It’s About the Money – Or Not

Some time ago I attended an evening meeting for ADR professionals. Our presenter was extremely well-versed in conflict resolution. She teaches courses all over the world on human dynamics, power, mediation and conflict resolution. During the course of her presentation she made several comments that caught my attention. Among other things, she claimed that no disputes are truly about money.

Her claim surprised me. I’ve litigated for decades, and I’ve spoken to plenty of people about money. Sometimes it seems like the only thing that matters is the money, and for many years I’ve often said “It all comes down to money.” When our presenter said that no disputes are about money, I knew I would be asking her some follow-up questions.

After the presentation, I sat down at a table with her and with her non-attorney sister. Several ADR attorneys joined us. I asked the presenter about her “non-money” comment. She reaffirmed her position: “They (the conflicts) aren’t about money.” I responded, “Of course they are.” She said, “Give me an example.” I said “Take a personal injury case – there is wage loss, medical bills, pain and suffering. Clearly it’s about the money.” The presenter then started listing case examples where plaintiffs sought money, but where the real issue driving the litigation was actually something entirely different.

One of the lawyers at the table spoke up and described a case where a brother and sister, both in their eighties, were suing each other. His client (the brother) agreed to settle the dispute for far less than the attorney thought he should. The brother finally said “Now I will be able to sleep at night.” Clearly that litigant had non-monetary concerns that were bothering him. Was the litigation just too taxing for this octogenarian? Did he feel that he needed to salvage his relationship with his sister by taking less than he might otherwise get? Whatever the reason, something moved him to settle for less than his attorney thought he should accept.

After this story, one of the other attorneys shared a story about a personal injury case where a claimant was injured in a public facility due to negligence. During the case, this attorney asked the claimant how much money she wanted in settlement. The claimant had no idea – because the issue wasn’t really about money. The real issue was about an injury caused by a defendant’s negligence. The claimant wanted recognition and an apology – and she wanted the condition to be fixed so it didn’t happen again. The attorney observed “People make mistakes. If they (the public facility) had just acknowledged their mistake and apologized, it would have been all over. As it was, we went through a lot because they wouldn’t admit that.” That night I realized that many lawsuits have less to do with money and more to do with feelings, emotion, pride and the need to be respected.

The following story won’t come as a surprise to anybody who has been a litigator. I once litigated a case between family members that ended up in mediation. Emotions were high. Everybody was suspicious of everybody else’s motives. I finally said to the mediator (in private) “This isn’t about the money.” And it wasn’t. It was about respect. It was about emotion. It was about treatment. It was about equality. But sometimes the only way we can address those things is through a lawsuit about money. In those situations, the money is important, but only because of what the money represents. Sometimes a plaintiff can’t take less money, not because they want more money but because taking less would represent a victory for the other side, or an admission of defeat or wrongdoing themselves.

Notwithstanding these examples, some cases truly are about money. But others aren’t. Why is this important? Because a mediator who quickly and accurately discerns the true cause of conflict will be in a superior position to settle a case. If a party tells the mediator “It’s not about the money,” then a perceptive mediator will ask “Then what is it about?” Once a mediator finds out what the lawsuit is really about, the mediator can fully address the core issues. And once a mediator does that, the non-monetary case is far more likely to settle.

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult an attorney.

A Christmas Gift

            One of my favorite Christmas movies is “Miracle on 34th Street.”  In that movie, a little girl wishes for some family togetherness that she just doesn’t think will ever happen.  But after she meets Kris Kringle, she gets the togetherness she was looking for.  After she receives what she hoped for, the family drives out to the suburbs where a real estate agent meets them and provides them with keys to a wonderful home that is fully furnished. It’s a gift from Kris Kringle.

            A big part of the movie concerns the motives – and actions – of corporate America during the Holiday Season.  In the movie, some of the big Christmas retailers seemed to have big hearts, others less so.  It’s a wonderful Christmas show, but at the end it can seem like there’s nothing more – and that this is just a “feel good” movie.  But there’s more to Christmas – and similar Holidays – than just the shopping that goes on. And the good things that happen during the Holidays aren’t limited to just Holiday movies.

