Ashley Dean Powell

Ashley Dean Powell

Understand and Anticipate Client Needs | Plan to Avoid Problems | Attorney
  • Real Estate Law, Estate Planning
  • Colorado
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Summary

Planning. Preparing. Being proactive. That's the way I prefer to practice law.

This isn't always possible; there are areas of the law that by nature require you to be reactive rather than proactive. If you are in a car accident, whether you're the responsible party or victim, you are reacting to the situation. When you are served with a civil complaint, you are put on the defensive--you react. After you are arrested for some criminal offense, you are reactive.

But there are other areas of law that lend themselves to careful, thoughtful analysis and preparation for the future.

Estate Planning. You have the ability at any time to create an estate plan so that you and your loved ones are prepared for your death or incapacity.

Residential Real Estate. When you first engage a realtor to begin looking to buy or sell your house, you make a choice to engage an attorney to help with the transaction or to go it alone.

Business Planning and Organization. With your first flicker of an idea for a new product, service, or business model, you have the opportunity to begin planning for the business that will support that idea from concept to creation.

Commercial Real Estate. When you hire a space planner and/or broker to help you find a new commercial space (whether for lease or for purchase), you make a decision to engage an attorney early in the process (before there's even a letter of intent) or to scramble to bring an attorney up to speed after you receive the seller's (or landlord's) first draft.

I thrive on helping well-prepared and motivated clients plan for their future.

How can I help you plan for your future?

Plan BEFORE there are problems.

Practice Areas
  • Real Estate Law
  • Estate Planning
Additional Practice Areas
  • Commercial Leasing - Retail Leases, Office Leases, Industrial Leases
  • Residential - Assisting Home Buyers
  • Contract Review
Jurisdictions Admitted to Practice
Colorado
Professional Experience
Soldier
United States Army
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Associate Attorney
Brownstein Hyatt Farber Shreck
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Education
University of Iowa
J.D. (2009)
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Honors: Senior Articles Editor, Iowa Law Review
Activities: Flag Football (when I didn't have a pulled hamstring); Equal Justice Foundation (participated in Katrina related relief trip); Quarterfinalist, Van Oosterhout Moot Court Competition
Grinnell College
B.A. (2004)
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Activities: Grinnell College Football (mostly cheering from the sidelines as a 10th string cornerback); Student Justice Action Group (helped organize the weekly community meal); Mock Trial
Professional Associations
State Bar of Colorado
Member
Current
Publications
Articles & Publications
Attorney Opens New Durango Law Practice
Durango Herald
Legal Answers
63 Questions Answered

