Archive for the 'Real Estate' Category

Massachusetts Foreclosure Bill that Creates Incentives for Speedy Foreclosures

In Massachusetts, the legislature is considering passing a bill that would require banks to be more responsible for the upkeep of foreclosed properties. The bill would require banks to post a $10,000 bond with each foreclosed property that would be used to maintain the property if the bank fails to do so. If passed, the bill will provide relief to taxpayers who currently pay the cost of keeping foreclosed houses safe and maintained.

Not surprisingly, the Massachusetts Bankers Association opposes the legislation. They argue that requiring banks to post bonds for foreclosed properties would increase the cost of borrowing to all banking customers.

How Do Foreclosures Work? In order to foreclose on a mortgage, the lender must first prove that the borrower is in default. After the lender contacts the borrower and attempts to resolve the default with the homeowner, the lender files a lawsuit with the court against the borrower. The purpose of filing a lawsuit is to obtain court approval to initiate foreclosure. Because the lender must go through court in order to initiate foreclosure proceedings, the process is known as judicial foreclosure. Zombie Home

Non-judicial foreclosures occur when the borrower signs a deed of trust which contains the power of sale clause. The clause enables the trustee to initiate a foreclosure sale without having to go to court. The trustee starts the non-judicial foreclosure process by recording a notice of default and election to sell. After a three-month waiting period, the trustee may publicize, post, and record a notice of sale. If the sale is not postponed and the borrower does not exercise his right of reinstatement or redemption, the property is sold at action to the highest bidder.

What Responsibility do Banks Have to Maintain Foreclosed Properties?

Banks are supposed to foreclose upon properties quickly, but that often is not the case. Most banks do not have the extra incentive in the form of a security deposit or bond, so taking several months or even years to re-sell the property is the norm.

Some states, however, have enacted similar legislation. Banks and lenders in Hempstead, New York have to post a $25,000 security deposit each time a home in the town goes into foreclosure. In 2014, New Jersey enacted a law that requires creditors to maintain vacant property during pending foreclosures. Unlike Hempstead, banks aren’t required to post a security bond. Instead, the banks are fined if they are found to have not adequately maintained the vacant property.

Why enact this legislation? Mainly to prevent zombie properties, or foreclosed homes that have become abandoned or vacant, from depreciating the values of neighboring homes. When a homeowner falls behind on the mortgage, the bank begins the foreclosure process, which includes kicking out the homeowner. Foreclosure procedures are long and arduous in most states. As a result, many banks let the property simply sit in a state of disrepair for months or years. The effect is that the property falls into a state of disrepair which depreciates the value of surrounding properties.

In short, most states don’t have requirements for banks to post security deposits to incentivize banks to speed-up the foreclosure process.

Are Security Bonds Posted by Banks a Good Idea?

The impact of foreclosures on the surrounding neighborhood is well documented. For instance, Mount Vernon, New York, lost a whopping $3.9 million in home value due to just 19 zombie homes in the area. Zombie properties along with bank and federally-owned foreclosed home have decreased property values in Monroe County, New York by as much as $11 million.

Massachusetts’s proposed legislation will help prevent foreclosed properties from sitting unattended and falling into a state of disrepair. What better way to encourage banks to quickly foreclose upon a property than to make them pay a security deposit? If the bank quickly forecloses on the property, they will receive their security deposit back. If they let the home become a zombie property, their security bond is cashed by the city to maintain the property.

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.

Trespass

Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.

Alligator Attack at Walt Disney World: How Wild Animals Can Change the Claim

On June 14, 2016, Lane Graves, a 2 year-old boy, was dragged from the shallows of a lagoon near the Walt Disney World Resort. He was later found dead, after the alligator dragged him away from his family and killed the child. The attack shocked park-goers and families throughout the nation. Soon, the news was filled with stories of parents sharing pictures of their children playing at the exact spot where the little boy lost his life.

Since then, The Walt Disney Company has taken every step to show remorse, sympathy, and compassion for the Graves family and visitors. But despite good will and efforts to remedy the situation, Lane’s family has a possible cause of action against the Happiest Place on Earth.

But what is the possible cause of action, or claim, they can file? Most importantly, what does this mean for Disney and other landowners who may face the same problems? What does it mean for their guests?

