Easter a Traditional Time

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On Easter a lot of colored Easter eggs will show up in homes all across the country.  And a lot of sugar and chocolate Easter candy will show up as well.

Who delivers all of those eggs, and all of that Easter candy?  Opinions vary.  My youngest daughter did volunteer work in Sweden.  She emailed me a photograph of the business district of the city where she’s serving.  The photo showed a number of young, small city trees with hundreds of black, yellow and red feathers tied to the branches.  Why the feathers?  As reported by my daughter, the Swedish Easter tradition involves “Easter Chicks” instead of “Easter bunnies” because bunnies don’t lay eggs. (Apparently the Swedish Easter Chicks do lay such eggs).

So the Easter Bunny has been has been around for a long time.  If Wikipedia is correct, then the tradition of having an abundance of eggs on Easter may be traced to an old custom during Lent of forbearing from eating eggs – with the result that perhaps many eggs might be consumed on Easter.

The Easter Bunny is clearly a well-known part of American culture – so well known, in fact, that the Easter Bunny shows up in the occasional legal opinion.

In 2007, a father and a son sought to obtain special permits under Iowa law that would allow them to carry a concealed weapon.  They met all of the legal requirements for getting such a permit, but a local Sheriff denied them the permits anyway.  According to the court opinion, the Sheriff did so because of the father’s political writings and affiliations.  It appears that the Sheriff did not agree with these writings and affiliations, or that the Sheriff may have had other concerns about them.

The father and the son filed a lawsuit in Federal District Court, alleging that the Sheriff had infringed on their right to bear arms under the Constitution.  The father and the son also argued that their civil rights had been violated under a civil rights law known as section 1983.

During the course of the lawsuit, the Sheriff’s deposition was taken (a deposition is an out-of-court proceeding where a witness or a party is asked questions and must give answers under oath).  In the deposition, the Sheriff conceded that he had acted improperly in denying the father and the son’s applications for the weapons permit – in essence, the Sheriff admitted that he had violated the constitutional rights of the father and the son.

The lawsuit proceeded to trial, and the father won.  The civil rights law that had been violated provided for an award of attorneys fees.  The father asked that his attorneys fees be awarded.  The Court found that because he had won, the father was entitled to an award of attorneys fees.  However, the Court felt that the amount of fees requested was excessive (the father requested over $118,000 of fees).  The Court stated, in its written opinion, that after the Sheriff admitted his constitutional violations at deposition, that it would be about as likely for the father to lose his case as it would be for the Easter Bunny to throw the winning touchdown pass at the next Super Bowl game, off a triple reverse on the last play of the game. The Court felt that because it was so highly likely that the father would win, the amount of fees incurred by the father’s lawyers were unnecessary and excessive.

The case is reported as Dorr v. Weber (2010) 741 F. Supp. 2d 1022.

(Incidentally – the father did receive an award of his attorneys fees, but the judge discounted the fees from $118,415.75 to $54,174.86 – for an award of approximately one-half of the fees incurred).

Attorneys fee awards, civil rights claims, and weapon issues can all involve complex issues of law.  Persons with issues, matters, or questions on such matters and on all legal matters should seek competent legal counsel.

Drama with Texas Deed

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            So what was going on in 1895?

In the United States (according to Wikipedia), the sport of volleyball was invented by William G. Morgan at Holyoke, Massachusetts.  The first American professional football game was played in Latrobe, Pennsylvania between the Latrobe YMCA and the Jeannette Athletic Club (Latrobe wins 12-0). George B. Selden was granted the first U.S. patent for an automobile.  Oscar Hammerstein opened the first theatre to be built in New York City’s Times Square District.  And the gold reserve of the U.S. Treasury was saved when J.P. Morgan and the Rothschilds loaned $65 million in gold to the U.S. Government.

Internationally (according to Tchaikovsky’s ballet “Swan Lake” opened in St. Petersburg. Frederick E. Blaisdell patented the pencil. Wilhelm Roentgen of Germany discovered x-rays. Alfred Nobel established the Nobel Prize.  The first shipment of canned pineapple from Hawaii was received. The world’s first movie theater opened in Paris. And Oscar Wilde’s “The Importance of Being Earnest” opened in London.

