I have been in depositions as a real estate expert witness where the opposing attorney screamed in my face.  I never slapped him but on a twist,  here is another ridiculous case where the attorney who slapped the other attorney and  he is actually the one suing the one he slapped.  And notice that it went all the way to the N.Y. Supreme Court.  So,  there was a Superior Court trial,  an appeal to the Appeal court and tried before the state Supreme Court.  You couldn’t make this stuff up.

From Rueters News:

NEW YORK, Sept 20 (Reuters) - A lawsuit over a contentious deposition last year that ended with a Paul Hastings partner being slapped in the face by his opposing counsel has been dismissed.

Manhattan Supreme Court Justice Cynthia Kern ruled Wednesday that New York attorney Kenechukwu Okoli could not pursue slander and civil assault claims against Paul Hastings and the partner he slapped, Allan Bloom.

Okoli had claimed in the lawsuit, filed in May, that he was provoked into slapping Bloom after Bloom allegedly wagged his finger at him and accidentally spat on him while yelling at him during a deposition in an employment discrimination lawsuit against Marsh USA, Inc.

Earlier in the disposition, Bloom called Okoli, who represented former Marsh employee Gisela Brooks, “uncivilized, ignorant and incompetent,” the complaint said.

Paul Hastings in court papers said Bloom’s statements were made in the “heat-of-the-moment” following provocation by Okoli, who repeatedly told Bloom to “keep his mouth shut.”

Following the slap, Kings County Justice Nancy Saitta, who presides over the Marsh case, ordered all future depositions to take place at Paul Hastings’ offices and be videotaped at Okoli’s expense. An appeal of that order is pending.

Okoli sued Paul Hastings and Bloom in Manhattan Supreme Court in May for $1.1 million.

But Kern ruled Wednesday that it was “immaterial” whether Bloom’s statements about Okoli’s civility were slanderous, as they were said during the course of a deposition.

“As these allegedly defamatory statements were made in the course of a deposition, which is a judicial proceeding, they are cloaked with immunity, and thus, cannot be actionable,” Kern wrote.

Kern also dismissed Okoli’s claims of assault arising out of Bloom’s alleged finger-wagging and spitting. The judge said Okoli had failed to allege conduct that placed him in “imminent apprehension of harmful contact” and noted that even Okoli said the spitting was not on purpose.

A spokesman for Paul Hastings welcomed the ruling.

“We’re pleased with Justice Kern’s decision to dismiss the complaint, and gratified to contribute to U.S. caselaw precedent that the threat of spittle is not a cause of action,” Allan Whitescarver said.

Okoli said Thursday he would “likely” appeal the ruling, but declined further comment. Okoli had been representing himself, but has retained a lawyer, Nicholas Penkovsky in Riverdale, New York, who entered an appearance Tuesday.

The case is Okoli v. Paul Hastings, New York State Supreme Court, 152536/2012.

Question:  Do we need legal reform?

I think every agent should be asking their clients this question.  Most have no idea what living in a condo complex means, especially the downsides.  I can tell you in my practice as an expert witness in real estate litigation cases,  that these issues come up in trials all the time.

We all know the upside.  There is no yard and most owners,  drive home,  push the garage door button, drive in and they are home.  In the morning,  they reverse the process.  And,  they tend to be newer,  larger and less commute compare to houses.  But what about the downsides?

The first one is financial.  With most HOA fees hovering around $350-400 per month,  this is deducted from your buyer’s ability to qualify.  $400 per month,  will service about $50K in mortgage payments.  Meaning that if you buyer is looking at $350K condos,  you can show your buyer $400K homes.  So,  is a condo right for your buyer?

The biggest disadvantages the restrictions.  Yes,  they are well meaning and designed to keep the prices up in the neighborhood but you need to warn your buyer about these limitations on their quality of life.  Here’s a few:

• They may want a canopy to cover their patio but the HOA says no
• They may be a guy who like to fix his own car,  but the HOA restricts this
• The HOA may not allow homeowners parking in the Guest parking but the buyer’s teenager also has a car
• The top condo might be disallowed from having hardwood floors
• If your client is a free soul,  they might be bothered by the fact that the HOA decides what color the outside of the house or front door can be painted
• They will decide how loud your stereo can be
• They will decide what time you can use the pool
• They will decide what pets you may have and even if allowed,  what size
• They might restrict political signs
• The list goes on and on

This is why it is so critical for your buyer to read the HOA docs so that they aren’t shocked once they move in.  And, when they do,  it is very easy to blame the agent.  So,  have this very serious discussion with your buyer “before” they go into contract,  not after closing.

Thanks to my friend and real estate attorney,  Mark Strombotne,  who has prepared a list of new California laws that affect real estate for 2012.   Here are a couple that are most interesting with a link to his website to cover them all and a more detailed description of the law:

• Water Conserving Plumbing:  The TDS will be modified to include a question as to whether the property has water conserving fixtures (shower head, toilet, etc).  In addition the law includes a couple of other issues that you should understand.  After Jan. 2014,  if a house is remodeled ,  a homeowner must upgrade to water conserving fixtures to get a final permit.  And,  by 2017,  ALL houses will be required to to have these fixtures in their home.

• Owner’s right to rent Condos or tow homes:  A homeowner association can only restrict renting one of these units if the restriction existed when they purchased the unit.   And,  HOA docs are supposed to clearly describe any restriction that exist.
• Recycling:  An owner of an apartment house of more than 5 units must arrange to provide recycling services for the building.  Also, a landlord can require their tenants to separate their recycle their waste.

• Domestic Violence:  A tenant who is a victim of domestic violence may terminate their tenancy  if done within 180 days of the incident.

• Tenant Smoking Ban:  A residential landlord can prohibit smoking inside or outside the building if it is included in the rental or lease agreement.

• Real Estate Office Managers: A broker can legally appoint someone else to supervise and manage the office.  Under the new law (B&P Code 10164),  the office manager is subject to disciplinary action by the DRE for failing to properly supervise the day to day operations of their agents.

• DRE fines: The DRE can issues fines up to $2500 if they believe the Licensed person violated DRE rules or if an unlicensed person engaged in licensed activities.

• Tax Delinquency:  If a person fails to pay their taxes to the state of California,  DRE may suspend or refuse to renew an agents real estate license.

For more laws and a better description of these i have mentioned.  click here to go to Mark’s newsletter.  You also may want to signup for his monthly newsletter.  It is always informative.

More next time.

Guy Berry,  the industry’s risk manager.

Http://www.guyberry.com