A Strict Liability Claim

Under strict liability, an owner of a wild animal can be held strictly liable for any injuries or damages caused by the animal, even if the owner took precautions or was not at fault. Wild animals are considered abnormally dangerous and ultra-hazardous due to their very nature. Alligator

But, here Disney can argue that they do not own the alligators on their property. In fact, Disney has removed 244 alligators from 2006 to 2016. After the attack on June 14, they removed six more from the area. If the alligators return enough to be a “nuisance”, they are euthanized. So in this case, Disney does not want the alligators on their property and do not own them. So in the end, Disney cannot be held liable under a strict liability claim, but can only be held liable under a negligence claim.

A Negligence Claim

Under Tort law, the Graves family can sue Disney for failing in their duty to protect their guests from known, dangerous wildlife on property. To establish their claim, the Graves family will need to prove that Disney had:

  • a duty to keep the area safe;
  • they breached the duty;
  • the breach was the cause of the child’s death; and
  • the family suffers measurable damages due to the death.

While the analysis may seem obvious in cases like these, each aspect must be proven in turn. Disney World Resort is a commercial property, owned and operated by The Walt Disney Company. It invites people onto their land for a fee, and once they pay the fee, the guests are legally considered “invitees”, or more specifically “business invitees” or guests. The legal status of the Graves family is important, as it will determine the level of due care that Disney owes in the situation.

In this case, it is clear that the Grave family are guests of Walt Disney Resort. Disney did not put up adequate signs to warn guests about the real danger of alligator attacks. Their failure to put up proper signs should have been foreseeable to them that their guests may be hurt by an alligator, and that their guests would not have gone near or into the water if there was an adequate warning sign. Finally, it is undeniable that the Graves family suffered a terrible injury from the attack.

In this case, it is unlikely that Disney will be able to defend against a wrongful death claim from the Graves Family. But is it fair for Disney and other property owners to not face strict liability?

Landowners Get Additional Protection from the Law, So They Must Give Additional Protection to Their Guests.

As discussed earlier, landowners are held strictly liable for any injuries caused by a wild animal they own on their property. This includes pet tigers, lions, bears, and any other animal that is not domesticated. But it does not include wild animals that happen to roam the property.

The law was written with the understanding that wild animals are uncontrollable, especially animals that enter private property without knowledge of the owner. The law does not hold landowners responsible for the actions of a random, wild animal on their land.

But it does not mean landowners, like Disney, won’t face punishment for injury or death of a guest. The law declares that landowners like Disney have a duty to repair and correct known dangers, as well as a duty to reasonably inspect, discover, and correct unknown dangers in areas that guests are able to access.

What is “reasonable” is decided by the court, and it is often based on what the landowner is capable of doing. For example, Disney is a multi-billion dollar and they are known for exercising great control over the quality and safety of their parks. So the court may order Disney to do far more than an average landowner who also has alligators on their property.

Church Asked To Leave Their Lease Early Because of Orlando Comments

What was meant to be a fun night out turned into a gruesome crime scene when Omar Mateen, a 29-year-old American, gunned down 49 people and injured 53 inside a gay nightclub in Orlando, Florida. It was the deadliest act of violence against the LGBTQ community in U.S. History.

Shortly after the horrendous tragedy, a video emerged on YouTube of Pastor Roger Jimenez of Verity Baptist Church in Sacramento, who praised the gunman’s actions. He went on to call the victims pedophiles and predators.

“I think Orlando, Florida, is a little safer tonight,” he told his congregation after the Orlando attack. “The tragedy is more of them didn’t die – I’m kind of upset he didn’t finish the job!”

Now, Verity Baptist Church’s landlord, Harsch Investment Properties, is asking them to move immediately. Although their lease doesn’t end until March 31, 2017, Harsch is requesting they leave without any penalty for breaking the lease agreement early. Their reason? They support the LGBTQ community and other organizations whose missions are to “further respect, dignity and the ability for all individuals to live their lives as they wish.”

Are there any arguments the church can make to continue to rent the property?

Can a Landlord Legally Require a Tenant to Break the Lease?

A lease is a binding contract, and the terms of the lease control. A landlord cannot coerce or legally require a tenant to break a lease unless both landlord and tenant agree in writing to change the terms of the lease. Roger Jimenez

However, a landlord can evict a tenant if the tenant breaches the contract. In other words, if the tenant does something that the lease specifically prohibits, the landlord can begin the eviction process. For example, if a landlord leases his property to a church and the lease doesn’t allow subleasing, the church cannot rent the space to a law office as that would be considered impermissible subleasing.

