Tennessee Trial Lawyer Blog

A speeding ticket or traffic citation for a CDL driver can have a serious effect on their employment. While a non-CDL driver may be eligible for traffic school to keep a traffic citation off their driving record, there are some limitaitons on what Courts are allowed to do with citations for CDL drivers. 49 CFR § 384.226- Prohibition on masking convictions: The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State. A CDL driver may appear before a judge who indicates their hands are tied and they have no options but to either find the CDL driver guilty or not guilty. As stated above in the federal anti-masking statute, the Court cannot mask a CDL driver’s traffic conviction, defer judgment, or allow them to enter into a diversion program (such as traffic school). While the Court may be limited in options once there is a conviction (a finding of guilt), the Department of Safety’s website provides additional information on the subject. According to www.tn.gov , a judge MAY downgrade a traffic offense, find the driver not guilty, or plea bargain the charge as long as those actions take place BEFORE a conviction. This does not require the Court to allow plea bargaining or downgrading, but it does provide authority for the Court to rely on should the Court want to assist the CDL holder. If you find yourself in this situation, it may be beneficial for you to provide this authority to the Court, in a tactful way, to educate the Court on additional options the Department of Safety provides. https://www.tn.gov/safety/driver-services/commercial-driver-license/cdlcitation.html

The “Miranda warning” is a statement given by law enforcement to a suspect in custody, informing them of their rights. The warning is derived from the United States Supreme Court case, Miranda v. Arizona, 384 U.S. 436 (1966), which established the requirement for law enforcement to inform suspects of their rights before interrogating the m. The Miranda warning must include the following statements: The right to remain silent Anything said can and will be used against them in court The right to an attorney If they cannot afford an attorney, one will be appointed to them If law enforcement fails to give the Miranda warning before interrogating a suspect, any statements made by the suspect may be inadmissible in court. This is because the failure to give the warning violates the suspect’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. The legal analysis in cases where the Miranda warning is not given typically centers around whether the suspect was in custody and being interrogated at the time of the statements. If the suspect was not in custody or being interrogated, the Miranda warning is not required. However, if the suspect was in custody and being interrogated, the court will consider whether the Miranda warning was given and, if not, whether the statements made by the suspect were voluntary. In other words, the court will look at whether the suspect made the statements freely and without coercion. Miranda rights may be waived by a suspect if the waiver is made “voluntarily, knowingly, and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Supreme Court of Tennessee explains that “voluntarily” under Miranda means that the relinquishment of the right to remain silent “is the product of a free and deliberate choice rather than the product of intimidation, coercion, or deception.” State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). Additionally, the statements must be made “with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. at 544. If the court determines that the statements were involuntary due to the lack of a Miranda warning, then the statements will be suppressed and cannot be used against the suspect in court. This can significantly impact the prosecution’s case and may even result in charges being dropped or reduced. It is important for clients to understand their Miranda rights and the importance of remaining silent when in police custody. Even if the Miranda warning is given, it is always advisable to remain silent and request an attorney. Anything said to law enforcement can be used against the suspect in court, and even innocent statements can be misconstrued or taken out of context. By remaining silent and requesting an attorney, the suspect can ensure that their rights are protected and that any statements made are done so with the advice of counsel. Furthermore, clients should understand that law enforcement may use various tactics to obtain information, including deception or coercion. By remaining silent, the client can avoid inadvertently providing information that may be used against them or falling prey to law enforcement tactics. In conclusion, the Miranda warning is an essential component of the criminal justice system, designed to protect suspects’ constitutional rights. Clients should be aware of their Miranda rights and the importance of remaining silent in police custody. By doing so, they can ensure that their rights are protected and that any statements made are done so with the advice of counsel.