In Texas?  There was drama with respect to the sale of a parcel of real property. This sale ended up in a court case.  It seems there was man with the initials of C.C.A. who was interested in acquiring a piece of land.  The court’s opinion doesn’t say how C.C.A. knew about this land, or why he wanted it, or what he planned to do with it.  But it’s clear that C.C.A. wanted it.

The land was owned by a husband and wife with the last name of Bargas.  The court opinion doesn’t say how C.C.A. knew Bargas, and the opinion doesn’t say if they were friends.  The opinion doesn’t even say whether or not the property was for sale, and it doesn’t say whether C.C.A. ever tried to buy the property.

But the opinion does say what happened on June 3, 1895.  On that day, C.C.A. took with him a notary public, and went to visit the home of Mr. Bargas, who was one of the owners of the property. The court opinion notes that on the same day, Mr. Bargas was dying, and that he was unconscious, and was incapable, both physically and mentally, of performing any act.  Before C.C.A. went to visit the property owner, he wrote out a warranty deed which purported to transfer title to the property from Mr. Bargas to C.C.A.  When C.C.A. and the notary public arrived at Mr. Bargas’ home, they found Mr. Bargas unconcious, dying, unable to raise his hand, and completely unaware of anything.  After finding Mr. Bargas in this condition, C.C.A. (or the notary) raised Mr. Bargas “from his dying bed, took his helpless hand, touched it to a pen, and then with the said pen . . . made a cross mark . . . and above the cross wrote the words “his,” and below it the word “mark.”

There was no evidence that Mr. Bargas ever acknowledged the deed or knew it existed.  Instead, the evidence showed “beyond doubt” that Mr. Bargas was “wholly unconscious” after the deed was signed up until the time of his death, which occurred on the same day, a short time afterwards.

On these facts, the Texas court found the deed and the cross mark to be a “forgery. ” The court found that because Mr. Bargas knew nothing about the deed or its execution, the deed was never intended by Mr. Bargas to convey title, and the deed was never delivered by him to C.C.A.  The Texas court therefore found that the deed was completely ineffective to convey title to C.C.A.

There are other facts of the case not recited here.  The case is reported as Abee v. Bargas (1901) 65  S.W. 489.

The rules concerning conveyances of title to property can be complex, and results can vary.  Persons considering matters or issues involving deeds or other transfers of title to property should consult appropriate legal counsel.

Water Level an Old but Effective Device

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            Some years ago I had the opportunity of traveling to Israel.  My daughter was participating in a study abroad program in Jerusalem.  Israel seemed like a different world in many respects.  The culture, the food, the history, the atmosphere – everything was unique, different, and fascinating.

As a real estate attorney, I took particular notice of the construction that we saw.  Both modern and ancient construction practices, methods and materials appeared to be different from United States practices in many respects too numerous to describe here. The ancient ability to construct large and complex structures with limited technology, engineering and equipment was remarkable. But one particular engineering feat especially caught my attention.

In approximately 700 A.D., the King of Israel recognized that the city of Jerusalem was vulnerable to attack by the Assyrians, who were a large, influential and powerful neighboring kingdom.  One of the major water sources for Jerusalem was located outside the walls of the city.  The King of Israel discovered that the elevation of a portion of the city of Jerusalem was lower than the spring.  So the King developed an elaborate engineering scheme to bore through nearly 1800 feet of solid limestone rock in order to allow spring water to flow into the city.  If the Assyrians laid siege to Jerusalem, then at least the City would have water while it was fighting off the attack.

The ancient engineers and workmen dug from both ends of the tunnel – one from the spring, and one from inside the city.  After many months, the workmen met in the middle, over a hundred feet underground.   Their work is still visible today, and as a tourist, you can pay a small admission fee and walk through the tunnel, end to end, with the spring waters still flowing past your feet from the spring into the city of Jerusalem.