            Several years ago, I got to wrap presents for underprivileged children.  Some local real estate agents had identified underprivileged children who could use a hand-up.  They had contacted families, purchased gifts, and brought them to a central location where a small army of us wielded scissors, tape, ribbons and bows and wrapped up a big group of gifts for these youngsters. It brought out the best in us – a free gift of time to bless someone else whom we’ll never know and never meet.

            That year I also had the choice opportunity to work with a group of young men ages 12-15.  There were six of them, and I was assigned to help them shop on a sub-for-santa basis for a young girl who wears size 7 pants who needed “warm clothes or a jacket.”

            We drove over to Target with our six young men and two adult leaders.  We got into the store, and an experienced sales associate immediately saw our plight.  “Do you need some help?” she asked.  “Yes,” I said, “a lot of it.”  I explained to her what we were doing and who we were shopping for.  “Come with me” she said, and she took us over to the girls section, where none of us had ever been before.  She started helping us find the few meager warm clothes that were on display – some thin sweatshirt tops and pants, nothing that looked very warm.  “These are all on sale,” she said, “thirty percent off.”  My young men had a $40 budget to work with.

            I spied a single rack of good looking jackets – some pink, some lavender with purple accents – heavy, thick and warm.  “How about these?”  I asked “are these on sale too?”  The listed pricing was over our budget.  Our sales associate said “Let me see” and she left us to keep shopping.  She was gone a long time.  She eventually returned with a more senior sales associate.

            I pointed to one of the jackets and asked “Is this on sale too?”  The senior associate looked for sale or discount information, but couldn’t find any.  “Yes,” she said, “this jacket is on sale too.”

            “But no,” the junior associate said, “I rang it up. It didn’t show any sales discount.”

            The senior associate eyed us carefully. She knew what we were up to. If we didn’t get this coat, then our sub-for-santa recipient would get a few smaller things, less warm and thin.  “Yes,” she said, “these jackets are on sale.  For you, they are on sale tonight.”

            I asked my boys “What do you think?  This girl needs something warm.  Should we get some smaller, thinner sweats, or something that will keep her really warm on cold nights outdoors?

            The vote was unanimous.  We chose the coat.

            “Come with me,” said the junior associate, “I’ll make sure you get your discount.”  She took us over to the jewelry register which was vacant, and rang us up.  The total with tax was $39.97 – nearly all of our allocated budget.  Three cents to spare.

            We took the coat back to a central location, where we wrapped it.  We don’t know the girl who got it.  And we don’t know what her situation was.  But somewhere, there was a little girl who was very, very happy on Christmas morning when she unwrapped a warm lavender coat with purple accents. And she wasn’t the only one who was helped: our opportunity to serve this unknown little girl was also a joy and a blessing to my six boys and myself. It’s a big part of what Christmas is all about.

Bankruptcy is Sometimes a Response to Foreclosure

            Some years ago there were a lot of foreclosures. But not all foreclosures are over yet. Some borrowers are still struggling with loans that are “adjusting” or “re-setting” after an initial “teaser” period.  Some of these loans offer an initial term of five years with a low interest rate that’s fixed.  At the expiration of that initial term, the loan “re-sets” to an adjustable loan that is amortized over 20 or 30 years.  However, when the loan “re-sets” the borrowers are often unable to pay the higher payment amounts that result from the re-setting of the loan.  Some of these borrowers intended to refinance their loans when the re-setting occurred.  But with the decline in the real estate market, these borrowers often find they can’t refinance their loan because the property is worth less than the amount of the loan.  A refinance in such situations is impossible, because any new lender would have to lend more money than the property is worth.  As a result, such borrowers find themselves unable to refinance unless they pay down their loans to a level below the value of the property.

Borrowers unable to make their loan payments often want to know if bankruptcy is an option.  The answer is that the attractiveness of bankruptcy usually depends on the borrower’s individual situation.  Bankrutpcy is not a “cure-all” and it is now more difficult to qualify for   Chapter 7 discharge than it was years ago.  In a Chapter 7 proceeding, most or all of a debtors debts can be discharged by the Bankruptcy Court.  However, many or most of the debtor’s assets in such a bankruptcy will be liquidated and paid over to creditors.  As noted in one court opinion, the principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.  Hersh v. U.S. ex rel. Mukasey, 555 F. 3d 743 (2008).

