7th Edition Nolo’s Encyclopedia of Everyday Law Answers to Your Most Frequently Asked Legal Questions by Shae Irving, J.D. & Nolo editors SEVENTH EDITION JANUARY 2008 Editor SHAE IRVING Production SUSAN PUTNEY Index THÉRÈSE SHERE Proofreader ROBERT WELLS Printer DELTA PRINTING SOLUTIONS, INC. Nolo’s encyclopedia of everyday law : answers to your most frequently asked legal questions / by Shae Irving & Nolo editors. 7th ed. p. cm. Includes index. ISBN 978-1-4133-0560-9 (pbk.) 1. Law United States Popular works. 2. Law United States Miscellanea. I. Irving, Shae. II. Nolo (Firm) KF387.N65 2008 349.73 dc22 2007031791 Copyright © 1996, 1999, 2002, 2003, 2005, and 2008 by Nolo. ALL RIGHTS RESERVED. PRINTED IN THE U.S.A. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher and the authors. Quantity sales: For information on bulk purchases or corporate premium sales, please contact the Special Sales department. For academic sales or textbook adoptions, ask for Academic Sales, 800-955-4775. Nolo, 950 Parker St., Berkeley, CA 94710. Dedication For Edward F. Dolan Acknowledgments anks to Jake Warner for inspiring and supporting this project. And thanks to all the Nolo editors and hardworking production folks who keep the book on track. For this edition, we’d particularly like to acknowledge Kathleen Michon, Susan Putney, and Robert Wells. We’re also grateful to every Nolo author whose fine work has shaped these pages. You’ll find many of these talented individuals listed in the Contributors section on the following page. But we want to give special thanks to: Paul Bergman and Sara Berman-Barrett, authors of Represent Yourself in Court and e Criminal Law Handbook David W. Brown, author of Beat Your Ticket: Go to Court and Win! Denis Clifford, author of many Nolo titles, including e Quick & Legal Will Book, Nolo’s Simple Will Book, and Make Your Own Living Trust, and coauthor of Plan Your Estate and A Legal Guide for Lesbian & Gay Couples Frederick W. Daily, author of Stand Up to the IRS and Tax Savvy for Small Business. Stephen R. Elias, author of numerous Nolo books, including e New Bankruptcy: Will It Work for You?, Special Needs Trusts: Protect Your Child’s Financial Future, How to File for Chapter 7 Bankruptcy, and Legal Research: How to Find & Understand the Law Cora Jordan, author of Neighbor Law: Fences, Trees, Boundaries & Noise and coauthor (with Denis Clifford) of Plan Your Estate Mimi E. Lyster, author of Building a Parenting Agreement at Works: How to Put Your Kids First When Your Marriage Doesn’t Last. Anthony Mancuso, author of Incorporate Your Business, How to Form a Nonprofit Corporation (national and California editions), Form Your Own Limited Liability Company, e Corporate Records Handbook, and LLC or Corporation? Joseph Matthews, author of How to Win Your Personal Injury Claim and Long-Term Care: How to Plan & Pay for It, and coauthor (with Dorothy Matthews Berman) of Social Security, Medicare & Government Pensions Fred S. Steingold, author of e Legal Guide for Starting & Running a Small Business and e Employer’s Legal Handbook. Contributors Ilona Bray Illona’s legal background includes solo practice as well experience in the nonprofit and corporate worlds. She has written or coauthored several Nolo titles, including Effective Fundraising for Nonprofits, Becoming a U.S. Citizen, and Nolo’s Essential Guide to Buying Your First Home. Catherine Caputo Before joining Nolo, Cathy was an attorney in private practice assisting start-up and small business clients with a wide range of legal needs. She edits small business books and software and also focuses on issues affecting seniors, such as Social Security benefits and retirement. Cathy received her law degree, with honors, from the University of San Francisco School of Law. Amy DelPo Amy has been an editor at Nolo since January 2000. She specializes in workers’ rights, sexual harassment law, employment law, criminal law, and civil litigation. She brings more than six years of criminal and civil litigation experience to her work at Nolo, having litigated cases in all levels of state and federal courts, including the California Supreme Court and the United States Supreme Court. Amy received her law