Martens PLLC, Attorney at Law

North Dakota COVID Emergency Rent Bridge

2022-06-10T09:22:56Z

Our clients and friends who either own rental properties or who are renters themselves should be aware of a new program recently made available through the North Dakota Department of Human Services, in coordination with Department of Commerce, Department of Labor and Human Rights, Housing Finance Agency, Department of Health, Department of Emergency Services, and the Bank of North Dakota, to assist those who are unable to pay rent (and risk potential eviction) due to a substantial loss of income resulting from COVID-19, known as the COVID-19 Emergency Rent Bridge. Online applications will be available through the link above beginning May 2, 2020. It also outlines the five-step application and approval process for those in need of such assistance who qualify. Eligibility is restricted to households with income at or below 60% of the area median income adjusted for household size and county of residence. Income determination includes earned and unearned income, including unemployment benefits received. Applicants must have applied for LIHEAP and unemployment insurance (if applicable), have a current lease, and not have cash assets totaling more than 3 months’ rent. Applicants will be responsible for paying 30% of their total monthly income towards their housing costs. The rent bridge will pay the difference between total rent due and the tenant portion of rent, up to the maximum rent limits for each community. Households with rent payments that are at or below 30% of their monthly income will not be eligible for assistance. DHS has more information about the COVID Emergency Rent Bridge, and other programs to assist those who are facing financial difficulties due C19 through their COVID-19 website, and more information concerning other resources can be found on the ND Response website.

Bank of North Dakota Small Business Relief

2022-06-10T09:23:06Z

While most small business owners have familiarized themselves with the Paycheck Protection Program (PPP) and the SBA's Emergency Economic Injury Disaster (EID) loan programs (if not, check out this handy chart from the North Dakota Commerce Department), there are some who find they may slip through the cracks or not get the assistance, security, or protection they need through either program (or simply are hesitant to get tied up in a Federal program if it can be avoided). For those in this latter category, there may be other options available through the Bank of North Dakota (BND) and their local banks. There are two particular COVID-19 Relief Programs BND recently brought on line which may be worth pursuing: the COVID-19 Pace Recovery Program (CPRP) and the Small Employer Loan Fund (SELF). Applications under both programs will be accepted and must be received by November 30, 2020, and must be submitted by a lender at your local financial institution. If you have questions about options for your business in these interesting times, please feel free to contact us through the portal above or by phone. We also recommend reaching out to your trusted financial advisors, CPAs, and lenders to get guidance in pursuing options that are best for your business and on an individual level. If you need a referral, we'll be glad to provide one as well to help you get the assistance you need to weather the storm.

