Frequently Asked Questions About Idaho Law

The Bendell Law Firm welcomes you to browse our FAQs about Idaho law. Keep in mind that the information is provided for informational purposes only: laws may change and you should take legal advice only from an attorney familiar with your particular situation. To see articles on other useful topics, visit the Bendell Law Firm blog. Jim Bendell also answers your questions in his video Q&A: learn more and join our video Q&A email list.

Does a Person Get to Keep All Money Received in a Car Accident Case?

An Idaho resident who has been injured due to someone else’s negligence is entitled to monetary damages to compensate that person for the harm sustained. The damages fall into the following categories:

  • Past and future medical bills.
  • Past and future wage loss or loss of income.
  • Past and future pain and suffering.

However, if the injured person’s medical insurance company (or Medicare or Medicaid) paid some or all of the past medical bills, the injured person will be required to pay a portion of the settlement back to that insurance company. This obligation is commonly known as the ‘right of subrogation.’

The obligation to honor subrogation interests also can arise in other instances. For example, if a person was in a car wreck while driving as part of his work duties, she will be entitled to receive workers’ compensation benefits for the injuries sustained. However, if that person also sues the at-fault driver, she will have to pay back to the workers’ compensation insurer a portion of the funds received in the car accident settlement or jury verdict. This aspect of the law is designed to prevent a double recovery for the same damages sustained.

If you or a loved one has been injured in an Idaho car accident, you are encouraged to read about the Bendell Law Firm’s work in catastrophic personal injury cases and to contact the firm about how Jim can help.

What is an Easement?

An easement is a right of a landowner to make some use of another person’s land while not actually owning that land. For example, a homeowner whose property does not have access to the public roadways may wish to obtain an easement that allows him to drive over a portion of his neighbor’s property in order to reach the roadway.

More examples of easements can probably be found by examining the documents you received if you purchased a home at some time. There you will find written descriptions of the easements that public utilities have on your property. These easements are rarely used but are in place in the event, for example, that underground pipes or wiring need to be repaired or replaced by local utility companies.

Easements are created in various ways. The safest and most common method is referred to as an ‘easement by express grant.’ In such cases, a detailed description of the easement, as well as the size of the easement, is contained in a written document filed in the county recorder’s office in the Idaho county where the easement is located.

The law sometimes recognizes an ‘easement by necessity’ in cases where the two parcels of land were once contained in a single parcel, and the division of the single parcel now makes the creation of an easement a necessity (as in the example of the homeowner who now has no access to a public road).

Convincing a judge to recognize the existence of an easement by necessity or other non-written implied easement can be very challenging. Therefore, a prospective land purchaser would be well advised to insist upon a written and properly recorded easement prior to purchasing land, the value of which would be diminished without the easement.

If you have further questions or are facing a dispute involving an easement, you are encouraged to read about the Bendell Law Firm’s representation in real estate disputes and to contact the firm about how Jim can help.

Can I Be Sued for Acts of Misconduct Committed by my Business Partner?

To answer this question, a distinction must be made between a common law partnership versus an Idaho Limited Liability Partnership (LLP). An LLP has liability shields somewhat similar to a corporation. However, for purposes of answering this question, it is assumed that we are dealing with an ordinary partnership, not an LLP.

The Idaho Supreme Court stated, in a 1988 written opinion:

“A fundamental axiom of partnership law provides that all partners are liable jointly and severally, and the partnership is liable as an entity, for the wrongful act or omission of any partner acting in the ordinary course of business.”

This means that all of the partners are liable for the acts of misconduct or negligence of any one of them. For example, assume that John, Alex and Adrienne have formed a partnership to run a flower shop. One day Alex is driving to deliver flowers and causes a serious car wreck when he fails to stop at a stop sign. All three of the store owners would be liable to the injured driver (although the loss would likely be covered if they were properly insured).

Because many losses are not covered by insurance, it would wise for the store owners to work with an attorney to create a corporation or LLP for their business in order to reduce the likelihood of personal financial liability incurred due to the carelessness of one of the business owners.

If you have further questions or are facing a business dispute, you are encouraged to read about the Bendell Law Firm’s representation in business disputes and to contact the firm about how Jim can help.

Can an Idaho Residential Landlord Ask the Police to Remove a Tenant Who Has Failed to Pay Rent?