Some debtors don’t necessarily need to liquidate their assets and have their debts discharged in order to get a “fresh start.”  These debtors might have valuable assets, but they might be short of cash with which to pay their debts.  Sometimes creditors press such debtors, and if these debtors had some time or “breathing room” then they would be able to sell or liquidate assets and pay the creditors.  These debtors assets are often worth preserving, and the value of their assets typically exceeds their debts.  However, the debtors can have problems meeting their ongoing monthly payment obligations, and if their creditors are pressing them, then these debtors can risk losing assets that are worth far more than their debts.  Some of these debtors elect to file a Chapter 13 Bankruptcy proceeding.  In these proceedings, the debtor proposes a plan for paying off creditors.  The law provides an “automatic stay” of enforcement proceedings against such debtors, thereby giving such debtors some time or “breathing space” to re-organize their financial situations. Chapter 13 is generally used by individuals seeking some “breathing space.”  Corporations or businesses that need such “breathing space” often file a petition in a “Chapter 11″ bankruptcy.

Inspections Make Sense

          Most new homebuyers never think about it, but it’s true.  How do all those new homes get built?

Homebuilders often use subcontractors to do large portions of their work on new homes.  A substantial portion of a Homebuilder’s work consists of coordinating the work of the different subcontractor trades.  Scheduling can become a critical issue.  If the concrete subcontractor is too busy to pour the foundation, then it’s difficult for the framer to put up the walls.  Sometimes different phases of the construction can be done in parallel.  But you’re not going to put the roof on before the walls go up.

Lack of proper sequencing by the developer can lead to odd results.  For example, what if a Homebuilder schedules the sheet metal contractor to put on the chimney caps before the chimney flues are fully finished?  It can happen.  If that kind of a sequence is followed, a house could end up with a sheet metal cap on the top of the chimney, but the flue might be only partially completed – or there might be no flue at all.

Is it possible for such things to happen?  Yes.  And they do.  So what would happen in such a situation?  The embers from a fireplace could ignite the wooden chimney box in a framed in chimney – and a house fire could result.

So how can homebuyers protect themselves from such things?  It’s difficult to detect every construction defect in new construction.  But many new homebuyers seem to think there’s no need for a home inspection on new construction, because after all, the home is brand new.  What these homebuyers don’t realize is that even though construction is new, there can still be issues or imperfections.

Insurance Coverage is Important

It’s probably safe to say that most home buyers use a loan from a bank or other lender to help pay for their house.  While some home buyers have enough money to pay cash for their home, most home buyers end up paying for their home over a period of years.  The most common way to buy a home over time is to get a loan from a bank or other lender. When this is done the buyer can pay the seller cash for the home, and then the buyer repays the lender over a period of years.

Most institutional lenders will require that a homeowner obtain homeowners insurance.  There’s a good reason for this.  The home serves as the lender’s security.  If the homeowner defaults on their loan payments, then the lender can foreclose.  However, if the home has been severely damaged from fire, storm, or other cause then the lender’s security is damaged as well.  Insurance proceeds can be used to help repair a damaged home.

Most homeowners probably buy an insurance policy and never think twice about what might happen if they ever had to make a claim under their policy for significant damage to their home.  Homeowners might not realize that an insurance company’s obligation to pay will probably be limited by the amount of coverage purchased.  If the homeowner’s coverage limit is a million dollars, then if a storm damaged their home and the damage cost two million dollars to fix, then the homeowner may end up short of cash.  This can be a significant problem.  Also, insurance policies often contain “exclusions.”  These exclusions determine the types of loss the policy will cover.  For example, if an insurance policy excludes coverage due to earthquake, then if a home is damaged or destroyed by an earthquake then the homeowner may very well not be entitled to any payout from the insurance company.

Insurance coverage questions can be quite complex.  For example, if a homeowner’s policy includes coverage for fire but excludes coverage for earthquake, then a question may arise whether or not coverage exists if a water heater falls over in an earthquake starts a fire.  In such a situation, the insurance company may claim that no coverage exists because earthquake damage is excluded from coverage.  However, the homeowner may claim that the damage was caused not by earthquake but by fire, and fire damage is covered in the policy.  Many of these types of questions have already been answered by California cases, but others remain unanswered.