degree, with honors, from the University of North Carolina at Chapel Hill. Emily Doskow Emily is a Nolo author and editor, and a mediator and attorney in private practice in Berkeley, California, specializing in adoption and family law, especially for same-sex couples. She is the coauthor of several Nolo books, including Nolo’s Essential Guide to Divorce, Becoming a Mediator, Do Your Own California Adoption, and How to Change Your Name in California. Diana Fitzpatrick Diana worked on municipal finance issues at the San Francisco City Attorney’s office before joining Nolo. She also worked at a law firm in New York for several years before moving to the Bay Area. Diana is a graduate of New York University School of Law and Barnard College. Lisa Guerin During her years as a law student at Boalt Hall School of Law at the University of California at Berkeley, Lisa worked for Nolo as a research and editorial assistant. After a stint as a staff attorney at the U.S. Court of Appeals for the Ninth Circuit, Lisa has worked primarily in the field of employment law, in both government and private practice. Lisa rejoined Nolo in 2000 and is the coauthor of several employment titles, including Create Your Own Employee Handbook and Dealing With Problem Employees. Shae Irving Shae graduated from Boalt Hall School of Law at the University of California at Berkeley in 1993 and began working for Nolo in 1994. She has written extensively on durable powers of attorney, health care directives, and other estate planning issues. She is the managing editor for Nolo’s Quicken WillMaker Plus software. Bethany K. Laurence Beth graduated from Hastings College of the Law at the University of California in 1993. She spent several years working for a corporate legal publisher before coming to Nolo. She joined Nolo’s editorial staff in 1997 and has never been happier. Beth is the coauthor of Nolo’s Business Buyout Agreements and the editor of many of Nolo’s small business books. Janet Portman Janet received undergraduate and graduate degrees from Stanford University and a law degree from the University of Santa Clara. She was a public defender before coming to Nolo. Janet is Nolo’s managing editor, the author of Every Landlord’s Guide to Finding Great Tenants, and the coauthor of many Nolo titles, including Every Landlord’s Legal Guide, Every Tenant’s Legal Guide, Renters’ Rights, and Negotiating the Best Lease for Your Business. Mary Randolph Mary has been editing and writing Nolo books and software for more than a decade. She earned her law degree from Boalt Hall School of Law at the University of California at Berkeley, and her undergraduate degree at the University of Illinois. She is the author of Deeds for California Real Estate, e Executor’s Guide, and other Nolo materials. Alayna Schroeder Alayna graduated from the University of California, Hastings College of the Law, and worked as an employment attorney before joining Nolo’s staff in 2005. In addition to editing employment and real estate titles, she is coauthor of Nolo’s Essential Guide to Buying Your First Home. Betsy Simmons-Hannibal Betsy is a Nolo editor specializing in estate planning books and software. She graduated with honors from Golden Gate University School of Law where she was research editor of the law review. Prior to joining Nolo, she trained at two private law firms as well as the San Francisco Superior Court and the Federal District Court of Northern California. When she’s not working, you might find her playing soccer, traveling with her husband, or doting on her curious dog. Marcia Stewart Marcia is an expert on landlord-tenant law, buying and selling houses, and other issues of interest to consumers. She is the coauthor of Nolo’s Every Landlord’s Legal Guide, Every Tenant’s Legal Guide, Renters’ Rights, and Leases & Rental Agreements, and editor of Nolo’s LeaseWriter software for landlords. Richard Stim Rich graduated from the University of San Francisco Law School and worked in private practice for 16 years until joining Nolo as an editor in 2000. He is the author of Profit From Your Idea, Getting Permission, and Music Law, and is the coauthor of Patent Pending in 24 Hours. Ralph Warner Ralph is a cofounder of