Archive for the 'Real Estate' Category

San Francisco Bay Area Airbnb Laws

With Super Bowl 50 just days away, many San Francisco Bay Area residents are looking to capitalize on the Airbnb market. Luxury hotels are practically booked. Rooms in the prestigious Fairmont Hotel range from $1,500 to $10,000 a day with a minimum stay of four days. Even lower-end hotels like Travelodge are charging $1,100 a night. In the alternative, approximately 75% of Airbnb listings in San Francisco bay area are asking more than $360 per night. Someone can even rent a tree house in Burlingame, California for $495 a night the five days leading up to the Super Bowl.

With so many people looking to Airbnb to make some easy money during Super Bowl week, it begs the question, what are the San Francisco laws pertaining to Airbnb?

What is Airbnb and How Does it Work?

Simply put, Airbnb is a room letting website. It allows people to list, find and rent lodging from all over the world, including popular destinations such as Paris, London, Berlin, and state side in cities such as San Diego, New York, and Miami. It is privately owned and is reportedly worth $25 billion. The primary source of Airbnb’s revenue comes from service fees from bookings.

What are the Airbnb Laws as They Pertain to San Francisco?

In October 2014, San Francisco Mayor Edwin Lee signed San Francisco Ordinance No. 218-14, thereby allowing some residential properties to conduct short-term residential rentals. Here are the basic rules:

Primary Residence Requirement. To register a listing, you must live in the residence for at least 275 days per year. If you haven’t lived there for an entire year, you must have lived in the specific residential unit for 60 consecutive days prior to your application. If you own a multi-unit building, you may only register the specific residential unit in which you reside.  For Rent

Liability Insurance. Hosts must maintain at least $500,000 of liability insurance or provide proof that liability coverage in an equal or higher amount is provided by the hosting platform (such as Airbnb).

Limits. You may only register one residential unit, and all residential units subject to the Affordable Housing Program or units designated as below market rate (BMR) are ineligible.

Why is Airbnb Controversial?

In November 2015, Proposition F, a measure that would have substantially curbed short-term rentals, lost by 55% to 45%. It was one of the most contentious issues on the ballot.

Opponents of Airbnb argue that using housing as hotels diverts scarce housing to lucrative but illegal all-year round hotels. San Francisco typically only sees 2,000 new units added to the housing market each year. A few hundred units off the market significantly impacts an already over-extended city.

Landlords are also largely against Airbnb. In San Francisco, most tenants are covered by rent control such that the rent can only be raised by a certain amount each year. So what are they upset about? Let’s say a tenant has been renting a one bedroom, one bathroom unit since 1980 and pays $800 a month due to rent control. If the tenant is able to get $500 a night the four days leading up to the Super Bowl, the tenant stands to make $2,000 on the transaction, pocketing $1,200 after she pays her monthly rent. Landlords believe this type of arrangement unfairly enriches the tenant. Many landlords include “no subletting” clauses in their residential leases to prevent their tenants from utilizing Airbnb.

And who is pro-Airbnb? Airbnb, which advertises their company as providing middle-class people a way to make ends meet. Tenants may see Airbnb as an easy way to make extra cash. Homeowners who elect to use Airbnb also believe they have a right to do with their property as they please, and utilizing Airbnb can help pay their mortgage. Many Airbnb users have great experiences and are able to visit places which would be prohibitively expensive if not for Airbnb.

Regardless of if you are for or against Airbnb, one thing is for certain – both hotels and Airbnb hosts stand to make a lot of money during Super Bowl weekend.

Transgender Laws in the United States

U.S. History has been marked by continual efforts to expand the inclusiveness of civil rights. While we have made strides in gender equality and gay rights, we have a long ways to go. Presently, transgender rights are at the forefront, with celebrities like Caitlyn Jenner and Laverne Cox who have brought transgender issues to the collective consciousness like never before.

Even though we are beginning to recognize the transgender community, we are far from recognizing broad legal rights for those who identify as transgender.

The United States is behind three European countries that not only recognize transgender issues as the next civil rights movement, but also provide comprehensive legal rights for those who identify as transgender. Denmark, Malta, and now Ireland allow transgender people over the age of 18 to change their legal gender without medical or state intervention. Changing one’s legal gender is a huge progress for the majority of European countries, many of whom require transgender individuals to undergo surgery and sterilization, or be diagnosed with a mental disorder, and get divorced if married, to have their desired gender recognized legally.

Who Is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.  LGBT Flag

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

How Does the United States’ Transgender Laws Compare?

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

While there are laws which protect transgender people from discrimination, there is no current law similar to Denmark, Malta and Ireland’s that allow transgender people to change their legal identification without intervention. Although one can easily change his or her name in any state, it is much more difficult to change the name on one’s birth certificate, which requires a court order. Changing the gender marker on one’s birth certificate is even more difficult. In the majority of states, it requires proof of surgical treatment to change one’s sex. Some states, including California, Oregon, New York, and Washington, allow one to change the gender marker on their birth certificate with proof of appropriate clinical treatment, even if no surgical treatment is sought.

