Author Archive

New Attorney Joins Firm’s Affordable Housing and Community Development Practice

Posted on

Blanco Tackabery is pleased to announce that attorney Helen M. Tsiolkas has joined the firm. She will concentrate her practice in Affordable Housing and Community Development law. Blanco Tackabery has more than 30 years of experience as an industry leader in Affordable Housing and Community Development law. The firm represents for-profit and nonprofit developers, including those affiliated with housing authorities, as well as property management companies involved in affordable housing finance.

Helen graduated from Elon University School of Law in December of 2018 and passed the NC Bar in 2019. While at Elon, she was Editor in Chief of the Elon Law Review. She received her undergraduate degree in history from UNC-Chapel Hill.

She was sworn in on Monday, May 13, 2019. Pictured below is Helen with the Honorable Judge Eric Morgan and Blanco Tackabery Civil Litigation Attorney Peter Juran.

Mini-Drome Cycling Event is May 11th

Posted on

Blanco Tackabery is pleased to be sponsoring the Mini-Drome Battle Royale. Next event is:

Saturday, May 11th

Winston Junction Market
901 N. Trade Street
Winston Salem, NC 27101

Junior / Open / Masters
Prizes for Top 3 in each Division

Information about the event:

  • A mini-drome is the smallest velodrome(track for cycling) in the world
  • The track is 48 feet long by 24 feet wide
  • Winston Salem Cycling in conjunction with the National Cycling center have purchased this track to hold 4 events this spring in Winston-Salem
  • Free for spectators
  • Open to all riders

For a great article about this event check out:

https://www.journalnow.com/relishnow/mini-drome-racing-not-for-the-faint-of-heart/article_9b521650-6242-592a-85a6-dbd85919017d.html

Liquidated Damages in Contracts: Effective But Tricky

Posted on

If you have some experience with contracts, you’ve likely heard the phrase “liquidated damages.” While this term might sound mysterious to many people, the concept is relatively easy to understand. Liquidated damages are basically an agreed-upon amount of money that a party to a contract will be required to pay in the event that the party breaches the contract.

Use of a liquidated damages provision can be effective at avoiding costly disputes over how much financial harm was caused by a breach of contract. However, these provisions are not always enforceable and should be crafted with care.

What’s the Problem?

The crux of a liquidated damages provision is that it is to be used in a situation where you can’t easily determine what “actual damages” would be caused by the breach. So, to avoid the difficult exercise of proving actual financial harm, the parties will stipulate to an amount that they think is reasonable.

For example, let’s say that a shopping center rents a space to a tenant to operate a business. The lease requires the tenant to be open for business every day. The parties understand that, if one tenant in the shopping center “goes dark” and is not operating, the shopping center as a whole will be less vibrant, have less customer traffic, and be less profitable. The parties also understand, however, that – if one business in the center violates the agreement by not continuously operating – it will be very difficult to establish exactly how much money was lost by the shopping center. Therefore, the parties agree to an amount of liquidated damages that will be imposed in the event that a tenant stops operating, so that the center is not required to provide evidence of its actual financial damages (which may be impossible to calculate).

The trick with liquidated damages provisions is that their enforceability is often subject to debate. If the liquidated damages are not reasonable, then a court may deem them to be an unenforceable “penalty.” As stated by North Carolina courts: “A stipulated sum is for liquidated damages only (1) where the damages which the parties might reasonably anticipate are difficult to ascertain because of their indefiniteness or uncertainty and (2) where the amount stipulated is either a reasonable estimate of the damages which would probably be caused by a breach or is reasonably proportionate to the damages which have actually been caused by the breach.”

Notably, in the context of the shopping center lease described above, a North Carolina appeals court recently upheld a liquidated damages provision that required the tenant to pay double rent for each day that its business was not operating. The tenant did not show that the amount was unreasonable, according to the court. But what if the provision called for triple rent? Quadruple rent? Perhaps the outcome would have been different.

Use These Provisions Carefully

Liquidated damages provisions appear in a variety of contexts, addressing issues that range from delays on construction projects to buyers backing out of real estate deals. These provisions can be very useful. But before inserting a liquidated damages provision in a contract, significant thought should be given to whether the provision is necessary and reasonable. If a party could easily determine its actual financial losses in the event of a breach, liquidated damages are probably inappropriate. Furthermore, the amount of liquidated damages should be carefully developed on a case-by-case basis. Otherwise, a seemingly favorable liquidated damages provision may wind up being the subject of litigation – and ultimately may not be enforceable.


