track 1: as lawyers.
• 25:24
  Track 1: We always recommend written agreements, but go have at it
• 25:26
  austin-black_1_03-14-2024_164903: just one small disclaimer on the fact that written, verbal agreements, yes, are enforceable.
• 25:32
  austin-black_1_03-14-2024_164903: It's all going to come down to, do you have proof of that though?
• 25:35
  austin-black_1_03-14-2024_164903: In some performance or something can show that verbal contract, because you can swear to the cows, come home that like you, this guy told you something and you have an agreement there, but I'm going to ask you if you have proof of it, because if you're just going to sue based on purely an oral contract, it's probably going to really hard unless you have something to substantiate
• 25:52
  Track 1: Yeah, now there are some exceptions to the statute of frauds where you know, you can have like for example performance So you can have a real estate contract that was verbal and then someone was actually paid the money So there was a performance there and that could overcome the requirement that it be in right now.
• 26:10
  Track 1: Those are very rare We don't want to rely on performance.
• 26:13
  Track 1: We want everybody to have their contracts and writing All right.
• 26:16
  Track 1: Let's do a little ranting and raving today and we're talking about this corporate transparency act Which is a follow up to our previous episode where we talked about FinCEN requiring all of these small business owners to file what's known as a BOI, I think Beneficial Owner's Interest Report, and it's really broad stuff.
• 26:38
  Track 1: it's not just, okay, we have a Silberman law firm, it's a PLLC, I'm the only owner of the firm.
• 26:45
  Track 1: and by the way, after our episode, I actually filed one.
• 26:48
  Track 1: it didn't take me that long.
• 26:49
  Track 1: It took me like five minutes to file a BOI report with FinCEN.
• 26:52
  Track 1: It's just one more thing I had to do in the midst of tax season.
• 26:55
  Track 1: But I went ahead and filed it, but it's really broad.
• 26:59
  Track 1: it's not just, who owns it, it could also be who controls it, and this was passed via this Corporate Transparency Act where FinCEN is requiring all these small business owners to do this and when we talked about it last week and I read about I was just like Another thing that the government is burdening small businesses with I guess we'll just all grin and bear it but then I saw this email sent to me and it turns out that the National Small Business Association sued Janet Yellen.
• 27:32
  Track 1: She is the secretary of the treasury.
• 27:36
  austin-black_1_03-14-2024_164903: Because
• 27:37
  Track 1: and they,
• 27:37
  austin-black_1_03-14-2024_164903: and it's a subsidiary of the treasury.
• 27:39
  Track 1: correct.
• 27:39
  Track 1: FinCEN is part of the, US treasury.
• 27:42
  Track 1: this was in a district court out of Alabama and the federal district court and the federal judge ruled.
• 27:50
  Track 1: that law requiring small business owners to do that was effectively overly burdensome and unconstitutional.
• 27:59
  Track 1: It was Judge Lyle C.
• 28:00
  Track 1: Burke ruled that it exceeds Congress's legislative authority outlined in the Constitution, and he suspended the enforcement of it.
• 28:10
  Track 1: and here's the,
• 28:10
  austin-black_1_03-14-2024_164903: if you're a member of the national small business,
• 28:13
  Track 1: yeah, that's what really I'm ranting and raving about, that's just really upset me, the audacity of branches of our federal government of the U.
• 28:23
  Track 1: S.
• 28:23
  Track 1: Treasury, which is a part of the executive branch, the audacity of the executive branch to really not comply with the federal judge's order.
• 28:33
  Track 1: I know how this is going to play out.
• 28:35
  Track 1: Finn said, basically gave all of our small business owners the proverbial finger and said, we don't care, you go comply.
• 28:45
  Track 1: And they interpreted the judge's order really narrowly.
• 28:48
  Track 1: They said, all right, fine.
• 28:50
  Track 1: You have to be a member of this organization.
• 28:53
  Track 1: And this.
• 28:54
  Track 1: national, small business, association, NSBA, and you will have to have been a member as of March 1st, which is the date of the judge's order.
• 29:06
  Track 1: So it was a very narrow interpretation of that order.
• 29:09
  Track 1: And they just said, we're charging ahead.
• 29:11
  Track 1: If you don't meet that very narrow set of exceptions.
• 29:15
  Track 1: Then you have to report and I read all their documentation and their website Before the last show last week and guess what there was no mention of this case There was no mention of that being an exception They just failed to tell all the small business owners that so once again This is another example of the federal government Sticking it to the small business owner and saying we're just gonna comply you're just gonna do it and like it once again the small business owner gets the shaft the federal government charges on without really caring.
• 29:50
  Track 1: And the FinCEN is still saying, Oh, this is, we're trying to stop money laundering.
• 29:55
  Track 1: And that's why this is important.
• 29:57
  Track 1: And part of the arguments, and we said this in the last show, is that this isn't going to stop anyone from doing any illegal things.
• 30:06
  Track 1: The only people who are going to comply are honest small business owners out there.
• 30:10
  Track 1: You're just going to put another burden on them.
• 30:12
  Track 1: It's not like the criminals are going to rush and report to you.
• 30:16
  Track 1: it's just the height of ridiculousness.
• 30:19
  Track 1: So, that brings our show to a close today.
• 30:24
  Track 1: Everybody, thank you for listening.
• 30:26
  Track 1: If you have a legal question.
• 30:28
  Track 1: Email us at info, I N F O, at Silblawfirm.
• 30:33
  Track 1: com, S I L B L A W, firm.
• 30:36
  Track 1: com.
• 30:37
  Track 1: Tell us, or ask us the question, you can put it in a voice recording, or you can just email it.
• 30:42
  Track 1: Tell us you want it publicly answered in the podcast.
• 30:45
  Track 1: Please remember to like us, follow us, review us, wherever you listen to your podcasts.
• 30:50
  Track 1: My name is Phil Silberman, I've been your host, and Austin Black has been your co host.