Author Archive for Jay Rivera

Zombie Properties Create Issues for Neighborhoods across the Country

Recently we’ve all become somewhat obsessed with what’s known as “zombie culture.” Popular movies and shows like World War Z and The Walking Dead spin out tales of survivors of the zombie apocalypse. Some people take these possibilities seriously, and have stocked food and weapons for the apocalypse. There are even entire websites devoted to zombie apocalypse preparedness.

FC land bankHowever, in the real estate world, a different type of zombie outbreak has already begun to gain a foothold in real life. There has been observed an increasingly common pattern of unresolved foreclosure situations leading to what are known as “zombie properties.”

Zombie properties result when a foreclosure proceeding begins, but is never completed because the owner moves out of the home before the foreclosure process can be fully completed. This leaves the property in a twilight-like state- no one occupies the home, but the property remains in the homeowner’s name. Or, there is an extended dispute over ownership of the home, as many banks may be reluctant to claim such properties. Some zombie properties may have no owner and may remain in this state for months or years.

For some communities, zombie properties can create major problems. Properties that are left unoccupied for long periods of time can create pest control issues, plant overgrowth, increased wildlife, and other problems. They can also lead to more serious issues such as crime (the home may turn into a haven for drug trafficking and gang activities). These types of issues can “infect” the overall neighborhood and lower property values. Statistical reports indicate that the most affected metropolitan areas in 2014 were the New York/New Jersey/Long Island areas, and areas in Florida such as Miami, Ft. Lauderdale, and Tampa areas. Other states have been hit hard too.

In my opinion, completely preventing zombie foreclosures might be a difficult task, as they are somewhat of the “fallout” resulting from the mortgage crisis from the past decade. Also, some zombie property situations are difficult to avoid (such as when the previous homeowner suddenly moves to a different state or out of the country). However, being able to identify and address the existing zombie homes can help prevent them from “infecting” the entire neighborhood through disuse and lack of upkeep.

Some possible methods for curbing the effects of zombie foreclosure situations may include:

  • A push for more legislation requiring increased coordination between banks, mortgage companies, and state/local housing authorities.
  • Creation of phone hotlines where neighbors can call to report suspected zombie properties.
  • Streamlined court processes for auctioning off homes that have been deemed as zombie properties (usually homes that have been in that state for at least 3 years).
  • Enforce quicker response times in terms of condemning and demolishing problematic zombie properties.

I think these steps can help to reduce one of the main problems with zombie homes, which is that they are left unattended for long stretches of time. This is a problem that appears to be growing, and will be with us for a while. As such, it’s important for communities and local authorities to begin recognizing the dangers associated with such properties, and begin taking steps towards winning the war against zombie properties. If you notice any homes or properties that might be suspect, contact your local housing authorities, or a real estate attorney for assistance with the situation.

The Dangers of Pranking

Pranks are just about as old as human history. From slapstick schemes to senior pranks, there are pranks for just about every situation. Recently, pranking has become a very popular trend online. People are coming up with all kinds of pranks—everything from scare pranks (startling people), wake-up pranks (waking up people in crazy ways), and drive-thru pranks—just about any situation has become an arena for pranking.

dangers of prankingThe problem is, lots of pranksters end up getting into legal trouble because of their stunts. Sometimes pranks go wrong, resulting in an accident. But other times, the prank itself is actually illegal and the participants are caught by the police. The types of legal violations that can occur during a prank are endless. Even seemingly innocuous pranks are just ripe with potential legal disasters waiting to happen.

Some legal violations that can result from a prank include:

  • Assault: Legal definitions of assault include offensive conduct, not just physical contact. Throwing something can result in assault charges as well
  • Reckless endangerment
  • Destruction of property
  • Disorderly conduct
  • Criminal conspiracy (common when more than one person is in on the prank)
  • Various traffic violations and citations
  • Kidnapping/False Imprisonment (For instance, tying a person up and leaving them somewhere, or transporting them against their will)
  • Negligent Infliction of Emotional Distress (NEID)
  • Stalking/Harassment

Pranking will always involve some element of deceit and false appearances. Pranks can be pulled off because the victim doesn’t know the true facts behind the circumstances they are presented with. But the thing is, when you’re messing with people’s trust, emotions, and physical expectations, the risk of injury increase greatly. When someone is startled, you never know how they’re going to react.

