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Commentary and Analysis Regarding Colorado Law

The Marshall Fire of December

fire

The Marshall Fire of December, 2021 is a tragedy that has impacted thousands in Boulder County. In its aftermath, we all – those impacted and those not impacted – need to revisit our homeowners and property insurance policies to ensure we have adequate coverage. Merely clicking “renew” each year is far from adequate, and it could leave you drastically uninsured. Here’s what everyone should do:

  1. Get a copy of your declarations page from your homeowners insurance carrier. Most homeowners policies have four types of coverages: dwelling or home coverage (covering your house); ‘other structures’ or ‘detached structures’ coverage (covering things like decks, sheds, detached garages, and sometimes accessory dwelling units); contents or personal property coverage (covering your clothes, furniture, pots, pans, etc…); and additional living expense coverage (covering a rental property or hotel if you need to be out of the house during repair/rebuild).
  2. Try to approximate the value of each of these categories of coverages. For the house, remember, it’s the cost to rebuild or replace the home structure, not the value of the land or landscaping. For other structures, it’s the cost to replace your deck, shed, and detached garage. For contents, it covers everything from your TV to your blue jeans. Additional living expenses would be the cost to rent a similar property for up to two years. The best thing to do is to get an appraisal of the home that separates the value of the house from the land, then separately appraises each other structure. Most people don’t want to pay over $1,000 for an appraisal like this. There are alternatives, such as looking at Zillow’s “Zestimate,” looking at comparable home sales prices, and talking to friends or colleagues in the construction industry. Whatever you do, try to get the best information you can on what it would take to replace your home, replace your belongings, and replace the other structures. Look up the cost to rent a similar property.
  3. Look at your policy’s coverage terms. For your home dwelling coverage, look for terms such as “refundable depreciation” or “non-refundable depreciation.” This has a big impact on how much you get from the insurance carrier if you decide you want to rebuild versus start anew somewhere else. Read the personal property coverage section to see what types of personal property, such as jewelry, art, collectibles, or musical instruments need special endorsements or riders, and make sure you get those endorsements or riders for your valuables. If you don’t, they probably won’t be covered.
  4. Increase your policy limits to at least match what it will cost to rebuild your home, rebuild your other structures, replace your personal property, and cover your rental income. Yes, this probably will make your rates go up. Do it anyway.
  5. Do this at least every other year, and while you’re at it, check your auto policy, and look into an umbrella policy.

Homeowners insurance often doesn’t provide the type or level of coverage most people need in the time of a catastrophic loss. Even when your house burns down, you’re still obligated to pay your mortgage and pay your property tax. When your coverage kicks in, it’s usually to replace the structure on the same piece of land. For people with mortgages, this often leaves them with little choice but to rebuild in the same location, even if it looks like the surface of Mars.

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Insurance Claims

Thank you, Jeff Rose, for this discussion regarding fire insurance claims in the wake of the Marshall Fire in Colorado.

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Dissecting the LMU Emu

Dissecting the LMU Emu

In the last decade or so my favorite genre of commercials on television has undoubtedly become commercials for home and auto insurance. I will literally back up the DVR to see how I have become my parents by bundling my home and auto insurance. Whether it’s Flo, the LMU Emu, the Geico gecko, or the Patrick price/Rogers’ rate, boring insurance companies have gone over the top to seem clever, and it’s worked. But not a single one of these companies actually advertise one detail about what they are selling. Deciding what coverages and how much you need of each is never mentioned. And, like bad red wine, the policy you’ve had since you were twenty years old has not aged well.

I know that this sounds like an insurance agent working for your business. I’m not, nor am I qualified to sell you anything. But what I can tell you is that as a lawyer working with people who have been seriously injured, I have looked across the table at too many people learning too late that the auto carrier of the person who injured them doesn’t come close to covering their damages. Those same people often learn that the coverages they opted for multiple years ago to save a few premium dollars don’t help them either. Your car insurance, like your car, needs maintenance from time to time. You should check what coverages you have and what they actually cover. Call your agent and ask what coverages are available and in what amounts. Ask yourself, what do I have to lose if I am seriously injured, or what if I injure someone seriously? If the answer makes you shudder, you don’t have enough coverage.