Force Mawhat? – What Constitutes an “Act of God” in the COVID-19 Era

2022-06-10T09:23:15Z

For all of our clients, but especially our business clients, the events of the past two months have created a world of chaos for their day-to-day operations. These events have also put strains on contractual relationships between businesses and individuals alike. People seem to be looking everywhere for answers only to find that answers, or at least what they were hoping to hear, are not to be found or are extremely complex. And as a result of these events, one of the big topics in the legal world these days when it comes to contracts and contractual interpretation, has been the use of "force majeure" clauses and application of legal doctrines related to force majeure events (for contracts without such clauses) and how they might apply with respect to the COVID-19 crisis ("C-19"). This might be specifically of importance to our clients with leases of both the traditional and oil and gas variety, as well as those in construction or other industries with contracts that rely on supply chains, transportation, and labor. There are a number of posts and other information available out there - actual books and treatises if you're having trouble sleeping and looking for light reading - through the ABA, and individual law firms that address this issue (complete with footnotes and citations), so I'm not going to get hypertechnical or reinvent the wheel, but try to hit some of the highlights. "So what is a "force majeure" clause and now does it impact my contract?" The term "force majeure" is actually French in origin and translates to a "superior force," but is more commonly known or referred to as "an act of God." It's defined as "an unexpected and disruptive event," and in the context of contractual obligations and enforcement, can excuse performance by a party to the contract. These clauses often list a variety of instances or situations where the parties agree that performance is excused or suspended for a period of time due to the particular circumstance. One of the easiest ways to spot one is to look for the phrase "act of God" in the contract. The most common events and terms you may find are tornadoes, hurricanes, earthquakes, and floods. As well as certain "man-made" events, like acts of terrorism, strikes, riots, and wars. Other regularly used examples and terms within such clauses include "labor troubles," "inability to procure materials or services," "restrictive governmental laws or regulations," "insurrection," "sabotage," and "acts of public enemies." And some clauses, especially of late, may include specific reference to “communicable diseases,” “disease outbreaks,” “epidemics,” or “pandemics.” The list can actually be rather broad, but really in the case of a contract one is considering entering into or drafting, should probably be tailored to the specifics that would make the objective or purpose of the agreement impossible to perform. "But why? And what does that have to do with C-19?" In the context of a force majeure clause in a contract, interpretation is narrow and generally restricted to what is within the language of the provision. In other words, it depends on what's defined as a "force majeure event" within the contract. If the clause includes events/occurrences such as “communicable diseases,” “disease outbreaks,” “epidemics,” or “pandemics," it's pretty easy to determine the clause would apply with C-19. But, keep in mind, not every force majeure clause is going to specifically list these health-related impacts. However, there are some events and impacts that may result from C-19 which could apply (e.g., "act of government," "restrictive governmental laws or regulations," "states of emergency," "inability to procure materials or services"). Regardless of the particular language used, it's also important to remember that even with such a clause, parties have a general obligation to mitigate foreseeable risk of non performance, and often cannot invoke the clause when the potential nonperformance was foreseeable and could have been prevented or otherwise mitigated. Equally important is the often overlooked requirement of prompt and adequate notice. And, depending on the jurisdiction (because the law is often different from state-to-state), the party relying on the clause is going to have to show how performance is truly impossible or impracticable, and not merely financially or economically more difficult to satisfy. Guidance and discussion on the topic has continued to evolve over the course of the past 45 days. Some have started cautioning against inserting clauses in new contracts, or relying on or attempting to invoke force majeure. There's also discussion of the degree to which C-19 and the measures taken as a result of it constitute an unforeseeable event, as the impacts in the Far East and Italy, and for us in North Dakota and the north-central United States, those in Washington, California, and New York were known prior to the mid-March closures here. However, with that said, there's still room for interpretation and argument as to the degree of foreseeability of their overall impact and parties' abilities to truly mitigate or avoid nonperformance due to those impacts (those might be litigators you see circling overhead 😉). While it would be difficult to deny the innumerable commercial disruptions inevitably caused by travel restrictions, quarantine and social distancing orders, cancellations of large gatherings, and other efforts being taken to address the crisis - including labor shortages, delays in supply and distribution of materials, and workplace closures - qualify as a force majeure event, there may still be problems with the legal precedents from state-to-state. Such being the case, it is important to contact counsel for particular guidance when dealing with questions about ability to perform or enforce a contract. "What if my contract doesn't have one of those force whatchamacallits in it?" There are also other legal doctrines and protections available for parties who are in a position where the circumstances of the day make holding up their end of the deal impossible. Depending on the particular jurisdiction, a party may be able to rely on the doctrines of frustration of purpose, impossibility, impracticability, or commercial frustration, to avoid negative consequences due to their inability to perform their duties under a contract. And, in some jurisdictions, depending on how a force majeure clause is drafted and interpreted, these doctrines may also supplement the clause - BUT in others, the presence of the clause may preclude reliance on the doctrines. This is another good reason why it's important to consult with legal counsel for guidance when dealing with questions about ability to perform or enforce a contract. "So what should I do?" The best general (and free!) advice is to work and communicate with one another, be an understanding and empathetic human being, and act civilly toward one another. You'd be shocked how many people could have avoided huge legal bills had they just picked up a phone and civilly talked things through with the other side. But if everyone was actually capable of following such advice, services from this profession would not be in such high demand. There are options such as business interruption insurance which may be available through umbrella and other business policies. Thus, it may be wise to pull out your policy binder and read up (also can be a great resource for the aforementioned sleep deprivation issues), as well as consult with your legal counsel (because they are not the easiest things to read and understand). Before taking action, it would be wise to step back and consider the consequences. If you're in a position where you may claim a right not to perform, how might that impact your business' reputation, as well as any existing or future relationships? Likewise, if you're in a position where a partner or someone you have a contract with may need a little slack, what impact will demanding strict compliance have on your reputation and current or future relationships? If you're in the "might/probably not able to perform" camp, the conventional wisdom is to make a good faith attempt at performing, or find/take other steps to achieve the overall goal of the contract. You'll also want to keep a detailed log of evidence showing how performance was made impossible, impracticable, commercially unreasonable, etc. by the event/pandemic, as well as your efforts to find alternative means of performance, your communications with others (especially the other parties to the contract), and the financial impacts, costs, and other losses incurred. And, if planning to claim excuse of performance under a force majeure clause, make sure to follow all the contractual requirements as a condition of excusing performance, such as timely notice, mitigation of damages, and any dispute resolution procedures. If you're in the "other party cannot/might not/probably will not be able to perform" camp, it may be wise to consider renegotiation on terms that are reasonable under the situation, and, if warranted, point out ways the other party or parties could still perform, or reasonable alternatives they could take in mitigation. The goal, presumably, should be to achieve the purpose of the contract, or make the "deal" work for everyone. Because, frankly, in litigation nobody ever really wins and nobody is ever really made whole. If you need help with a contract, lease, or any agreement, please send a message or give us a call. In the meantime, we sincerely hope you all are and remain safe and well.

