For many business owners, franchising can appear to be an ideal form of business expansion. Franchisees are responsible for the entire investment in opening locations and due to that investment, are highly-motivated to perform well. That allows franchisors to grow and experience brand awareness a lot faster than they otherwise might. But not all businesses are cut out to franchise. If you’re considering franchising, one of the most important questions to ask is simply, “Am I ready?”
Let's say you're two years into a 5-year lease term and you get a new job that requires you to move to a different city. What do you do? Your only options are to either (i) get your landlord to agree to let you out of the lease early (which could be costly), (ii) find someone to take over the balance of the lease through an assignment, or (iii) subletting to another tenant who will rent the place for the balance of the lease term, which means you remain on the lease as the original tenant.
Most leases have a clause that permits assignment or subletting with the consent of the landlord, and this provision usually also states that the landlord cannot unreasonably withhold that consent. This means that the landlord must give their consent if there is no reason not to - for instance, if you can come up with a reputable candidate who can afford to sublease the property.
But that same reputable candidate might get you into some legal hot water under the terms of your lease. For instance:
They may have pets (or friends) who cause damage to the rental unit that YOU will then be liable for.
They may have loud parties until all hours and cause trouble with the neighbours, which can end up in an eviction. You would then have to pay the landlord's legal costs to evict the subtenant.
They may fall behind in the rent, and you will be on the hook for it.
When you assign your lease to a subtenant, you're still responsible for your obligations under the lease unless your landlord releases you from those obligations in writing. And because a sublease is between you and the subtenant (NOT with the landlord), the subtenant has no legal obligation to pay the landlord unless they have agreed in writing to take over your responsibilities under the lease.
To limit your risk:
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In occupational health and safety lingo, the terms "accident" and "incident" may appear to be interchangeable - but they're not. An incident is any situation that unexpectedly arises in the workplace which has the potential to cause injury, damage or harm. An accident is actually an incident that resulted in someone being injured or damage being done to property.
Samuel Goldwyn once said, "An oral contract isn't worth the paper it's written on." Sam had a point - it's often very hard to establish with 100% accuracy whether a contract actually exists, let alone what the terms of the contract are, with no written point of reference. And if you can't prove you have a contract, how can you enforce it?
If both parties admit, firstly, that there is a contractual relationship between them and secondly, what the terms are that were agreed upon, then an oral (or verbal) contract can be established and enforced to the extent that those terms can be verified. This of course presupposes that the parties are giving accurate and truthful representations about the agreed-upon terms.
If there were any other persons who were present at the time the contract was struck (such as employees or family members), those persons can act as witnesses to verify the existence of the relationship. Even if there is no signed contract between the parties, there is very often other documentation to support the existence of the contract, such as correspondence (letters or emails), notes, supplementary agreements or even draft contracts which were never signed.
The course of conduct between the parties can also help to establish that there is a contractual agreement. If the parties have acted in a certain manner which supports the assertion of a contract (for example, services were provided by one party to the other in exchange for payment), that is also evidence that a contract exists.
To be legally enforceable any agreement (whether oral or written) must meet certain requirements. It must contain essential contractual terms; those terms must be sufficiently certain to allow for enforcement; and no essential terms may be left on the table for future agreement.
Different countries approach the subject differently. For instance, in Canada a verbal contract is enforceable if you can prove the existence of a contract and its terms. Under US law, an oral contract is enforceable unless its subject matter falls within the statute of frauds, which requires certain contracts to be in writing. The Uniform Commercial Code governs the enforceability of oral contracts in any purchase and sale agreement involving a commercial merchant. British law allows for binding and legally enforceable oral contracts, except in certain circumstances. In all 3 countries, a written agreement is required in transactions involving the purchase, sale and mortgaging of real estate, personal guarantees, and transfers of securities (although there are some exceptions to this rule).
Whether or not the law requires it, it is always prudent to put your agreement in writing. A written contract provides clarity, confirms that the parties have the same understanding of the relationship, establishes the rights and obligations of the parties, and provides protection and security in the event of a default or dispute. It can even reduce the potential for legal claims, because it provides a clear reference point as to how the parties have agreed to act and cooperate throughout the performance of the contract and reduces the potential for misunderstanding and miscommunication.
