Dealing with Post-Disaster Legal Issues
By Casey Summar, Director, Volunteer Lawyers and Professionals for the Arts/Arts & Business Council of Greater Nashville
When faced with a disaster situation, you may find yourself in need of a lawyer to answer questions and just generally have your back. Here are some guidelines to help you determine when you need to seek professional advice and if so, whom you should call.
When you might need a lawyer
If your home or studio is damaged by a disaster, the steps you must take to protect your investment are not always intuitive. For example, many people incorrectly assume that you can stop paying your mortgage if your house is damaged to the point that you can no longer live it. Generally speaking, this is not true and if you simply do not pay your mortgage you would be in default and could lose your home to foreclosure.
Many lenders will offer you a grace period and allow you to delay payments.
You could use this grace period to consult an attorney, determine your options and prepare a plan. Depending on your situation, you may be able to find a solution by reorganizing your assets through bankruptcy.
Alternatively, you could pursue aid programs through organizations like FEMA to obtain funds to continue paying your mortgage. The Dept. of Housing & Urban Development Agency (HUD) website has a listing of housing resources http://www.hud.gov/info/disasterresources_dev.cfm
There are similar issues if you rent, as opposed to own, your home or studio. Even if your apartment has been damaged, you typically cannot simply stop paying rent or move out without following certain procedures starting with notice to your landlord in a timely fashion. Failure to do so may require you to honor the entire terms of your lease even if you no longer live in the apartment.
A good rule of thumb when dealing with any of the above situations is prompt and accurate communication. For example, while you cannot just stop paying rent, nothing prevents you from explaining the situation to your landlord and figuring out a mutually satisfactory solution. If your landlord refuses to work with you, it is probably time to seek advice from an attorney.
Another area of concern related to damage of your home or studio is how to recover if you had insurance. This can often be your best recourse, but again, you have to be informed and take the right steps at the right time to improve your chances of recovery. The best place to start is a careful reading of your insurance policy (assuming you can lay your hands on it!). You may find that your policy requires you to take actions to mitigate increased damage to your property, for example, to prevent the development of mold or other hazards. If you fail to do so, you may be limited to a partial recovery or possibly no recovery at all. A useful checklist for contacting your insurance company is available at http://www.disasterlegalaid.org/legalhelp/item.5379-Insurance_Claims_Information.
Last, a disaster may disrupt your livelihood. For example, a disaster may destroy a work in progress rendering you unable to complete a particular commission on schedule. There are a couple of ways to protect yourself from liability for breaching this agreement.
As a best case scenario, you have a written contract that includes a “force majeure” provision that excuses either party from liability if they cannot perform due to a disaster or other uncontrollable event.
If you did not have this in your contract, you should immediately inform the other party of the anticipated delay and work to negotiate an amended agreement. You may need to involve a lawyer to ensure the amended language is sufficient and/or to help with negotiation.
Getting Legal Assistance
Finding the right lawyer –someone well versed in artists’ professional practices and problems--can make a big difference. Volunteer Lawyers for the Arts (VLA) and Legal Aid in your area are two great resources for artists in need of legal assistance. These organizations each help with distinct issues:
If the legal issue relates to your studio or your creative business, the VLA is likely your best resource. You can find a national directory of VLA organizations at http://vlaa.org/get-help/other-vlas/ .
If you have an issue relating to your home or family, the Legal Aid is probably better equipped to help you. A national directory of Legal Aid offices is http://www.lsc.gov/find-legal-aid .
Note that not all communities have a VLA. Here are some other tips for locating an artist-friendly attorney.
Ask your artist friends for a referral. An artist in your network might know of an attorney who is willing to work for artists for barter or trade for artwork.
Another place to go is your local arts council. There is a national directory of state arts agencies here: http://www.nasaa-arts.org/About/State-Arts-Agency-Directory.php.
Most local bar associations have lawyer referral programs. These often include a free consultation to determine if the attorney is a good fit before you run up any bills.