Archive for the 'Real Estate' Category

Potentially Explosive Real Estate Claim: Couple Discovers WWII Era Rocket Inside Their Home

A couple discovered a World War II explosive inside a wall while remodeling their Virginia home. The Newport Fire Department and bomb squad crews responded to the home late at night.

Battalion Chief Jerry Reed identified it as a World War II-era M6 60 Caliber Bazooka anti-tank rocket. After bomb squads determined it was safe to remove the rocket, officials placed it in a secure container and turned it over to the military.

Real Estate Law: Is there Liability for Non-Disclosures?

The expense of having the fire department and bomb squads remove a rocket from a house would be significant. In this kind of case, it would be possible to hold the seller and/or real estate agent responsible for the expenses.

real estateReal estate laws in most states require the seller and/or her agents disclose any material defects to the buyer. Defects that are required to be disclosed include, but are not limited to: foundation cracks, roof leaks, and terminate infestations. Failure to reveal these defects to the buyer could result in seller’s payment of damages to the property and for legal expenses. In this case, there would be two issues: (1) did the seller know about the explosive in the wall and (2) would a rocket be considered a “material defect?”

The answer to the first question is impossible to answer without more information. The answer would hinge on when the house was sold, as multiple owners would indicate that the sellers might not have known and also whether a statute of limitations, or deadline, might apply. Investigators would need to interview the prior owners and any documents they might have regarding the property.

The second question, whether a rocket in the wall of a house is a material defect, might seem obvious. If the rocket ever exploded, the house would be significantly damaged and anyone near the blast would be injured or even killed. Most buyers would also avoid purchasing the property if they knew there was an explosive imbedded inside. The potential hazard would harm the value of the property and if the danger was ever realized, the house itself would be threatened. A rocket in the wall is comparable to a landslide and would be considered a very important defect.

But, What Else is There to Consider?

On the other hand, the rocket in question never blew up. Although the average person would feel that a rocket in a house is too great a risk, this rocket dated back to the Second World War. This rocket could have been inside the walls for decades without any owners ever being the wiser. If the property could be occupied for years without incident, it’s difficult to claim that the rocket was a defect that possessed an actual risk to inhabitants. It is also possible that the rocket was empty and there wasn’t an actual explosive inside – the media has not reported whether the weapon was actually loaded or not.

However, even if the weapon was empty, that does not relieve prior owners from their duty to disclose the rocket if they knew it was inside the house. A reasonable person who found a rocket inside their property would assume that the rocket was capable of exploding. If you are selling a property, it would probably be wise to disclose that there is a rocket inside your living room – or better yet, remove it from the house before selling it.

Are Tenants Displaced by a Hurricane Still Stuck with Rent?

The U.S has suffered two serious hurricanes in two weeks-Hurricane Harvey in Texas and Hurricane Irma in Florida. There have been deaths and injuries. Many have lost all they own, over 200,000 homes were destroyed in Texas alone. The victims of these hurricanes are in the thoughts of people around the country as they take steps towards rebuilding what they have lost. However, at least one victim of Hurricane Harvey, Rocio Fuentes, has faced another type of problem–late rent on her uninhabitable home.

Rocio Fuentes has reported to the media that her landlord has been seeking both rent and late fees on the rent for her home. This is coming at a time when Fuentes is struggling to find alternative accommodation and replace lost furniture and belongings. In speaking to the media, she has said that she and her family simply cannot afford this rent-they have nothing left.

The very idea that a landlord might demand rent could seem ludicrous at first glance. However, there are some legal situations where a landlord maintains the right to rent-however heartless this situation is-even where the property is seriously damaged. Let’s look at the rights of tenants and landlords in these sorts of situations. If you yourself are in a similar situation, or even facing a smaller issue than a hurricane flooding your house, knowing your rights as a tenant is extremely important.

hurricaneThe Rights of a Tenant

First and foremost, your rights are largely governed by you lease agreement. As you might imagine, when you sign a contract you are bound to its terms and a lease is no different. Make sure you read through any agreement before signing. Obviously, a tenant often has little to no negotiating power on the terms of a lease agreement. This means that many lease agreements are extremely unfavorable to tenants in terms of rights. However, you should know the terms of your own lease to know exactly what you may be on the hook for. What’s more, depending on where you live. There are often laws which expand or guarantee rights to a tenant regardless of the terms of a lease agreement.

