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Failure to Inspect or Repair = Trouble

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA I once lived in house in downtown San Jose that was next to an abandoned "historic" house. The house was abandoned because it was "historic." The city had an ordinance that prevented the owner from demolishing the building and rebuilding it, or selling it. Because the house was built before a certain time, the city ordinance prohibited him from doing anything with the property other than fixing it up. Rather than doing that, in protest, he did nothing with the property. And I mean nothing, other than board it up. Mistake! You see it was downtown San Jose. It was right in the middle of urban, night time activities. The abandoned home soon became a sort of an attractive spot for the seedier and less fortunate souls. We frequently had to call the police. There were the typical late night guests, drinking, broken glass, and other non-printable activities going on in there. After enough of these visits, the neighbors reported the landlord to the city, and hearings were held. Fines were levied. Landlords got mad. Fences were put up. Pulling the restrictive ordinance and the obstinacy of the landlord out of the equation, the landlord had a duty to know what was going on at his property. He should have inspected it, even if he did not have tenants. What kinds of things can happen, from a legal perspective, if you do not inspect and repair? What will happen if the......
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Are Renters Flocking to Buy Homes? [VIDEO]

Small shifts in data tend to quickly make headlines and dominate conversations. Most recently, it’s the uptick in single-family home sales creating some news about apartment renters leaving to buy homes. But it’s not a big spike – and even if it was, that wouldn’t necessarily be a bad thing for the U.S. apartment industry. Greg Willett and Jay Parsons from MPF Research explain why in this video edition of Apartment Market Dynamics.

[video:http://www.youtube.com/watch?v=CD7QPR5O1KY&list=UUyoXp1Vnx1d1sw1ZzzT2AJw&index=2&feature=plcp 433x300]


Michael Cunningham is the Managing Editor for Property Management Insider.

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Is The Landlord At Fault?

Is The Landlord At Fault?By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA I enjoyed philosophy classes in college. I enjoyed thinking about such questions, as: If a tree falls in the forest and no one hears it, does it make a sound? I enjoyed even more Bart Simpson's reply to the question: What is the sound of one hand clapping? (He immediately held up his one hand and patted his fingers against his palm, making a muted clapping sound). My enjoyment of these questions has found a natural outlet in the law. The law ostensibly provides you with an answer, whether it be found in a book, or in a code section, or recommended by experts. So it is one of those questions today that is our focus: If a tenant hurts himself in an apartment and the landlord did not know about the condition which caused the injury, was the landlord at fault? As is always the case, the answer in law is perfectly clear: it depends. There is a duty to inspect premises when the property is given to the tenant. Landlords are in the best position to assess the relative safety of the property before the tenant takes control, so they should inspect and repair as needed. The inspection should comport with general negligence principles – i.e. be "reasonable" and make it "reasonably safe." * Yes, but how do we know if it is reasonable? Well that answer is clear and simple and straightforward: it depends. It depends on the......
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Operational Due Diligence - Investigate Your Critical Factors

Due diligence being conducted prior to your offer to purchase a rent roll By Jo-Anne Oliveri, ireviloution intelligence, Brisbane, Australia I’m sure you are beginning to understand the vital importance of an operational due diligence being conducted prior to your offer to purchase a rent roll becoming unconditional. Once that contract is unconditional you are bound to proceed with the purchase regardless of how inferior the business is that you are purchasing. Yes, I understand that in most purchases there is a retention period, usually three months (again, this is a time period I do not agree with) whereby you have the opportunity to not pay for any managements that you may lose in this period. But, under normal rent roll contracts it’s fairly standard that a percentage of the purchase amount is usually withheld in a solicitor’s trust account and is released when the retention period has expired. Some agents believe this period is their safe guard. Well, I’m here to tell you that you must not be lulled into a false sense of security and, with that said, I feel another article is worthy of this subject. This post focuses on what I refer to as the “critical factors” that need to be investigated when conducting an operational due diligence. These critical factors are: Average management fee Average distance to property ratio Average weekly rent Management splits (percentage of houses and apartments) Number of owners against properties under management and how many are multi owners (including details of each owner’s actual number of properties) Percentage of fixed term leases Monthly disbursement methods......
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5 Multifamily Marketing/Tech Models in Trouble

5 Multifamily Marketing/Tech Models in TroubleLast week Blackberry/RIM and Best Buy were two businesses that went on a list of dying companies.  It's often hard to predict what the future holds, and we have a tendency to get tunnel vision when it comes to our own businesses.  It's unfortunate these companies have found themselves to be in dire straights, but for me I look at situations like this as an opportunity to reflect on my own business and industry. What may look like a solid model today, may not be tomorrow.  With that, I'd like to share my list of five multifamily marketing/tech models that may be in trouble. 1. The ILS - I've actually been known to say that the ILS is an absurd marketing idea.  While I may have been trying to generate some controversy with that statement nearly 3 years ago, it's interesting to think today I actually believe the ILS model is in trouble a bit.  At least the way the big players look today.  If you look at Apartments.com, ApartmentGuide.com, ForRent.com, Rent.com, Move.com, etc., you'll find their models really haven't changed much since they started.  However, the way people search online is changing.  We may see a few fall off over the next 5 years if they don't evolve in an aggressive way. 2. Pay Per Lease Marketing Model - As tracking becomes more sophisticated we're finding (and concluding) renters are using more than one source to find an apartment.  Is it fair to give all the credit to a single source and pay them a......
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The History of the Fair Housing Act

