Brenton C. McWilliams
Brenton C. McWilliams, Gulf Shores Lawyer Attorney

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Discussing Relevant Law Topics

Medicaid Planning: What is the Medicaid lookback period?

When application for medicaid nursing home benefits is made, medicaid requires the applicant to disclose any gifts made during a certain period leading up to the application. In Alabama, that period of time is 60 months (5 years). This 60 month period of time is commonly known as the medicaid lookback period. Any gifts or transfers of assets for less than market value made during the lookback period may result in a transfer penalty.

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Alabama Limited Liability Company Benefits: Limitation of Liability

The limitation of liability provided for the owner (member) is probably the number one reason businesses choose to form a limited liability company. Subject to some limitations, a limited liability company owner is not personally responsible for liabilities incurred by the LLC.

A contract or loan made by the LLC is a simple scenario to use as an example. The LLC has obligated itself to perform the contract or pay back the loan. The LLC functions as an entity separate from its owner. If the LLC defaults on the contract or loan, the LLC must pay any judgment using the assets or income of the LLC. However, if the LLC does not have sufficient assets or income to pay the judgment (or for the judgment creditor to collect from) the owner or owners (members) normally would not be required to use personal assets held outside the LLC to pay the judgment.

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How is an Alabama Limited Liability Company Managed?

In Alabama, the rights and obligations of the limited liability company owners are typically set out in two separate documents. The certificate of formation, formerly referred to as the articles of incorporation, is filed with the probate office and secretary of state to form the LLC. Very little information is required for the certificate of information. Since the certificate of formation becomes public record after filing, it usually includes nothing more than the required information including the name of the LLC, the organizer, the name of the registered agent, the address of the registered and whether the LLC is a series LLC.

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What is a Limited Liability Company?

A limited liability company or LLC is a business entity created by state law. Limited liability companies are similar to corporations such as the companies traded by stockholders on Wall Street. However, the rules for limited liability companies are much more flexible allowing the complexity of individual LLCs to be easily adapted to fit the needs of each business. For example, a start-up LLC with a single member could be created with complete authority vested in the single owner and minimal reporting requirements. A more complex business with multiple owners could design its LLC with a board of directors, executive officers and non-voting economic interest owners.

Limited liability companies also offer flexibility in taxation. The IRS classifies a single-member LLC as a disregarded entity and treats it as a sole proprietorship for income taxes. An LLC with multiple members is treated as a partnership by default with a share of the income passed through to each individual member for reporting on their personal income tax return. In some circumstances, a limited liability company can also make an election to be taxed as either a C-corporation or an S-corporation.

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Federal Wage and Hour Laws: Unpaid Lunch Breaks

In this article, I’ll discuss the topic of whether an employer is required to pay its employees for a lunch break under the federal wage and hour employment laws. 

Let’s start off with a hypothetical situation. A group of non-exempt employees from a company regularly go out of town to work an entire day on a project. In the middle of the day, all the employees go to lunch together at a restaurant. The company pays for the lunch and they all sit together at a table. The project manager uses the lunch time to talk with the other employees about the work already completed in the morning and how they’ll coordinate the remaining work in the afternoon. The employees are paid by the hour, but the company does not pay the employees for this lunchtime. 

The question is, should the employer pay for this lunch break? My first thought would be “an employer normally isn’t required to pay employees for a lunch break, so why should it make a difference if they’re out of town or not? And, it’s pretty gracious of the company to cover the meal since going to eat is about the only option.” I also see how the employees could consider it unfair. Sometimes, on my lunch break, I like to run errands, play with my dogs or go buy a new tie. If an employee is stuck at a restaurant, out of town with their employer, they aren’t free to do any of these things. Both of these thoughts aren’t necessarily wrong, but they aren’t headed in the right direction.

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What is an Easement?

An easement, also sometimes referred to as a right of way (which may refer to a specific type of easement), is defined as an interest in real property owned by another that gives the owner of the interest a specific limited use or enjoyment. A road is a common example. The person who owns the easement has the right to travel over the other person's property. The property owner still owns the property underlying the easement, but the property owner’s use of their own property is secondary to the rights of the easement owner. In other words, the property owner’s use of the property is bound by the easement.  

Easements for utilities typically come to mind as common examples: power line easements and pipeline easements for water and sewer lines. However, easements come in a variety of less common forms. In Orange Beach and Gulf Shores, easements for access to the beach are common. Developers use many different easements forms to create the condominiums and modern developments which have been common along the Gulf Coast. 

Some states recognize easements which guarantee a piece of property the right to access light and air. Conservation easements limit the use of a land for conservation purposes such as the promotion of outdoor recreation or the establishment of a wildlife habitat. Some of the earliest types of easements involved the right to graze cattle on another person’s property and to take water from a pond or spring.

Easements are typically acquired by deed, but there are at least seven different ways to acquire an easement in Alabama. “These are: (1) by express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference to boundaries or maps.” Helms v. Tullis, 398 So. 2d 253, 255 (1981). I have some disagreements with a couple of these, but I’ll save them for another article.

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