Archive for the 'Real Estate' Category

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.

Airbnb Host Allegedly Discriminates Potential Guest

We live in a world where we can summon a private driver to our door, along with your favorite meal. We can buy something online and have it arrive the next day, without too much trouble. We can even rent someone’s home for a quick vacation.

But not all of these new advances are without issue. While Uber faces legal trouble and community backlash for their treatment of drivers, Airbnb is now facing backlash for hosts refusing to book people due to their race.

Airbnb faces a civil rights lawsuit from Gregory Selden. He seeks to create a class action claim to represent thousands of other individuals who were denied bookings on Airbnb due to their race. However, Airbnb did not refuse the bookings; instead it was the homeowners who advertise on Airbnb.

What claims can Selden make against the homeowner? Is Airbnb responsible for the actions of the homeowners?

The Details of the Claim

According to Mr. Selden, he attempted to book a place through Airbnb. The accommodation was listed as available on the dates he needed. But when he inquired about the availability and attempted to book the accommodation, the Host said the accommodation was not available. Airbnb

However, Selden, who is African American, was able to book the accommodation under a profile of a Caucasian person. The fake profile is identical to the Plaintiff’s profile. The only difference is the fake profile belonged to a non-existent individual of a different race.

The Plaintiff confronted the Host about the alleged discrimination. But the Host replied by saying that the alleged discrimination was all in the Plaintiff’s head. The Plaintiff was not told or was able to think of any other reason why the Host refused earlier.

What is the Plaintiff Arguing?

Plaintiff Selden’s claim has 3 separate counts. The first count (Count 1) is based on Title II of the Civil Rights Act of 1964 (“CRA”). Title II prohibits discrimination in places of public accommodation, such as hotels.

The second count (Count 2) is based on the federal statute 42 U.S.C. Section 1981. It states that every person in the United States has the same right in every State and Territory. Including, amongst many things, enforcing contracts and enjoy full and equal benefit of the law.

Selden argues that Airbnb broke section 1981 by discriminating him based on his race. They denied him the ability to create a contract and to enjoy the full benefit of the contract and the law.

The third and final count (Count 3) is based on the Fair Housing Act (“FHA”). Under the FHA, Plaintiff asserts that Airbnb violated the law by asserting discriminatory practices on the basis of race by “housing agents for rental accommodation.” In this case, the Host did not give any truthful or valid response to deny his stay, and instead created a “mere pretext for discrimination.”

The Big Question: What is Airbnb’s Relationship with Their Hosts?

Each count brings up a new set of questions the court will need to address or answer. But the overlying question the court will need to establish is: what is the relationship between Airbnb and their hosts? Does Airbnb employee their hosts? Or do their hosts sign up to use Airbnb as a platform to generate business?

In California, a hotel is defined as a “any person, corporation, partnership…or agent of any of [the previously mentioned]…who accepts payment for rooms, sleeping accommodations, or board and lodging…[but] retains the right of access to, and control of, the dwelling unit.”

It seems that Airbnb and their hosts fall under the definition of a hotel in California. If they are a hotel, then they have a significant number of legal responsibilities that they are currently avoiding. If Airbnb is a hotel, then they can be held responsible for the actions of their hosts. The court may consider them to be employees of Airbnb. To figure that out, the court will need to examine the evidence to determine whether they are employees.

First, the court will look at the nature of the relationship between Airbnb and their hosts. They will look at many factors, such as how much direction or control Airbnb has over the hosts. Direction or control like what sort of amenities to offer, how much to charge, or how often they will need to make their location available.

Where Can Airbnb Go From Here?

But what if Airbnb is only a platform for hosts to use to gain business? It seems that Airbnb’s primary function is to accept payment for an accommodation and relay the payment to the host. It seems to be up to the host to take pictures, make a posting, and even determine the price of their listing.

The hosts rely on Airbnb to ensure that their bookings are not fraudulent and they are paid for. These factors seem to show that hosts are not employees of Airbnb, but instead sign up for the service for free.

In the end, the court is facing a difficult question that it has yet to answer. Whatever the outcome, this case may end up deciding a range of impacting questions. Questions like if Airbnb needs to pay additional taxes to the type of liability they may face from injured guests. It is unclear which way the decision will fall, but no matter the decision, it will be a guide for other companies following Airbnb’s path.

How Can Your Foreclosure Affect You?

No one wants to foreclose, but it happens if you fall behind on your mortgage payments and have no way of catching up. While you want to move on from the whole experience, your credit score won’t let you.

A foreclosure can hit your credit up to 300 points, and if you’ve missed several mortgage payments before filing for foreclosure, it can negatively impact your credit score even more. A foreclosure appears on your credit report as of the date you file, not the date of sale. It stays on your credit report for seven years.

Besides carrying around the foreclosure on your credit report for years, what other affects can foreclosures have on your life?

Foreclosures and Family

After the housing bubble burst in 2008, foreclosure rates increased substantially. Many families lost their homes to foreclosure. Foreclosure Sign

Studies demonstrate that families who faced foreclosure saw their earnings fall more than families who did not experience foreclosure. After one earner lost his or her job, foreclosure was nearly inevitable. Moreover, families who lost homes to foreclosure were more likely to seek government assistance programs for support. They also tend to double up or share their home after filing for foreclosure, but before the house is sold.

