The Chicago Sun-Times has an interesting article in the paper today about how many homes are being stripped of everything before the lender takes possession. Certain items are considered part of the real estate. Those items are known as fixtures. A fixture is normally considered to be any physical property that is permanently attached to real property (e.g. molding, countertops, toilets etc.) so aren’t supposed to be removed when people lose their homes. http://www.suntimes.com/news/metro/1792042,CST-NWS-strip27.article I’ve heard this is going on all over the country to the extent that some lenders are paying people facing foreclosure to leave without damaging the property. What caught my attention is how difficult it is to prosecute the guilty party. As a former assistant state’s attorney I know how challenging it can be to prosecute someone for criminal damage to property or theft unless there is an eyewitness. While some guilty parties may confess when confronted by the police officer investigating the case, suspects often know that there is no way to prove the case against them without an admission of guilt. Just because they had the opportunity commit the damage or steal doesn’t mean a prosecutor can prove it beyond a reasonable doubt. Many times vandals strip empty houses so it’s not necessarily the former homeowner who is the perpetrator. It presents a real dilemma for the police as well at the lender. Of course, if an officer finds the former homeowner listing the old kitchen cabinets on Craig’s list, that case has possibilities.
Once again, Kelly Anbach, a whiz on the internet and inspector in Hinsdale, IL, has found something of interest that I’d like to share. There is a conference in Washington D.C., the National Property Preservation Conference 2009, put on by the mortgage service industry. It’s being held November 4 – 6, 2009. Representatives of the mortgage industry, local government and the federal government are attending. Here is the link https://www.safeguardproperties.com/register/dc09/?p=1 It looks like it will cover many of the issue we are all concerned about.
After a wonderful vacation in Canada (which never got as crazy with bad loans as the U.S. did), I’m back at the computer. Time magazine has an interesting article about reinventing the McMansion. Apparently many of these huge houses have fallen out of favor in this economic climate and rather than let them become bloated blighted structures, some jurisdictions are allowing them to be converted into group homes, film studios, and greenhouses, among other things. Of course, this would require a significant change in local zoning laws. One of the concerns voiced by a real estate professor in the article is about blight in the suburbs if these houses lose their appeal. You can find the article at http://www.time.com/time/magazine/article/0,9171,1924506,00.html
Of all of the structures I see without permits in court enforcement actions, decks have to be close to the top of the list. A recent case in Idaho, Wohrle, et al v. Kootenai County, 147 Idaho 267, 207 P.3d 998(2009) ended in a good result for the county. The plaintiffs built decks within the setback area of their properties without permits and without variances. After the fact they applied to the county for variances so they could keep their decks. The county said they hadn’t shown a hardship and denied the variances. The plaintiffs didn’t like that result and sued the county. They ultimately lost their case in the Supreme Court of Idaho because the court found they had not shown a hardship and their substantial rights were not violated. The Court very sensibly ruled that:
Respondents were not making lawful use of their properties when they built within the setback areas without first receiving a variance or building permit. In addition, even with the denial of the variance requests, Respondents are still able to use their property as permitted under state laws and regulations and county ordinances-all of which were in effect when Respondents purchased their properties. Respondents are not entitled to the granting of variances; instead, variances are issued upon the discretion of the Board. They are still able to put their property to reasonable use by using and enjoying a dock on Coeur d’Alene Lake, so no substantial rights have been prejudice.
Too often people on zoning boards feel sorry for the people asking for a variance because they spent a lot of money and it’s going to cost even more to come into compliance with the law. This court recognized that there is no reason to complain or whine if you acted illegally to begin with. Variances are not supposed to be issued because someone will be inconvenienced. In my opinion, the Board did the right thing in this case and so did the Court.
I can’t stress enough how important it is to have definitions in ordinances that are clear and understandable. Recently I tried to help out a friend who was letting a sibling live in a residence she owned while he got back on his feet financially. There was no rent being paid but the relative was picking up the cost of the utilities. The town where this residence was located had a rental inspection ordinance so my friend received a notice from the local jurisdiction demanding she get a rental inspection. The town exempted residences that an “immediate family member” lived in from the ordinance. However, it did not define what the term “immediate family member” meant. It took the position that only children and parents of the owner were entitled to an exemption. Yet, if you look at general definitions as to what constitutes an “immediate family member”, some include siblings and some do not. When a definition is vague in the law, the party who has written the definition does not get the benefit of the ambiguity. Court decisions on this issue rely on the definition contained in the law. If there is none, the court should choose the most liberal interpretation of the term. I pointed this out to the inspector but she knew that it was cheaper for my friend to pay the inspection fee than try to litigate the issue. All of this could have been avoided by drafting a proper definition so anyone could tell exactly who was responsible for following the ordinance. I’m a big supporter of rental ordinances but I want ordinances where I’m not going to have to litigate over the terminology.