Here was the engineering feat that caught my attention.  As you walk through the tunnel, the slope of the tunnel floor is for the most part gradual, almost imperceptible.  The elevation drop between the start and the end of the tunnel is only a very few feet.  So without the benefit of modern laser or leveling equipment, how did the workmen properly slope the floor of the tunnel so that it was neither too steep nor too shallow?  At the point where the workmen met, the tunnel floor is smooth and nearly flawless.  How did the workmen work towards the same point, so that when they met they were both at the same elevation?

The workmen carved an inscription on the wall to celebrate their accomplishment.  But they don’t appear to have left any kind of detailed description of their engineering or construction methods.

One potential answer to these two questions is the use of a water level.  I’ve been told by civil engineers that the water level is one of the oldest leveling devices known to man, and these same engineers have also told me that water levels were used in building the Egyptian pyramids.

The concept is both simple and elegant.   An empty bowl is placed on a stand, and a twenty or thirty foot hose or tube is connected to the bowl.  A stick is fastened to the far end of the hose, and the hose runs several feet up the stick.  The bowl and the hose are then filled with water.  The water will fill the hose to the same level as the water in the bowl due to gravity.  As a result, by placing one end of the stick on a spot on the floor, the builders can tell whether that spot is higher, even with, or lower than the bowl, even if that spot is 10, 20 or 30 or more feet from the bowl.  By placing marks on the stick, the builders can tell the exact difference in elevation between the bowl and the surrounding areas.

What does this have to do with California?  Homes in the San Francisco Bay Area are often built on expansive soils that move up or down.  When soils move after the completion of a home, then foundations often move as well, and when foundations move, then floors will often move.  By using a water level, engineers can often track the amount of up or down movement in the floor of a modern California home.

He Better Watch Out . . .

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There has to be an exception.  Somewhere buried deep in the laws of the United States, there has to be a legal exception for Santa Claus. I know there’s got to be one.  I just don’t know where to find it.

How do I know this?  Because without a big legal exception, Santa would be in a heap of trouble.

What kind of trouble?  Every kind.  Just think about it for a minute.  Santa runs one of the biggest industrial, travel and shipping operations in the world.

When we talk about travel destinations, we might think of Maui or Cancun.  But what about a travel agency that books a destination to every single house on the face of the planet? And all in a single night?  The logistics are mind boggling. How Santa did all this before the age of the internet is unthinkable.  But there it is – he visits every house, every where, and delivers just about every thing under the sun.

And where does he get it all?  He MAKES it.  That’s one big industrial operation.

So what kind of trouble could Santa be in?  Well, there’s plenty of paint and plastics in the things he makes.  That means there’s plenty of hydrocarbons involved in his manufacturing processes, and there’s going to be industrial waste.  He better not just stuff it under the nearest iceberg – because he might violate international laws and treaties about ocean pollution.

He better be careful where he sets up shop – he wouldn’t want to disturb the natural habitat of the polar bears up at the North Pole. They are an endangered species – so any interference with their lifestyle or habitat could be a problem.

He better watch out for air pollution too, because with all of that manufacturing going on, there’s sure to be smoke from all kinds of different things.

And what kind of labor force would he have to use?  Just planning the travel and delivery logistics would take an army of elves.  Getting the right present into the sack in the right order? No small thing.  If the gift you want is at the bottom of the sack – well, you see the problem.  It’s all got to be stacked in there just so.  Besides all the logistical work, there’s all of the manufacturing and other activities.  Santa even has to deal with organized labor issues.  First there’s the general purpose labor union, the Brotherhood of Northern International Christmas Elves (BNICE). But Santa also has to deal with specialty unions, such as the elves that grow all those oranges that go into the toe of all the Christmas stockings.  Their union is known as the Elves Garden Group of Northern Orange Growers (EGGNOG).  Santa has to deal with other specialty unions, such as elves who make all the Christmas candy and also supply the North Pole with ice cream, which is the Cooperative Organization Of Kandy and Ice cream Elves (COOKIE).  There are other specialty labor unions, such as union that only installs locks on dollhouses, hinges on jewelry boxes and similar hardware (Santa’s Little Elves who Install General Hardware, or SLEIGH). Elves can get a bit territorial – so even the smallest, least frequent tasks can require a union with a long name, such as the Generally Organized Officers and Dutiful Christmas Holiday Elves who Energize Rudolph (GOODCHEER). Kind of hard to imagine that periodically changing the batteries in Rudolph’s nose requires a whole separate union — but it does.