When insurance coverage questions exist, attorneys often get involved in an effort to obtain insurance coverage for their clients.  These attorneys often work long and hard in an effort to obtain such coverage.  Many times such efforts are successful, but sometimes they are not.  An unusual example illustrates this concept.

Several years ago, two motorists were traveling at night on an interstate freeway in Ohio when their car struck one of a cow that had wandered onto the freeway. The motorists were injured, and they filed suit against the owner of the cow.  However, the owner had no liability insurance.

The motorists’ policy apparently provided that the motorists’ own insurance policy would cover them for injury or damage if another motorist was at fault for a collision even if that other motorist didn’t have any insurance.  Because the owner of the cows had no insurance, the motorists made a claim under their own insurance policy against their own insurance company for uninsured motorist coverage.

The insurance company denied the claim and the matter was submitted to a court for a decision.  The Court found that the motorists’ policy provided coverage for injuries caused by an accident arising out of the “ownership, maintenance or use” of an uninsured land motor vehicle. The court found that the owner of the cow had no insurance.  However, the Court had a problem with whether or not a “cow” qualified as a “motor vehicle.”   The Court’s own words are as follows:

“There appears to be no dispute that there was a collision; the cow was not insured at the time of the collision, and that the cow caused the collision.  The dispute in this case is whether the cow was a ‘land motor vehicle’ as defined in the policy. While a cow is designed for operation on land, we do not believe a cow is a “motor vehicle.”  The policy at issue does not separately define ‘motor vehicle;’ therefore we must look to the common, ordinary meaning of this term.  The American Heritage Dictionary defines ‘motor vehicle’ as, ‘a self-propelled, wheeled conveyance that does not run on rails.  A cow is self-propelled, does not run on rails, and could be used as a conveyance; however, there is no indication in the record that this particular cow had wheels.  Therefore, it was not a motor vehicle.”

For the full report of the case, see Mayor v. Wedding, (2003) WL 22931354.

The end result?  The cow won (and the motorists lost).

Interest Never Sleeps

It’s a common experience.  People visit their lawyer – and they often feel better.

Why would that be the case?  Why would anybody go see a lawyer in order to feel better?

There’s a very good reason.  People who are upset or angry either may or may not feel better after they see their lawyer.  But people who are in financial trouble can often feel much better after they see their lawyer.

Why is this so?  It’s because people who are behind in their payments often don’t know what the likely outcome of their situation might be.  Most people don’t exactly know what a creditor can – or cannot – do when a borrower gets behind on their payments.  Many people have a vague, generalized sense that a debtor’s wages can be seized, or garnished.  And there are often stories about cars being repossessed in the middle of the night after an owner gets behind on their car payments.  Debtor’s bank accounts can be frozen or drained, and other assets can sometimes be seized as well.

It’s enough to make a borrower nervous.  So when the pressure gets too high, borrowers sometimes turn to legal counsel to find out exactly what their rights – and liabilities – might be.

It’s a tough position to be in.  Unforeseen events can result in an unexpected loss of income, or significant additional debt.  A prolonged illness, divorce, or job loss can all result in a significant – and sudden – loss of income.  But when something like this happens, the bills usually don’t stop coming – only the income.  This can suddenly place even the most prosperous, thrifty wage earner into a far different position than they ever expected to find themselves in.

With respect to the incurring of unnecessary debt, Gordon B. Hinckley, a prominent leader in the Mormon Church, had this to say:

“I commend to you the virtues of thrift and industry. It is the labor and the thrift of people that make a nation strong. It is work and thrift that make the family independent. Debt can be a terrible thing. It is so easy to incur and so difficult to repay. Borrowed money is had only at a price, and that price can be burdensome. Bankruptcy generally is the bitter fruit of debt. It is a tragic fulfillment of a simple process of borrowing more than one can repay. Back in 1938, I heard President J. Reuben Clark, Jr. . . . talk about interest. He said:

“Interest never sleeps nor sickens nor dies; it never goes to the hospital; it works on Sundays and holidays; it never takes a vacation; it never visits nor travels; it takes no pleasure; it is never laid off work nor discharged from employment; it never works on reduced hours; it never has short crops nor droughts; it never pays taxes; it buys no food; it wears no clothes; it is unhoused and without home and so has no repairs; it has neither wife, children, father, mother, nor kinfolk to watch over and care for; it has no expense of living; it has neither weddings nor births nor deaths; it has no love, no sympathy; it is as hard and soulless as a granite cliff. Once in debt, interest is your companion every minute of the day and night; you cannot shun it or slip away from it; you cannot dismiss it; it yields neither to entreaties, demands, or orders; and whenever you get in its way or cross its course or fail to meet its demands, it crushes you.” (In Conference Report, April 1938, page 103.) (Quoting from Gordon B. Hinckley in March, 1990 Ensign magazine).

