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Statute of Limitations

Statute of Limitations

Civil actions

Civil actions must be commenced and prosecuted within the following time limitations, beginning when the cause of action accrues:

One year limitation:

A.R.S. 12-541 Malicious prosecution; false imprisonment; libel or slander; seduction or breach of promise of marriage; breach of employment contract; wrongful termination; liability created by statute; one year limitation

Two year limitation:

A.R.S. 12-542 Injury to person; injury when death ensues; injury to property; conversion of property; forcible entry and forcible detainer; two year limitation

Three year limitation:

A.R.S. 12-543 Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

Four year limitation:

A.R.S. 12-544 Bond to convey realty; partnership account; account between merchants; judgment or instrument given or made without the state; four year limitation

A.R.S. 12-545 Bond of personal representative or guardian; four year limitation

A.R.S. 12-546 Specific performance of contract to convey realty; four year limitation

Five year limitation:

A.R.S. 12-547 Failure to make return on execution; five year limitation

Six year limitation:

A.R.S. 12-548 Contract in writing for debt; six year limitation

Criminal Prosecutions

Crimes must be prosecuted within the following time limits:

A.R.S. 13-107. Time limitations

A. A prosecution for any homicide, any offense that is listed in chapter 14 or 35.1 of this title and that is a class 2 felony, any violent sexual assault pursuant to section 13-1423, any violation of section 13-2308.01, any misuse of public monies or a felony involving falsification of public records or any attempt to commit an offense listed in this subsection may be commenced at any time.

B. Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods after actual discovery by the state or the political subdivision having jurisdiction of the offense or discovery by the state or the political subdivision that should have occurred with the exercise of reasonable diligence, whichever first occurs:

1. For a class 2 through a class 6 felony, seven years.

2. For a misdemeanor, one year.

3. For a petty offense, six months.

C. For the purposes of subsection B of this section, a prosecution is commenced when an indictment, information or complaint is filed.

D. The period of limitation does not run during any time when the accused is absent from the state or has no reasonably ascertainable place of abode within the state.

E. The period of limitation does not run for a serious offense as defined in section 13-706 during any time when the identity of the person who commits the offense or offenses is unknown.

F. The time limitation within which a prosecution of a class 6 felony shall commence shall be determined pursuant to subsection B, paragraph 1 of this section, irrespective of whether a court enters a judgment of conviction for or a prosecuting attorney designates the offense as a misdemeanor.

G. If a complaint, indictment or information filed before the period of limitation has expired is dismissed for any reason, a new prosecution may be commenced within six months after the dismissal becomes final even if the period of limitation has expired at the time of the dismissal or will expire within six months of the dismissal.

See A.R.S. 13-107

Statute of Frauds

Statute of Frauds

In general, oral (not in writing) agreements can be enforced by bringing an action in court. However, the Statute of Frauds requires that certain types of agreements must be in writing and signed,  in order to be enforceable in court.

Arizona’s Statute of Frauds requires that the following types of promises or agreements must must be in writing and signed by the party to be charged:

1. To charge an executor or administrator upon any promise to answer for any debt or damages due from his testator or intestate out of his own estate.

2. To charge a person upon a promise to answer for the debt, default or miscarriage of another.

3. To charge a person upon any agreement made upon consideration of marriage, except a mutual promise to marry.

4. Upon a contract to sell or a sale of goods or choses in action of the value of five hundred dollars or more, unless the buyer accepts part of the goods or choses in action, and actually receives them or gives something in earnest to bind the contract, or in part payment, but when a sale is made at auction, an entry by the auctioneer in his sale book, made at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the name of the purchaser and person on whose account the sale is made is a sufficient memorandum.

5. Upon an agreement which is not to be performed within one year from the making thereof.

6. Upon an agreement for leasing for a longer period than one year, or for the sale of real property or an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing, subscribed by the party sought to be charged.

7. Upon an agreement authorizing or employing an agent or broker to purchase or sell real property, or mines, for compensation or a commission.