North Dakota Industrial Commission Special Hearing

2022-06-10T09:23:30Z

The Industrial Commission, through the Oil and Gas Division of the Department of Mineral Resources will be holding a hearing at 9:00 a.m. (central time) on May 20, 2020, to address determination of the oil price that constitutes waste pursuant to Section 38-08-02(19) of the North Dakota Century Code, as well as the consequences of determining that waste is occurring, and what relief may be appropriate and necessary to prevent the waste of North Dakota crude oil production.

The hearing will be held virtually, rather than in person, due to COVID-19 and will be livestreamed for anyone interested in tuning in.

The commission is seeking testimony from interested parties on a variety of subjects which can be found in its notice regarding procedure available through the Oil and Gas Division website.

Written comments on the motion can be sent via e-mail or mailed to:

Oil and Gas Division 1016 E. Calgary Ave. Bismarck, ND 58503-5512

Comments to be considered must be submitted and received by 5:00 p.m. CDT on May 15, 2020. Those who plan to testify will also need to submit their telephone number and any documents to be used during their testimony by 12:00 p.m. CDT on May 19, 2020. There is a 15-minute limitation on testimony, and they ask that parties not repeat the testimony of others.

LAND Donald B. Sass Memorial Scholarship Deadline Extended

2022-06-10T09:23:39Z

The Landman's Association of North Dakota has extended its deadline for applications for the Donald B. Sass Memorial Scholarship through May 1, 2020, for the 2020-2021 academic year. This scholarship is for graduates of North Dakota high schools who are pursuing an upper-level or post-graduate college/university-level field of study relating to the oil and gas industry. The application form along with information about the criteria and scholarship's namesake, can be found on the LAND website, as well as through the North Dakota Community Foundation. If you know a student pursuing such a field of study, please be sure to share this information with them. Martens PLLC is a proud member and supporter of LAND, which is a non-profit organization for professionals in the landwork industry; be it landmen, right-of-way agents, attorneys, geologists, etc. Its mission is to further the education of its members, lobby for matters affecting its members and uphold the honor and integrity of the minerals industry.

North Dakota Petroleum Foundation – Al Golden Scholarship

2022-06-10T09:23:49Z

The North Dakota Petroleum Council announced today that applications are being accepted today through June 1, 2020, for the North Dakota Petroleum Foundation's Al Golden Scholarship for the 2020-2021 academic year. Nine scholarships of $2,000 are awarded ($1,000 per semester) to students pursuing degrees and careers in energy-related fields. You can learn more about the scholarship, it's namesake, the specific requirements, and the application process through the link above, or also on the Foundation's Website. If you are or know a student who may be interested or qualifies, please be sure to share this information with them. Martens PLLC is a member of the North Dakota Petroleum Council, which represents over 700 individuals and entities involved in all aspects of the oil and gas industry, including oil and gas production, refining, pipeline, mineral leasing, consulting, legal work, and oil field service activities in North Dakota, South Dakota, and the Rocky Mountain Region. Since 1952, the Petroleum Council has been the primary voice of the oil and gas industry in North Dakota. The North Dakota Petroleum Foundation, a 501(c)(3) nonprofit, was founded by the Petroleum Council in 2018 to support our state and the communities in which its members operate. Through outreach programs, scholarships and education opportunities, and environmental stewardship programs, we strive to help our neighbors make our communities better places to live, work and raise a family. The Foundation is supported by revenues from the Williston Basin Petroleum Conference, as well as donations from the Petroleum Council, the Foundation’s Board of Directors, industry companies and employees, grants from the Oil and Gas Research Council and Outdoor Heritage Fund and others.