The ready availability of credit has had a profound impact on the economy of this country over many years.  Freddie Mac was set up by the Federal Government many years ago in order to make money more readily available to the home-buying public.  And the use of credit has made commercial development possible that never could have otherwise occurred. (The construction of Disneyland was made possible through borrowed funds).  Wisely used, loans and credit can be powerful tools.  But unnecessarily used, they can lead to almost overwhelming financial distress.

Lending or borrowing money, the use of credit, and obtaining loans all involve complex legal principles, regulations and considerations.  Persons involved in significant lending, borrowing or debt workouts would do well to consult legal counsel.

Know Whereof you Read Before Signing a Contract

         Next time you take out a loan or refinance your house, do something unusual: Read all the loan papers.

You’ll drive the loan officer crazy.  The officer will meet you in a large and spacious conference room with a stack of papers at least a foot high.  She’ll set the first group of documents down on the table and slide it toward you.  She’ll show you the signature line and say, “Sign here, here and here.”

If you start reading the papers line by line, the loan officer will first look surprised.  Then impatient.  Then helpless.

My wife has this down to a science.  We’re together, the loan officer hands us a paper, and I start to read it.  My wife quickly says, “He’s a lawyer.  He reads everything.”  This seems to pacify them.

What percentage of borrowers actually read the documents they sign?  Nobody knows for sure.  But if the reactions of the loan officers are any indication, it can’t be very high.

If you don’t read the contract but just sign it, are you bound by its terms?  In most cases, yes.  The problem is, many times borrowers won’t understand the language even if they read it.  If they don’t understand it, are they still bound?  Again, in most cases, yes.

What to do?  Take a lawyer with you to review the documents.  Who actually does that?  Almost nobody.  What does that mean?  That lenders are free to put in that contract a lot of provisions that benefit them and only them.

A small example:  Have you ever signed a contract that provided that any lawsuit about the contract would be filed in New York or another state?  Some states limit or bar punitive damages.  That means if the lender, brokerage house or other institution is really, really guilty of doing something wrong, the most you’ll get is you actual (or out of pocket) damages.  You might get some emotional distress or related damages.  But your ability to get other damages may be severely limited or barred altogether.

How about that?  If a major corporation presents you with a contract to sign that says any lawsuit will be filed in Wyoming, or Delaware or Kansas, will your lawsuit be filed there?  Very possibly, yes.  If a problem develops, you might find yourself talking to lawyers 2,000 miles away.  And a trial?  Try to find a comfortable motel at a good price, because you may find yourself having an extended stay at a place you’ve never been before.

Fortunately, most contracts don’t end up in a lawsuit.  But for conservative people who can afford it?  Know what you’re signing.

Law advises landowners to make use of property

When I was a youngster, my mother always told me “You can’t get something for nothing.”  Mother, bless her heart, obviously didn’t own much real estate.

What mother didn’t know is that almost all real estate—even the old family homestead—is at risk from what is known as a “prescriptive easement.”

The policy of the law is to favor the actual use of real estate.  The law, in proper situations, also favors certainty in the use of real estate.  What all this means is that in real estate, owners must either “use it or lose it.”  And for non-owners, the policy can be “use it—and get it.”

An owner, who doesn’t use real estate for five years, may lose ownership if a stranger occupies the property for those five years and pays the taxes on it. This principle is known as “adverse possession.”  If the owner pays the taxes each year, then he or she can’t lose ownership of the property.

However, if someone else uses the property, that person may gain a “prescriptive easement.”  This “easement” is an actual ownership interest in the property.  It doesn’t exclude the owner, which means the owner can continue using the property.  But if the occupant gets an easement, then the occupant has a legal right to continue using the property.  The owner may not be able to exclude the occupant or stop him or her from using the property.