8. Upon an agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make provision for any person by will.

9. Upon a contract, promise, undertaking or commitment to loan money or to grant or extend credit, or a contract, promise, undertaking or commitment to extend, renew or modify a loan or other extension of credit involving both an amount greater than two hundred fifty thousand dollars and not made or extended primarily for personal, family or household purposes.

See A.R.S. 44-101

Prenuptial Agreement

Prenuptial Agreement

Basics

A prenuptial agreement or premarital agreement is an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage.

Parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign or create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property.

3. The disposition of property on separation, marital dissolution, death or the occurrence or nonoccurrence of any other event.

4. The modification or elimination of spousal support.

5. The making of a will, trust or other arrangement to carry out the provisions of the agreement.

6. The ownership rights in and disposition of the death benefit from a life insurance policy.

7. The choice of law governing the construction of the agreement.

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

The right of a child to support may not be adversely affected by a premarital agreement.

Requirements for valid agreement

A prenuptial agreement must be in writing and signed by both parties.

A prenuptial agreement is not enforceable if the person against whom enforcement is sought proves either of the following: 1. The person did not execute the agreement voluntarily. 2. The agreement was unconscionable when it was executed and before execution of the agreement that person: (a) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party. (b) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. (c) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

See:

A.R.S. 25-201 Definitions

A.R.S. 25-202 Enforcement of premarital agreements; exception

A.R.S. 25-203 Scope of agreement

A.R.S. 25-204 Amendment or revocation of agreement

A.R.S. 25-205 Limitation of actions

Dog Bites

Dog Bites

Liability for dog bites

Arizona applies a type of strict liability to owners of dogs which bite a person.

The owner of a dog which bites a person is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of its viciousness.

The owner is liable when the person is bitten in or on a public place or lawfully in or on a private place, including the property of the owner of the dog.

Defenses

Proof of provocation of the attack by the person injured is a defense to the action for damages. The issue of provocation is determined by whether a reasonable person would expect that the conduct or circumstances would be likely to provoke a dog.

See:

A.R.S. 11-1025 Liability for dog bites

A.R.S. 11-1026 Lawful presence on private property defined

A.R.S. 11-1027 Reasonable provocation as defense

Conservation Easements

Conservation Easements

A conservation easement is a non-possessory interest of a holder in real property imposing limitations or affirmative obligations for conservation purposes or to preserve the historical, architectural, archaeological or cultural aspects of real property.

Arizona allows businesses and individuals to grant conservation easements to governmental bodies and charitable corporations whose purpose  is to retain or protecting the natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality or preserving the historical, architectural, archaeological or cultural aspects of real property.

The conservation easement must yield a significant public benefit by: (a) preserving land areas for outdoor recreation by, or the education of, the general public; or (b) protecting a relatively natural habitat of fish, wildlife or plants or similar ecosystem; or (c) preserving open space, including farmland and forest land, if the preservation is either: (i) for the scenic enjoyment of the general public or pursuant to a clearly delineated federal, state or local governmental conservation policy.

A conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements. A conservation easement is unlimited in duration unless the instrument creating it otherwise provides.

A conservation easement, or any assignment, release, modification, termination or other document altering or affecting a conservation easement, is only valid if recorded with the county recorder of the county in which any portion of the real property burdened by the conservation easement is located.See:

33-271 Definitions33-272 Creation, conveyance, acceptance and duration

33-273 Judicial actions33-274 Validity and assignment of conservation easements

33-275 Application of other laws33-276 Applicability

Arizona’s community property laws and distribution of property at death

Arizona’s community property laws and distribution of property at death

Community Property Basics

Arizona is a Community Property state. All property acquired during marriage, except that is acquired by gift, devise or descent, is presumed to be Community Property.

Property acquired prior to marriage or after marriage by gift, devise or descent is Separate Property unless gifted to the community. If an item is Separate Property, a mere change in its form does not change its character as Separate Property unless it is gifted to the community. The burden of proving an item is Separate Property is on the spouse trying to claim it is Separate Property and it must be shown by clear and convincing evidence that it is Separate Property.