And all of this doesn’t even get things “off the ground.”  Once everything has been made, Santa has to personally deliver it.  I wonder if Santa has received appropriate licensing from the FAA to operate an aircraft in U.S. airspace?  I don’t know- maybe a “miniature sleigh with eight tiny reindeer” doesn’t qualify as an aircraft.  Really, who in their right mind would consider a sleigh to be an aircraft?  Maybe Santa gets to “slide” by on this one.

But “laying aside” this issue, Santa still has to deal with all of the laws about getting the gifts into each house.  Landing a sleigh on a rooftop without permission?  Could be a trespass.  But I’ve seen stop signs at homes that say “Santa! Stop Here!  The Children inside have been good this year!”  Maybe that kind of sign is an invitation – and then Santa would be a welcome guest.  When somebody is invited onto a property, there’s no trespass.  But going down the chimney?  Could be breaking and entering – another legal problem.  But the cookies and milk waiting for him might be an invitation to come inside – and there’s no breaking or entering when someone is invited to come in.

Santa’s legal problems are almost enough to make your head swim.  Good thing he’s got the world’s best legal team up at the North Pole.  Their address?  Holley,  Jolley, Mistle and Toe, LLP, North Pole.  And when it’s all done?  On December 26, Santa is always Ho Ho Hammered.

Bay Area City Programs Can Make Housing More Affordable

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Even with the significant downturn in the real estate market, some first-time homebuyers can find it difficult to come up with a down payment to buy a home.  Others may find it difficult to qualify for a loan at all.

Few people seem to be aware that several Bay Area cities operate various types of government-funded programs to assist some first-time home buyers.  For example, the City of Pleasanton operates an affordable housing program that has resulted in the development of over 120 affordable homes in 10 separate developments.  The prices of these home have ranged from the low-$100,000’s to the low-$200,000’s. These houses typically have price restrictions associated with any resale.  As a result, there are often restrictions on the amount of income that can be earned by prospective buyers of such home.  These restrictions help assure that homes in the program are re-sold to buyers who may also have difficulty purchasing a home in the Pleasanton real estate market.  More information about the program and its guidelines and requirements can be viewed at http://www.cityofpleasantonca.gov/community/housing/

The City of Dublin also operates a First Time Homebuyer Loan Program.  The Dublin city guidelines defines a First Time Homebuyer as a household that has not owned a residential property or home within the previous three years.  The guidelines for this program provide, among other things, that the borrower must provide at least 3% of the purchase price as a down payment.  Borrowers who are approved by the City will received a 30 year deferred loan at an interest rate determined by the City, with no payments due until either the home is refinanced or sold.  The current interest rate on these loans is 3.5%.  The amount of the loan can be for up to 10% of the sales price, so it can be potentially used for down payment or to help with closing costs. More information about the program and its guidelines and requirements can be viewed at (click on “Departments” and then “Housing”).

Other cities also have affordable housing or first-time buyer programs. Requirements, guidelines, and availability vary from city to city.  Information about the program run by the City of San Ramon can be viewed at (click on “services” and then “Special Services” and then “Affordable Housing”). The site for the City of Danville is (click on “Residents” and then “Housing Information”). The site for the Livermore City Program can be found at http://www.cityoflivermore.net/ (click on “How Do I” and then “Apply for Affordable Housing”). And the Tri-Valley program web site can be viewed at

Other Bay Area Cities may also have similar programs.

iPhone Anyone?

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I must be the last person in America to get a Facebook page.

It’s not that I have anything against Facebook. It’s just that life is so busy that there’s never really been a need – or much of an opportunity – to check it out before.

But there it is.  Big as life.  And now I have not only one Facebook page — but two.  A personal page, and a second one for my law office.  So now I feel like I’ve made it into the twenty-first century.

And that’s not all.  My son recently came home from Argentina, where he spent two years doing volunteer service.  A great experience for him and for those he met and served with.  When he came home, he was all of 21 years old, and he didn’t have much in the way of goods or money.  In fact, he was pretty much broke.  But when he came home, he asked for only one thing: an iphone.