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Many formal proceedings and applications require you to swear an affidavit under oath (or make an affirmation) as part of the documentation. Some examples of this are: obtaining a passport, proving service of legal documents, getting a mortgage or other type of loan, changing a title deed after a name change following marriage or divorce, and selling assets.
No one expects the unexpected. Each day of our lives, we run the risk of being struck down by disease, illness or accident. Any one of us could find ourselves in a hospital bed, unable to speak and unaware of our surroundings, clinging to life but facing imminent death.
Yes, I know that's a really depressing way to jump into an article, but I'm trying to make a point. Being prepared is a good thing. We don't like to think about these things, but they do happen. If you were in a serious car accident and were given little chance of survival, your family would be devastated. Would you not want to spare them some pain and stress if you could? Of course you would. That's why you should make an Advance Medical Directive.
An advance medical directive (also called a health care power of attorney, personal directive, or living will) is a document which accomplishes two things: (1) It lets you name someone you trust (such as your spouse, partner, sibling, or good friend) as your agent, surrogate or proxy (basically an attorney-in-fact), who is authorized to make medical decisions for you when you are unable to do so. (2) It also allows you to set out your wishes about the extent of medical care you want to receive if you are in a persistent vegetative state (coma) or if you are likely to die from an irreversible condition.
The underlying principle of an advance directive is to allow you to exercise your right to decide whether or not you want your life to be prolonged by artificial means, and to instruct your caregivers how much or how little treatment you want them to administer. Because these instructions are written down at a time when you were still able to communicate them, they can inform your loved ones and physicians of your wishes and help guide their decisions.
You should discuss your wishes with the person you name as your agent so that he or she knows the circumstances in which you would not want to be resuscitated or kept on life support, whether you would want pain relief or other medications to be administered, and even whether you wish to receive fluids or nutrition intravenously.
An advance directive only becomes effective when you are no longer able to make your own decisions. If your medical condition is temporary, the directive will cease to be effective as soon as you regain mental capacity. Many states, provinces and countries now recognize the patient's right to refuse life-sustaining treatments and to die with dignity, although some jurisdictions have restrictions on certain decisions that a surrogate can make. For instance, in general your agent cannot make decisions involving abortion or sterilization. Your spouse, your agent and your doctor should all have a copy of your advance directive. And if you decide to change or revoke your directive, make sure they each have a copy of the changes or the revocation as well.
Q. I've been researching what I need to know to do my Will and set up a Living Trust, and I'm getting confused by some of the materials I've been reading. I keep seeing separate references to 'heirs' and 'beneficiaries'. Are they not the same thing? My son is the heir to my estate, isn't he? Doesn't that also make him the beneficiary?
A. That's an excellent question, and the answer is 'No'. I hope the following will clear this up for you.
Beneficiaries are the persons you name in your Will to receive all or part of your estate property (or the persons designated in a Trust Deed to receive all or part of the trust property). They're called beneficiaries because they benefit from the terms of the Will or Trust. Any person or organization can be a beneficiary - it's up to you to distribute your property among them as you see fit. Most people choose to distribute their estate among their family members and close friends. You may also wish to gift a certain amount to a charity, club, society or service organization that is important to you.
Heirs, on the other hand, are determined by the laws of descent. An heir is someone who will inherit the property of a person (decedent) who dies intestate, i.e. without a valid Will. The laws of the jurisdiction in which the decedent's property lies will determine what the order of succession will be, but in general, the estate may go wholly or partially to the surviving spouse, the decedent's children (or if none of them survive, to the grandchildren), the decedent's parents, and the siblings. If there are no surviving members of the immediate family, the inheritance may then pass to other blood relatives - aunts, uncles, cousins, nieces and nephews. All of this depends on the degree of family kinship and the applicable laws.
So as you can see, there are very distinct differences between a beneficiary and an heir. Beneficiaries are chosen by you when you make your Will or establish a Trust. You can name yourself as a beneficiary of a trust, in many cases. And gifts can be distributed to beneficiaries through a trust during your lifetime. Heirs are determined by law in cases where the decedent has died without a Will. As long as you are alive, you have no heirs. They only become your heirs after you die.
