Avery Law Office

Holman Farms Foreclosure

Denese — Fri, 15 Mar 2013 08:46:17 +0000

Imagine going from owning 22 properties throughout the South Okanagan, 7 wineries and a distillery to receivership, liquidation and a financial loss of all your equity and then some. That is the unfortunate fate of the Holmans, the former owners of the Holman Farms, Lang Vineyards and other associated wineries. According to a March 14, 2013 article in the Penticton Herald, Battle continues over controversial foreclosure, a bank foreclosure resulted in a significant financial loss given the appraised value of various business assets that were sold to pay outstanding debt. They lost their businesses, they lost their financial growth, they lost their home.

This, of course, is a sad state of affairs that business owners do not anticipate when they nourish and grow their entrepreneurial dreams and start their business. However, the reality is that many businesses fail for various reasons. Those who own a business can learn from those who have failed despite considerable effort and planning. Keith Holman is quoted as stating “You’d better realize if you start getting the bank on you, you’d better get to [the] lawyers and be very careful about what you sign.” I would take this one step further and say that you should not wait until the bank is on you. Develop a relationship with a lawyer you trust who can act as your advisor throughout the life of your business. It may cost you some time and some of your start up funds, but these will far outweigh the potential costs you will experience if you become involved in a contractual dispute or court battle.

Miss Avery Law Office – 2013 Summerland Blossom Pageant

Denese — Thu, 14 Mar 2013 06:07:17 +0000

All of us at Avery Law Office are very proud of Miss Avery Law Office 2013, Nathalia Melgar Dorado, who represented our office with poise and confidence during the 2013 Summerland Blossom Pageant Judges’ Tea in February. Well done Nathalia!

2013 Summerland Business and Community Awards Professional Services Award Finalist

Denese — Thu, 14 Mar 2013 05:23:32 +0000

THANK YOU to all those who nominated and voted for Avery Law Office for the Professional Services Award at the 2013 Summerland Business and Community Awards. We are very grateful for your support and were very proud to be one of two finalists. Congratulations to DogLeg Marketing who received the award.

The Economic Impact of the Canadian Wine Industry

Amber — Wed, 13 Mar 2013 20:56:31 +0000

I spent some time on the BCWineChat website considering tonight’s topic regarding the Economic Impact of the Canadian Wine Industry. I understand the catalyst for this topic was the recently published Economic Impact Study on the Canadian wine industry completed by Frank, Rimerman and Co. LLP, a US-based certified public accounting firm which provides various services including wine industry research and consulting. As a non-accountant with minimal knowledge of the methodology of the economic analysis of an industry, to me, the study confirms what I believe most people feel is the case, the wine industry undoubtedly has a serious impact on our provincial and national economy. With a full national economic impact of $6.8 billion in terms of revenue, taxes and wages, of which $3.69 billion can be attributed to 100% Canadian wine, I think everyone in the industry should take a much deserved bow/curtsey and be congratulated on a job very well done. The Canadian wine industry and more specifically, the BC wine industry, has come a long way since the time of Prohibition when alcoholic beverages were banned altogether. The industry has developed into an important economically significant commercial enterprise. The industry adds value to our collective wealth and resources, promotes tourism, creates jobs and generates revenues.

Often economic impact studies are completed at the time legislative changes are proposed or requested at the behest of a person lobbying for change. This study was commissioned by the Canadian Vintners Association, Winery and Grower Alliance of Ontario, BC Wine Institute and Winery Association of Nova Scotia. Given the study results, it would be nice to see the promotion and growth of the industry further supported by federal government legislative changes which enforce the principles of economic unity among the provinces and territories as it relates to intoxicating beverages and support of interprovincial commerce and the shipment of wine between provinces beyond the personal consumption exemption. Additional support from the provinces would also be a welcome outcome, as various provincial governments enact legislative changes which modernize our liquor laws and fully recognize how the industry has and continues to change and develop from the days of Prohibition. Much like the “living tree doctrine” I learned in a law school class some time ago, like our Constitution, the wine industry should be treated as organic and must be handled in a broad and progressive manner, adapting to the changing times.

I for one am pleased to see quantifiable and tangible economic impact for our wine industry and hope the corresponding outcomes are reflective of the results. To join the discussion and to share your thoughts on the study, head to Twitter tonight, Wednesday March 13^th, from 8-9pm and search #BCWineChat.

Is it breaking the law to help a good cause?