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LYONS GADDIS PROJECT UPDATE

CG Blog Article RE Team Project Update Barefoot Lakes 20211201 1
CG Blog Article RE Team Project Update Barefoot Lakes 20211201 2

Barefoot Lakes

Lyons Gaddis represents Brookfield Residential and its affiliates in connection with the 1,300 acre Barefoot Lakes master planned community located adjacent to the St. Vrain River and immediately east of I-25 in Firestone, Colorado. With over 1,000 homes already built or under construction, when completed, Barefoot Lakes will contain a new residential community consisting of over 3,500 single-family homes, 100 acres of lakes, miles of trails, new regional water and wastewater utility systems, new regional roadways, and 350 acres of parks, trails, and open spaces for public use. Lyons Gaddis attorneys Cameron Grant, Suzan Fritchel, Jeff Kahn, and Sean Stewart assisted Brookfield Residential with entitlements on the project, including the annexation of the property to Firestone, preparation and approval of Planned Development zoning, subdivision platting, and third-party negotiations crucial to project success. Several of the unique components of this complex land use and development project are summarized below:

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Planning with Retirement Assets

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For many people, their retirement assets, such as IRAs and 401(k) Plans are their most valuable assets.  Therefore, it is particularly important to plan carefully for what will happen to these assets at death.  Doing so is tricky because most of these plans, with the exception of Roth IRAs and Roth 401(k) Plans, are subject to income tax as withdrawals are made from them.  Also, the rules regarding distributions from these plans are rigid.  The following are a few examples of issues to consider:

Surviving Spouse: When retirement assets are left to a surviving spouse, the surviving spouse has a variety of options.  One option is to rollover the retirement plan into the spouse’s own IRA.  The surviving spouse then has all the opportunities that the spouse would have if the assets had originally been contributed to the IRA by the surviving spouse.  The surviving spouse can withdraw all of the assets and also can leave the assets to whomever he or she chooses.  This may be appropriate in many cases, but not always.  For example, if each spouse has children from a prior marriage, they may want to leave the retirement plans held by the first spouse to die in trust for the surviving spouse so that he or she receives distributions from the plan during life, but the balance is designated to pass upon the surviving spouse’s death to the children of the first spouse to die.  The trust needs to be carefully crafted with the retirement asset rules in mind.

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PRACTICING IN THE PANDEMIC: Kara Godbehere - Special Counsel, Water Team

Kara Godbehere, Special Counsel, Water Team

The attorneys and staff at Lyons Gaddis continue to soldier on in this tenth month of the COVID-19 pandemic and the associated quarantines and work from home arrangements.  We are turning our focus to the future and asking some of our people just why they do what they do, how the past ten months have made them better at what they do, and how they will challenge themselves in 2021.  Their answers continue to reinforce the Core Values of Lyons Gaddis:  Trust | Respect | Community | Excellence

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COVID-19 Legal Update for 2021

Unfortunately, as we complete the first month of 2021, the COVID-19 pandemic is still surging and many of the laws related to it changed on January 1, 2021. This article surveys a few of those laws, but is by far not an exhaustive list or a complete analysis of all of the new laws. Please give us a call if you have any specific questions related to the COVID-19 laws or otherwise.

Colorado Healthy Families and Workplace Act

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Employer’s Questions on Mandatory Vaccinations Answered

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On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised COVID-19 guidance effectively permitting employers to implement mandatory COVID-19 vaccination policies for employees as long the employer: 1) follows accommodation requirements for disabilities and religious beliefs; and 2) allows employees to receive the vaccine from a third party that does not have a contract with the employer.

Mandating Vaccination is Generally Permitted under the ADA

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Lyons Gaddis Announces Election of Two New Shareholders

CKupper
JRose

Lyons Gaddis – is thrilled to announce that Chad Kupper and Jeffrey Rose have been elected shareholders in the Firm effective January 1, 2021.

This class of new shareholders represents the next generation in the Firm’s region-leading legal team.  Managing shareholder, Cameron Grant, stated, “I could not be happier to have Chad and Jeff as shareholders at the firm.  Each has continuously shown their talent in delivering stellar legal work, providing value to clients on the business side, and carving out niches for themselves in their practice areas.  In addition, they are simply great people, exhibiting qualities that make them leaders in the legal industry and within the firm.  Congratulations!”