The process for obtaining a prescriptive easement is similar to the process for obtaining title to property through adverse possession.  However, an occupant need not pay taxes to get a prescriptive easement unless the easement has taxes separately assessed.

In order to get a prescriptive easement, an occupant must occupy the property for five years.  The occupant doesn’t have to live on the property or stay on it.  Even driving over a road when needed may be sufficient as long as the owner doesn’t give permission and as long as the use is sufficiently open that the owner can observe it.

After five years of such use, the occupant, or user, holds an “easement by prescription.” This easement isn’t ownership, but it is a right to use the property.

Obtaining a prescriptive easement might look appealing.  But persons who unlawfully and without permission enter property belonging to someone else can be guilty of a trespass.  As a result, the obtaining of a prescriptive easement can in some cases result in potential trespass problems.

To protect themselves from potential claims of easement, owners can post signs at each entrance to their property and at certain intervals along the boundary.  These signs say “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”  When done properly, these signs can prevent users or occupants from gaining an easement in the property.  However, property owners do well to seek professional legal counsel before placing such signs, because the law contains specific requirements for such signs to be effective.

Unreasonable Music

As defined by Webster’s II New College Dictionary, the word “nuisance” means “something that is inconvenient or vexatious: bother.”  That’s a concept that’s easily understood – when something (or someone) is a nuisance, then there’s an annoyance, or a bother.

But there’s a slightly different meaning in the law.  Webster’s also notes that in a legal context, a “nuisance” is “a use of property or course of conduct that interferes with the legal rights of others by causing damage, annoyance, or inconvenience.”

These two definitions are the only two definitions of the word “nuisance” that is given in Webster’s II New College Dictionary.

There are many kinds of dictionaries.  In addition to dictionaries of English words (such as Webster’s) there are also dictionaries that define and describe specialty words.  For example, Means Illustratrated Construction Dictionary gives definitions (and pictures) of many different kinds of construction terms.  And it’s possible for anyone to purchase Mosby’s Dictionary of Medicine, Nursing & Health Professions.

There are also Legal Dictionaries that define legal terms, words and phrases.  One of these is Black’s Law Dictionary (seventh edition).  Black’s definitions of “nuisance” occupies more than a one and a half pages of text.  That’s a fairly clear indicator that “nuisance” is a concept that is pretty well developed in the law.  Black’s defines “nuisance” as “A condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.  Black’s notes that a “nuisance” isn’t necessarily something that is offensive to all people.  For example, Black’s cites a United States Supreme Court case from 1926 for an example of a nuisance: “A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”  But Black’s also observes that the concept of “nuisance” has a wide range of applications.  “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’  It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” (The original source of this statement is a famous legal work entitled “Prosser and Keeton on the Law of Torts §86, at 616.”)

The concept of “nuisance” is not new.  It’s been around for many, many years.  In an entertaining case from 1939, a New York court described as follows one particular case of nuisance “Claremont Inn, at 124th Street and Riverside Drive, is an old institution rich in historical incident. Acquired by the City in 1872, it has been under the jurisdiction of the Park Department, leased at various times to private persons to conduct as a place of refreshment. Renovated in 1934, it was converted from an expensive to a popular establishment. It consists of an indoor restaurant and bar and also a large outdoor pavilion with an outdoor modern dance orchestra. The outdoor section is open from about June 1st to the end of September. And the band plays from 7 P. M. to 1 A. M. (on Saturdays and holidays to 2 A. M.). It is noteworthy that this is the only open air dance orchestra in a residential section in any part of the City.”

The neighbors filed a lawsuit, asking the New York Court to order the Inn to close earlier each night due to “loud music, excessive noise, heedless conduct of its operators and boisterous behavior of its patrons.”  The court noted that “Assurances have been given for the correction of many of the offending practices, such as rehearsals of the orchestra at 3 A. M.; the removal of refuse cans, and deliveries by tradespeople, with attendant clatter and rumbling of trucks, early in the morning; and congested traffic and parking, with resulting clamor and shouting, when the patrons of the Inn depart. But the defendants insist upon continuing the outdoor band to the hours above specified—and the residents of the district, claiming that their sleep is disturbed, insist on an earlier hour.”  The case is reported as Peters v. Moses (1939) 12 N.Y.S.2d 735.

