A Montana statute, MCA 28-2-201, states that most contracts with minors, defined as those under 18 years old, are invalid – but it’s not as drastic as it sounds. First of all, there are two rarely invoked exceptions to the statute prohibiting contracts with minors. The first is MCA 41-1-305, which provides that a contract for “necessities” such as food and housing is valid. The second is MCA 41-1-303, which provides that a contract to borrow money for education is also valid.

So someone under 18 can’t buy a fishing pole? No. There are major exceptions to the statute banning contracts with minors in addition to the “necessities” and education exceptions. The big one is ratification of the contract by conduct. In the fishing pole example, that would mean the minor paid for it and used it. Another related exception is that a minor’s failure to disavow the contract within a reasonable time means the agreement is valid. In the fishing pole example, that would mean the minor didn’t return the pole.

Court cases challenging the validity of a contract with a minor are extremely rare. Most merchants simply won’t sell to minors, which is why most websites and other terms of sale say something like, “Must be over 18 to purchase.” The law against contracts with minors seems to be an interesting legal issue that rarely comes up in real life.

For a copy of this Ask An Attorney column, including hyperlinks to the referenced resources, go to www.OverstreetLawGroup.com/blog

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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But first, what is a construction lien? Basically, it’s a lien a construction company can file against your property for unpaid amounts owed for the work they did. It’s like a mortgage; the construction company can foreclose on your property. Construction liens are huge clubs construction companies can use against property owners to get paid.

Given the tremendous leverage a construction lien gives them, some construction companies have apparently been filing liens for completely ridiculous amounts. Panicked clients call me and ask if there is anything that can be done. Fortunately, the answer is “Yes.”

First of all, the Montana Consumer Protection Act outlaws “unfair or deceptive acts of practices.” MCA 30-14-103. Charging $150 for a $6 tube of caulking and then filing a lien against your property certainly qualifies. The Consumer Protection levels the playing field by providing property owners a club of their own: triple damages and attorney’s fees. MCA 33-14-133.

Second, the construction lien statute allows a lien only for the “contract price.” MCA 71-3-526. However, in a break for property owners, the term “contract price” is defined to be the price agreed to or, if there is no set amount (as is often the case), then the “contract price” is the “reasonable value” of the work done. MCA 71-3-522. This limits the amount of the lien and should prevent a $150 charges for a $6 tube of caulk. A property owner can go to court to obtain a declaratory judgment from a judge on what the “reasonable value” of the work is and thereby set the amount of the lien. It’s best not to try a declaratory judgment lawsuit on your own. It’s better to have an attorney experienced in construction liens take the case.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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You have a legal right to that seat. No kidding. (You can’t make this kind of stuff up.)

Montana Code Annotated section 70-17-101 defines all the things that can be protected by an easement. The usual things are in there: a right-of-way or conservation easement, etc.

But so is “the right of a seat in church.” It’s subsection 16 of MCA 70-17-101 in case you think I’m making it up.

There must have been someone who felt a need to have his or her particular seat in church protected by law – and he or she must have known a legislator who would sponsor a bill to protect it. There’s always a story behind a piece of legislation.

Can one obtain a church-seat easement through adverse possession after occupying that seat for five years like other rights to land? One of the requirements of adverse possession is that the occupation is without the permission of the owner. But in a church-seat situation, presumably the church is permitting the person to sit in a particular seat. (This is what occupies the thoughts of attorneys.)

The question is: How many church goers would file a lawsuit to obtain their legal right to a particular seat in church? In Christian churches such a suit would seem to go against 1 Corinthians 6:1, which advises church goers to settle their internal disputes within the church instead of using the legal system.

Just because a legal right exists doesn’t mean it’s always a good idea to invoke it.

For a copy of this Ask An Attorney column, including hyperlinks to the referenced resources, go to www.OverstreetLawGroup.com/blog.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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A trademark is legal protection for the trade name of a business or product. (A service mark is essentially a trademark for a business in the service sector; service marks are often a slogan.)

A common misconception is that owning a trademark means you own a word or phrase and others cannot use it. You don’t “own” the trademarked word or phrase in general; you own the right to exclude others from using it as applied to the goods or services you provide in your geographic area. So, for example, if you make a snow removal attachment for a lawn mower called a “Snow Cone,” you don’t completely own those words and cannot prevent an ice cream truck from selling “snow cones.”

The reason almost all local businesses don’t need to register a federal trademark is that under MCA 30-13-336 the business already has some state-law protections under the common law. In addition, a business can easily and inexpensively register its trademark with the state of Montana, which puts other businesses in the state on notice that you claim it. However, a state registration is effectively only in Montana. This is good enough for most local businesses.

Registering your trademark with the federal government protects your trademark throughout the country. However, a federal trademark is a much more complicated and expensive process than registering it with the state. Most local businesses don’t need nationwide trademark protection.

By the way, the “®” symbol after a word or phrase stands for “Registered” with the federal trademark office. The symbol “TM” means you’re claiming a state trademark. (You learn something new every day – especially when you read this blog.)

