Definitions Can Be Important

            Real property (or real estate) has many features and characteristics.  Two of the features that exist in every parcel of real property are the surface rights, and the subsurface, or mineral rights.  The surface rights generally includes the rights to use the surface of the property, such as building on the property, or traveling over the property.  The subsurface rights, or the mineral rights, usually includes the right to remove, or extract, valuable minerals that may lie beneath the surface of the property. One person can own the surface rights, and a different can own the mineral rights. The right and ownership of mineral rights can be valuable.  And while the definition of “minerals” might seem obvious, the true meaning of “minerals” may not always be clear.

It seems that the operator of a rock quarry hired a company to extract and crush rock from the quarry.  The rock was extracted by using explosives, and then removing the broken rock from the surface of the ground. The removal of the rock caused the surface of the ground to be lowered.  The crushed rock was used for such things as road base and was also used in asphalt and concrete.

There was a lot of money at stake in this case.  The company that had extracted the rock claimed that it was owed over 1.5 million dollars plus interest for the work it had done.  The company filed suit for payment, and claimed that under it was entitled to a “mining” lien on the quarry because it’s work in removing the rock amounted to “surface mining.” California Civil Code section 3060 states, among other things, that any person who performs labor in any mining claim is entitled to a lien upon such mining claim.

The Court of Appeal gave careful consideration to the claims of both parties.  It quoted an 1885 California case which had found that Webster’s dictionary defines a mine as “a pit or excavation in the earth from which metallic ores or other mineral substances are taken by digging, distinguished from the pits from which stones only are taken, and which are called quarries.”   The Court of Appeal further discussed that a “mining claim” is that portion of a “vein” or “lode” to which a claimant has acquired a right of possession pursuant to the “laws of the United States and the local rules and customs of miners.”

The Court engaged in a lengthy examination of whether “gravel” is a “mineral” and found that in some instances gravel might actually be properly considered to be a mineral, but not under the facts of this particular case. The court noted that “mineral” is generally defined as having a “definite chemical composition by which it can be easily recognized.” The court found that “commercial gravel is simply a jumbled mass of fragments of various minerals.”  Because gravel usually consists of a mixture of materials instead of a specific substance, the court found that with respect to the alleged “mining claim” in this case, gravel was not a mineral and there was no “mining claim.”.   As a result, the company hired by the quarry operator had no right to a lien on the quarry.  However, there were other claims between the parties that are too lengthy to describe here.  The end result was that the court found for purposes of this case that the “gravel” that was removed was not a “mineral.” Since no “minerals” were removed, and since there was no “mining claim,” there was no right to a lien on any “mining claim.”  But the Court specifically noted that gravel might constitute a “mineral” in other situations.  The case is reported as Sukut Construction, Inc. v. Rimrock CA LLC (2011) DJDAR 14846.

Lien laws, mining laws, and laws concerning non-payment are complex, and as shown by this case, the legal answer in any given situation can be difficult to determine.  It’s not easy to determine what the law requires or provides in any given situation.  Persons with claims, questions, or issues concerning liens, payment or contractual relations should consult a qualified legal professional.

Title Can Make a Big Difference

Let’s face it, most people have better things to do than spend time reading up on dry legal principles that concern their home ownership.  The trouble is that these same dry legal principles can often make a real difference, in dollars and cents, in the owners’ pocketbook.

A key example of this principle occurs in every home purchase. Once a buyer identifies a home and agrees on a price, a hundred or more different considerations must be made with respect to the home purchase and the move.  One of the key legal decisions that every buyer most make is on how to hold title.

California law allows buyers to hold title in several different ways, and this title decision can have significant tax and legal consequences.  Most homeowners have little or no information on the different ways to hold title.  But this seemingly minor decision can have significant consequences.