About the Author

Elliot Fus

Elliot has practiced law for over 20 years and is a member of the Federal, North Carolina and Forsyth County bar associations. He is an experienced litigator with major case experience in state and federal courts and in private arbitrations. Elliot also has a broad range of experience with landlord-tenant law and has assisted many of North Carolina’s premier shopping centers.

 

Constructive Eviction: When a Tenant Is “Forced” to Leave

Posted on

Imagine that you are a landlord and your tenant vacates the leased property in the middle of the lease period and stops paying rent.  You might assume that you have an iron-clad legal case against the tenant for breaching the lease.  However, if an allegation of “constructive eviction” arises, things might not be so simple.

Constructive eviction is a concept which means that, when the premises are intolerably bad due to the fault of the landlord, the tenant will be allowed to vacate without being responsible for breaking the lease.  In other words, the conditions are so bad that the landlord is effectively forcing the tenant to leave.  Or stated another way, the landlord is “evicting” the tenant by failing to provide decent premises, even if the landlord has not actually asked for the tenant to vacate (and, in fact, wants to the tenant to stay).

Untenable Conditions

Under North Carolina law, constructive eviction occurs when a landlord “breaches a duty under the lease which renders the premises untenable.”  Although the North Carolina courts have not defined the term “untenable,” presumably this term means that the premises are in such a condition that no tenant could reasonably be expected to stay there.  Exactly what conditions constitute constructive eviction are usually subject to debate.  Problems such as persistent building code violations, serious ongoing roof leaks, electrical problems or other safety hazards might provide a strong argument for constructive eviction.  Other problems (such as a bad odor, noise issues, etc.) may provide a less compelling argument, depending on the circumstances.

Importantly, if a tenant claims constructive eviction, the tenant must show that it “abandoned the premises within a reasonable time” because of the condition of the premises.  If a tenant stays in the premises for a long time, an argument of constructive eviction is unlikely to succeed.  After all, if a tenant actually stays in purportedly intolerable premises for many months before finally vacating, it seems hard to say that the tenant “had to” leave.

An allegation of constructive eviction can radically change the dynamics of a landlord-tenant case.  Whereas a tenant might usually owe the landlord money for prematurely vacating the premises, a tenant arguing constructive eviction can assert that the landlord was the party that breached the lease and seek money in court from the landlord for damages such as moving expenses and lost profits associated with being “forced” to move.

Important Considerations

The merits of a constructive eviction allegation will depend on the facts of each case.  Parties in a dispute about constructive eviction should consider, among other things:

  • Does the case involve a residential or commercial lease? The expectations for what is intolerable may differ.  For instance, having no hot water for an extended period of time may be seriously problematic for a home, but only a minor nuisance for an office that rarely uses hot water.
  • What are the terms of the Lease? Particularly in landlord-friendly commercial leases, the landlord’s obligations to the tenant may be extremely limited.
  • Did the tenant timely abandon the premises? There is no set duration for what constitutes a “reasonable” time.  Sometimes, it may be infeasible for a tenant to immediately vacate when intolerable conditions arise.  However, the more time it takes to vacate, the less likely a constructive eviction argument will succeed.
  • Did the tenant sign anything confirming that the premises were indeed satisfactory? In commercial leases, tenants are sometimes required to sign “estoppel” certificates to confirm that they are satisfied with the premises.  Once an estoppel is signed, the tenant may not be able to “change its tune” later and say that the premises were defective.
  • Are there facts that show that the tenant really left the premises for reasons other than the condition of the premises? A business that has failed because of its own bad management or poor business model may attempt to use constructive eviction as an excuse to stop operating without incurring liability for a broken lease.  In a lawsuit, the landlord may want to explore relevant facts through “discovery” techniques such as document requests and depositions.

About the Author

Elliot Fus

Elliot has a broad range of experience with landlord-tenant law and has assisted many of North Carolina’s premier shopping centers in matters ranging from routine collection issues to complex jury trials.

Blanco Tackabery Accepts Award From Attorney General

Posted on

The champions of the 2019 Legal Feeding Frenzy were recognized on Friday, April 26, at the N.C. Bar Center in Cary.

N.C. Attorney General Josh Stein, honorary chair and a member of the NCBA, presented the awards. Blanco Tackabery of Winston-Salem was the champion for the Medium Firm Division (51-100 employees). Mike Reed accepted the award.

This year’s Legal Feeding Frenzy generated the equivalent of 315,390 pounds of food when actual food donations and financial contributions are calculated. A total of 91 teams participated.