Amber — Mon, 29 Oct 2012 03:06:51 +0000

There is nothing like the controversy and confusion surrounding the forced cancellation of the Belfry Theatre’s annual Crush fundraising event to really hammer home how difficult to understand B.C.’s liquor licensing and distribution laws really are. I believe that there are several people out there who have handled or distributed liquor (whether in their personal or professional capacity) and honestly thought they were doing everything right, only to find out the government disagreed. As a result, stores may close, restaurants may go out of business or charities may lose fundraising opportunities essential for supporting their operations and charitable goals.

At the root of the unfortunate circumstances affecting Belfry Theatre and other situations with similar outcomes is the question, “what do the liquor laws really say?” Another very good question which applies in many cases is “why was I allowed to do it before?” In June 2012, amendments were made to LCLB policy regarding special occasion liquor licences (SOL). Specifically, the policy permits the holder of a SOL to auction liquor at a licensed special occasion to raise money for a charity, but requires that liquor be purchased by the SOL holder or donated by a manufacturer or agent (special rules apply here). So, as in the case of Belfry Theatre, donations of liquor by private individuals falls outside of the four corners of this policy. Without getting into the fact that policy does not equate to law, the BC government issued a press release on October 26th (titled Liquor law clarified to help non-profit organizations) stating a “common sense” approach would be taken regarding its interpretation of its own policy and permit non-profit organizations to auction gift baskets or similar items with commercially produced liquor as one component of the basket. However, a similar “common sense” approach will not be applied for those non-profit organizations wanting to leave the gift baskets behind and auction wine alone. Legally speaking, what is it about a “gift basket” that all of the sudden makes it okay for charitable organizations to auction liquor? The statement makes it very obvious how easily policy can be changed…I am pretty sure that the liquor laws that govern all of us (government and individuals alike) do not mention “gift basket” or define exactly what will make up an acceptable gift basket for auctions. Clear as mud?

Have the Grapes Really Been Freed?

Amber — Thu, 04 Oct 2012 20:27:24 +0000

It has been almost three months since the IILA amendment creating a personal consumption exemption for wine in the 1928 prohibition era legislation preventing the interprovincial shipment of wine in addition to other intoxicating beverages. So, with three months under the federal legislation’s proverbial belt, here is my question to you: do you think it is now legal for you to bring as much wine as you want into whatever Canadian province? I’ve been told by wine club managers that when they are asked by consumers if they can legally ship a case of wine anywhere in Canada, they say “yes”! It seems like it should be so simple, but when you look deeper into the legislation, the true answer to my question is not found in the IILA.

In my upcoming Orchard and Vine column, I ask the question “have the grapes really been freed?” Some of you may find the column a bit heavy because I discuss the law more so than in my previous articles, but a key point I make (at least I hope I make) is that the IILA amendment creates interplay between federal and provincial liquor laws. What I mean is this: to figure out if and how the personal consumption exemption applies to you in whatever province you want to import into, you need to look at the laws in that province. Have I lost you? In a nutshell, the IILA amendment says that the personal consumption exemption applies if you comply with the laws of the province you are importing to. Let’s say that I live in Saskatchewan and I have just finished an awesome trip in BC…I’ve bought 33 bottles of wine (about 25L). I am driving back home with 33 bottles and I joined my new favorite BC wine club which is going to ship me 2 cases a year. I am feeling pretty confident that I am not breaking the law because of the IILA amendment. What do you think? Am I breaking the law by driving my wine into Saskatchewan? What about by having my wine club ship my wine to me?

The short answer is yes, I am breaking the law. How can that be? Well, as I noted, it goes back to the interplay between federal and provincial law. To fall within the personal consumption exemption, I need to comply with the laws of Saskatchewan (the province I am importing into). The law in Saskatchewan limits the amount of wine that a person can “bring” into Saskatchewan to 1.14 litres. So, the IILA amendment doesn’t help me in that situation. I am breaking the law by driving my wine into Saskatchewan because I have too much. When my wine club ships to me, both my winery and I run afoul of the law because the wording of the Saskatchewan legislation is narrow and probably doesn’t include direct to consumer shipping (oh, and the shipping of a case of wine is also over the 1.14L mark).

The moral of my story is the IILA amendment is a significant achievement; but, whether you are a consumer or a producer, do not be romanticized by the idea that the provincial importation of wine for personal consumption is perfectly fine, bar none. You need to look to the provincial legislation to see what rules apply. In true lawyer fashion, let me end by telling you to see your lawyer and get legal advice regarding your personal situation and the applicable law (note: my comments about the Saskatchewan law should be reviewed with your lawyer as this blog is for information purposes only and does not constitute advice).

Have the Grapes Really Been Freed?

Orchard and Vine Article – Summer 2012

Denese — Fri, 22 Jun 2012 17:34:59 +0000

Read our Orchard and Vine article (Summer 2012) – A Lawyer in your Back Pocket.