Nolo. He is the author (or coauthor) of a number of Nolo books, including Every Landlord’s Legal Guide, Everybody’s Guide to Small Claims Court, Form a Partnership, and Get a Life: You Don’t Need a Million to Retire Well. Ralph is a lawyer who became fed up with the legal system and dedicated his professional life to making law more accessible and affordable to all Americans. ● Table of Contents I About is Book 1 1 Houses 3 Buying a House 4 Selling Your House 11 Deeds 16 2 Neighbors 19 Boundaries 20 Fences 21 Trees 23 Views 24 Noise 26 3 Landlords and Tenants 31 Leases and Rental Agreements 32 Tenant Selection 34 Housing Discrimination 35 Rent and Security Deposits 36 Tenants’ Privacy Rights 37 Cable Access and Satellite Dishes 38 Repairs and Maintenance 40 Landlord Liability for Criminal Acts and Activities 42 Landlord Liability for Lead Poisoning 44 Landlord’s Liability for Exposure to Asbestos and Mold 45 Insurance 46 Resolving Disputes 47 4 Workplace Rights 51 Fair Pay and Time Off 53 Workplace Health and Safety 61 Workers’ Compensation 63 Discrimination 68 Harassment 78 Workplace Privacy 81 Losing Your Job 84 5 Small Businesses 89 Before You Start 90 Legal Structures for Small Businesses 96 Nonprofit Corporations 102 Small Business Taxes 104 Home-Based Businesses 109 Employers’ Rights & Responsibilities 113 6 Patents 129 Qualifying for a Patent 130 Obtaining a Patent 135 Enforcing a Patent 137 Putting a Patent to Work 140 How Patents Differ From Copyrights and Trademarks 141 7 Copyrights 143 Copyright Basics 144 Copyright Ownership 146 Copyright Protection 148 Copyright Registration and Enforcement 151 8 Trademarks 155 Types of Trademarks 156 Trademark Protection 159 Using and Enforcing a Trademark 161 Conducting a Trademark Search 163 Registering a Trademark 166 How Trademarks Differ From Patents and Copyrights 170 9 Your Money 173 Purchasing Goods and Services 174 Using Credit and Charge Cards 179 Using an ATM or Debit Card 181 Strategies for Repaying Debts 182 Dealing With the IRS 188 Debt Collections 191 Bankruptcy 193 Rebuilding Credit 196 10 Cars and Driving 201 Buying a New Car 202 Leasing a Car 207 Buying a Used Car 209 Financing a Vehicle Purchase 211 Insuring Your Car 212 Your Driver’s License 215 If You’re Stopped by the Police 218 Drunk Driving 219 Traffic Accidents 221 11 Wills and Estate Planning 225 Wills 226 Probate 232 Executors 233 Avoiding Probate 236 Living Trusts 236 Estate and Gift Taxes 240 Funeral Planning and Other Final Arrangements 243 Body and Organ Donations 247 12 Health Care Directives and Powers of Attorney 249 Health Care Directives 250 Durable Powers of Attorney for Finances 256 Conservatorships 259 13 Older Americans 263 Social Security 264 Retirement Plans 269 Medicare 273 Finding a Caregiver or Residential Care Facility 278 14 Spouses and Partners 283 Living Together—Gay or Straight 284 Domestic Partnership and Civil Unions 288 Premarital Agreements 289 Marriage 292 Divorce 296 Domestic Violence 304 Changing Your Name 307 15 Parents and Children 313 Adopting a Child 314 Stepparent Adoptions 325 Adoption Rights: Birth Parents, Grandparents, and Children 326 Child Custody and Visitation 329 Child Support 335 Guardianship of Children 340 16 Courts and Mediation 345 Representing Yourself in Court 346 Small Claims Court 355 Mediation 361 Finding and Working With a Lawyer 365 17 Criminal Law and Procedure 377 Criminal Law and Procedure: An Overview 379 If You Are Questioned by the Police 383 Searches and Seizures 385 Arrests and Interrogations 388 Bail 391 Getting a Lawyer 393 G Glossary 399 A Appendix: Legal Research 417 Learning About a Particular Area of the Law 418 Finding a Specific Law 420 Finding Answers to Specific Legal Questions 425 Finding Legal Forms 427 Index 431 [...]