Even if one changes their gender marker on their birth certificate, it does not mean that one’s sex is legally changed. There are some cases involving marriages in the United States before same-sex marriage was legalized where the court ignored the corrected birth certificate and decided the marriage was invalid. Now that same-sex marriage is legal, the gender marker on one’s birth certificate for these cases is immaterial.

The United States does not allow transgender people the same opportunity to change their legal identity without medical intervention. Ireland’s bill that afforded the transgender community this legal right was passed months after Ireland legalized same-sex marriage by popular vote. It stands to reason that because same-sex marriage is now legal in the United States, we may soon be following suit to expand transgender rights.

Should Americans Have a Right to A Lawyer in Civil Court?

In 1963, the Supreme Court decided Gideon v. Wainwright, ruling unanimously that the Constitution required all criminal defendants to have a right to representation in court. One of the main rationales Justice Black’s opinion in Gideon was that the “noble ideal” of “fair trials before impartial tribunals  in which every defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

In criminal cases, a person’s liberty may be at stake. However, civil cases can also inflict great personal loss. Some civil cases involve large sums of money, others may involve housing, public benefits, child custody, or employment. Many advocate providing legal counsel as a right in cases where basic rights like family or shelter are at risk. Often, these decisions are the key to helping indigent clients move forward in their lives.

Legal Aid: Solution or Stopgap?

Currently, the poor have some access to legal assistance in civil cases through Legal Aid. Legal aid programs assist in three main types of cases: accessing basic necessities (like housing, healthcare and government benefits); ensuring safety and stability (like domestic violence, guardianship, and student discipline); and economic security (like employment, taxes, and consumer protection). These programs exist all over the country, and are very helpful to many. However, Legal Aid offices are not mandated to take all cases, and due to lack of resources must choose carefully whether to represent clients.  Legal Assistance

However, a right to an attorney in certain cases would guarantee that clients could not be turned away. Even if this were to exist, a separate system of Legal Aid would be an important community resource. This is because Legal Aid often helps clients who are plaintiffs or who are applying for certain programs or benefits; some of what they provide would not overlap with a civil Gideon. A civil right to representation in certain cases could potentially create new legal jobs and would ideally free up legal aid attorneys to do more good work.

Would the Failings of the Public Defender System Be Repeated?

While there is a guaranteed right to representation in criminal cases, there are also many flaws in the public defender system. Especially in some counties, public defense attorneys are overloaded with too many clients and sometimes do not have the time and energy that a private criminal lawyer could bring to an individual case. On the other hand, these attorneys are often incredibly well-versed in criminal law and some of the most experienced trial lawyers. Dedicated public defenders can often be great assets to their clients.

One concern is that the lack of staffing and resources faced currently by criminal public defenders would just be mirrored in a civil defense system. This is a rather cynical argument, as though our society could not possibly provide better funding to both a criminal and civil public defense system. The limitations that public defenders face are due to a lack of economic commitment to the principles of just representation. In a fair legal system, public defense would be sufficiently funded; we should try to move forward by making this a reality rather than naysaying.

The Way Forward

President Obama is a major proponent of increasing civil representation. In September, his administration released a memorandum that established the White House Legal Aid Interagency Roundtable to “increase the availability of meaningful access to justice for individuals and families and thereby improve the outcomes of an array of Federal programs.” This statement reflects another important point about the benefits of civil representation—local and federal governments can set up meaningful programs or pass important legislation in hopes of protecting vulnerable individuals. However, in a system where few people are adequately represented, those programs and laws won’t work as intended.

At the same time, there has long been a national movement within the legal community to find a way to provide an attorney for those facing certain civil issues. Lawyers and judges are uncomfortable with indigent and vulnerable clients trying to represent themselves in complicated matters. In several states and jurisdictions, pilot programs have begun to try to work out what it would take to provide these services.

As Martin Luther King famously said, “injustice anywhere is a threat to justice everywhere.” A commitment to civil legal representation for all would be a step forward in defeating injustice.

How Banks Foreclose On a Home

The most common way for someone to buy a home is through a bank loan, also known as a mortgage. The bank fronts the homeowner money and they make monthly payments to the bank for between ten to forty years until the mortgage is paid off. Both the bank and the new homeowner expect everything to go smoothly from there, and it is great when that happens. Unfortunately, over ten to forty years things  change: the borrower may lose their job, encounter a financial crisis or countless other issues can arise.