During marriage each spouse has sole management and control over their Separate Property and equal management and control over Community Property. Joinder of both spouses is required for community real property, guaranty, indemnity and suretyship.

Prospective spouses can modify the effect of Arizona’s community property laws by executing a prenuptial agreement.

Distribution at Death

When a spouse dies, that spouse’s Separate Property goes to the deceased’s estate and passes to whoever is named in will or through intestate succession.

The surviving spouse takes one-half of all Community Property and the other half goes to the deceased’s estate and passes to whoever is named in will or through intestate succession. If in a will the deceased devises more than what they have a right to (i.e. devises more than one-half of the Community Property), the surviving spouse can elect to take one-half of the Community Property or whatever is devised in the will.

Joint tenancy property goes to the surviving spouse outside of probate.


See:

A.R.S. 25-211 Property acquired during marriage as community property; exceptions; effect of service of a petition

A.R.S. 25-213 Separate property

A.R.S. 25-214 Management and control

A.R.S. 25-215 Liability of community property and separate property for community and separate debts

A.R.S. 25-217 Ownership of property acquired after moving into state

Business Organization Types

Business Organization Types

Choose the best form for your Arizona business

The following issues are likely to be of concern when choosing the best form of organization for your Arizona business: (1) formation and formalities (2) liabilities of owners to third parties (3) management and control (4) liquidity (5) dissolution and (6) taxation.

Corporations: (1) formation and formalities: must file articles of incorporation and observe ongoing formalities (2) liabilities of owners to 3rd parties: no liability (3) management and control: no direct control – delegate to Board of Directors (4) liquidity: shares easy to transfer (5) dissolution: unlimited life (6) taxation: double taxation except for S-Corp. (up to 75 owners, 1 class of stock, only U.S. citizens)

Partnerships: (1) formation and formalities: none for general partnership, modest for limited partnership (2) liabilities of owners to 3rd parties: general partners personally liable unless a registered Limited Liability Partnership (LLP) (3) management and control: general partners have control rights (4) liquidity: limit on transferability, general interest is illiquid (5) dissolution: limited life (6) taxation: pass-through taxation

Limited liability companies (LLC): (1) formation and formalities: must file articles of organization and operating agreement (2) liabilities of owners to 3rd parties: members have same limited liability as shareholders (3) management and control: members can manage or may delegate management power to team of managers (4) liquidity: members may transfer their interest only through the unanimous consent of all members or through consent described in the articles of organization (5) dissolution: must be some event of dissolution specified in articles or membership agreement (6) taxation: pass-through

For many small businesses, LLC is best choice because although they have limited liquidity and limited life, they have limited formalities, limited liability, some control and pass-through taxation.

Create Power of Attorney

Create Power of Attorney

A durable power of attorney is a written instrument by which a principal designates another person as the principal’s agent.

An adult, known as the principal, may designate another adult, known as the agent, to make financial decisions on the principal’s behalf by executing a written power of attorney that satisfies all of the following requirements:

1. Contains language that clearly indicates that the principal intends to create a power of attorney and clearly identifies the agent.

2. Is signed or marked by the principal or signed in the principal’s name by some other individual in the principal’s conscious presence and at the principal’s direction.

3. Is witnessed by a person other than the agent, the agent’s spouse, the agent’s children or the notary public.

4. Is executed and attested by its acknowledgment by the principal and by an affidavit of the witness before notary public and evidenced by the notary public’s certificate, under official seal, in substantially the following form:

I, __________, the principal, sign my name to this power of attorney this _____ day of __________ and, being first duly sworn, do declare to the undersigned authority that I sign and execute this instrument as my power of attorney and that I sign it willingly, or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes expressed in the power of attorney and that I am eighteen years of age or older, of sound mind and under no constraint or undue influence.

______________________
Principal

I, __________, the witness, sign my name to the foregoing power of attorney being first duly sworn and do declare to the undersigned authority that the principal signs and executes this instrument as his/her power of attorney and that he/she signs it willingly, or willingly directs another to sign for him/her, and that I, in the presence and hearing of the principal, sign this power of attorney as witness to the principal’s signing and that to the best of my knowledge the principal is eighteen years of age or older, of sound mind and under no constraint or undue influence.