Q. who has the rights to a house?
A: Short Answer: If the son of her deceased husband was never actually adopted by your mother-in-law, then there is a chance that such un-adopted stepchild will not participate in her estate as one of her own children. Long Answer: If your mother-in-law is the sole owner of the house and she dies intestate, then her intestate estate would likely be passed to her heirs as determined by the progression of heirs outlined in Colorado Revised Statutes (CRS) Section 15-11-101 and following. As you work through that statute, you'll note that if she dies without a spouse and without a designated beneficiary (pursuant to a recorded designated beneficiary agreement), then the next to take her estate under Section 15-11-103 are her descendants (per capita at each generation). Under CRS Section 15-10-201(11), a “descendant” requires a Parent-Child relationship at each generation. CRS Section 15-10-201(7) defines “child” to specifically exclude a “stepchild” or “foster child.” CRS Section 15-10-201(36) defines “parent” to specifically exclude a “stepparent” or “foster parent.” Therefore, a “stepchild” who was not actually adopted by your mother-in-law is not considered one of her descendants and, thus, not one of her heirs in the event she dies without a will or trust in place to name that stepchild as an heir. Given the few facts in your question, this may mean all of your mother-in-law's children inheriting equally from her estate. This is one reason why estate planning is so important, especially in blended families. Her now deceased husband may have assumed (or hoped) that his son would still eventually benefit from his co-ownership of the house. But, without proper estate planning, the house may have passed completely into the name of his wife (your mother-in-law), who is free to dispose of it however she wants, even if that means intentionally (with an estate plan of her own) or unintentionally (by dying intestate) dis-inheriting the son. There are estate-planning techniques that might have worked if both spouses had developed an estate plan while they were still alive that was intentional about protecting all of their blended family from this result (it could have gone the other way if your mother-in-law had died first and the son had inherited everything from his dad to the exclusion of your mother-in-law's daughters). Again, this assumes the children were not adopted by their stepparents and that there are no estate planning documents that will direct the disposition of the house.
Q. Can I take an apartment to court
A: Without knowing more and based solely on the information in your question, I suspect that you do not have a strong case against the landlord/property owner/property management company. If you feel strongly about this, you probably need to sit down with a landlord-tenant attorney or plaintiff's/personal injury attorney with all relevant facts and documents (your lease) to determine whether your case has merit. Here is some more general information about landlord's duty to make repairs you may find helpful: In terms of both timing and importance, the first question should probably be, “Is landlord’s failure to fix (repair, maintain) ‘X’ harming the tenant’s health or safety?” If the failure to maintain the premises (the place you rent; where you live) is hurting your health or safety, then landlord’s failure may create a breach of her warranty of habitability. Under Colorado Revised Statute Section 38-12-503, every residential lease includes a warranty of habitability. Section 38-12-505 includes an elaborate list of the types of items that might violate landlord’s warranty of habitability if they are not properly maintained by landlord. For example, if your house or apartment does not adequately protect you from the weather outside (it isn’t waterproof, it isn’t windproof), landlord may be in breach of this warranty. Likewise, if you don’t have adequate plumbing, natural gas, running water (including hot water), heat, or electricity, these may be indications of a house that is uninhabitable. Something to keep in mind is that the particular item that landlord has failed to maintain (even if it is on the specific list in Section 38-12-505) must ALSO create “a condition that is materially dangerous or hazardous to the tenant’s life, health, or safety.” If you are a tenant and you believe that a situation exists at your rented property that violates the warranty of habitability by presenting a danger to your health or safety, then the statute (Section 38-12-503(2)(c)) requires you to provide your landlord with a written notice of that condition. Following the written notice, your landlord has a “reasonable time” to cure the problem. After you have provided your landlord with the written notice required by Colorado law and your landlord fails to fix the problem in what you believe is a reasonable time, then you should review Section 38-12-507 for your potential remedies as a tenant. Your remedies include terminating the lease, having a court force your landlord to make the repairs (known as injunctive relief), withholding rent, paying for the repairs yourself and charging them against your rent owed, and potentially collecting your costs and attorney fees. There are additional nuances to some of these remedies, and you should consider consulting an attorney before you proceed with unilaterally enforcing these remedies. Not all maintenance issues are also warranty of habitability issues. Sometimes, the “broken” thing does not actually threaten your health or safety. For example, tenants frequently ask about a landlord’s obligation to fix a broken appliance such as a refrigerator, oven, or washing machine. While it’s disappointing to have these items break, and while they cause an inconvenience for a tenant, many items such as this don't threaten health or safety and are not landlord's responsibility to fix.
Q. I need to create a legal document to sell a portion of the power line to my house to my neighbor. How do I do this?