Potential for injury further increases when people start trying to outdo each other in terms of ridiculousness. Central to pranking is the tendency for a single incident to escalate into a prank war. Once one person gets pranked, protocol dictates that they must “get even” with the person. Back and forth retaliation ensues, often until someone gets offended or physically hurt. This is often how the line of what is acceptable gets crossed.

Take for example one of the more extreme pranks I’ve read about: “Swatting.” This is where the prankster calls the police requesting that they send a SWAT team to a certain location, usually the victim’s house. The caller will falsely state that they witnessed a criminal situation, causing the police to come crashing into the person’s house. Filing a false police report is illegal in itself. But calling in a SWAT team? That is way over the line and can endanger someone’s life and lead to all kinds of property destruction.

What’s my take on all this? Don’t get involved with pranking, and don’t get sucked into a prank war. One of the worst parts about pranking is that it usually starts as a game or an over-exaggerated joke. It’s definitely not worth going to jail or getting slapped with a fine just for a practical joke. People are getting fines ranging in the $1,000’s of dollars, or going to jail for a year, all for a few laughs or “Internet fame.” I think this one trend that needs to go away as soon as possible.

Can a City Criminalize Homelessness?

Cities often pass ordinances that discourage homelessness by criminalizing activities such as panhandling and sleeping outside. Recently, the City of Palo Alto, California even passed an ordinance that will make it a crime to sleep in a car. Punishments for using a car as a “dwelling place” could include a $1,000 fine, a year in jail, or both.

homeless sleeping outsideAccording to the San Jose Mercury News, Palo Alto’s city council passed the ordinance in response to complaints about homeless people’s behavior. Palo Alto criminalized the act of sleeping in a car so the police will have a tool when responding to complaints.

This ordinance in Palo Alto seems unjustifiably harsh. How could it possibly be a crime to sleep in your own car? The Ninth Circuit Court of Appeals is currently in the process of deciding whether a similar law in Los Angeles violates the Constitution. Constitutional challenges to these types of ordinances include:

  • The Eighth Amendment’s prohibition of the cruel and unusual punishment
  • The Constitutional right to travel from the Fourteenth Amendment’s Privileges and Immunities Clause

Cruel and Unusual Punishment

The protection from cruel and unusual punishment has been applied to similar cases to protect the homeless. For example, Los Angeles previously passed a law prohibiting sleeping, lying, and sitting on sidewalks. The ACLU brought an action against the city for arresting homeless people from sleeping on the streets. The Court of Appeals determined that the law was unconstitutional because those arrested were involuntarily homeless and had no other choice than to sleep on the streets.

The Right to Travel

The other primary constitutional challenge to sleeping ordinances is the constitutional right to travel. If an ordinance criminalizes sleeping on streets or in cars, then the homeless are forced to either move on or risk being cited or arrested. Since sleeping is a vital necessity, this discourages migration and puts a burden on the person’s right to travel.

Top Holiday Crimes

December ushers in the cold weather, shorter days, and that good ol’ holiday cheer. I personally enjoy the hustle and bustle of holiday preparations, but I can also understand why some people get leery about it. The overall increase in consumer activities sometimes gets frantic, especially when it comes to the joyous merriment of elbow-to-elbow shopping and skirmishes for parking spots.

Top Holiday CrimesAlong with this increase in consumerism comes another phenomenon: holiday crimes. It seems like every year, criminals invent new ways of taking advantage of unsuspecting victims in order to get at their holiday loot.

Of particular concern this year is the sudden increase in what are called “porch thefts.” Many counties are reporting alarming increases in porch thefts, even in neighborhood communities that are generally considered as safe. Many people do their shopping online, and get their gifts shipped directly to their door. Porch thieves operate by intercepting the package before the recipient can get a hold of it. They do this by literally walking up to people’s porches and stuffing the packages into bags. While mail theft is a federal offense, this new breed of holiday bandit doesn’t seem to care.