This was no small request.  I’ve had cell phones for years, and they’ve been super useful in my law practice.  The ability to make calls from court and from outside the office has been priceless.  It’s been a real change over the years. When I first started practice, there were phone  booths in the courthouse.  If a judge wanted to set a date in a case, I’d sometimes be out in the hall dialing up my office trying to get my calendar availability.  Or I’d be calling a client, or someone else.  Courthouse phones were a big deal.

No more.  I don’t even remember seeing a phone booth in a courthouse for years.  I remember the first cell phone I ever saw.  I was in my office and got a call from an attorney who said he was sitting in a doctor’s office waiting to take the doctor’s deposition.  Nobody had said anything to me – and the doctor was my client!  So I hurried over to this doctor’s office.  When I got there, the waiting room was full of patients.  I saw the attorney sitting there, and we started conversing.  I didn’t see any available phones around, and I asked him how he had made his call to my office.  He pulled out a bulky Motorola cell phone that had a microphone that flipped open and he showed me how it worked.  Unbelieveable.  I felt like he had walked into that office straight out of “Star Trek.”

Now all that’s changed.  Cell phones are a part of everyday life.  Some of my clients don’t even keep a land line anymore – they do everything by cell phone.  So I’m familiar with – and grateful for – cell phones.

But an iphone – I’d never spent any time with one, and wasn’t familiar with them.  But my son asked for one.  It was the only thing he asked for when he got home from Argentina.  Several months earlier my wife had suggested we get iphones.  With my wife and son looking at me this way, I finally caught up and we all three got cell phones.

My!  How convenient they are!  I had no idea.  It’s a phone.  It’s a camera.  It’s a dictionary.  It’s an encyclopedia.  It’s a timer.  It’s an alarm clock.   It’s a mirror. It’s a reminder device.  It’s a calculator.  It’s a calendar.  It’s a scanner. It reviews restaurants.  It sends emails. I use it everyday, all the time.  I really had no idea. I know one person who calls it her “iLife.”

So I was recently in court at trial. The case involved a dispute between a real estate broker and a seller of property.  The broker wanted to collect a commission from the seller even though the transaction had been canceled.  The opposing side offered up a document in evidence that I hadn’t seen before.  They had to show it to me before they could submit it to the judge.  As soon as I saw it, I knew we’d be talking about it in open court – a lot.  But there was no way for me to find a copy machine and make a copy so I could review it while we discussed it in open court.  I had a few brief moments to review it, and then it was going to be submitted to the judge for her review and we would immediately start discussing it.  So what did I do?  I whipped out my iphone, and took a photo of it.  That way I was able to review it on my iphone as soon as the opposing party submitted it to the judge.  Honestly, I never thought I’d be using my iphone to preserve or discuss evidence at trial.  But there it was – super handy, super convenient.  Could I ever go back to a plain old cell phone?  Sure I could.  But it wouldn’t be fun.

Trick or Treaters Can Be Expected

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            It seems like most people have a good idea as to who is likely to show up at their door on any given day.  Family, friends, neighbors, kids’ friends, the occasional girl scout selling cookies, or maybe an elementary school kid promoting a school fundraiser.  Occasional visitors might include persons sharing religious messages, repairmen, contractors, and even the occasional door to door salesman selling vacuum cleaners or Fuller Brush products.  For most people, that’s about it.

But on one night each year, most people in North America can expect to see a handful of little strangers appear on their door step with nothing to sell, and only asking for something small such as a treat.  That night would, of course, be Halloween.

According to Wikipedia, Halloween is a variant of “All-Hallows-Even” and is the name give to the evening before “All Hallows Day”, or “Hallowmas,” which is also known as “All Saints Day.”  This Day is a religious Holiday that has been around for a long time.  Apparently Shakespeare even refers to the day by the name of “Hallowmas” in his comedy “The Two Gentlemen of Verona.”