For example, a married couple may decide to hold title as “joint tenants.”  Holding title this way can result in some significant cost savings in some cases because when a joint tenant dies, that tenants ownership of the property automatically passes to the surviving joint tenant without a will, a trust or a probate.  But when a married couple holds title this way, they pass up a potentially significant tax savings that they might otherwise receive if they were to instead hold title as “community property with right of survivorship.”  These tax savings can amount to tens of thousands of dollars or more.  The decision as to how to hold title can be a very quick decision, but the legal considerations involved in such a decision can often be complex.  Choice of title decisions involves tax law, estate planning and probate law, and potential liability issues.  In order to make an appropriate title decision, most homeowners will need the assistance of a qualified professional who is trained in such decisions.  Many times such a consultation can best be provided by an estate planning attorney.

Streets are Important

            The use of land has been around for so many year that it’s most people take our present system of land use for granted.  But unimproved land lacks many of the characteristics that we enjoy on a daily basis.  For example, when the pioneers first settled California, there was no readily developed system of access to real property.  The major roads into California would have been the emigrant trail and similar trails over the Sierra Nevadas.  And the Spanish Missionaries had developed the El Camino Real (or the “Royal Road” or “King’s Highway”) that stretched from San Diego in the south up to San Francisco in the north and beyond.

But when the settlers arrived, there was no readily developed system of streets and highways in place.  The settlers got to figure it out.  We can see the present effects of their work in the streets currently in place in downtown San Francisco, which have been in place now for a long, long time.

Use of real estate depends on access to it, and there can be different approaches on how to lay out streets and roads.  For example, when the Mormon pioneers entered the Salt Lake valley, all they found was a bunch of sagebrush and a lake that was too salty to drink.  A big group of pioneers arrived all at once, and one of the first things they had to do was lay out a brand new city and figure out the streets.  In comparison with most other metropolitan areas, the main streets of Salt Lake City today are exceptionally wide.  It’s reported that Brigham Young directed that the streets should be made sufficiently wide that a wagon pulled by a 20 mule team could make a U-turn without backing up.  Now that’s the voice of experience.

Most of us never even think twice about the streets and roads we drive on.  But there’s a lot going on behind the scenes with roads – or rather, below the scenes.  Utilities consisting of gas mains, sewer lines, electrical conduit and telecommunications lines exist below many urban streets.  California has a completely separate legislative code consisting of legislative statutes devoted entirely to streets and highways – it’s know as the “streets and highways code.”  This code has all kinds of things in it, and many of them are not well known.  For example, Section 1953 of the California Streets and Highways code provides that a city or county may pass an ordinance or resolution establishing a “Golf Cart Transportation Plan.”  Such a plan would be designed so that drivers of legal age could use golf carts for transportation on city streets.  The statutes state that the Golf Cart plan can’t include use of a state highway.  However, the statutes state that a separately marked lane for golf carts can be placed alongside a state highway, and golf cart crossings can be made across state highways.

The statutes provide that any plan allowing for golf cart transportation on city streets must include “Minimum design criteria for golf carts, that may include, but not be limited to, headlights, turn signals, safety devices, mirrors, brake lights, windshields, and other devices. The criteria may include requirements for seatbelts and a covered passenger compartment.”  Now that’s a golf cart!  Never seen a golf cart with mirrors, headlights, or turn signals.  But there’s no good reason why carts couldn’t include such things.  These golf cart statutes were passed in 1994, or nearly 20 years ago, but I still haven’t seen any golf carts like these on city streets.  So widespread use of golf carts for city driving may be something that is still yet to come.

Real estate can only be used if we can get to it.  And even though boats and ferries provide access to some real estate, most real estate is accessed through streets, roads, and highways.  Years ago I remember going out to the Delta with friends for a water-skiing trip.  We got to their property on a small island by using a boat.  When we arrived, we saw a parked helicopter on one of the other properties.  We learned that one of the neighbors used this helicopter for getting to and from his property out on the Delta.  But this is an exception.  Most of us get to and from our homes, cabins, and other real estate by street or by road.

There’s a separate legal code in California known as the “Streets and Highways” code.  This code contains many of the statutes which have been passed by the California Legislature over the years concerning the construction and maintenance of streets and highways and related improvements.  For example, the Streets and Highways code contains a Neighborhood Electric Vehicle plan sections concerning Riverside, Orange and Amador Counties.  This section contains provisions for setting up transportation arrangements for electric vehicles.  There’s also a section in the Streets and Highways code dealing with the “Street Lighting Act of 1919.”  Yes, street lighting was a concern in 1919, and it still is – though we usually don’t think about a street light unless it’s flickering or out. There’s a section in there about toll roads, bridges and ferries, and there’s an entire chapter at section 30910 about San Francisco Bridges.  Not the type of material that always makes headlines – but if it weren’t all organized and working effectively, we’d notice it.  These kinds of provisions go on in the background, usually unnoticed, and so long as they work well, we’re all benefitted.