Under TCA 55-10-406 any person driving a motor vehicle in Tennessee is deemed to have given implied consent to a breath test, a blood test, or both to determine the person’s alcohol or drug content of their blood. A refusal to submit to one of these tests is a civil rather than criminal offense. Therefore, drivers cannot be punished with jail time but will face mandatory suspension periods of their driver’s license. The Tennessee Court of Criminal Appeals clarified that “consent” under the implied consent statute is not voluntary consent to search but consent to certain consequences if permission to search is withheld from a driver. State v. Henry, 539 S.W.3d 223, 246 (Tenn. Crim. App. 2017). Breath and blood tests are treated differently in Tennessee, so there are different standards and procedures prior to administering one of these tests. A breath test may be mandated based on: Driver’s implied consent; Driver’s express consent; A search warrant; Incident to a lawful arrest for a DUI; or An officer having probable cause that a driver caused an accident while DUI, is DUI with a minor under the age of 16, or has a prior DUI conviction. A blood test may be mandated based on: Driver’s express consent to submit to a blood test along with a written waiver; A search warrant; or Without the consent of the driver if exigent circumstances to the search warrant requirement exist. It is important to note that an officer may not rely on the implied consent statute to mandate a blood test in Tennessee. The Tennessee Criminal Court of Appeals held that because of the intrusion into privacy inherent in a forcible blood draw, this search would not be found reasonable under the Fourth Amendment unless performed pursuant to a warrant or an exception to the warrant requirement. State v. Wells, Tenn. Crim App. Lexis 933, at 13 (2014). The implied consent law does not create such an exception and does not satisfy the requirements of the Fourth Amendment. State v. Henry, 539 S.W.3d223, 243 (Tenn. Crim. App. 2017). Therefore, to meet the statutory requirements for implied consent for a blood draw in Tennessee, an officer must: Have probable cause to conduct a traffic stop, inform the motorist of the consequences of refusal under implied consent; and Have the driver sign a standardized waiver developed by the Department of Safety. If the two prongs listed above are not met, the officer must obtain a search warrant or rely on another exception to the warrant requirement to withdraw blood from the motorist. Attached please find the current Consent Waiver used by Tennessee law enforcement. Implied Consent (SF-0388) Rev 7-01-19 Katherine Haggard, Esq. Associate, Freeman & Fuson

What is Delta-8 THC? Delta-8 THC is one of over 113 cannabinoids found in the cannabis plant. Like Delta–9 THC and CBD, Delta-8 THC is a natural chemical found in cannabis plants. Delta–9 and CBD cannabinoids derived from legal cannabis are much more prevalent in use in Tennessee. However, Delta–8 is receiving a considerable amount of attention from cannabis consumers in the State of Tennessee who want to consume a legal product and receive the unique benefits that Delta 8 provides. Delta-8 THC is chemically different from Delta-9 THC by only a few atomic bonds and still offers a potent high of its own. While Delta-8 THC only exists naturally in fractions of a percent, companies are finding value in concentrating esoteric cannabinoids for their unique effects and applications.(1) Because it is not contained in large concentrations in the hemp flower , it usually sprayed on hemp flower or placed in vapes, concentrates, and edibles. Because of its molecular structure, Delta-8 THC bonds more to CB2 receptors than CB1 receptors, allowing it to have numerous benefits on the body with fewer side-effects influencing the CB1 receptors in the brain. Ultimately, this makes the health benefits of Delta-8 THC stand out while minimizing its psychoactive effects. Is Delta-8 Legal in Tennessee? In December 2018, Congress passed the 2018 Farm Bill , which lifted the controlled substance designation for hemp and all its extracts except for Delta-9 THC which must be in a concentration of less than .3% on a dry-weight basis. Under current Tennessee and federal law, marijuana (illegal cannabis) is cannabis that contains more than 0.3% Delta-9 THC on a dry weight basis, while hemp (legal cannabis) contains less than 0.3% Delta-9 THC. Delta-8 is legal under both Tennessee and federal law. There is currently no limit on how much Delta-8 THC a product may contain in order to be considered legal cannabis so long as the Delta-8 THC is derived from the hemp.(2) DEA being the DEA In 2020, DEA released the “Implementation of Agricultural Improvement Act 2018“, which outlined a very different interpretation of the 2018 Farm Bill as it relates to Delta-8 THC. According to DEA, Delta-8 THC was not covered under the 2018 Farm Bill as a derivative of hemp and is therefore illegal. Their interpretation of the plain language of the 2018 Farm Bill is based on the fact that Delta-8 THC is not present in extractable levels in hemp and must be synthesized from CBD. The DEA is thus proposing that Delta-8 be considered a synthetically derived tetrahydrocannabinols and listed as schedule 1 controlled substance.