According to Wikipedia, the development of “Trick-or-Treating” is a relatively recent development in the observance of Halloween.  Trick-or-Treating is now apparently done  in many different countries, and generally consists of children visiting homes (often of strangers), often accompanied by an adult, where the children say “Trick-or-Treat” after knocking on the front door.  The practice apparently originated as a request by the children for a small treat in exchange for the children not performing some prank or trick on property or the homeowner.  In common practice, there doesn’t seem to be any significant consideration of any “prank” or “trick” in connection with Trick-or-Treating, and most people who participate seem to have a generally positive experience with the practice.  Those who aren’t interested in participating usually seem to keep their lights off or go out for the evening.

From a legal perspective, Halloween creates an interesting situation with respect to homeowners and occupants of property.  Many homeowners don’t specifically invite children to their home on Halloween.  But most people who have lived in this country for any length of time are familiar with the practice of Trick-or-Treating, and many people can reasonably expect children to arrive at their door on Halloween unannounced and uninvited.  It’s usually dark when most of these children show up.  All of these factors can combine to create an unusual set of circumstances – expected visitors who may be excited and may not be paying close attention to their surroundings coming up to properties after dark.  It’s always a good idea for homeowners and property occupants to keep their properties in reasonably clean, orderly, and safe condition for persons who may be coming on to the property.  But it may be especially so when young visitors can be expected after dark – such as on Halloween.  Nobody wants to have a Trick-or-Treat excursion end in an accident or tragedy.  Halloween is a great time for homeowners to take a look around their front yard to make sure that the path to their door is clear, unobstructed, and free of clutter or debris that could present any kind of a risk, danger, or hazard.

Traveling up to a front door doesn’t pose the only potential risk to young children.   Their teeth can also experience the effects of lots of candy.  At least one dentist has been known to sponsor a candy trade-in  where incentives, prizes or rewards are offered to young trick-or-treaters in exchange for the candy they have received on Halloween.  Homeowners or others who are concerned about the effects of lots of candy sometimes offer alternative treats, such as small gifts or favors, or even coins.  That’s one way to recycle of all of that excess change that’s been building up in a jar over the past few years.

Home is a Castle

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            As noted by the California Supreme Court, “A Man’s Home is his Castle.”  People v. Thompson (2006) 38 Cal. 4th 811, 829.

The concept of the “home” as a “castle” has a long, long history in both English and American law. As noted in the People v. Thompson case, American law has for many years provided that a person has an extremely high right of privacy in their own home.  The California Supreme Court wrote that this principle is not “just some forgotten vestige of 15th century English law that allowed English peasants to assert their rights against a powerful monarchy.” Instead, this principle is dearly held, honored and cherished in American law.  The Framers of the U.S. Constitution specifically provided for a very strong right of privacy in the language of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”  The United States Supreme Court has held that “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”   Silverman v. United States (1961) 365 U.S. 505, 511.   In the Silverman case, law enforcement officers had placed an electronic device on a heating duct, which essentially turned the duct into a “gigantic microphone” running throughout an entire house.  Because this microphone was placed without a warrant, it constituted a violation of the Fourth Amendment and the conversations heard by police officers were inadmissible evidence.  Likewise, in one case the use of a “thermal imaging device” to explore the details inside a home were held improper when a search warrant wasn’t first obtained.   Kyllo v. United States (2001) 533 U.S. 27, 28.

Whether or not a search warrant must first be obtained before a proper search or investigation can be made is a subject that fills many, many pages of reported legal cases.  But an interesting question arises when the “home” is actually not a “home” at all – but is instead a public sidewalk.

Webster’s II New College Dictionary contains a definition for “Skid Row,” which generally designates a place where people live who are “down on their luck” (so to speak).  Los Angeles apparently has an area actually known as “Skid Row.” (See the report at Los Angeles Homeless Services Authority, 2011 Greater Los Angeles Homeless County Report. The report notes that nearly 34% of the homeless in this area are ages 55 and older. The report also states that 18% of the homeless are veterans).  The report further states that according to HUD, an “unsheltered homeless person” is a person who resides in “A place not meant for human habitation, such as cars, parks, sidewalks, abandoned buildings, or on

the street.”