For instance, in Texas where Ms. Fuentes lives, a landlord or tenant can terminate a lease immediately with a written notice where the property has been made totally unusable. Unfortunately for Ms. Fuentes, this doesn’t help much with rent she is already considered to owe under her lease. The truth is, if somebody is bound under a lease, then they are required to pay rent. Even in a circumstance as terrible as Ms. Fuentes. What’s more, Texas law only reduces rent where a disaster renders a property partially unusable. Determining whether a property is partially or totally unusable is not the simplest of determinations, and one a determined landlord could often bring to court.

There is one other legal doctrine which can be of use to those struck by these recent hurricanes, or even those with smaller issues rendering their property unlivable-the implied warranty of habitability. The implied warrant of habitability is a bit different depending on the state. However, it is essentially what it sounds like. No matter the lease agreement-verbal or written-courts will imply into the agreement a term assuring the tenant that the property they are going to live in is habitable. Where you let your landlord know a property isn’t habitable (often best done by an email with photo evidence), have evidence they know, and they do not fix the property within a reasonable time frame (often 30 days but the time varies depending on the problem), you have a number of options opened to you. First, you can simply move out and terminate the lease without punishment. If you make the repairs yourself, you can deduct the cost of the repairs-although usually not in an amount more than one month’s rent. You can also often, depending on where you live, withhold rent in an amount equal to the reduction in value caused by the issue effecting However, this last option is often quite risky. It is generally safer to pay rent, then sue for either the return of your rent or demanding your landlord make repairs. If you’re suing, it’s worth knowing that courts are much happier refunding rent than ordering repairs that they will have to supervise.

These options hinge on the fact that a court would consider the place you live to actually be inhabitable. If you withheld rent and a court thought differently, you’d be up a creek and likely facing down an eviction. So, what exactly constitutes inhabitable? This varies depending on where you live. Some states simply say that a building must be up to building codes to satisfy the requirement. Some use more nebulous terms such as “fit for human habitation” or “conditions which would be dangerous, hazardous, or detrimental, to life health or safety.” Some states, like California, have a number of specific requirements such as water and weather proofing, working plumbing, gas, heating, electrics, clean and sanitary grounds, a working shower, sink and toilet, etc. Each state has its own approach and the consequences of acting too soon can be great, so it’s always worth consulting a lawyer on issues such as this.

The Rights of the Hurricane Victims

A lot of this information may simply have come too late to be useful to those such as Ms. Fuentes. While state law may be able to help if her home is considered uninhabitable, both this and the warranty of habitability will be of little use for rent already owed. However, depending on the extent of the damages, she may be able to sue for an abatement in rent. From a practical standpoint, if the matter ends up in court the landlord certainly won’t look favorable before either a judge or a jury.

This is the tip of the iceberg when it comes to the legal issues that will spring out of a disaster like Hurricanes Harvey and Irma, even when it comes to landlord tenant law. Just think about all the security deposits on apartments that have been flooded. Will the tenants get those deposits back? What about situations where somebody breaks a lease by letting hurricane victims stay at their place? There’s a lot of rebuilding to be done here, but along with that will come a lot of legal conflict. Hopefully, this advice will be helpful to some facing these sorts of legal challenges. However, for now, the best we can do is keep these victims in our thoughts and reach out with support however we can.

Zillow’s “Zestimate” Makes Property Owner Fight Back

With the availability of online real estate marketplaces, such as and Trulia, a lot of people look online first for their potential new home before looking at any properties in person. Many people also rely on the estimate of a property’s value as provided by such websites to determine just how much they are willing to offer for the property. As a result, the estimates provided by online real estate marketplaces can negatively impact a property’s value or impede its ability to sell. The estimate provided by Zillow has so negatively impacted one homeowner’s efforts to sell her home in Illinois that she is suing the company.

What Happened?

Barbara Andersen has been trying to sell her home in Glenview for a while at the price for which she bought the property. The houses across the street from Ms. Andersen’s home have been selling for $100,000 over Ms. Andersen’s asking price. Despite the higher value of the properties across the street, Zillow’s Zestimate, which is Zillow’s property value estimate, for Ms. Andersen’s property is significantly lower than her asking price. Ms. Andersen asserts that the estimate has prevented her from selling her property for the amount she is seeking. Thus, Ms. Andersen is seeking an injunction to stop Zillow from listing any Zestimate about her property.