Notary Services

2022-06-10T09:23:58Z

Remote Notarization So in these interesting times of the COVID-19 (C-19) outbreak, you're being responsible, doing your part to socially distance, staying at home, with bank lobbies and other offices closed, but you need a document notarized, or you're a notary and have someone who needs a document notarized, but you can't get to them, or they to you, for you to witness the execution. What to do... Fortunately, in 2019, the North Dakota Legislative Assembly adopted a new law allowing for notarial acts for remotely located individuals, which is found in Section 44-06.1-13.1 of the Century Code. The new law, which went into effect August 1, 2019, permits notaries to perform "Remote Online Notarization," or "RON" using technologies that provide for someone to execute a document outside of the presence of the notary, but that ensure the identity of the signing party is verifiable by the notary. Our office presently has two Notaries Public, and is in the process of reviewing RON technology options from existing and new vendors for implementation so we may provide these services to our clients and ensure seamless continuity of our services and practice in these challenging times. We will be sure to provide an update through our website, as well as our social media profiles, to let our clients know when we're able to notarize documents remotely. The key part, under North Dakota law, is that "an audiovisual recording of the performance of the notarial act" must be created and retained for ten years. The Secretary of State has the authority to create and implement specific administrative rules concerning RON, but none have been enacted at the present time. However, they have issued guidance through e-mail, as well as on their website, for notaries who are looking to provide RON services. The nice thing is this is a uniform law, meaning there are other states which already have it, or a very similar provision, in place, and it provides for reciprocity. Currently, RON is fully implemented and authorized in 13 states, including Minnesota, Montana, Texas, and Oklahoma. South Dakota has also fully implemented and authorized RON, but there are some limitations. There are also 10 states in which RON implementation in pending, and set to go into effect in 2020. Wisconsin is currently permitting RON under special emergency rules, and full implementation is set to be effective on May 1, 2020. Our clients in Arizona and Washington will have to wait until July 1 and October 1, respectively, for the law to go into effect - however, we suspect that with the current C-19 pandemic, RON implementation will continue to grow and, likely may be the "way of the future" for quick, remote notarization. The National Notary Association has additional information on RON and its availability outside of North Dakota. If you have any questions about getting a document notarized, whether traditionally or through RON, please contact us by e-mail or phone and we'll be glad to assist.

COVID-19 Action Plan & Pending Matters

2025-06-09T03:38:50Z

With the evolving situation in North Dakota, particularly in the Bismarck-Mandan metropolitan area, last week we revised our plan and operations to effectively carry on the course of business and representation of our clients, while continuing to exercise caution for everyone's health and safety in these interesting times. We strongly encourage you to follow us on social media (Facebook, LinkedIn, and Twitter) for updates as the situation continues to rapidly evolve. As of last Wednesday, we are not taking any in-person appointments, and are handling all client business remotely through any available electronic means that work best for our clients. As always, we remain available by e-mail and phone, and are willing and able to do video/web conferencing with clients and prospective clients who are comforted by seeing a live person on the other end of a conversation. We have already reached out to existing clients who had appointments set up in this period and have made other arrangements, and have been and will continue to be in contact with those who have upcoming court dates or other deadlines. For the most part, all of our scheduled hearings and appearances scheduled between now and April 25 have been continued, or are being conducted by electronic means. While our physical office is essentially closed, we are continuing to operate remotely and have staff in place to monitor traditional mail, take calls, and provide as close to the same level of service as "normal." The legal system, like most businesses, continues to evolve in terms of technology and electronic access, and that has been accelerated by the current situation. [nap_names id="FIRM-NAME-3"], from our beginning, implemented cloud technology to permit access to necessary resources so we could function from a variety of locations to better serve our clients. We continue to strive to be "tech savvy" in these evolving times, and are diligently working to keep our practice available and fully functioning for all current and prospective clients in light of the "new normal." For those with currently pending legal matters in North Dakota state courts, the Supreme Court issued an Emergency Order and followed it up with particular guidance, which continues to be updated as the situation unfolds. For now, all jury trials set for between March 16 and April 24 have been suspended, and rescheduled to later dates, and most bench trials and non-emergency hearings have been continued, or will be held by electronic means. Initial appearances/bond hearings and preliminary hearings in criminal matters are proceeding, but are largely being conducted electronically (via phone and/or interactive television (ITV)). Locally, in the South Central Judicial District, the vast majority of hearings have been continued, with the exceptions listed above, and a memorandum was recently issued by the Presiding Judge of the District to attorneys regarding procedures for those hearings. County-by-county response information is also provided, but continues to change in light of new developments. One can also contact the Clerk of Court for both District and Municipal Courts for a respective County or City for updated information as it may pertain to a particular matter. The United States District Court for North Dakota also issued a similar Administrative Order, which has since been revised. All federal courthouses in North Dakota are closed to the public, except for scheduled appointments. All jury trials scheduled between March 16 and April 10 have been continued. Other deadlines and hearings have also been continued, with the exception of initial appearances, arraignments, and detention hearings. All hearings are presently suspended through April 3. The Order will be vacated, amended, or extended no later than April 10. For updates, they recommend consulting their site for current information and, as with state courts, one can also reach out to the clerk's office for the respective courthouse for information as it may pertain to a particular matter. If you have any questions about a pending matter, please contact us by e-mail or phone for further guidance and information. If we cannot get to you right away, please know that we strive to respond to all contact within 24-48 hours, whether by phone or e-mail, which has long been our internal policy. Thank you for your continued patronage, as well as your patience and understanding in these interesting times. We look forward to continuing doing business with you now and for years to come.