The Streets and Highways code generally concerns the construction and maintenance of actual streets and highways and related improvements and uses such as lighting and parking.  There is a separate code known as the “vehicle” code that is focused more directly on motor vehicles and their use on streets and highways. There’s a recent legal case that highlights a current issue with respect to the use of motor vehicles on these streets and highways.

It seems there was a driver who was cited for violating Vehicle Code section 23123, which states in part that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking, and is used in that manner while driving.  According to the court’s opinion, this motorist was stopped at a red traffic light.  A motorcycle policeman pulled up on the driver-side of the car and saw the motorist sitting in the driver’s seat with a flip-type cell phone.  The motorist was apparently in the process of dialing the phone and placing it to his ear.  According to the court’s opinion, the motorist looked at the officer, removed the phone from his ear, and closed it.  After the light turned green, the officer pulled the motorist over and advised him that his use of the phone was in violation of the law. The motorist objected and stated that he only was using his phone while he was stopped at the light and while he wasn’t driving, but the officer cited him anyway.

At the hearing on the matter, the motorist argued that a car which is stopped at a traffic light is not being “driven” and that therefore the cell phone statute doesn’t apply to vehicles which are stopped.  However, the court found him in violation of the cell phone statute and fined him.  He appealed, and the court of appeal carefully considered, in a very lengthy opinion, whether or not a car stopped at a traffic light is nevertheless in the process of being driven.   The court noted that the motorist made a good point, but the court of appeal nevertheless upheld the judgment of the trial court.  In a concurring opinion, one of the appellate justices wrote: “Any mom or dad driving kids to school can expect to stop while parents in cars in front of them are unloading their kids.  A shopper driving to a store near Lake Merritt in Oakland may have to stop while a gaggle of geese crosses the street. A couple going for a Sunday drive in West Marin County may have to stop for a cattle crossing.  And, of course, all of us are expected to stop for red lights, stop signs, crossing trains, and funeral processions.  In short, all drivers may, and sometimes must, stop.  But they do so while “driving.”  Just like defendant.” The case is located at 2011 DJDAR 16531.

There you have it.

Driving rules and statutes are complex.  Results in any given case can vary.  Persons with questions about the nature, extent, or meaning of driving rules, statutes, or ordinances should consult legal counsel.

Contracts and Real Estate

“An honest man’s word is as good as his bond.”

Don Quixote – Part ii. Chap. xxxiii
Cervantes (1547-1616)

The truth is, if everybody did what they said they would do then nearly all business deals -and nearly all real estate transactions- could be done on a handshake.  So why do we spend so much time, money, and effort drawing up formal written contracts?

Part of the reason is because not everybody does what they say they will do.  Sometimes a party to a contract will get “Buyer’s Remorse” and wish they hadn’t struck a bargain.  Other times, a party might find a better deal “after the fact” and in those cases, they might breach their contract.  Contract performance is always a risk, and when it doesn’t happen, then the first thing the lawyers look to is the written contract as evidence of the deal.

A contract can be a very simple thing.  If property is being sold, then the actual terms of the sale could almost always be stated on a single sheet of paper.  But if this is so, then why are contracts sometimes dozens – or hundreds – of pages long?  The answer is that contracts often involve risk – and a great amount of contractual language deals with how any risk of loss, injury, damage, fire, catastrophe and Acts of God are going to be handled.  If no disaster or catastrophe happens, then all of the work in carefully drafting a contract will have been for nothing.  But if something goes wrong in the performance of the contract, then a court will look very closely at the language that the parties agreed to. In that situation one of the parties may be glad that they spent the necessary time and money to carefully negotiate the contract.