A: Based on the facts above in your question, it may be difficult to get a complete answer. If you want to know that you have correctly formalized your agreement with your neighbor, then you should probably consider consulting with an attorney in your area who can review all documents related to the purchase and installation of the original line any any associated easements. If you have set up your own self-contained power grid for which you produce the electricity and own the lines, then you may want a purchase and sale agreement for the initial installation of a new line to your neighbor as well as a services agreement that would formalize the terms of your ongoing service of providing electricity to him. If that is not the case, and if you are on a more traditional supply of electricity from a utility, then you may not have any rights to let your neighbor tap into your line. Even if you had to pay to have the initial line run to your area, the utility would have most likely been the "owner" of the line and would reserve the right and responsibility for making any additions or changes to the line (as well as maintenance to the line). If all necessary easements across your property have already been granted to your neighbor, then he may need to negotiate directly with the power company for installation of his line. The easements you gave to your neighboring property and to the utility itself may already contain all the rights the utility needs to add lines to new properties without any additional permission from you (or payments to you). To give you a precise answer, an attorney would likely want to review all documents in your possession as well as any of record burdening your property and your neighbor's property.
Q. Does a stepchild have a right to belongings or ashes.
A: Assuming that no personal representative has yet been appointed by a court and no estate has been opened, you or your sister could petition a court in Colorado to appoint you as the personal representative of your brother's estate. The process thereafter may vary depending on whether your brother died with or without a will, but being named the personal representative would provide you some power to begin settling his estate. The first step should probably be hiring a probate attorney in Colorado, perhaps one near where your brother lived or, if he still owned real estate in Colorado, one near that real estate. With the assistance of a probate attorney, you can determine how best to proceed against the stepdaughter who may have taken items from the estate to which she was not entitled. If your brother died without an estate plan in place, you and your attorney may be particularly interested in Colorado's definitions for descendant, parent, and child. Under Colorado Revised Statute Section 15-10-201(11), a “descendant” requires a Parent-Child relationship at each generation. CRS Section 15-10-201(7) defines “child” to specifically exclude a “stepchild” or “foster child.” CRS Section 15-10-201(36) defines “parent” to specifically exclude a “stepparent” or “foster parent.” Therefore, a “stepchild” who was not actually adopted by your brother is not considered one of his descendants for purposes of intestacy (when someone dies without a will and relies on state law to determine who gets their stuff) and, thus, not one of his heirs in the event he died without a will or trust in place to name that stepchild as an heir.
Q. When someone passes & "estate will"goes to X #of kids but 1 has passed what happens to the deceased kid's share?
A: The answer somewhat depends on a variety of factors, such as whether the will intended a class gift (for example, "to all my kids") or was a list of specific devisees (recipients) of the gift. The specific provisions of the will (did it clarify alternative recipient or how to deal with the death of one of the recipients?) and the intent of the person who created the will are the key factors in determining who gets what whenever possible. However, you may want to review Colorado Revised Statute Section 15-11-603, which may become the key law if the will does not state what should happen. In that case, the statute sets out default rules of construction, and in many situations the surviving child of the recipient who already died will receive the share that the deceased person would have received (based loosely on subsection (2)(a) or (2)(b)). Again, any language to the contrary in the will itself could trump this default statute. Additionally, as mentioned, there are many factors including the nature of the gift, nature of the recipients, and the nature of those who survive.
Q. I was just wondering if I have a case. I feel like I was done wrong and unfair. Can I do anything?
A: There may be potential claims here that you could have pursued. As you may well know, most civil claims/disputes like this have a deadline by which the claim must be brought in court (a "statute of limitations"). Given that the business was started 12 years ago and the relationship appears to have failed (you walked away) about 8 years ago, you may have lost your opportunity to sue for these claims. Presumably, most of the wrongdoing occurred before and leading up to you leaving 8 years ago, but you may want to think about whether there are any particular acts/wrongdoing by your former business partner that you didn't learn about until many years later. In that case, although the act itself may have occurred so long ago that the statute of limitations has passed, your lack of knowledge about it until later may have delayed/tolled the statute of limitations to not begin running until you discovered it or could have reasonably discovered it. If you are serious about pursuing something, you should attempt to speak with an attorney very soon about whether you may have any claims that are still valid and have not expired due to a lapse of the statute of limitations. You might find more success posting this question under a category like litigation or lawsuits or disputes. These attorneys may tend to be more broadly familiar with the statutes of limitations for a wide variety of types of claims.
Q. On November 29th My oven control panel shorted out! No replacement yet. Can I deduct my meals while I wait?