____________________
Witness

The state of _________

County of ____________

Subscribed, sworn to and acknowledged before me by __________, the principal, and subscribed and sworn to before me by __________, witness, this _____ day of ____________.

(seal)

(signed) _____________________

______________________________
(notary public)

See:

A.R.S. 14-5501 Durable power of attorney; creation; validity

A.R.S. 14-5502 Effect of lapse of time, disability or incapacity

A.R.S. 14-5503 Relation of agent to court appointed fiduciary

A.R.S. 14-5504 Revocation; termination; effect; notice

A.R.S. 14-5505 Continuance of durable powers of attorney by affidavit

A.R.S. 14-5506 Powers of attorney; best interest; intimidation; deception; definitions

A.R.S. 14-5507 Applicability of article

Register a trade name

Register a trade name

What is a trade name or DBA?

Arizona allows the registration of trade names. A trade name is a name under which an individual or entity operates its business. A trade name is often called a DBA, which stands for “doing business as.”

Trade names are registered with the Arizona Secretary of State.

What is the effect of registering a trade name?

Registering a trade name is different from incorporating a business. Thus, if a person registers a trade name, they do not enjoy the benefits of incorporation.

There is no legal requirement in Arizona to register a trade name, however, registering a trade name gives the trade name holder the exclusive right to use the name in Arizona. Federal rights to a name is only gained by registering a trade mark or service mark with the United States Patent and Trademark Office.

Banks often require individuals who are operating a business as a sole proprietorship to have a registered trade name in order to have a bank account under the business name.

How do I register a trade name?

First, you need to see if your trade name can be registered. A trade name must be distinguishable on the record from any other name previously registered and on the record with the Secretary of State. To see if your proposed name is already taken, check Arizona’s trade name database. Your trade name cannot be too similar to a trade name that is already registered. Also, your trade name cannot contain corporate designations such as “Inc.”, “LLC” or “Corp.”

Once you have verified that your trade name can be registered, download and fill out the trade name application form. The form must be notarized if you are filing by mail.

Mail the notarized form along with a check for the $10 filing fee to:

Secretary of State Ken Bennett / Trade Name Division

1700 West Washington 7th Fl.

Phoenix, Arizona 85007

See:

Trade Name and Handbook

Form an Arizona LLC

Form an Arizona LLC

Before forming an Arizona LLC

It is important to chose the best form of organization for your Arizona company. There are important differences between Corporations and Limited Liability Companies (LLC’s). Read more here about the different business organization types.

Choose your name for your LLC

The name you chose for your LLC must meet all the requirements of A.R.S. 29-602. Among other requirements, your LLC name must contain the words “limited liability company” or “limited company” or the abbreviations “L.L.C.”, “L.C.”, “LLC” or “LC”, in uppercase or lowercase letters. Additionally, your LLC name must be distinguishable from the names of existing corporations and LLC’s.

To check if your LLC name has already been taken, check the Arizona Corporation’s database here.

Prepare and File the Articles of Organization

Once you have chose an acceptable name for your LCC, you can prepare and file the Articles of Organization with the Arizona Corporation Commission (ACC).

The ACC form for LLC Articles of Organization can be found here. You must also fill out a cover sheet, which can be found here. Send the Articles of Organization, the cover sheet and the required filing fee of $50 to the ACC. Make checks payable to the ARIZONA CORPORATION COMMISSION.

Publish the Articles of Organization

Within sixty 60 days after the ACC has approved your filing, you must publish the Articles of Organization in a newspaper of general circulation in the county of the known place of business in Arizona, for three (3) consecutive publications. Note: Do not publish your Articles of Organization until the ACC approves your filing.

Список разрешенных газет в каждом округе будет сопровождать письмо об одобрении и размещен на веб-сайте ACC  здесь . Ваш LCC может быть ликвидирован, если он не будет опубликован. Подача аффидевита публикации не требуется.

See:

ACC Corporate Filing FAQ

ACC Website

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