Vineyard/Orchard Lease

Denese — Fri, 22 Jun 2012 17:11:48 +0000

LEASE OF VINEYARD/ORCHARD

Here are some terms to think about for a vineyard or orchard lease agreement:

Legal description of property
Term of Agreement
Options to Renew Lease
Right of First Refusal for Tenant
Payment of Installation/Planting Costs
Rent
How and When Cost of Rent Reviewed
Balance between Farm Practices and Right of Quiet Enjoyment
Ownership of Improvements on Property
Subletting and Assignment
Requirement to Restore Land upon Termination
Sale by Landlord (impact on tenant)
Payment of Taxes/Utilities/Maintenance costs
Restrictions of Property Use by Tenant
Insurance requirements for tenant/landlord
Rights of Tenant to make Property Modification
Ability of Owner to Enter Leased Land
Protection of Tenant from Creditors of Land Owner
Landlord Rights/Responsibilities versus Tenant Rights/Responsibilities
Termination
Dispute resolution

See you legal advisor to assist you with the preparation of your agreement and ensure your interests are protected.

©Avery Law Office, February 2011

Disclaimer

The information provided on this website is merely an informative guide and should not be relied upon for legal advice. It is intended to provide general information only. It is recommended that you see a lawyer about your particular legal situation and request legal advice.

Grape Supply Agreements

Denese — Fri, 22 Jun 2012 16:46:02 +0000

GRAPE SUPPLY AND PURCHASE AGREEMENTS

Here are some terms to think about for grape supply and purchase agreements:

Length of agreement – set years? Evergreen? Commencement date?
Termination
Price – By ton? By acre? Fixed price or price schedule? Yearly adjustments in price?
Review of Price – Any bonuses?
Timing of Payments – Annually? Payments throughout year?
Grower Security – Payments held in trust? Personal guarantees for payment?
Determination of Cropping Levels and Viticultural Practices
Dispute resolution – Mediation? Arbitration?
Damage to Equipment – Payment of cost to repair?
Winery involvement in Vineyard Operation – Pruning? Spraying? Canopy Management? Irrigation? Pest control?
Determination of harvesting dates – Who determines? Criteria?
Amount of Time to Harvest – Penalties if time exceeded?
Picking/Transport/Weighing of Grapes
Determination of “quality” – BE SPECIFIC! Sugar levels? Acid levels? Handling of grapes? Grape contact with foreign substances?

See you legal advisor to assist you with the preparation of your agreement and ensure your interests are protected.

Disclaimer

Will Requirements

Denese — Fri, 22 Jun 2012 16:36:35 +0000

REQUIREMENTS FOR A WILL (B.C.)

It is important for you to make a will when you are capable of doing so. This means that you are in good health and that you are mentally capable. If you are mentally incapable, you are not able to make a will. Mental capacity requires the following:

you must understand that you are making a will and disposing of your property
you must not have a mental disorder (e.g. delusions, dementia)
you must not be a minor (under age of 19) except in certain circumstances
you must realize what is in the will and agree that is what you want (knowledge and approval)
you must make your will of your own free choice and without any undue influence

The other important fact to remember is that you can make changes to your will as significant life events occur (i.e. birth, death, divorce, separation). If you have a will, it is important to review it on a regular basis and make changes as is necessary.

Your will can be altered by executing a new will (this will usually revoke the earlier will), executing a codicil or making an interlineation.

By law, there are certain requirements for a will:

The will must be in writing (holographic wills are not recognized of British Columbia except for military forces)
The will must be signed at its end by the testator or in their name by another person in their presence and under their direction
The testator’s signature must be made or acknowledged by them in the presence of two or more witnesses both present at the same time
Two or more witnesses must sign the will in the presence of the testator (exception for individuals on active service with the Armed Forces or seaman in the course of a voyage)
The testator must be at least 19 years old unless they are married, or in the Armed Forces

Neither a beneficiary nor a spouse of the beneficiary should be an attesting witness. This will not render the will and valid, however, any gift in favour of the beneficiary/witness or their spouse will be void. (This may not apply if there are more than two witnesses).

Neither an executor nor their spouse should be an attesting witness. This will not render the will invalid, however, if the will contains a “charging clause” which permits the executor to charge professional fees, the charging clause will be rendered void. (This may not apply for more than two witnesses).

It is highly recommended that each party initial each page of the will other than the signature page.

Your will should be dated.

Your witnesses must be at least 19 years old and mentally capable.

See you legal advisor to assist you in moving forward with this very important part of you estate plan and obtain the legal advice you need to leave dispose of your estate as you wish and ensure all legal requirements are met.

Disclaimer