(3) This has been hotly disputed and has not been deemed final by the DEA or any governing body. Future of Delta-8 Due to the benefits of Delta-8 THC and the minimal psychoactive effect it has on users, it will hopefully become more widely desired and produced by our Tennessee hemp farmers, manufactured by Tennessee businesses, and sold in retail CBD stores in Tennessee. Regulation is almost certain but not necessarily a bad thing. Responsible and informed regulation will allow the responsible manufacturers and retailers to provide consumers with safe and effective Delta-8 THC cannabis products. I only hope our conservative state legislature does not try to put the toothpaste back in the tube. —— HEMP LAW GROUP HEMP LAW GROUP is Tennessee’s first and only legal group dedicated to representing individuals and small businesses navigate the legal cannabis industry in Tennessee. Joey Fuson , partner at Freeman & Fuson, founded Hemp Law Group and is widely considered a leader and expert in the legal hemp and cannabis industry in Tennessee. To learn more, visit www.hemplawgroup.com . https://www.tn.gov/content/dam/tn/agriculture/documents/industrial-hemp/Industrial%20Hemp%20Fact%20Sheet.pdf

“Can my social security check be garnished for child support” is a question some parents may find themselves wondering. The answer to that questions depends on the type of social security benefit the parent receives. Two main types of benefits are Social Security Disability Income (SSDI) and Supplemental Security Income (SSI). SSI vs. SSDI: The Tennessee Supreme Court in Tennessee Dept. of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990) provides a detailed explanation of the comparison of SSI benefits to SSDI benefits. SSI benefits are a form of public assistance and are not dependent upon the earnings a person previously had. SSI is a safety net program to assist people who are entitled to little or no income from Social Security Disability Income (SSDI). Only after all other sources have been explored is eligibility for SSI benefits determined. Hence, the amount of money to which an SSI recipient is entitled is contingent upon how little a person makes or has made rather than how much. An eligible SSI recipient’s benefits are the amount necessary to raise the recipient’s income to the prescribed minimum level. However, the amount of a Social Security disability recipient’s benefits is keyed to how much that person has paid into the Social Security system over time as a form of renumeration for employment. The most important distinction between the two types is the person(s) entitled to receive benefits under the program. Implicit in the SSI program is the intention that these payments are for the benefit of the individual recipient, rather than for the benefit of the recipient and the recipient’s dependents. By contrast, SSDI payments benefit the receipt and the recipient’s dependents. CALCULATION OF CHILD SUPPORT The State of Tennessee calculates child support based on the gross monthly income of each parents, the number of days each parent exercise with the child(ren) annually, insurance and work-related childcare each parent incurs, as well as a number of other factors. While this process may seem as simple as inputting numbers into the child support calculator, disputes frequently arise over what an individual’s actual gross income is. The Tennessee Child Support Guidelines describes gross income as income from any source (before deductions for taxes and other deductions such as credits for other qualified children), whether earned or unearned, and includes disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the Social Security Act, whether paid to the parent or to the child based upon the parent’s account. However, the guidelines specifically exclude Supplemental Security Income (SSI) received under Title XVI of the Social Security Act. The Tennessee Child Support Guidelines also includes a provision for a minimum amount of child support of at least $100 per month. This minimum requirement does not apply if the obligor parent’s only source of income is Supplemental Security Income (SSI). Unfortunately, this is not always a clear-cut rule. Whether or not an SSI recipient has any other income eligible to be considered for child support purposes may be an issue the judge has to determine at a hearing if the other party contests such issue. REASONS FOR GARNISHMENT Current Child Support Obligations As it relates to a current child support obligation, the Tennessee Supreme Court in Tennessee Dept. of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990), held that SSI benefits were not subject to legal process in Tennessee state courts for payment of court-ordered child support. Specifically, the court found that allowing the SSI recipient’s monthly benefit to be reduced by the collection of child support obligations would reduce the recipient’s already low-income level even more. By the nature of receiving such benefit, the individual already has little if any opportunity to raise that level because of their age or disability. Subtracting child support payments, in the variable amounts set by state trial judges, from this already low figure would reduce the individual recipient’s income below the “guaranteed minimum income level for aged, blind, and disabled persons,” Schweiker v. Wilson, supra, 450 U.S. at 223–224, 101 S.Ct. at 1077, which is the essence of the legislative intent behind the SSI program. Tennessee Dep’t of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 598 (Tenn. 1990). Judgment for Child Support Arrearages As it relates to judgments for child support arrearages, the Tennessee Court of Appeals in In re Jordan H., No. E2013-01731-COA-R3JV, 2014 WL 1233227, at *2 (Tenn. Ct. App. Mar. 25, 2014) held that that SSI benefits cannot be attached and/or garnished to satisfy a judgment for child support arrears. While the court may still grant one parent a judgment for child support arrears against a parent who receives SSI benefits, the Court cannot attach or garnish the SSI benefits to pay an arrearage judgment. In conclusion, SSI benefits, codified at 42 U.S.C.A. § 1381, were created by a 1972 amendment to the federal Social Security Act and were intended “to assist those who cannot work because of age, blindness, or disability,” S.Rep.No.92–1230, p. 4 (1972) S.Rep.No.92–1230, p. 4 (1972), by “setting a Federal guaranteed minimum income level for aged, blind, and disabled persons. Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074, 1077, 67 L. Ed. 2d 186 (1981). As a result of such federal law, SSDI benefits can be garnished for child support purposes but SSI payments cannot. In re Jordan H., No. E2013-01731-COA-R3JV, 2014 WL 1233227, at *3 (Tenn. Ct. App. Mar. 25, 2014). ADDITIONAL RESOURCES: Tennessee Child Support: https://www.tn.gov/humanservices/for-families/child-support-services/child-support-guidelines.html Guidelines: https://publications.tnsosfiles.com/rules/1240/1240-02/1240-02-04.20200510.pdf Calculator: https://www.tn.gov/humanservices/for-families/child-support-services/child-support-guidelines/child-support-calculator-and-worksheet-1.html Social Security Administration: SSDI: https://www.ssa.gov/benefits/disability/ SSI: https://www.ssa.gov/benefits/ssi/

We all make mistakes and one mistake should not define a person. If this is the first time you’ve been charged with a crime or crimes, understandably you are worried. If you have gone a step further and researched the maximum punishments that accompany the crime(s) you are charged with, you are keeping yourself up at night worrying. Any criminal conviction on one’s record can have significant consequences on their ability to obtain jobs, housing, or loans. REST ASSURED. Fortunately, Tennessee has a program for one-time offenders called Judicial Diversion, although it could be more accurately described as Tennessee’s “Golden Ticket.” WHAT IS JUDICIAL DIVERSION? Judicial Diversion, which is governed by Tennessee Code Annotated 40-35-313, is an option for anyone who has not previously been convicted of most Class C,D and E felonies or misdemeanor offense, and who has not previously entered into a diversion program. Judicial diversion allows a qualified defendant to enter a conditional plea of guilty and after the defendant successfully completes probation, the diverted charge is dismissed and can be expunged off the defendant’s record. WHAT ARE THE REQUIREMENTS OF JUDICIAL DIVERSION? A “qualified defendant” for judicial diversion under 40-35-313 (a)(1)(B)(i) means a defendant who: (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought; (b) Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person’s official capacity or involved the duties of the person’s office; (c) Is not seeking deferral of further proceedings for a sexual offense, a violation of § 39-15-502, § 71-6-117, or § 71-6-119, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony; (d) Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and (e) Has not previously been granted judicial diversion under this chapter or pretrial diversion. Prior to entering the conditional plea, an application must be sent to the Tennessee Bureau of Investigation to determine whether or not you have previous charges that would render you ineligible for diversion. If you are eligible and a judge agrees to place you on judicial diversion, you will be required to go on a period of probation, typically from 6 to 18 months. During your probation period, you are required to maintain good and lawful conduct. In many cases, there are additional conditions attached to your probation such as community service work, fines, the payment of restitution to victims, and/or treatment or counseling programs. In addition to the $45 a month probation fees, you are also required to pay your court costs before the end of your probation period. WHAT IF I DON’T FOLLOW THE RULES? If you fail to meet the conditions of your probation, or you receive a new charge during your probation period, the judge may revoke your diversion and sentence you under the charge that was diverted. According to the judicial diversion statute, if probation is violated, “the court may enter an adjudication of guilt and proceed as otherwise provided.” Tenn. Code Ann. 40-35-313(a)(2). This means that failure to comply with the rules of your diversion may require you to serve jail time. YOU’VE SUCCESSFULLY COMPLETED DIVERSION: WHAT NOW? After you have successfully completed your probation term and complied with all diversion conditions, you (or your attorney) can return to court and request that the charge or charges be permanently expunged from your record. Pursuant to Tenn. Code Ann. 40-35-313, upon the dismissal of the person and discharge of the proceedings against the person under subsection (a), the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in § 40-32-101(b), all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section. GIVE US A CALL If you have been charged with an offense in Davidson, Williamson, Rutherford, or any surrounding Middle Tennessee county and wish to know more about your diversion options and how to fight your charges, contact one of the experienced criminal defense attorneys at Freeman & Fuson. You may be eligible to have your charge or charges diverted, eventually dismissed, and permanently expunged from your record. One mistake does not define you. We can help you navigate the process of using your Golden Ticket and ensure that your rights are fully asserted and protected.