What’s the Law Surrounding This?

Illinois attempts to prevent inaccurate property estimates from influencing the real estate market by requiring anyone who wishes to offer appraisals of a property’s worth to obtain a license permitting them to provide real estate appraisals. If a person or a company attempts to offer an appraisal in Illinois without having the proper license, then they have committed a Class A misdemeanor when they offer an appraisal for the first time and a Class 4 felony for any subsequent time that offer an appraisal.

Zillow does claim to have a license that would allow the company to make real estate appraisals, but it does assert that the real estate estimates produced as part of its Zestimate feature do not qualify as appraisals, which means that Zillow does not think that it is violating the law in Illinois. However, an appraisal is essentially defined as an opinion of value by Illinois law. The Zestimate is Zillow’s opinion of how much the property is worth, which can be interpreted as an opinion of the value of a piece of real estate. If the court determines that the Zestimate is an opinion of the value of a piece of real estate, then it will likely find that Zillow is making appraisals of real estate in Illinois.

Although it seems unlikely that a company as well-known as Zillow would not have made sure that it possessed all of the necessary licenses it would need to operate in each state in which is transact business, the employees and owners of Zillow who are involved in the Zestimate feature appear to have issued appraisals for Illinois properties without having a proper license, and are guilty of at least a Class A misdemeanor.

zillowWhat Can Ms. Andersen Do to Succeed?

Proving that a person or a company has committed a crime does not automatically grant a victim of the crime an injunction because only a civil court may grant an injunction. To get an injunction in this situation, Ms. Andersen will need to prove three things: that she has a right that needs to be protected, that she will suffer irreparable harm if an injunction is not granted against Zillow, and a monetary award is not enough to remedy the harm that Ms. Andersen is suffering due to Zillow’s allegedly illegal Zestimate.

It is easy to see that Ms. Andersen has a right that needs to be protected. Anyone who owns a piece of property has the right to dispose of it as they see fit, so long as it does not violate the law. Thus, Ms. Andersen has a right to sell her property. It is clear that, by being based on lower-value property and failing to reflect a fair and accurate of the property, the Zestimate of Ms. Andersen’s property is negatively impacting her ability to sell the property. Assuming that Zillow providing an estimate is illegal, then Ms. Andersen’s right to sell her property is in need of protection from being harmed by Zillow’s illegal action of providing the Zestimate.

Ms. Andersen will also have a reasonably easy time that she will continue to suffer irreparable harm if Zillow is not prevented from continuing to provide a Zestimate for the property. It must be noted that, upon a request by Ms. Andersen, Zillow did manually change the Zestimate to a price that was more comparable to the price at which the property is listed. However, the change only lasted for a brief amount of time before the Zestimate was changed back to the original, much lower amount without any formal explanation for the change. Upon realizing that the Zestimate had been changed back, Ms. Andersen contacted Zillow multiple times, asking the company to either change the Zestimate again or to remove it entirely from the company’s website. Unlike last time, Zillow did not do anything to remove or otherwise alter the current Zestimate. The fact that Zillow reverted back to the original Zestimate relatively soon after changing it and continues to provide it despite Ms. Andersen’s repeated requests demonstrates that the company will likely continue to provide a seemingly inaccurate and harmful assessment of the value of Ms. Andersen’s property unless the court stops Zillow from providing it.

Compared to the first two things that she must prove, it may be more difficult for Ms. Andersen to prove that a monetary award is not enough to compensate her for the harm that Zillow’s actions may have caused her. The harm that Ms. Andersen is suffering as a result of Zillow providing its Zestimate is an inability to sell her property at the current price for which it is listed. Ms. Andersen’s harm appears to be based entirely on money, specifically on the difference in the price that she wishes to receive for her property and the price that Zillow has listed as its Zestimate for the property. Thus, Ms. Andersen’s harm can likely be remedied by an amount of money to compensate her for any difference in price between Ms. Andersen’s estimated value and Zillow’s estimated value because she will not be missing out on any money as a result of having to sell her property at the Zestimate instead of selling it at the price for which she wishes to sell it. As a monetary amount is most likely enough to compensate Ms. Andersen for the harm she has suffered, even if Zillow keeps listing the lower Zestimate for the property, it is unlikely that a court will determine that an injunction is necessary to make sure that Ms. Andersen is adequately compensated for any harm or loss caused by Zillow’s actions.