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Are My Injuries Serious Enough to Make a Claim?

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There are times when a person is so severely injured in an accident there is no question whether or not to file a personal injury claim. The amount of money, time, and misery experienced because of the accident makes the need for compensation obvious.

But this isn’t always the case. Sometimes, even with injuries, victims aren’t sure whether a claim is necessary.

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Weld County Land Use Changes (2020)

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Current and future landowners of real property within unincorporated portions of Weld County will soon have a new comprehensive plan along with new zoning and subdivision codes to consider when planning for potential uses and possible division of their lands. On November 9, 2020, the Weld County Commissioners heard the final reading of County Ordinance 2020-13, to enact a new Weld County Code Chapter 22, for the Weld County Comprehensive Plan (for ease of reference, the “Comp Plan”). Then on November 16, 2020, the Commissioners heard the final reading of Ordinance 2020-16, to enact an amended Code Chapter 23, regarding Zoning, and an amended Code Chapter 24, regarding Subdivisions.

Obviously, Weld County personnel and elected officials have devoted a lot of time and effort in crafting the new Comp Plan in response to an anticipated doubling of the population of Weld County over the coming decades and the desire for orderly growth. The new Comp Plan sets out several goals, the major ones being to steer future industrial and commercial development to areas closer to major highways and intersections, and to steer larger developments to areas within three miles of municipalities. The County has created a Comprehensive Plan Map which illustrates the vision of areas appropriate for various types of future development. Comprehensive Plan Map  

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Your Next Deed May Be a Special Warranty Deed. You May Have Questions.

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Colorado has four statutory deeds: General Warranty Deed, Special Warranty Deed, Quit Claim Deed, and Bargain and Sale Deed. Historically, General Warranty Deeds were the most prevalent and preferred since they grant the broadest protection for buyers as their sellers are warranting the title to the real property since the beginning of time. Special Warranty Deeds limit the warranty of title to the period that the seller owned the real property. Quit Claim Deeds give no warranty of title – the buyer gets only what the seller had at the time the deed is signed. Bargain and Sale Deeds also offer no warranty of title but do transfer the title to the seller at that point in time as well as title that the seller acquires after the date of the Bargain and Sale deed.

Then in 2019, Colorado enacted a new statute that allowed deeds to be subject to “Statutory Exceptions” which are composed of

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Gift and Estate Tax Uncertainty

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Gift and estate tax uncertainty is not new.  Over the past several years, we have seen the amount a person can leave free of estate tax utilizing their estate tax exclusion amount rise from $600,000 in 1997 to $11,580,000 in the year 2020, with several stops in between.  We have had one year of estate tax repeal, in 2010.  In 2012, we were on the brink of the estate tax exclusion amount dropping from $5,120,000 to $1,000,000, but the law was changed at the eleventh hour to prevent that from happening. 

Even the current law contains a provision that will cause the exclusion amount to drop to $5,000,000 plus an inflation adjustment in the year 2026 (resulting in an exclusion amount of approximately $6,000,000). 

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Take the Gain, Pay the Tax and Run?

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Each Presidential candidate has put forth a proposed plan for Federal taxation of long-term capital gains which, if passed into law in 2021 or beyond, could have major impacts on your decision regarding the timing of sales or transfers of appreciated capital assets.  

1. Mr. Trump has proposed reducing the maximum long-term capital gains tax rate from the current maximum of 20% to 15%. Assuming you sell capital assets in 2020 and have a taxable gain amount greater than $250,000, you’d also owe the Net Investment Income Tax (NIIT) percentage of 3.8% on the amount over the $250,000 threshold (if married, $200,000 for singles), for a combined tax rate of 23.8% on the long term capital gain. Obviously, if Mr. Trump’s plan to reduce the maximum tax rate to 15% is adopted in 2021 by Congress, your tax bill would be favorably impacted if you wait until 2021 or later to sell the capital asset.