Legal Feeding Frenzy is a collaborative effort of the North Carolina Bar Association Young Lawyers Division, Feeding The Carolinas and the N.C. Attorney General.

Seven Common Legal Pitfalls of Owning a Business And the Proven Ways to Prevent Them – Pitfall #6

Posted on

Owning a business is exciting at times, frustrating at others, but always demanding.  There are so many decisions to make on a daily basis, and often, as a business owner, you not only have to make the decisions, but must also roll up your sleeves to make those decisions bear fruit.  One decision you should make early as a business owner is determining who will be your trusted advisors to guide you through the legal and accounting issues your business will encounter.  Selecting a professional to assist you with legal and accounting decisions is vital to launching and maintaining a viable enterprise, because decisions made early in the formation of a business can have far reaching consequences down the road.

In my practice, I often see clients who chose to handle matters without engaging attorneys and accountants early in the process, and later failed to recognize issues as they arose during the day-to-day operations of the business. Those decisions can cost business owners far more money down the road than hiring the appropriate professionals in the beginning, and can have a significant effect on the ultimate success or failure of the business.  I have found those mistakes fall into seven basic categories. This is Pitfall number 6 of 7 common pitfalls I see businesses owners make. Over the next few weeks, I will be sharing all 7 of these pitfalls and proven ways to prevent them.

 

Pitfall # 6 – Failure to Understand Personal Guarantees

Often a business may not be creditworthy on its own, and lenders and trade vendors will seek a personal guaranty from an owner, officer, manager or affiliate of a company. It is important to understand the type of guaranty an individual or affiliate of the business is being asked to execute. Most business owners think they will only be liable after all resources of the company have been exhausted when they sign a personal guaranty. They are surprised to learn that today most commercial guaranty agreements are unconditional, unlimited guaranties of payment. Generally, that means the guarantor is also primarily liable for the debt and can be looked to for payment of the debt without the lender first seeking collection from the company or its assets. Close attention should be paid to any request to execute a personal guaranty.

Also, many trade vendors include a personal guaranty provision at the end of their business contracts. Accordingly, many times owners end up signing a guaranty, without fully understanding the import of what they are signing. All business owners should be looking for personal guaranty provisions contained within a contract and looking for a separate signature line when signing vendor contracts. If a business owner is unsure of what the vendor is asking for in the contract, he or she can always ask to have the document reviewed by an attorney before signing.


About the Author

Ashley Rusher

Ashley focuses her practice on Outside General Counsel Services and Business Bankruptcy and Creditor’s Rights Practice Areas. She is an effective, results-driven advocate for her clients.  Her background of 30 years in business bankruptcies, distressed debt workouts, problem loan recovery, and real estate title and commercial litigation provides her with a solid foundation of general business, accounting and legal skills.

Blanco Tackabery Wins Legal Feeding Frenzy

Posted on

We are proud to announce that Blanco Tackabery has won the Mid-Size Firm Award for the most donations per capita in the North Carolina Legal Feeding Frenzy Competition. This is a food and fund drive competition among North Carolina law firms. This year’s Legal Feeding Frenzy campaign collected over 300,000 pounds of food for the North Carolina Feeding America Food Banks.

Blanco Tackabery Participates In Forsyth Backpack Program

Posted on

Blanco Tackabery is pleased to participate in the 2019 Forsyth Backpack Program. The firm helped to pack well over 400 backpacks this year. The Backpack program operates 10 Feeding America Backpack programs at Cook, Elementary School Academy, Gibson, Union Cross, Kimberly Park, Konnoak and Middle Fork elementary schools, Hanes and Jefferson middle schools, and Parkland High, serving more than 300 students every weekend, providing more than 40,000 meals throughout the school year.

 

Next Mini-Drome Cycling Event is April 6th

Posted on

Blanco Tackabery is pleased to be sponsoring the Mini-Drome Battle Royale. Next event is:

Saturday, April 6th

Winston Junction Market  
901 N. Trade Street
Winston Salem, NC 27101

Junior / Open / Masters
Prizes for Top 3 in each Division 

 

Key information about this event:

  • A mini-drome is the smallest velodrome(track for cycling) in the world
  • The track is 48 feet long( 16 yards) long by 24 feet wide
  • Winston Salem Cycling in conjunction with the National Cycling center have purchased this track to hold 4 events this spring in Winston Salem
  • Free for spectators
  • Open to all riders