There are generally two distinct stages to contract issues.  They are 1) formation, and 2) performance.  Legal problems can arise at either one of these stages. Legal services by good legal counsel in the formation stage can help avert problems later on when performance issues arise. A real estate or business transaction that is skillfully negotiated and handled will likely give rise to far fewer problems than a deal that is put together in a rushed or thoughtless manner.

Despite good intentions by everyone involved, even if the world’s best contract is signed, there can still be problems when the time comes for contract performance.  There are a multitude of reasons why a party may not choose to -or be able to- perform a contract. Financing problems can arise; situations can change; values and intentions can shift. When performance problems arise, the assistance of skilled legal counsel can be critical to the outcome of a contractual issue.

Real Estate Law is Complex

So why do we have to have all these lawyers, anyway? Do we really need them? Laws are public information.  You can’t copyright a law – it’s not subject to private ownership.  Both State and Federal law are available to the public.  And everybody is subject to the law, so it seems to be everyplace.  So why do we have all these lawyers?  Why doesn’t everybody just look out for their own interests?

Actually, that’s a good question.  And there’s a good answer.

If the law is anything, it’s complex.  Some people choose to represent themselves in legal matters.  But they either spend a lot of time learning the applicable law, or they are willing to take the risk that they might miss something or do something wrong.  Many courts have posted signs at the courthouse that indicate that court clerks and court personnel can’t give legal advice.  While in the courthouse, it can be tempting to ask a court clerk for advice – but that’s not their job. There are also laws about not practising law without a license – so a court clerk is not really in a position to give legal advice.

So where do most people get their information about the law?  The news media and the Internet can carry interesting articles on law.  But news media is usually no substitute for accurate, complete legal information that is provided by a skilled, experienced practitioner.

People turn to lawyers because lawyers spend their professional lives dealing with the law.  The law is so vast and so complex that even lawyers don’t know all of the law.  That’s why they have to do research.  Experienced lawyers might know a lot of law – but nobody can know it all.  Plus – the law changes every day.  So people literally pay lawyers for their knowledge of the law – knowledge gained by law school, study, and experience dealing with legal matters.  It’s no small thing – the law is complex, and making a correct decision in any given situation can be tricky.

You just never know exactly what the law is going to provide.  It’s possible to make some projections, or some educated guesses.  But there’s no substitute for knowing what the actual law is.  That’s one of the reasons lawyers write briefs – so that they can cite the law to the court, and provide a judge with the attorney’s view of the law.

Many times the law follows common sense.  But it’s risky to presuppose what the law says based only on common sense.  In many instances, the law will follow common sense.  But in other situations, the law might provide for results that don’t at first seem to make much sense.

Here’s an example.  Most homeowners have a general sense of what it means to own property.  Ownership of property means that an owner, with certain exceptions, is entitled to the full, complete, uninterrupted and exclusive right to use property.  If I own my own home, then by law I have the right to exclude other persons from living there – or from using my property.  Persons who use the property of another without permission may be liable for trespass.  Likewise, most property owners have a intuitive sense about the permanence of ownership.  In other words, if I own real estate, then so long as I pay the taxes, then in most cases I get to keep that real estate until it’s either condemned by a governmental entity under the power of eminent domain, or until I decide to sell it.  If I never decide to sell it, then in most cases I (or my heirs) get to keep it forever.

Real property ownership, and the sale or transfer of real property, is complex. This article generally discusses some real estate principles, but it should not be relied on.  Persons who buy, sell or transfer any interest real estate should consult competent legal counsel.

Property Can Be Transferred

            Our legal system is complicated.  Therefore, even though laws are readily available to the public, many people consult (and pay for) a lawyer’s services when they have legal questions.  It might seem odd that we would need to pay to understand a system which has been developed and is in place for our collective benefit.  But it’s a reality of modern day living.  The ancient societies and customs where most people readily knew the law are long gone in our country.  Modern society requires a vast range of law that regulates many, many aspects of our everyday lives. In a very real sense, these laws are the basis upon which modern society is founded.  It may seem   unfortunate to have to pay money to understand the laws which have been passed for our benefit.  But discarding all of these laws would have a profound effect on our daily lives, and without these laws so much of our daily living, which we almost take for granted, would be markedly different.