But Will She Win?

Ms. Andersen, therefore, will likely not be granted an injunction against Zillow because her harm can be remedied with money instead of an injunction, despite the fact that Ms. Andersen will continued to have her rights as a property owner negatively impacted if Zillow is not stopped from providing its Zestimate. However, Zillow’s act of providing a Zestimate on Ms. Andersen’s property is likely against the law in Illinois because Zillow likely lacks the proper credentials required to provide such an assessment. Since this allegedly illegal act does infringe upon Ms. Andersen’s rights with regard to her property, and cause her harm as a result, it is likely that Ms. Andersen will receive compensation for the harm that Zillow has caused her.

Even though Ms. Andersen is unlikely going to be able to get an injunction against Zillow, the company will likely still stop providing Zestimates for not only Ms. Andersen’s property, but also for all properties in Illinois because the court will likely address the matter of whether the Zestimate is an appraisal under Illinois law for which a license is required. If it does find that Zillow needs to possess a license to provide a Zestimate, which seems to be the case, then Zillow will likely remove all Zestimates from Illinois properties until it acquires the necessary license to make appraisals. Thus, Ms. Andersen will likely both get money to make up for any loss that she would experience by having to sell her property for the lower price listed by Zillow and stop Zillow from listing a Zestimate for her property for at least a short while.

What Can We Do If We’re Trying to Sell Our Home?

It can be difficult to sell a property, and the last thing that you need is an outside party trying to devalue your property through an inaccurate appraisal of the value of the property. This is especially true when that outside party is providing an appraisal that appears to be official and reliable, but is actually illegal. If a company is publishing a very inaccurate appraisal of your property and preventing you from selling your property for its true value, then you should contact a real estate lawyer. Not only can they advise you on all of the rights you have as a property owner, but a real estate lawyer can also help you confront the company that is interfering with your right to sell your property and represent you against them in court if necessary.

Protest Peacefully and Lose Your House Under Arizona S.B. 1442

As one controversial law, executive order, or policy position after another comes out of Congress or the White House, it is little surprise that we’ve seen an incredible amount of protests in the last few weeks.  Protesting is a tradition as American as apple pie, from the Boston Tea Party from which the hard-right conservative party took their name to the Civil Rights Movement of the 50s, 60s, and 70s.  The tradition has been carried forward, with protests abounding on both side of issues ranging from abortion to taxation to federal use of land.

In recent months, however, protesting has become a bit of a target for criticism–especially where protests occasionally result in violence or property damage. Compounding these criticisms has been the widely cited, and essentially unsupported, accusation of “paid protesters” making a living off their involvement in demonstrations.


Conservative politicians in Arizona have begun moving forward on legislation based on these accusations, a bill known as S.B. 1442.  This is still a bill, not yet a law, so it isn’t taking effect just yet.  However, it has made it past the House in Arizona and is moving forward to a primarily conservative State Senate.  The bill is, frankly, incredibly questionable both in what it seeks to achieve and its constitutionality.  With that in mind, let’s take a look at what this law does, why it seeks to do it, whether it has the potential to pass constitutional muster if passed, and the results of litigation over similar laws in the past.

The Law, What it Does, and Why They Say They Want It

S.B. 1442, as written, expands racketeering laws and the definition of rioting.  While this sounds innocuous, the goal and effect of the law is to expand the power of police to arrest protesters and the ability to crack down on protests.  For example, it allows police to arrest peaceful protesters if they believe the protest may eventually turn violent.  It also provides the power to criminally prosecute, and seize the assets of, anybody who plans or is involved in a protest where property damage occurs–regardless of their immediate involvement in the actual damage.  It does this by expanding racketeering laws, the same ones initially instituted to help target organized crime such as the Mafia by allowing the police to more easily target an entire criminal enterprise, to include rioting.  It is worth noting that rioting itself is barely defined at all within the legislation, allowing an extremely broad approach to what exactly could constitute a riot.

Racketeering law, and the Racketeer Influenced and Corrupt Organization (RICO) Act specifically, are notable for being exceptions to a general rule that you are unlikely to be punished for the unpredictable criminal acts of a third party unless you have a fairly direct level of involvement in promoting the act itself.  This makes sense, if the guy in front of you in line at the bank robs the place, you wouldn’t expect the police to arrest the whole line.   However, S.B. 1442 takes these racketeering rules to a genuinely terrifying place.  They give the police the power to preemptively make arrests just because a planned protest might turn violent.  They can even arrest organizers who weren’t at the protest.  Planning a protest could lead to losing your property as the police could seize assets under the law.  The law would allow arrests where people not actually associated with a protest commit property damage in its vicinity.