When things go wrong, the bank forecloses on the home. This means the bank attempts to take the house back from the borrower through its rights in the contracts it entered into with the borrower. The typical mortgage contract is known as a Deed of Trust, which gives the bank the right to foreclose on the home. However, many people do not know how the foreclosure process works and both banks as well as  Foreclosurehomeowners make major mistakes in the foreclosure process, which can lead to major issues. This was seen recently when the mortgage crisis occurred, and property values plummeted, cities declared bankruptcy and crime spiked across the country.

How does foreclosure work? Each state has its own foreclosure laws. However, the foreclosure laws can be organized into two big picture foreclosure systems: (1) Judicial Foreclosure States and (2) Non-Judicial Foreclosure States. Judicial foreclosure states require that the party attempting to take the property obtains approval from a judge. A non-judicial foreclosure state does not require review or approval by a judge. As a result, non-judicial foreclosures have less oversight and are usually faster and less expensive for the foreclosing party. Not surprisingly, many of the states hit hardest by the foreclosure crisis, such as California, were non-judicial foreclosure states. Without judicial oversight, the foreclosure process is easier to abuse.

Regardless of whether a state is a judicial or non-judicial foreclosure state, a bank forecloses on a home by recording a Notice of Default. The Notice of Default alleges that the borrower has missed payments. Thereafter, if payment is not made, the Bank can sell the property at a Trustee’s Sale. Typically, a Trustee must wait between 30-90 days from the recording of a Notice of Default to schedule a Trustee’s Sale. A trustee’s sale or foreclosure sale is where the Bank sells the property at an auction, usually at a courthouse or city hall, to the highest bidder.

The Notice of Default is the triggering document and these documents were largely responsible for the mortgage crisis. When the housing bubble burst, banks recorded Notice of Defaults at a rapid pace. Many homeowners did not know their rights and abandoned their homes, which resulted in homes sitting vacant for years, also known as zombie foreclosures. Other banks simply recorded Notice of Defaults on the wrong property or listed the wrong amount owed. Due to these abuses, many states enacted what are known as Homeowner Bill of Rights, which are laws that require banks to contact borrowers before recording a Notice of Default to discuss loan modifications, repayment plans, and other options to avoid foreclosure.

In California, for example, banks must follow a detailed notice requirement prior to recording a Notice of Default. If the bank does not comply with the notice requirements, a homeowner facing foreclosure can file a lawsuit to obtain an injunction (a court order stopping foreclosure). Furthermore, if the courts grants an injunction, the homeowner can get attorney’s fees from the bank.

The foreclosure process is becoming a larger issue as regulatory laws become more complex, the housing market changes, and banks look for new ways to make a quick buck. If you receive a Notice of Default or Notice of Trustee’s Sale, you should immediately contact a real estate attorney to protect your rights as a homeowner.

When Are Halloween Displays Too Scary?

Corpses in the Front Yard

A Parma, Ohio family recently made the news by creating a Halloween display in their yard that was so scary and grotesque that it truly bothered their neighbors and scared elementary school children on the way to school. It included a realistic crucified body, a corpse hanging upside down from a tree, and several other disturbing elements. The Barrett family eventually took the display down after unwelcome visitors came into their yard late at night.

Can the Dead (or Undead) on Display Create a Private Nuisance?

Private nuisances are ongoing, unlawful (unreasonable), and cause some type of harm to others. Though neighbors can often effectively ask other neighbors to stop doing disturbing behaviors, in other situations nuisance lawsuits are the best option. However, courts have been very reluctant to call aesthetic problems with other people’s properties nuisances. While noise or even smell might be considered a nuisance, courts have a hard time drawing a line between “beautiful” and “ugly”… one court in Indiana upheld the rights of a neighbor who decorated his yard with a toilet seat nailed to a pole. So, this probably isn’t a private nuisance.

What About the Young Children’s Brains?

One of the major complaints about the yard full of corpses was that it was near an elementary school and traumatized young children. Sometimes, the government can shield children from gory images even if it affects other people’s freedom of speech. In one 2012 case, for example, the Colorado court system upheld an injunction against anti-abortion protesters, who waved signs with “mutilated fetuses and dead bodies” outside of services held at a particular church. The court found that graphic images could cause psychological harm to young children who attended church services, and that there was a compelling interest in protecting them. Halloween Display

However, in general, “violence is not part of the obscenity that the Constitution permits to be regulated.” For example, California tried to restrict selling violent video games to children where people kill, maim, or assault opponents in the video games. The court in this case declared the law unconstitutional, and noted that other gory materials are often given to children to read for fun: “Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”

Therefore, it is hard to know if a zoning law or some other type of regulation that protected children from violent “speech” near a school would be upheld.

So, Can My Neighbor Keep Their Corpses?

Yes, probably so. Neighbors might be able to persuade others to tone down Halloween decorations that are too scary… but, ordinarily, even if they scare the children, the dead bodies stay.

For more Halloween cases, see The Top 3 Silliest Halloween Lawsuits. Happy Halloween!