This was evidently quite an event each evening.  The outdoor dance floor was located in a residential neighborhood.  The dance band held rehearsals at 3 a.m.  The band played until 1:00 a.m. each evening, except for weekends when it played until 2:00 a.m.  With all of the noise, disturbance, and clamour of an outdoor dance, the neighboring residents were understandably up in arms.

Open House Has Surprising Result

            On any given summer weekend, it’s possible to drive around suburban neighborhoods and see realtor signs out on the sidewalk.  It’s a known fact: Realtors hold open houses.  These open houses can be a great opportunity for buyers of real estate to check out a neighborhood, check out a potential new home, or even check out a realtor.  No appointment is necessary – all you have to do is get in a car, find an area you like and start driving.  If you’re lucky, you might even score some refreshments.

The history of theft, fraud, and abuse is as old as mankind.  Stories of theft, fraud and abuse go all the way back to the earliest recorded histories.  So it’s no surprise that sometimes people come up with new ways of doing an old thing – which is trying to get something for nothing; an effort to get something without working for it and without paying for it.  The problem is, people who try to make a fast buck illegally often underestimate the true costs of such activities – the emotional drain they experience from working outside the law, the risk and fear of getting caught, always looking over their shoulder, and then ultimately the consequences if and when they do get caught. It’s just bad every which way.

In the old days, Burglary was sometimes defined as breaking and entering into another’s dwelling at night with the intent to commit a felony.  The modern law is usually not so limited.  Burglary is no longer usually limited to an entry at night, and Burglary is generally no longer limited to entry into residential properties.  Therefore, an unauthorized entry into a commercial property with an intent to commit any larceny (i.e. theft) or with an intent to commit any felony can qualify as burglary.  Most people probably think of a burglar as someone who unlawfully enters into a property with the intent to steal something.  This might be the most common result of burglary – a theft of something — but a burglary can also exist where there’s an intent to commit any felony.

Differing degrees of burglary exist.  First degree burglary generally includes burglary of an inhabited dwelling house, or an inhabited floating home, or an inhabited trailer coach, or the portion of any building which is inhabited.  Second degree burglary is any burglary which is not first degree burglary.  There’s a long history in the development of the law concerning burglary.  These definitions aren’t the full story concerning burglary – but they are a starting point.

It seems that in June of 2010, a realtor was holding an open house in California.  Two individuals attended the open house.  Once inside the property being shown, the individuals split up.  One of the individuals spoke with the realtor for several minutes, and the other disappeared for a few minutes inside the property.

After the individuals left the house, the realtor realized her wallet was missing. Her wallet contained several credit cards, a gift certificate, and a lottery ticket.  The realtor looked about the property and her car for her wallet, and contacted her roommate at home to see if she had left the purse at home.  She couldn’t locate the wallet, and so she called the police.

An on-duty police Sergeant heard the radio dispatch about the stolen wallet while he was out working in the field.  He spotted a pickup truck that matched the description from the dispatch.  He made a traffic stop, searched the pickup truck and found the realtor’s credit cards in between the seats.  The realtor made a positive identification of the persons in the pickup truck.

One of the suspects was charged, and after trial was convicted, of first degree residential burglary, second degree commercial burglary and fraudulently using an access card.  On appeal, this individual claimed, among other things, that he was not guilty of first degree residential burglary because the occupants of the house were not present at the home at the time he was there.  He argued that first degree burglary can only exist for a dwelling which is occupied, and that because the residents weren’t there at the time of the open house, the property wasn’t “inhabited.”

The court of appeal disagreed, and found that the property was “inhabited” but that the occupants were “temporarily absent” at the time of the open house.  The court of appeal affirmed the judgment of conviction.

The single theft of the wallet from inside a residential property resulted in the individual being convicted of three crimes, one of which was first degree residential burglary.  It was a high price to pay for stealing a wallet.  The defendant was sentenced to 21 years and 4 months.

The case is reported as People v. Little (2012) DJDAR 7965.

This article only summarizes some of the main points of this case.  The complete facts and law involved in this case are more detailed and complex than those summarized here.  Nothing in this article should be relied on in any specific situation, because the considerations in any specific situation may require different considerations or may provide a different result.  Persons with questions or issues concerning the legal issues raised in this column should consult competent legal counsel.