While violence is not something we should necessarily congratulate, peaceful protest is one of the most poignant forms of political speech available to the public.  Publically questioning the political status quo quite rightly receives the protection of the First Amendment–both through freedom of speech and freedom of assembly–the constitutional right to come together and express your ideas as a group.  So one has to ask, what is the motivation behind such a sweeping law with such huge connotations when it comes to curtailing First Amendment rights of people on both sides of essentially any issue?

When asked, the politicians promoting the bill provided a couple of justifications for the law.  The primary one has been that the existing laws are not enough to discourage violent protest.  A particularly odd position given that all the elements of rioting–property damage, assault, etc–are already crimes allowing arrest and criminal punishment.  However, the politicians behind S.B. 1442 have said that this isn’t enough.  They say that it’s necessary to stop the potential for crime before it starts.   However, when you are essentially targeting people based on future speech a law becomes a lot more questionable.

A secondary justification for this bill has been the idea of paid protesters, or as one politician behind the law has called them “professional agent-provocateurs.”  To start with, as mentioned above, there is actually no evidence behind this oft repeated accusation.  It certainly is a common enough talking point, but one with no actual factual support.  There are certainly organizers behind many protests, as  has been the case with most protests for a long time, but that doesn’t make a protest paid and in fact makes it notably less likely to be violent in nature.  What’s more, the law itself is much more broad in scope then its creators perhaps intended.  It could be applied to any protest, regardless of affiliation, stance, or belief–allowing police to arrest those peaceful protesters.

Similar Situations Have Already Reached the Supreme Court

Given the shaky ground S.B. 1442 is already based on, you’d think it would either be the first situation of its kind or at least learned from the mistakes of its predecessors.  However, the Supreme has actually ruled on a case including similar attempts to broaden the application of racketeering laws in the case of Scheidler v. National Organization for Women.  The case did not go well for the expansion of racketeering law, to the tune of an 8-1 decision.

The case, decided in 2002 in the end to a 17-year old case, the National Organization for Women against anti-abortion activists.  The case sought to extend the provisions of the RICO Act to these anti-abortion protestors.  They argued that such activity could be considered extortion and properly fell under racketeering law–a sort of nationwide conspiracy to shut down abortion clinics.

The Supreme Court did not agree.  They said that these protesting activities did not fall within the realm of federal racketeering law as written.  What’s more, Justice Ginsberg’s concurring opinion noted that the court was “rightfully reluctant” to expand the scope of racketeering law to include political protesting.  She specifically noted that such a change had the danger of treating the sit-ins of the Civil Rights Movement as criminal.

Is S.B. 1442 Constitutional?

No, almost certainly not.  I’m not going to beat around the bush here, the proposed rules actually fly in the face of the values of the Constitution.  Where a law curtails the First Amendment rights of the public, as S.B. 1442 clearly does, it is held to the highest levels of scrutiny before it can be considered constitutional.  Such a law must apply the minimum possible level of restriction to Constitutional rights in support of an absolutely crucial government interest.  What’s more, courts are particularly suspicious on prior restraints on speech–attempts by the government to chill or prohibit speech before it occurs.

The content of the bill is of the sort most disfavored by courts determining if a law is constitutional.  Instituting the threat of arrest for a peaceful protest prior to the protest even happening, allowing the police to seize your property based on this arrest–that is the definition of a government action chilling speech before it happens.

While preventing crime and protecting the public can be a crucial government interest, to call S.B. 1442 the least restrictive means to that end is outright laughable.  There are already laws making all the elements of rioting a crime, those limit the value of this would be law and already act as deterrents to such behavior.

If S.B 1442 becomes law, something that is looking fairly likely given the composition of the Arizona State Senate, it will almost certainly not remain so for long.  It is not only nearly certainly unconstitutional, it is even contrary to the previous stance of the Supreme Court of the United States.  The idea of a law like this is outright un-American, the fact that it was introduced frankly disappoints me personally.  If it is indeed passed, expect lawsuits challenging the constitutionality of the law–along with a likely injunction halting the effect of the law–to quickly follow.

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

Trump and the WallCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.