Why a revocable living trust? Isn’t a will enough?

2022-06-10T09:24:22Z

You have a lot of decisions to make when creating your estate plan. One of them involves whether a will is enough to meet your goals. For some North Dakota residents, a will is enough to fulfill their wishes, but that does not hold true for everyone.

Someone may have mentioned to you that you could use a revocable living trust, but you aren't sure why you would need one. Under certain circumstances, a trust would provide the better option.

When would a trust be a good idea?

Your will may serve as the cornerstone of your estate plan, but in some situations, it doesn't serve you and your loved ones in the best way possible. Some of the situations in which a revocable living trust may prove useful include those listed below:

If you remarry, you may want to make sure your children or others from your previous marriage receive an inheritance.
A trust can help you and your spouse maximize all the available estate tax exemptions.
There could come a time when you are unable to make financial decisions for yourself. A trust can compensate for this eventuality without any interruption in how you handle your personal affairs since your successor trustee can seamlessly take over handling your financial affairs.
With a trust, you can keep the details of your estate private since none of the assets in your trust go through probate, which is a public process.
If you are single, having a trust helps ensure that your assets are not subject to a guardianship if you become incapacitated and your loved ones do not have to go through probate in order to benefit from your assets after your death.
If you have minor children, they cannot legally inherit property until they reach the age of majority, but they can benefit from your assets through a trust since they will not directly own the property. Your successor trustee can then distribute the remaining assets in the trust in accordance with your instructions as each of your children reach adulthood.
If you own property outside of North Dakota, titling it in the name of the trust removes the requirement of an ancillary probate, which would mean going through the probate process in a state in which you were not a resident at the time of your death.

As you can see, there are more reasons to use a trust than you may have realized. Setting up a trust requires including certain language in order for it to work as intended. In addition, you will need to "fund" it, or put your assets into it, for you to reap the benefits of it. These steps require a certain amount of legal knowledge, so it would probably be greatly beneficial for you to work with an estate-planning attorney to make sure that everything is set up correctly.

Couples without children still need strong estate plans

2022-06-10T09:24:32Z

Many people underestimate their need for a good estate plan or even a basic will. If you are married but don't have children, you may think the same thing. After all, if you pass away, your spouse will inherit your money and possessions, right? What will happen if both of you pass away? It's worthwhile to put careful consideration into a plan for the future.

It's not always easy to make estate planning decisions. These are choices that often pertain to what will happen after you pass away, which you may find unpleasant or foreboding. Even if you do not consider yourself wealthy or you believe that your estate is not that extensive, you will find many benefits to crafting a plan that will allow you to maintain control over what happens. This is a prudent step for all North Dakota couples, even those without children.

Why should you have a plan?

Having a will and other estate planning documents is not something reserved only for the rich and famous. There are certain practical benefits to this step, and you will also find that you have peace of mind about the future. Some of the reasons why you may want move forward with this process include:

A will can protect your interests in case of your death or in case both you and your spouse pass away. You can specify what you want to happen to your stuff, but you can also plan for the care of a pet and ensure that you get to decide who gets what.
A power of attorney can allow you have a say over what type of health care you may want in case you cannot speak for yourself. You can also name a person to manage your finances and do other things if incapacitated.
You can make sure that you are able to leave money to certain charities and nonprofits as you intended. Through your will, you can clearly spell out what you want and avoid the possibility of confusion and disagreements over the estate.

These are only a few of the reasons why childless couples will benefit from having a thoughtful estate plan in place. No two situations are the same, and no two estate plans will be the same either. This is why it is beneficial to work with an experienced attorney who can evaluate your situation and determine what you need in your plan for protection and security.