In this case, Harsch Investment Properties cannot require the church to move out based on Pastor Jimenez’s comments unless those comments would violate a clause in the lease. Notwithstanding, the church can elect to move at Harsch’s request and would not be penalized for breaking the lease.

Religious Discrimination?

If the church is feeling threatened or coerced to abruptly break their lease, they may argue they are being discriminated against based on their religious beliefs. Religious discrimination is treating a person or group unfavorable because of their religious beliefs. The law protects people who belong to traditional, organized religions, but also others who have sincerely held religious, ethical or moral beliefs, in both employment and housing settings.

Here, the church has several arguments. First, they may argue that their religious beliefs prohibit them from supporting the LGBTQ in any capacity, and that asking them to leave their lease is discriminatory based on their religious beliefs. Because Harsch Properties has no legal right to require the church to break their lease, this argument would prevail.

Second, the church may want to distance itself from Pastor Jimenez himself. The church could argue that Pastor Jimenez’s beliefs and what he preached did not reflect the ideals of the church, and therefore, they should not be required to leave the property. Again, because Harsch Properties has no legal right to require the church to move, this argument would also prevail.

Batman Shooting: Should Movie Theaters Provide Extra Security?

When people go to see a movie in a movie theater, the last thing they expect is to be a part of a shooting massacre. That’s exactly what happened in Aurora, Colorado in 2012 when approximately 400 movie enthusiasts went to see the premiere of the Batman film, The Dark Knight Rises.

During the midnight showing, a heavily armed and gas mask-clad gunman entered the movie theater, set off tear gas grenades, and shot into the audience. He killed 12 and wounded 70 during the shooting rampage. The gunman was sentenced to life in prison without parole and was convicted of 24 counts of first-degree murder – two for each of the slain victims.

After the gunman’s conviction, the victims and their families filed a civil suit against Cinemark USA Inc., the movie theater where the shooting occurred, claiming Cinemark and the property owners should be held liable for lapses in security which contributed to the tragedy.

According to plaintiffs’ attorney, Cinemark failed to have armed security, roving guards around the building, and silent door alarms on the auditorium exit. The jury ruled that Cinemark was not liable for the mass shooting because it was completely unpredictable, unforeseeable, and unpreventable.

The lawsuit brings up an interesting question. When can a property owner be held liable for a personal injury sustained on their property?

Visitors on the Premises

When you enter someone’s property, you have a reasonable expectation of not getting injured. This means the property owner is responsible for maintaining a safe environment. Whether the property owner is subject to liability depends on the state in which the injury occurred. Movie Crime Scene

Many states focus on the status of the visitor to the property. In general, there are three labels for visitors:

An invitee is someone who either has express or implied consent of the owner to enter the premises, such as a customer to a store. They can also include friends, relatives, and neighbors. Because the visitor is “invited” onto the property, it is implied that the owner has taken reasonable steps to assure the safety of the premises.

A licensee has the either express or implied consent of the owner to enter the property, but is coming onto the property for his or her own purposes. Licensees are usually salesmen or mail carriers. The landowner owes a licensee a lesser duty only to warn the licensee of dangerous conditions that create an unreasonable risk of harm if the landowner knew about the condition or the licensee is not likely to discover it.

A trespasser is someone who is not given permission to be on the property. Landowners typically do not owe a duty to trespassers unless the trespasser is a child.

Premises Liability

Premises liability is a typical cause of action in personal injury cases where the injury was caused by an unsafe or defective condition on someone else’s property. Premises liability cases are based on the theory of negligence. To win a premises liability case, the injured person must prove that the property owner was negligent in some way with respect to his or her ownership and maintenance of the property. In that regard, the injured party must show the property owner knew or should reasonably have known that the premises were in an unsafe condition and, despite this knowledge, failed to take proper steps to remedy the unsafe condition.

Liability in Shooting Massacre

In this case, the jury ruled that it was not reasonably foreseeable that a crazed gunman would open fire on opening day of the movie Batman. If the plaintiffs could demonstrate it is common practice of movie theaters in Aurora to have extra security for movies that involve extreme violence, they may have prevailed in this lawsuit. Without such a common practice, the movie theater could not be found liable. The ruling is certainly a blow to the victims and their families who are trying to move forward from the tragedy, but it also goes to show that some random acts of violence are only the fault of the perpetrator.



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