Bankruptcy and Foreclosure

If you are contemplating bankruptcy, you may also be facing foreclosure. If you fall three months behind on your mortgage payments, it may be beneficial to think about filing for bankruptcy to avoid foreclosure. Although financially, bankruptcy is considered a “last-resort” option, it can hold off creditors, including your mortgage company, while you’re sorting out your financial troubles.

Bankruptcy only prevents foreclosure in some cases. If you file for Chapter 7 bankruptcy, it means you don’t have the financial means to pay any of your bills. In that regard, the bankruptcy releases you from your obligation to pay your debts. However, Chapter 7 bankruptcy does not prevent foreclosures. While your obligation to repay is released, the lien on the house isn’t canceled because it serves as collateral if you cannot repay. With Chapter 7 bankruptcy, the homeowner often surrenders his or her home.

Chapter 13 bankruptcy gives the debtor an opportunity to work out a new agreement with the lender. Lenders can come to an agreement with the debtor consisting of paying off the late payments and late interest for up to 5 years as part of a new loan agreement. If you can pay the new loan payment and make all your payments on time, after the five years are completed, you can keep your home.

It is important to note that while bankruptcy and foreclosure have a negative impact on your credit, foreclosures remain on your credit report for seven years, whereas bankruptcies remain for ten years. Nevertheless, creditors look at foreclosures more seriously than bankruptcy that don’t include a house.

Foreclosures and Your Estate Plan

If you inherit a house that is behind on its mortgage payments or already in foreclosure, you have a couple options. Assuming the homeowner is behind on mortgage payments, the person to whom the house is left does not have to accept the inheritance or the debt associated with the property. If the beneficiary can’t afford the mortgage payments, insurance or maintenance, the beneficiary may disclaim the property and it would be passed to the next person designated. If no one claims the property, the home would likely go into foreclosure.

If the house is going into foreclosure, you want to make sure the house is not in your name and is still the property of the estate. If it is in your name, the foreclosure will affect your credit. If not, it has no bearing on your credit. In that case, the estate may be responsible for the deficiency judgment.

Foreclosure and Divorce

Financial problems are cited as one of the leading causes of divorce, so it should come as no surprise that foreclosures and divorce often go hand-in-hand. If you’re behind on your mortgage and going through a divorce, you must figure out who is responsible for the mortgage debt.

Many couples take out their mortgage and hold title jointly. In that case, both parties are responsible for the debt. However, if either spouse holds title in his or her name alone, that spouse is solely responsible for the debt and is the only person the bank may pursue for any deficiency judgment after a foreclosure.

Three Things to Know When Buying Your First Home

For most people, your home purchase will be your biggest financial investment you will ever face. Buying your first home is one of the most exciting things you can do, but it’s also one of the scariest. Suddenly, a large sum of your monthly income is spent on your mortgage and unexpected maintenance such as electrical repairs, insulation, and re-roofing. The expenses can add up, and what once was a seemingly sound investment can turn into a huge regret.

Here’s a list of things every new homeowner should know as they become homeowners.

Lender Responsibilities: TILA and RESPA Requirements

Finding the right lender is just as important as finding the right home. Some lenders make promises they can’t keep, and borrowers suffer as a result. Lenders who are unable to provide funding can result in the borrower losing their earnest money deposit and the offer on the home. It is important to find a lender that you feel you can work with and who can get you a good mortgage insurance rate. Home Sold

Lenders are bound by Federal laws such as the Truth in Lending Act (“TILA”) and Real Estate Settlement Procedures Act (“RESPA”). These regulations were enacted to protect consumers in their dealings with lenders and creditors. All lenders must provide their customers with disclosures consistent with TILA and RESPA before closing. These requirements include a loan estimate and closing disclosure, which contains the final details about the mortgage loan, such as projected monthly payments, loan terms, and how much you will pay in fees and closing.

What Happens if Something Affects the Property?

Say you found your home, you’re in escrow, and you’re waiting to close, but then the unthinkable happens: a fire breaks out and destroys the property, or a random “Act of God.” What happens then?

If the purchase contract between the parties does not specify who is to bear the risk of damage or loss between execution of the purchase contract and close of escrow, the liability of the parties is governed by the state in which the property resides. Each state is different. For instance, California statute assumes no fault on the part of the buyer for the risk of loss or damage to the premises. In that regard, the seller bears the risk should the property unexpectedly go up in flames.

If all or a material part of the premises are damaged before title or possession is given to the buyer in California, the buyer can cancel the contract and recover any portion of the purchase price paid. If, however, the “Act of God” occurs after the buyer has taken possession or received title, the buyer bears the risk of loss or damages to the premises. Thus, if the premises are damaged, the buyer still must complete the contract and pay the balance of the purchase.

Title Insurance

Another thing to consider when buying your first home is title insurance. When you purchase your house, you may not realize that it is encumbered. In other words, a third party may have legal right to your land which may be superior to yours and restricts your ability to use and enjoy your land. Sometimes, the encumbrance is minor. Other encumbrances may be more substantial.

For example, a government agency may have a utility easement running through your property which prevents you from building that Olympic-size swimming pool you always dreamed of.

Title insurance is meant to protect against these types of unforeseen property disputes by searching the property’s title history before you purchase. The title history should disclose what rights others may have with respect to the property.

Moreover, title insurance insures against any additional “defects” which were not found through the title search and not otherwise expected or excluded in the policy. Depending on the type of title insurance, the insurance may be able to pay off your mortgage in the event that a defect causes you to lose the property. If you buy a property using a home loan, your lender will require that you also obtain title insurance.