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Financial Danger Ahead: See Your Financial Advisor/Attorney Now

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Assuming a regime change in Washington, the Biden tax plan proposes monumental changes that will have a massive impact on how many individuals (this means you) have structured their estate plans and finances for decades. Some of the things that should be discussed NOW with your financial consultant:

 

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Climate Change Impacts on Colorado Water Users

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Recent fires and high temperatures across the West may have water users wondering what rising temperatures and sustained drought conditions might mean for Colorado water users.  While only time will tell, it’s relevant to note that the summer of 2020 was one of the hottest and driest on record.  The month of August was one of the top ten warmest Augusts on record according to the National Oceanic and Atmospheric Administration’s “August Climate Summary,” with 26 days above 90 degrees Fahrenheit and 17 days above 95 degrees!  Denver received only 0.35 inches of precipitation in August, which is 1.34 inches below normal, and there were only 5 days total during the month with measurable rainfall at all.

What does this mean for Colorado water users?  Changes in temperature and precipitation can impact snowpack, length of crop seasons and quantities produced, wildfires, and pests, just for starters.  According to the US EPA, snowpack in the western United States has been decreasing since the 50’s, and the amount of snowpack measured in April at Colorado sites specifically has declined by 20-60%, on average.  Diminishing snowpack can mean less spring/summer runoff, which typically provides much of the water needed by agricultural and municipal water users.  Earlier runoff can mean changes in the priority system relied upon by Colorado water users, as many decrees for reservoirs (typically relied on to capture spring runoff for later summer use) have limitations on when such storage can start and when it must stop.  Rising temperatures can also increase evaporation from soil, crops, and storage reservoirs, meaning more water is lost to the air than usual.  Soils may become drier as evaporation rates increase, which can mean they retain more water when there IS precipitation so that less water is ultimately flowing into the state’s stream systems.  Changes to Colorado snowmelt, rainfall, and temperature patterns may also impact Colorado’s farms and ranches.  Increased evaporation can increase irrigation demands and mean that some farms change to dry land farming, which typically decreases crop yields.

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What Should You Do After a Motorcycle Crash

Motorcycle Crash

3 Things You Should You Do After a Motorcycle Crash?

Motorcycle crashes tend to be devastating and result in significant injury. The moments after a motorcycle crash and the days and weeks that follow are challenging. What you do during this time affects your physical and mental recovery, as well as your opportunity to receive compensation for your injuries.

In many cases, the person or people involved have no choice but to put all of their other concerns on hold and seek immediate emergency medical attention after a motorcycle crash. But following the initial assessment and emergency response, there are several things you can do to improve the odds you’ll receive compensation for your medical treatment, loss of income, and the pain and suffering you endured due to your injuries.

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Should I File a TBI Claim?

brain

Traumatic brain injuries (TBI) can have catastrophic consequences. These types of injuries change can often change a person’s life forever. TBIs can affect a person’s ability to work, drive, interact with friends and family, and lead what was previously their normal daily life.

One of the most common causes of a TBI is auto accidents. According to the CDC, there are more than 5 million Americans with TBI-related disabilities and many of them endured these injuries in vehicle accidents.

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Should I Accept a Settlement Offer from an Insurance Company after an Accident?

Accident

If you’ve recently been injured in an automobile accident, chances are you’ve received a call from the insurance company. Insurance providers representing negligent drivers are quick to contact accident victims. Their goal is to convince injured parties to settle out-of-court and usually for far less money than they’d receive if they waited.

In nearly every case, this initial insurance settlement offer is unfair and it’s an attempt to avoid paying you what you deserve. But is it ever smart to accept a settlement offer from an insurance company if you’ve been injured in an accident?

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Colorado Water Right Abandonment List

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The State of Colorado prides itself on its system of water management. Situated in the arid American West, a once novel priority system was established for equitable water distribution. This prior appropriation system allows the delivery of water to senior users basing the order of use on priority date, not location or proximity to the water source. This system is aimed at allowing water to flow to its most valuable use, preventing speculation, while maximizing beneficial use. The Decennial Abandonment List represents one of the system's checks to make sure that water stays in use. Kara Godbehere of Lyons Gaddis recently was interviewed by KUNC, Community Radio for Northern Colorado regarding the Abandonment List. Click here for the full article and interview. 

If you have a water right that appears on the Decennial Abandonment List or would like more information on the process, the best course of action is to hire a water professional to defend your right from abandonment. Consider hiring one of the Lyons Gaddis water team for the best results. 

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