No. Even if the tenant has not paid rent for many months, a landlord is required to first obtain an order from a judge in order to evict a tenant. A lengthy and detailed examination of Idaho landlord/tenant law is provided at the following website maintained by the office of the Idaho Attorney General:

Office of the Attorney General Landlord and Tenant Guidelines

In order to obtain an enforceable eviction order from a judge, it is necessary to file a lawsuit for forcible entry and detainer in Magistrate Court. Depending on the grounds for eviction, there is generally also a requirement to first serve the tenant with a written notice that a court ordered eviction will be sought if the tenant does not comply with the particular violation of the rental agreement.

Idaho law also provides that the prevailing party in an eviction case will be awarded attorney fees by the judge. This means that if the landlord fails to follow all of the detailed requirements of the Idaho landlord/tenant law, and the aggrieved tenant takes the matter to court, the landlord may end up not only paying the attorney fees of the tenant but also being required to reinstate him as a tenant in the home or apartment from which he was evicted.

If you have further questions or are facing a landlord/tenant dispute, you are encouraged to read about the Bendell Law Firm’s representation in real estate disputes and to contact the firm about how Jim can help.

What is Comparative Negligence?

In an Idaho car accident lawsuit, or any type of lawsuit alleging injuries sustained due to the carelessness of negligence of a person or corporation, the plaintiff (the party suing) must prove that the defendant was negligent. However, in some instances both parties to an accident can be negligent.

For example, assume that John Smith is driving his car through an intersection governed by a stop sign. Assume further that Mary Jones fails to yield at the stop sign and collides with the Smith vehicle, causing serious bodily injury. Under these facts it should be quite easy to prove that Mary Jones was negligent. However, what if Jones asserts that John Smith was driving 15 miles per hour over the speed limit?

In such a scenario, the jury deciding the personal injury trial would be instructed by the judge to determine the percentage of negligence of each of the drivers. Thus, if the jury finds that John Smith’s medical bills and other damages total $100,000, but also find that he is 15% negligent for the crash and Mary Jones is 85% negligent, the judge will then reduce the monetary judgment by 15% (netting a total of $85,000).

However, if the jury finds that both Smith and Jones are each 50% negligent, then plaintiff Smith receives $0 in monetary damages.

If you or a loved one has been injured, you are encouraged to read about the Bendell Law Firm’s work in catastrophic personal injury cases and to contact the firm about how Jim can help.

Can I lose Some of My Property if My Neighbor’s Fence is on My Land?

The Adverse Possession Doctrine

A person can lose a portion of their real estate through the doctrine of adverse possession. In Idaho, the adverse possession doctrine can be used by a neighbor to take a portion of your land if that neighbor satisfies the following requirements:

1) That the neighbor or the previous owner has occupied that portion of land for at least 20 years, and

2) The neighbor or previous owner has paid the taxes on that property during this time.

Here is an example of how the adverse possession doctrine could work against you. Assume that you and your neighbor each have a home built on a large parcel of land, say five acres. The neighbor’s home was built in the year 1990, and his home encroaches 10 feet on to your property. If the neighbor can prove that the home was been there more than 20 years and that he has paid taxes on that portion of the property, then the land belongs to him and he cannot be required to move or tear down that portion of his house.

A more complex question arises when the issue of land ownership involves a fence built in the wrong place. That is, a fence which a neighbor builds not on the boundary between the properties but several feet or yards on to your property.

Let us again turn to the example of the two neighbors with homes built on five acre parcels.  Assume again that the fence was built in 1990. So the 20 year requirement has been met. However, it is unlikely that your neighbor has been paying taxes on the strip of land. Therefore, the neighbor cannot take this land under the doctrine of adverse possession. However, he may take the land using a different doctrine – the Boundary by Agreement doctrine.

The Boundary by Agreement Doctrine

In the 1985 case, Herrmann v. Woodell, the Idaho Supreme Court recognized this doctrine as applying to land located in the State of Idaho. Under this doctrine, a court can rule that the boundary between the two landowners is determined by the location of the fence if it appears that the two parties treated this as the boundary either by express agreement or by conduct.

Obviously, the phrase “by conduct” is fraught with danger. A neighbor might interpret your generous failure to complain about the fence as an agreement that this should be the boundary line between your two properties.

Therefore, in situations where your neighbor has an incorrectly placed a fence, the more prudent approach would be to send him or her a polite letter, by certified mail, asking that the fence be moved. Even if the neighbor does not move the fence, your letter will constitute proof that you do not agree with the neighbor’s view of the boundary line.

If you have questions about a boundary dispute or other real estate issue that may be headed to court, call Coeur d’Alene attorney Jim Bendell at (208) 215-2255.

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