... because of the schools, low crime rate, employment opportunities, weather, or proximity to a major city • Mortgage interest rates are low 12 | Nolo’ s Encyclopedia of Everyday Law • The economic climate of your region is healthy, and people feel confident about the future • There’s a jump in house-buying activity, as often occurs in spring Of course, if you have to sell immediately— because of financial... payment • occupancy—you need more time to move out • buyer’s sale of current house—you don’t want to wait for this to occur • inspections—you want the buyer to schedule them more quickly 14 | Nolo’ s Encyclopedia of Everyday Law A contract is formed when either you or the buyer accept all of the terms of the other’s offer or counteroffer in writing within the time allowed What are my obligations to... total of two years out of the last five, you are still eligible for a partial exclusion of capital gains if you sold because of a change in employment or health, or due to unforeseen circumstances You get a portion of the exclusion, based on how long you lived in the house To calculate it, take the number of months you lived there before the sale and divide it by 24 16 | Nolo’ s Encyclopedia of Everyday. .. collect their fee from the lender, not from you 6 | Nolo’ s Encyclopedia of Everyday Law What are my other options for home loans? You may also be eligible for a government-guaranteed loan, offered by: • the Federal Housing Administration (FHA), an agency of the Department of Housing and Urban Development (HUD) (see www hud.gov) • the U.S Department of Veterans Affairs (see www.homeloans.va.gov), or • a... restrict artificial (constructed) backyard fences to 22 | Nolo’ s Encyclopedia of Everyday Law a height of six feet In front yards, the limit is often four feet My neighbor’s fence is hideous Can I do anything about it? Height restrictions may also apply to natural fences—fences of bushes or trees—if they meet the ordinance’s general definition of fences Trees that are planted in a row and grow together... appraiser to give you a documented opinion as to your house’s value A number of companies offer detailed comparable sales prices online See the list of recommended websites at the end of this chapter Public record offices, such as the county clerk or recorder’s office, may also have information on recent house sales The asking prices of houses still on the market can also provide guidance (adjusting for... part of the country, attorneys have a more active role in all parts of the house transaction; they handle all the details of offer contracts and house closings Check with your state department of real estate or your real estate broker for advice I’m selling my house and buying another What are some of the most important tax considerations? If you sell your home, you may exclude up to $250,000 of your... uncooperative, you stand warned 26 | Nolo’ s Encyclopedia of Everyday Law How to Approach a View Problem Before you approach the owner of a tree that has grown to block your view, answer these questions: • Does the tree affect the view of other neighbors? If it does, get them to approach the tree owner with you You could all pitch in to cover trimming costs • Which part of the tree is causing view problems... they offer Virtual tours of new homes often include floor plans and photographs Once you identify a house you like, you can email the address or identification number to your agent, the listing agent, or the owner (if it’s a listing by a FSBO—for sale by owner) to obtain additional information or to set up an appointment to see the home The list of websites at the end of this chapter includes some of. .. health hazards such as asbestos, mold, and lead 10 | Nolo’ s Encyclopedia of Everyday Law In most states, professional inspections are done after you and the seller have signed a purchase agreement (Your purchase should be contingent upon the house passing one or more inspections.) To avoid confusion and disputes, be sure you get a written report of each inspection If the house is in good shape, you can . University of San Francisco School of Law. Amy DelPo Amy has been an editor at Nolo since January 2000. She specializes in workers’ rights, sexual harassment law, employment law, criminal law, . and software for more than a decade. She earned her law degree from Boalt Hall School of Law at the University of California at Berkeley, and her undergraduate degree at the University of Illinois author of Profit From Your Idea, Getting Permission, and Music Law, and is the coauthor of Patent Pending in 24 Hours. Ralph Warner Ralph is a cofounder of Nolo. He is the author (or coauthor) of