For a copy of this Ask An Attorney column, including hyperlinks to the referenced resources, go to www.OverstreetLawGroup.com/blog

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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Montana law provides, “All contracts may be oral except such as specifically by statute to be in writing.” MCA 28-2-901. Another statute, MCA 28-2-903, states which contracts must be in writing: contracts that take more than a year to perform, a promise to answer for the debt of another, the sale of real property or an interest in real property, and real estate broker contracts. Commercial contracts under the Uniform Commercial Code can be oral and are governed by that series of statutes (the details of which are beyond the scope of this short article). A written contract must be memorialized in writing, of course, and “subscribed” by the party or parties obligated. “Subscribed” basically means a signature or other writing showing agreement such as a reply email.

The issue with oral contracts isn’t whether they “count” but how to prove their terms. It usually involves a “he said, she said” battle of testimony. It is by far better to get the terms of the deal of the agreement – even if only a brief description of them – in writing and signed by the other party or a reply email showing agreement. This makes proving the terms much, much easier.

Bottom line: In Montana, most “handshake” deals count but their terms are hard to prove.

For a copy of this Ask An Attorney column, including hyperlinks to the referenced resources, go to www.OverstreetLawGroup.com/blog

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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Courts across the U.S. have ruled that the following names are illegal: King, Queen, Majesty, III, Santa Claus, Messiah, @, and Adolf Hitler. The courts give different reasons for ruling the names are illegal.

Statutes and regulations in other states make some other names illegal. In Arizona, a name cannot exceed 141 characters. In Nebraska, a name cannot be “obscene.” And in Florida, if both parents don’t agree on a name, the state will name the child.

There are no such restrictions in Montana according to babynamequest.com. It says, “Montana has no rules on baby names, but its data system doesn’t allow for special symbols. If a parent wants to use a symbol, once they receive the birth certificate, they can write it in and send it back to the vital records office for approval.”

Why doesn’t the First Amendment protect a person’s right to name his or her child whatever they want? The First Amendment applies to “speech” and naming a child isn’t “speech.”

For a copy of this Ask An Attorney column, including hyperlinks to the referenced resources, go to www.OverstreetLawGroup.com/blog

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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However – and this is a big “however” – that doesn’t mean that property isn’t divided among spouses upon a divorce. In Montana, each spouse’s separate property is subject to “equitable division.” This basically means that a judge gets to decide how the property should be divided. There is a statute, MCA 40-4-202, and a court decision, In re Funk, that provide the factors a court considers when dividing up the property. They include the duration of the marriage; each of the parties’ age, health, occupation, amount and sources of income, vocational skills, employability, and needs; the custody of any children; future economic opportunities; and any pre-nuptial agreement.

A judge has very broad discretion to divide up the property. The Supreme Court is unlikely to overturn a county judge’s decision. This means the parties’ property is truly in the judge’s hands.

Increasingly, divorcing couples avoid the uncertainty and expense of having a judge divide the property by agreeing on their own to who gets what. Given the emotional nature of a divorce – and the high stakes for each party’s future financial security – the parties often can’t settle on their own. Increasingly, divorcing couples look to some outside help to assist in the settlement process such as a mediator. A mediator is a neutral third party trained to facilitate the settlement process. Mediation is voluntary and can be cancelled at any time. It occurs outside of the court process. Each party presents information to the mediator and the mediator tries to find the areas of agreement and disagreement. A mediator often tells the parties how a judge might rule, which can sometimes persuade a party to give up an unreasonable position. Mediation costs a fraction of paying an attorney to present the case to a judge. And, since the parties are working the division of property out themselves, they often have less hard feelings with the outcome because it was their outcome. To learn more about mediation, go to the web page for Montana Mediations.

Overstreet Law Group does not take divorce cases but can help you find a good divorce attorney. Please contact us if you need one.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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In a nutshell, an express easement is one that is recorded with the county like a deed. It defines the access rights the road user has across the land of another.

An implied easement is, as the name implies, one implied from when the land was last divided. For example, when a road went over the whole parcel an implied easement can exist after the land was divided.

There are also easements by necessity, which, as the name implies, are unrecorded easements that are necessaary to give access to a parcel surrounded by another owner.

Another kind of easement is a “prescriptive” easement. It basically is the right to use an easement that has been used for the past five or more years. That is, a prescriptive is created not by a recorded document but rather by actual use for the past five or more years. See Montana Code Annotated 70-19-404. The user of the prescriptive easement can, if necessary, go to court and have a judge declare the existence of the easement. See generally JRN Holdings, Inc. v. Dearborn Meadows Land Owners Ass’n, 405 Mont. 200, 493 P.3d 340, 2021 MT 204.

What should you do if a neighbor is blocking your road access? Call Overstreet Law Group.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship is formed unless a person enters into a written representation agreement with Overstreet Law Group, LLC.)

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The process for getting property back is Montana Code Annotated 46-5-312. It provides that a person who has the right to possession of the property may apply to the judge for its return. The judge will notify the prosecution and anyone else who might have an interest in the property. A judge will order the return of the property if, after a hearing: (1) the person seeking the return of the property establishes his or her right to possess the property, (2) the property is not contraband, (3) it is not needed as evidence anymore, (4) the property is needed by the owner and arrangements can be made to get it again for evidence if necessary, or (5) all proceedings in the criminal case (such as an appeal or appeal period) are over.

If you need your property back, or if you are a criminal defense attorney who, for whatever reason, does not want to undertake a return-of-property case, contact Greg Overstreet at the Overstreet Law Group.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship is formed unless a person enters into a written representation agreement with Overstreet Law Group, LLC.)

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