Lyndon Baines Johnson signing Civil Rights Bill, including Fair Housing Act, April 11, 1968The month of April is designated as Fair Housing Month, to commemorate Congress passing the Civil Rights Act of 1968, which includes the Fair Housing Act. The multifamily industry knows the importance of complying with Fair Housing rules, spending considerable time, resources, and money to ensure compliance across all aspects of rental housing. Yet, few may realize that the Fair Housing Act (FHA) fought an uphill battle before being passed and that the early days of the Department of Housing and Urban Development (HUD) were not without controversy. Both overcame numerous hurdles in the civil rights era of the 1960s to form the groundwork for today’s critically important multifamily housing policies that prohibit discrimination. The History of the Fair Housing Act The beginning of the FHA ultimately rests with the formation of HUD, a Cabinet-level agency created in 1965. President John F. Kennedy proposed the agency in 1961 to restructure U.S. housing policies that dated to the 1937 U.S. Housing Act, and waged battles with Republicans and Southern Democrats who opposed the formation of an agency. It wasn’t until after his assassination that Congress approved the plan. President Lyndon Johnson signed the bill to form HUD with Robert C. Weaver, the first African-American to be appointed to a Cabinet position, at the helm. A Harvard scholar and former vice chairman of the New York City Housing and Redevelopment Board, Weaver was administrator of the Housing and Home Finance Administration (HHFA). With HUD under way, the administration sought a law that w......
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If It Is Broke, Don't Delegate

Landlord RepairBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Even after our little spigot fiasco, my father and I are speaking again. In fact, it did not take long. We both bonded over the fact that later that night, my wife and I walked out of the George Clooney movie, the Descendants. My wife and I both were bored out of our minds and had little empathy for a guy who owned all of Hawaii. I mean, really? I'm supposed to feel sorry for this guy!? Dad, being generally anti-Hollywood applauded our decision to vacate the movie theater in favor of the bar next door. We got to talking, and we agreed that in the future, it would be best if I not ask him to do repairs on our house. It's not really something I should delegate to him. We decided on the McCarthy "non-delegable duty of repairs” rule - I must do my own repairs. By operation of law in California, a landlord also has a non-delegable duty regarding repairs. If the negligent – grossly negligent one might argue – repairs my father attempted were on a tenant's dwelling that I rented out, I still would be liable for any injuries it caused. So if the tenant got hurt from this negligent repair, they could still sue me. A landlord cannot escape liability for his repair duties by having someone else do the repairs. This duty to repair is "non-delegable." Thus when a landlord hires a plumber, or......
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If It Ain't Broke . . .

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Well, hello there and happy 2012 to you all. It has been a little bit of time since we have had a chance to chat. I will beg your forgiveness for being pre-occupied with year end duties, and a jury trial in Visalia, California that preoccupied my time and has prevented me from indulging in the blogging world. Now that I am able to focus, I want to talk to you about every one's favorite topic – repairs – from everyone's favorite perspective – a lawyer. But before I do, I'll share with you how I spent my New Year's Eve. It's a story that pretty much exemplifies why it is important to have a good handyman at your disposal. And why it is important that you not rely on your father to do repairs at your home or your leased property. As is the case with a lot of you, my parents came to see their grandchildren for Christmas. They did not come to see me or my lovely wife. They wanted to see my kids while they are still cute, and say and do precious things. I recognize this and accept it. My little brother will soon benefit from this phenomenon. For the first time, my parents will actually go to see him in the cesspool (I mean lovely city) that is Los Angeles*. As payback for this parental neglect, I frequently use the visits as the opportunity to......
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Painting Postcards; The Apartment Developer's Dilemma

I toured an apartment complex the other day and was asking tons of questions of my leasing agent (who knew that I was a developer and was just shopping their product). I am always struck by the wall that goes up when you ask demographic questions (I do get that that these young folks are taught to not even address these questions for fear of being hunted down by the crazy Fair Housing police). Unfortunately, as a developer, these are about the only questions that really concern me.   When choosing whether or not to undertake a $50M investment, understanding who the prospective renter is- is actually a critical part of my job. Of course there is always the basic demographic info that we get from our consultants:   Income breakdowns. Traffic counts. Local rent comparisons. Gender breakdowns. Blah, Blah, Blah…   But to best serve the community and position my leasing team for success, it’s all demographics and psychographics:   ·         What are the racial and sexual preference demographics in the area? ·         What kind of cars do they drive? Do they require regular or premium gasoline? ·         Do they wash the car themselves or use a service? ·         Do they drink beer and wine or alcohol? Which brands? How often? ·         Do they have their shirts dry cleaned? ·         What gym do they belong to? Do they go or just pay for the membership? ·         What TV shows do they watch? ·         Do they have or want to have children......
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Help! My Tenant Needs to Break Their Lease

By Salvatore Friscia, San Diego Premier Property Management, San Diego, CA It was just a few months ago when the tenants were in the office signing the one year lease agreement. The leasing agent followed the office procedures and made sure to review the lease terms and obligations prior to asking for binding signatures. Then with the swipe of a pen the property was considered off the market and occupied for the year. So, it can be somewhat frustrating when two months later you receive the dreaded call from the tenants stating that for some unforeseen reason they need to move out of the property earlier than expected, consequently breaking their lease agreement. As a property management expert, and owner of San Diego Premier Property Management, I’ve had the opportunity to prepare, execute, and negotiate lease agreements for the better part of a decade, and I can say with all honesty that this scenario happens on a regular basis to the most qualified of tenants. Whether the breach occurs one month or six months into the one year lease agreement it is important to understand that the lease agreement, and the terms agreed upon and signed by both parties constitute a legally binding contract that when breached can carry monetary and legal consequences toward the tenant. With that said, the situation doesn’t have to escalate to a legal issue since it can be mitigated to the benefit of both parties. If the lease has an opt out clause then advise the......
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