Many Arizona home sellers are confused when asked to provide a Foreign Investment in Real Property Act Affidavit and many Arizona home buyers don't know they should ask for one. So what is a Foreign Investment in Real Property Act Affidavit, and why do Arizona real estate lawyers and title agents make sure such an affidavit is part of every Arizona real estate transaction?
The Foreign Investment in Real Property Tax Act of 1980, otherwise known as "FIRPTA," established Internal Revenue Code Section 897. This Section of the Internal Revenue Code applies to foreigners that sell real property in the United States. One of the requirements is that the Buyer of such real estate withhold a portion of the sales proceeds due to a foreign Seller and pay the required amount to the I.R.S. on behalf of the Seller.
In order to ensure compliance with the Code, the Buyer is deemed liable for the tax that must be deducted. In most cases Buyers have no way of knowing whether a Seller is a foreign individual subject to the tax. Thus, to avoid the withholding and the associated tax liability, a wise Buyer will ask the Seller to certify that the Seller is not a foreign person, even if the Buyer has no reason to believe the Seller is a foreign person.
A Buyer of Arizona real estate should always include a contract provision requiring the Seller to deliver a FIRPTA Affidavit and permitting the Buyer to withhold the proper amount at closing and pay it to the IRS if the Seller does not sign and deliver a FIRPTA Affidavit avowing that the Seller is not a foreign person as defined in Section 897.
Harper Law, like many Arizona law firms, receives thousands of inquiries every year from individuals and businesses who want to speak with an attorney. Many of the people who contact us are surprised to learn that we charge a consultation fee for a meeting with an Arizona attorney. Perhaps this surprise is the product of many lawyers who advertise a free consultation.
So why does Harper Law charge a consultation fee?
The answer is complicated, and many of the reasons are related. First, unlike many Arizona law firms that advertise free consultations, you'll actually meet with an attorney during your initial visit. We're not set up to process prospective clients like cattle. Instead, you'll be able to explain your situation to an experienced attorney and receive an honest evaluation of your claims and defenses.
Because we give this time and attention to each consultation, we've got to charge for the time the attorney could be working on existing cases. It is not an exaggeration to say that if we did not charge for consultations our attorneys could literally spend eight hours of every work day meeting with prospective clients, and have no time to serve the needs of existing clients. Obviously, that's a business model that doesn't work.
But what if I just have one quick question?
We hear this question all the time, and in the past we even fell for it a few times. While it may be true on some rare occasions that an inquiry can be handled with a quick question and answer, that is a rare exception from the norm. Unfortunately, there's no way we can make that determination until committing to speak with you.
In order for us to adequately evaluate and discuss your unique situation we've got take the time required to hear the pertinent facts and ask relevant questions. Only then can we provide a frank and honest opinion based on our years of experience. In virtually every situation, this takes some time. Because of that, we may not be able to just answer a quick question over the phone, though depending on our workload we try to when we can.
For all of these reasons, and probably a few more I've neglected to mention, Harper Law charges a consultation fee for true consultation with an Arizona attorney. We do make every effort to keep this fee as affordable as possible, and we've been told by hundreds of satisfied customers that the expense was well worth it.
Many Arizona employees, and employers, aren't sure what constitutes sexual harassment or what they should do if they suspect sexual harassment has occurred or have been accused of sexual harassment.
Sexual harassment occurs when an employer or the employer's agent, such as a boss or co-worker, makes unwelcome sexual conduct a condition of employment or a condition of the receipt of employment benefits, or both. This type of harassment is referred to as quid pro quo sexual harassment.
A hostile work environment may also constitute sexual harassment. This occurs when a supervisor, co-worker, or other person connected with the employment makes sexual advances, comments, requests for sexual conduct, or engages in other verbal or physical conduct of a sexual nature that a reasonable person in the same situation would find offensive. To constitute sexual harassment, the behavior must be unwelcome and sufficiently severe or widespread so as to alter the conditions of employment and create a generally abusive work environment. If the employee can show that the employer knew or should have known of the sexual harassment or hostile work environment and failed to take appropriate action to remedy the situation, then the employer may be liable for sexual harassment.
Proving the existence of sexual harassment is only half the battle. If an employer is found guilty of sexual harassment the harassed employee will be entitled to recover damages in the form of money to compensate for lost earnings, mental anguish or emotional distress, physical injuries, harm to reputation, and lost insurance coverage for medical bills. The harassed employee will have to produce evidence for each of these alleged damages in order to obtain any recovery.
An employee who has been the victim of sexual harassment in Arizona must first file a charge against the employer with the U.S. Equal Employment Opportunity Commission (EEOC) or the Arizona Civil Rights Division. If the matter remains unresolved, the employee may then sue the employer for sexual harassment. Before filing any such action, individuals should consult with an Arizona sexual harassment attorney to discuss the details of the claim.
In most cases a sexually harassed employee has just 300 days from the date of the harassment to file a charge with the EEOC against an employer with 15 or more employees. Smaller companies are not covered by the applicable federal laws so charges against employers of less than 15 employees for discrimination based on sex should be filed with the Arizona Civil Rights Division within 180 days.
After the charge of discrimination is filed it will be investigated by the EEOC or the Arizona Civil Rights Division. If the charge is not resolved by the investigating agency, the agency may undertake representation on the employee's behalf or, in most cases, will issue a Right to Sue letter allowing the employee to file a lawsuit against the employer for sexual harassment.
In order to protect valuable legal rights, employees should contact the EEOC or Arizona Civil Rights Division as soon as possible whenever discrimination is suspected. Similarly, an action should be pursued immediately after receiving a Right to Sue letter, due to the 90 day limit for filing such claims stated in the Right to Sue letter. The time limits for filing a charge for discrimination or sexual harassment are strictly enforced and claims will be abandoned if not pursued in a timely manner.
Although its not the custom in Arizona, a wise buyer can save a lot of heartache and damage to the wallet buy retaining an Arizona real estate lawyer when buying a new house. Check out Harper Law's Arizona Real Estate Law Blog for our recent post on the subject:
In many states, particularly in the eastern U.S., an attorney's help is mandated when buying or selling a parcel of real estate. That is not the case in Arizona, and many ordinary real estate transactions are completed every day without an attorney's services. There is no question that most real estate transactions are now so standardized, particularly with regard to the contracts and related forms utilized in the majority of Arizona real estate transactions, that a real estate attorney is not required.
In most cases, however, buyers and sellers should at least consult with a real estate lawyer to discuss some of the common legal issues that may not be addressed by a real estate agent. Although experienced agents are adept at the negotiating part of the sales process, they are not usually able - or permitted - to address legal issues.
No two parcels of real estate are identical, and no two transactions are identical. Only an Arizona real estate lawyer can properly advise you on unusual language you or the other party may want to include in the purchase contract, and counsel you on the types of problems that may lead to future, expensive litigation.
In sum, although it is no longer standard practice in Arizona, smart buyers and sellers should arm themselves with an experienced Arizona real estate attorney before proceeding with any property transaction. In most cases the costs will be minimal, but the peace of mind and potential savings will be virtually incalculable.
Harper Law represents individuals and businesses in Phoenix, Tucson, Mesa, Chandler, Glendale, Scottsdale, Gilbert, Tempe, Peoria, Surprise, Yuma, Avondale, Flagstaff, and other smaller communities throughout the State of Arizona.