Besides porch thefts, some other types of holiday crimes to watch out for include:

  • Car Break-Ins: Don’t leave your presents and gifts in your car! Thieves are targeting parked cars and breaking into them in search of gifts. Not even your locked trunk is safe. On a similar note, the classic neighborhood home break-in à la Home Alone is always a threat during December and January.
  • DUI’s and Alcohol-Related Incidents: Along with the holiday cheer comes, well, holiday beer. This results in increases in DUI cases and public drunkenness charges, as well as alcohol-related domestic violence incidents. Some counties can rack up several hundreds of cases in a single holiday weekend due to DUI crackdowns.
  • Fraud and Scams: Consumers as well as business owners should beware of the “12 Scams of Christmas”, especially those which use newer mobile apps to perpetrate identity theft.
  • Retail Crime: Store owners and business operators should be watchful for shoplifters, especially during times when the store floors are crowded.

You can help prevent holiday crimes in your area by taking a few measures:

  1. Install security cameras: Having a visible, active security camera on your porch can do a lot to deter the new wave of porch thieves.
  2. Don’t leave your valuables in your car or in exposed areas.
  3. Only order from secure websites and don’t divulge your information to suspicious parties.

Many holiday crimes can be prevented simply by being mindful of your purchases and belongings. Be sure to report any suspicious activity to the authorities, and consult with a lawyer if you have any legal issues or concerns.

Privacy Rights During International Border Searches

Many of us are familiar with the 4th amendment right to be free from unreasonable searches and seizures of property. Basically, government officials need a warrant before they can search in areas where we have a “reasonable expectation of privacy.” This includes not only our real property, but other things like our belongings and “papers,” including electronic devices.LaptopSearch

Now, I’ve written before about warrantless searches of e-mails. Basically, the police definitely need a warrant before they can search your e-mails. However, something called the “border search exception” is creating a huge mess of border searches and privacy rights, especially with regards to electronic devices like laptops and cell phones. Basically, the “border exception” states that suspicionless border searches don’t violate American civil liberties like the 4th amendment right to privacy.

This means that the border patrol agents don’t even need reasonable suspicion to search your laptops during a border check. The idea here is that the interests of national security and anti-terrorist measures outweigh the individual’s right to privacy. Also, some argue that the “expectation of privacy” is inherently lowered at international borders.

What is the justification behind the border exception? That’s part of the big controversy surrounding border searches. The Department of Homeland Security (DHS) has issued an “Impact Assessment” on Border Searches of Electronic Devices. You can read it for yourself (it’s not a very long read), and you can find that it basically says, “Border searches don’t violate the 4th Amendment because…they don’t violate the 4th Amendment.” Not very helpful.

So what are some of the main problems regarding this issue? Here’s a breakdown of some of the issues at play:

  • Warrant Requirements: Authorities need a warrant before they can search your e-mails. However, this appears to go out the window if you happen to be passing through a border with your laptop or cell phone. Again, border agents don’t even need any suspicion of criminal activity to engage in a search.
  • Holding Time: DHS states that they are supposed to return your electronic equipment after a “reasonable amount of time” has been allotted for searching your stuff. However, some cases involved lengthy times like 49 days (the David Maurice House case).
  • Number of Searches: Many have described the border as basically a “door for device searches.” A staggering amount of border electronic media searches have already been conducted – over 4,900 during the months of October 2012 until August 2013. That’s about 15 people a day being searched without warrants.

On the other hand, a recent 9th circuit ruling limits border searches for laptops and cell phones. This Arizona ruling held that Border Patrol agents do need at least a reasonable suspicion of criminal conduct before they can conduct a search of electronic devices. This holding only applies to the 9th circuit (i.e., the Mexico border along California and Arizona), but I see this as a proper step in the right direction. While reasonable suspicion is a much lower standard than probable cause (which requires a warrant), I agree that agents should at least need reasonable suspicion; otherwise, why are they conducting searches?

Personally, I think that while it’s true that national security concerns are important, they need to be weighed against the 4th amendment privacy rights of citizens. I think what’s happening is that the traditional discourse reserved for criminal law protections are being undermined and diluted by “national security” concerns, which have always been very difficult to define clearly. Hopefully other jurisdictions will follow Arizona’s lead and begin implementing clearer standards for border searches. Until then, you should be aware of these issues surrounding travel and privacy rights.