Parents who have adopted a child in a foreign county may be surprised to find out they need to take additional steps once returning to the U.S. with their child. After working with foreign adoption agencies and foreign judicial systems for lengthy periods of time the process is not complete once you are home with your child. Citizenship and Birth Certificates are essential items in the adoption process, unfortunately neither of these are guaranteed to be automatically granted based on the foreign adoption alone. The good news is that these issues can be acquired much easier than the initial adoption process. T.C.A. §36-1-106 provides guidance on what steps to take in Tennessee to formalize the adoption of your child from another country. CITIZENSHIP Depending on the type of Visa your child used to enter the U.S. after the foreign adoption, they be not automatically be a U.S. citizen. Children who entered the U.S. with an IR-3 visa automatically become U.S. citizens, but children who entered with an IR-4 visa do not become citizens until the adoption is formalized in the U.S. TENNESSEE CERTIFICATE OF FOREIGN BIRTH The foreign country which granted the initial adoption should have issued certified translated copies of the adoption decree as well as the birth certificate from the originating country. In order to obtain a Tennessee Certificate of Foreign Birth the parents must either file a petition for re-adoption or have the foreign adoption recognized in Tennessee. While either of these options will provide the child with a Tennessee Certificate of Foreign Birth, there are some differences in the two processes. Re-adoption One process to formalize the foreign adoption in Tennessee is to file a petition for re-adoption. While this may sound like an intimidating and timely process, a majority of the requirements for an initial adoption in the U.S. are waived due to the foreign country previously terminating the parent(s)’ rights and approving the adoption abroad. While your family will obtain a Tennessee Certificate of Foreign Birth, this process will also provide your new family with a Tennessee Final Order of Adoption and will remedy any citizenship issues related to the IR-3 visa. T.C.A. §36-1-116 provides additional details on what information and documents must be included in the petition for re-adoption. Original documents from the foreign court are required to be submitted with the petition, but you can request to have the originals returned to your family before the court seals the Tennessee adoption file. Recognition of foreign adoption The other option is to request a Tennessee Court to recognize the foreign adoption. This process is only an option if your child already has a certificate of citizenship, and may be a simpler method of obtaining a Tennessee Certificate of Foreign Birth since a final hearing in a Tennessee Court is not required, but this process will not provide your family with a Tennessee Final Order of Adoption. In conclusion, if the child you adopted in a foreign country entered the U.S. with an IR-4 visa and has a certified translated copy of their original foreign birth certificate, your child automatically became and U.S. citizen and it is not necessary to formalize the adoption in the U.S. immediately. While it is recommended to formalize this process as quickly as possible, a situation may not arise that your child needs a certificate of foreign birth immediately and you could postpone to a move convenient time. It is important to remember that foreign birth certificates may suffice in certain circumstances but may not be as readily recognized as a Certificate of Foreign Birth issued by the State of Tennessee. If you have any questions about formalizing a foreign adoption in Tennessee, please contact our office at Freeman & Fuson. Marissa Keen, Esq. 