For a great article about this event check out:

https://www.journalnow.com/relishnow/mini-drome-racing-not-for-the-faint-of-heart/article_9b521650-6242-592a-85a6-dbd85919017d.html

Blanco Tackabery Mini-Drome Event

Posted on

Here is a great article about the Blanco Tackabery Mini-Drome Battle Royale event in the Winston Salem Journal written by Scott Sexton. The first event was very entertaining and a lot of fun. The next event is April 6th at 2:00 at Winston junction. We welcome everybody to come out and watch or participate! The event schedule is:

 

 

 

 

 

 

 

 

https://www.journalnow.com/relishnow/mini-drome-racing-not-for-the-faint-of-heart/article_9b521650-6242-592a-85a6-dbd85919017d.html

Seven Common Legal Pitfalls of Owning a Business And the Proven Ways to Prevent Them – Pitfall #5

Posted on

Owning a business is exciting at times, frustrating at others, but always demanding.  There are so many decisions to make on a daily basis, and often, as a business owner, you not only have to make the decisions, but must also roll up your sleeves to make those decisions bear fruit.  One decision you should make early as a business owner is determining who will be your trusted advisors to guide you through the legal and accounting issues your business will encounter.  Selecting a professional to assist you with legal and accounting decisions is vital to launching and maintaining a viable enterprise, because decisions made early in the formation of a business can have far reaching consequences down the road.

In my practice, I often see clients who chose to handle matters without engaging attorneys and accountants early in the process, and later failed to recognize issues as they arose during the day-to-day operations of the business. Those decisions can cost business owners far more money down the road than hiring the appropriate professionals in the beginning, and can have a significant effect on the ultimate success or failure of the business.  I have found those mistakes fall into seven basic categories. This is Pitfall number 5 of 7 common pitfalls I see businesses owners make. Over the next few weeks, I will be sharing all 7 of these pitfalls and proven ways to prevent them.

 

Pitfall # 5 – Failure to Protect Intellectual Property

Types of Intellectual Property — what is intellectual property? Most companies have heard of patents, copyrights and trademarks, but seldom recognize the need to protect certain aspects of the business which safeguard unauthorized use of this type of property by others. Patents protect ideas, concepts, systems, or mechanisms which are novel and unique. Specially licensed attorneys practice patent laws, and the regulations for filing patent applications and maintaining patents require their special attention. Copyrights protect creative expression fixed in a tangible medium. Examples of copyrighted materials are written works, music, and video. Trademarks protect designs, phrases or words which brand a product, service or business. Registration of copyrights and trademarks can provided added protection for a business. Any business that creates a brand, creates an idea or publishes a creative expression should consult with an intellectual property attorney to determine if their idea should be protected from unauthorized use by third parties.

Trade secrets are certain commercial information about a business which is not disclosed to the public, such as a customer list, the McDonald’s secret sauce recipe, or a business plan which must be maintained in secrecy for the success of the company. Contracts with trade vendors, employees, consultants, and anyone else invited into a business and given access to trade secrets should contain special provisions to protect the integrity of a company’s trade secrets.


About the Author

Ashley Rusher

Ashley focuses her practice on Outside General Counsel Services and Business Bankruptcy and Creditor’s Rights Practice Areas. She is an effective, results-driven advocate for her clients.  Her background of 30 years in business bankruptcies, distressed debt workouts, problem loan recovery, and real estate title and commercial litigation provides her with a solid foundation of general business, accounting and legal skills.

 

Historic Ashe Hospital renovation into Affordable Housing is Complete

Posted on

Blanco Tackabery is excited to recognize the completion of the Historic Ashe Hospital adaptive reuse project. The old Ashe County Memorial Hospital in Jefferson, NC is getting a new life. After sitting idle for years, the building, which is listed on the National Register of Historic Places, has undergone a massive renovation and addition to transform it into affordable independent rental housing for seniors.

To ensure the building maintains its status on the National Register, plans for the renovation were vetted by the NC State Historic Preservation Office and the National Park Service. The new facility’s name stays true to its past – Historic Ashe Hospital. According to Ned Fowler, President of Northwestern Housing Enterprises, the developer for the project, full occupancy is expected during April 2019. There are 46 apartments in the total project, 19 in the old hospital and 27 in the new addition. Apartments include one and two bedroom floor plans, with kitchen, living area, full bath and washer/dryer hookups.

Blanco Tackabery attorney, Deborah McKenney, worked on this project and has a long history of dealing with professionals throughout the Affordable Housing industry to successfully develop and operate all types of community development projects.