A: Short answer: A landlord probably has no legal obligation to provide you with a cooking oven/stove or fix a broken one unless that obligation is specifically created in the lease. If it is in the lease that your landlord will maintain all appliances (or oven specifically) in working order, then your remedies for landlord's failure to meet that duty are probably also outlined in your lease. Long answer (especially for the other issues you mention in passing without details): In terms of both timing and importance, the first question should probably be, “Is landlord’s failure to fix (repair, maintain) ‘X’ harming the tenant’s health or safety?” If the failure to maintain the premises (the place you rent; where you live) is hurting your health or safety, then landlord’s failure may create a breach of her warranty of habitability. Not all maintenance issues are also warranty of habitability issues. Sometimes, the “broken” thing does not actually threaten your health or safety. For example, tenants frequently ask about a landlord’s obligation to fix a broken appliance. While it’s disappointing to have these items break, and while they cause an inconvenience for a tenant, many items such as this can break without causing a health or safety issues. When this is the case, a tenant must usually rely exclusively on the terms of the lease agreement rather than Colorado law. Landlords and tenants are generally free to negotiate who will be responsible for various appliances or portions of the rented house/apartment. As a tenant, you should review your lease closely to determine whether landlord has an obligation to maintain and repair any or all of the appliances that are already in the premises (or are you responsible for such repairs under the lease?). Under Colorado Revised Statute Section 38-12-503, every residential lease includes a warranty of habitability. Section 38-12-505 includes an elaborate list of the types of items that might violate landlord’s warranty of habitability if they are not properly maintained by landlord. For example, if your house or apartment does not adequately protect you from the weather outside (it isn’t waterproof, it isn’t windproof), landlord may be in breach of this warranty. Likewise, if you don’t have adequate plumbing, natural gas, running water (including hot water), heat, or electricity, these may be indications of a house that is uninhabitable. Something to keep in mind is that the particular item that landlord has failed to maintain (even if it is on the specific list in Section 38-12-505) must ALSO create “a condition that is materially dangerous or hazardous to the tenant’s life, health, or safety.” If you are a tenant and you believe that a situation exists at your rented property that violates the warranty of habitability by presenting a danger to your health or safety, then the statute (Section 38-12-503(2)(c)) requires you to provide your landlord with a written notice of that condition. Following the written notice, your landlord has a “reasonable time” to cure the problem. After you have provided your landlord with the written notice required by Colorado law and your landlord fails to fix the problem in what you believe is a reasonable time, then you should review Section 38-12-507 for your potential remedies as a tenant. Your remedies include terminating the lease, having a court force your landlord to make the repairs (known as injunctive relief), withholding rent, paying for the repairs yourself and charging them against your rent owed, and potentially collecting your costs and attorney fees. There are additional nuances to some of these remedies, and you should consider consulting an attorney before you proceed with unilaterally enforcing these remedies.
Q. Retail Business Space Lease
A: Yes, you should attempt to negotiate for the removal of the personal guarantee requirement if you can. Your LLC's history, success, and capitalization are important factors that may convince a prospective landlord to remove (or, perhaps, reduce) the personal guarantee. As others have said, the point of the personal guarantee is to create the member's liability for the lease obligations that are otherwise limited to the LLC itself in the absence of such guarantee. If the LLC does not have a long, successful history or other significant assets that can be offered as security, a commercial landlord may perceive renting to your LLC as an unnecessary risk (especially if there are other prospective tenants and the building/location is relatively attractive and easily marketed property).
Q. Hot water heater broken, no hot water for 5 days, 24 apts. Can I deduct 5 days of rent as part of their 'failure'?
A: Under Colorado Revised Statute Section 38-12-503, every residential lease includes a warranty of habitability. Section 38-12-505 includes an elaborate list of the types of items that might violate landlord’s warranty of habitability if they are not properly maintained by landlord. For example, if your house or apartment does not adequately protect you from the weather outside (it isn’t waterproof, it isn’t windproof), landlord may be in breach of this warranty. Likewise, if you don’t have adequate plumbing, natural gas, running water (including hot water), heat, or electricity, these may be indications of a house that is uninhabitable. Something to keep in mind is that the particular item that landlord has failed to maintain (even if it is on the specific list in Section 38-12-505) must ALSO create “a condition that is materially dangerous or hazardous to the tenant’s life, health, or safety.” If you are a tenant and you believe that a situation exists at your rented property that violates the warranty of habitability by presenting a danger to your health or safety, then the statute (Section 38-12-503(2)(c)) requires you to provide your landlord with a written notice of that condition. Following the written notice, your landlord has a “reasonable time” to cure the problem. After you have provided your landlord with the written notice required by Colorado law and your landlord fails to fix the problem in what you believe is a reasonable time, then you should review Section 38-12-507 for your potential remedies as a tenant. Your remedies include terminating the lease, having a court force your landlord to make the repairs (known as injunctive relief), withholding rent, paying for the repairs yourself and charging them against your rent owed, and potentially collecting your costs and attorney fees. There are additional nuances to some of these remedies, and you should consider consulting an attorney before you proceed with unilaterally enforcing these remedies. For example, a tenant cannot terminate the lease without a notice to the landlord of at least 10 days and no more than 30 days (with a five-business-day cure period included). Additionally, a tenant cannot pursue injunctive relief against the landlord if they have not first given notice to an appropriate government entity (see CRS Section 38-12-508(3). You can quickly review a summary of some of Colorado’s warranty of habitability on this PDF, which was published and maintained on an official Colorado.gov website: https://www.colorado.gov/pacific/sites/default/files/Attachment%205-Warranty%20of%20Habitability.pdf
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