LANDLORD TENANT LEGAL ISSUES IN THE WAKE OF THE 2020 TENNESSEE TORNADOES & COVID – 19. On March 2nd and 3rd of 2020, a series of large tornadoes touched down in Middle Tennessee, resulting in widespread damage, injuries, and fatalities. Lives were lost, electric lines were toppled, and countless homes were damaged or destroyed. In the weeks that followed the tornadoes, a new emergency, the COVID-19 pandemic, has been forced to the forefront of everyone’s minds. As a result of “Stay at Home” orders all across the state and country, many people’s job security, and their ability to pay rent, is at risk. Both of these emergencies present complicated landlord tenant-law issues that are sure to be increasing in the coming weeks and months. In most landlord-tenant cases, the language of the lease decides the outcome. However, the Uniform Residential Landlord Tenant Act (URLTA) serves as a helpful guideline that addresses most issues in counties covered by the Act. LANDLORD TENANT ISSUES IN WAKE OF TORNADOES Essential Services One of the issues certain to arise in the landlord-tenant arena in the coming weeks and months is whether a landlord willfully, deliberately, or negligently failed to provide essential services following the tornadoes. Essential services are defined as utility services, including gas, heat, electricity, and any other obligations imposed upon the landlord which materially affect the health and safety of the tenant. Under URLTA, landlords cannot “constructively evict” tenants by failing to provide essential services. This is known as an “unlawful diminution of service.” If a landlord is found to have willfully failed to provide essential services, the tenant may terminate the rental agreement and recover any damages sustained, in addition to their attorney’s fees. Even if a landlord’s actions fall short of being willful, a tenant may still have a claim for the negligent failure to provide essential services. URLTA states that if a landlord deliberately or negligently fails to supply essential services, the tenant, after giving proper notice, has three options: (1) procure whatever essential service they are lacking and deduct their expenses from their rent; (2) recover damages based upon the diminution in the fair market value of the home; (3) move into reasonable substitute housing, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance. If a tenant chooses option 3, they are also entitled to recover the value of their substitute housing, in addition to their attorney’s fees. If you are a landlord and a tenant is alleging you have failed to provide essential services after the tornado, you may be protected since the tornado was certainly not a willful act. However, you should seek to make necessary repairs when possible or you may be at risk of being deemed negligent. Conversely, if you are a tenant and your landlord is not seeking to make necessary repairs to restore essential services, you may have a claim that those actions amount to a negligent, or potentially even willful, diminution of services. Casualty Damage Another issue that many landlords and tenants are experiencing is that buildings are wrecked beyond quick repair. According to URLTA, if a tenant’s home is damaged or destroyed by fire or casualty to an extent that the use of home is substantially impaired, a tenant may immediately vacate the premises but must notify the landlord in writing within fourteen (14) days of their intent to terminate the rental agreement. Under this scenario, the tenant’s rental agreement is terminated as of the date of vacating. Conversely, if the home is damaged or destroyed by fire or casualty to an extent that restoring the home to its undamaged condition requires the tenant to vacate the premises, the landlord is authorized to terminate the rental agreement within fourteen (14) of providing proper notice. With the tornadoes qualifying as “casualty,” this means that both the landlord and the tenant were entitled to terminate the lease without penalty if they provided notice within fourteen (14) days. However, that only applies if the premises has been rendered uninhabitable which isn’t explicitly defined. OTHER LANDLORD TENANT ISSUES IN WAKE OF COVID-19 As for COVID -19, as of March 25, 2020, all state courts are closed until May 1st, subject to a few exceptions that do not include landlord tenant matters. Even when courts resume and a tenant has their court date, the law still gives them ten (10) days to move out if a judgment is obtained against them, as it takes ten (10) days for the judgment to be final. While the law requires a minimum of ten (10) days, an advantage to hiring an experienced attorney to represent you in these proceedings is that we are frequently able to negotiate with the opposing counsel to get more time in the unfortunate event you are required to vacate the premises. Even if your situation was directly caused or impacted by the 2020 Tornado or the COVID-19 pandemic, if you are a tenant, you should still continue to pay at least some portion of your rent during this time. Even if courts are temporarily shut down and your landlord cannot initiate eviction proceedings yet, any breach of your lease during this time will still stand once the court restrictions are lifted and you will be subject to eviction at that point. Additionally, any unpaid rent will be added to the final bill at eviction. More than likely, the courts will have some mercy on tenants whose lives have been disrupted by the loss of employment, loss of childcare, or medical illness. The courts will also be forced to take into consideration the difficulty facing tenants who have to secure movers or transportation to move their property from the home. The Courts have the discretion to give tenants additional time to move out of their home and in light of the COVID-19 pandemic, they will likely utilize this discretion. If either of these emergencies are causing you landlord-tenant issues, contact one of the experienced attorneys at Freeman & Fuson today. We are experienced at fighting for the rights of both individuals facing 2020 Tornado and COVID-19 related landlord/tenant issues. We will help you navigate your legal issues in these uncertain times. Nick Schulenberg, Esq. Attorney Freeman & Fuson nick@freemanfuson.com (615) 298-7272