Property owners have a general sense of property ownership.  In other words, when I buy real estate, I can anticipate owning it for as long as I want to, so long as the government doesn’t condemn it under the power of eminent domain, and so long as I pay my property taxes.  If I buy the property through a loan that is secured by a deed of trust, then I can own the property so long as I make my monthly payments.

But property ownership can get more complex as more owners are involved.  For example, a single property can be owned outright by a single person. Such a situation is the simplest, most basic type of property ownership. When a single person owns real estate, there are usually no joint tenancy issues and no issues regarding community property or any right of survivorship.  The single owner holds full title to the property (often referred to as “fee simple”) and this single owner can sell the property whenever they please.  If a single owner dies, then the property generally goes to their heirs.   But real property law also allows property to be owned by more than one person.  So a married couple can own a property either as tenants in common, as joint tenants, as community property or as community property with right of survivorship.  A property can also be owned by several unmarried and unrelated persons.  Factors involved in selling a property with a single owner can be complex – but with multiple owners, the complexity can be substantially increased. Part of the reason people hire lawyers is to help with the planning process – so that when a property is purchased, the necessary plans can be put into place so that when the property is sold, or if one of the owners die, then the title to that property can pass as smoothly and seamlessly as possible.  A great deal of this planning is accomplished with the assistance of estate planning lawyers.

Real property ownership, and the sale or transfer of real property, is complex. This article generally discusses some real estate principles, but it should not be relied on.  Persons who buy, sell or transfer any interest real estate should consult competent legal counsel.

Drama with Texas Deed

            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.

Bay Area City Programs Can Make Housing More Affordable

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

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 (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.

Checks Still Common in Real Estate Transactions

            Credit cards have virtually eclipsed the use of cash and checks for routine retail transactions.  Thirty or forty years ago, before credit cards were widely used, most transactions were done by cash or check.  These days, it seems like virtually all retail transactions are done by credit card except for the smallest retail purchases.

But in real estate transactions, the use of checks is still common.  Most sales of real estate involve a down payment, and the amount of the down payment is large enough that cash is seldom used.  Common practice is to use either a personal or cashier’s check for such a down payment, which is often for several thousand dollars or even for tens of thousands of dollars.

There can be situations where a person writing a check may want to “post-date” a check.  Such a person may need time to gather money from various sources.  Recognizing that a return of a check for insufficient funds can create a number of problems, such persons may offer to “post-date” the check to a later date and ask for an agreement that the check not be deposited until such later date.

This can lead to an interesting question as to what a Bank would do if such a check were deposited before the date shown on the check.  Most people probably don’t know whether a Bank can properly pay, deposit, or negotiate a post-dated check before the date shown on the check.

Two rules govern situations involving post dated checks.  The first rule provides that “negotiable instruments” such as checks are not properly payable until the date shown on the instrument. But a second rule provides an exception, and it states that a Bank may properly charge its customer’s account for a post-dated check before the date shown on the check.  These rules are found at California Commercial Code sections 3113 and 4401.  As a result, a person who receives a post-dated check can literally go straight down to their bank, deposit the check, and the Bank can properly honor that check.  (If the Bank has a different policy regarding post-dated checks, then the Bank may nevertheless refuse to honor the check even though the law provides it could be properly paid).

There’s one important exception.  If, before the check is deposited, the customer provides notice to the Bank that the check is post-dated, and if the Bank is given enough advance notice to act on this notice before the check is presented, then the Bank cannot properly honor the post- dated check before the date on the check.  If the customer tells the Bank about the post-dated check over the phone or verbally, then the Bank is supposed to wait 14 calendar days before it honors the post-dated check, unless the check’s date is within that 14 day period.  But if the customer follows up with a letter, then the customer’s instruction to not pay the post-dated check is valid for up to 6 months.

Sometimes bank errors occur, and checks get honored that shouldn’t be honored.  And there can be other exceptions and considerations involving post-dated checks.  As a result, if a person intends to write a post-dated check and if any significant amount of money is involved, such a person should consult an appropriate professional if the time of deposit is of any concern.

Home is a Castle

            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.