Apparently several individuals were living in the Skid Row district of Los Angeles in 2011, and on several occasions they “stepped away” from their personal property, leaving it on the sidewalks, to perform tasks including eating, showering, or attending court.  These persons had not abandoned their property, but City employees nevertheless seized and destroyed the property under the Los Angeles Municipal Code, which states that “no person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.”

Nine of these individuals filed suit against the City of Los Angeles by claiming that these practices violated the Fourth, Fifth and Fourteenth Amendments of the United States Constitution.  The trial court granted an injunction that, among other things, barred the City from “Seizing property in Skid Row absent an objectively reasonable belief that it is abandoned and presents an immediate threat to public health or safety, or is evidence of a crime.”  The court also ordered that unless the material posed an immediate threat to public health or safety, the City was obligated to store the property in a secure location for at least 90 days.”  The case was appealed, and in September of 2012 the trial court’s ruling was affirmed.

For details of the ruling, see Lavan v. City of Los Angeles (2012) DJDAR 12545.

Constitutional rights of property and privacy are very complex, and a substantial amount of legal authority exists on these issues. The foregoing discussion only provides the most limited discussion of some of the key issues involved.  Persons with questions about rights of property or privacy should consult competent legal counsel.

Honesty Is Still the Best Policy

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Some years ago, a Northern California newspaper recently ran a story about a police officer who had been charged with felony mortgage fraud.  According to the article, the officer took out two loans on two different residential homes at approximately the same time.  That’s certainly not a crime.  But the officer has been charged with applying for each loan as an “owner-occupied” loan. What’s more, the officer was apparently charged with substantially overstating his income on his loan applications.  The police officer denied any wrongdoing.

If true, these charges would amount to lender fraud.  Lenders want to know the economic status of the borrowers they deal with.  That’s the reason lenders require Borrowers to fill out loan applications.  A good credit score isn’t enough.  The lender wants a true snapshot of the borrower’s financial condition.  The lender wants assurance that the Borrower has the financial resources to repay the loan – with interest.  And the lender wants further assurance that the Borrower will be motivated to repay the loan.

Borrowers who use a loan to buy their principal residence may be more motivated to repay a loan than borrowers who are purchasing investment property.  If a borrower runs into financial trouble, that borrower may be more likely to default on an investment loan than on a loan on the home where they live.  Thus, an “owner-occupied” loan may have less risk than a loan on an investment property.  The simple reality is that a borrower’s home is often the last, and possibly most important, asset that most borrowers will ever have.  Lenders can gain some assurance from knowing that a borrower is accepting a loan for a home where they plan to live.

Borrowers receiving an “owner-occupied” loan can often can get a loan on better terms than they could on a loan for purchasing investment property.  There can be a substantial economic incentive for borrowers to claim that they intend to live in the property when they actually don’t intend to.  If borrowers falsely represent they intend to live in the home they are buying, then the borrowers commit a fraud on the lender when they make such a representation.

The officer in the story referred to above apparently overstated his income by a significant amount.  This can be a problem because a lender relies on income information in determining whether or not a borrower can repay the loan.  Without sufficient income, the borrower may not qualify for the loan  There can be a significant incentive for borrowers to overstate their income in order to qualify for a loan.  Again, such a practice constitutes lender fraud.

In the story above, the officer reportedly refinanced both loans within a few months of receiving initial loans.  He reportedly pulled cash out of the properties through refinance loans, and he then allegedly defaulted on the loans.  The defaults probably spurred the investigation that resulted in his being charged with felony lender fraud. If loans are fully paid as agreed, then lenders may not have any incentive to confirm whether or not any misrepresentations were made on the loan application.  But once loans go into default, and especially if a lender will suffer a loss, then a lender has an economic incentive to carefully review the borrower’s application to determine whether or not all of the representations were truthful.

What a terrible risk to take.  When borrowers take out loans on investment property in a hot real estate market, misrepresentations on a loan application can seem to be a minor thing.  But when the lender loans hundreds of thousands of dollars on those representations, and if the market turns downward so that there’s a foreclosure, then a borrower who is less than honest can end up facing criminal charges.  Nobody expects this when they fill out a loan application – but it’s a real possibility.  The end result?  Honesty truly is the best policy – even when it’s more expensive.