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How much is multifamily data worth?

How much is multifamily data worth?
REALITY CHECK The multifamily housing industry is sitting on a goldmine of information that hackers would like to steal. Personally identifiable information (PII) includes name, address, date of birth, phone number, email address, Social Security Number, bank account info, credit card number, and other types of sensitive data that we collect on tenants. On the Dark Web -- the place on the Internet where people can browse anonymously to sites that deal in contraband such as illicit drugs, child pornography, and stolen credit cards -- the average estimated price for stolen credit and debit cards ranges from $5 to $30 in the United States. Bank login credentials for a $2,200 balance bank account sell for $190. (Source: BGR) Thieves can use stolen identities to open credit card accounts, file false tax returns, create fake credentials, or even get medical treatment on the victim’s health insurance. You also need to be aware that attackers are after your company's intellectual property, financials, employee PII, bids/proposals, and other company sensitive data. It's much easier, for example, to steal your research, than it is to conduct my own. And you don't have to be a Home Deport or Target to be a, well, target. I just hung up the phone with a client who was being hit with both ransomware (malicious software that encrypts all your data files and demands a ransom) and a denial-of-service attack (massive amounts of network traffic directed at his site to make it unavailable to customers), and he wondered aloud why they would g......
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Too Late to Terminate?

As HR professionals we get two common calls about the timing of termination decisions: Manager calls Human Resources from the field and asks, "Can I terminate this employee? He is driving me crazy, calling in all the time, and messing up my schedule."  HR proceeds to ask questions about the employee's performance, documented feedback, potential liability, etc. Eventually, the manager confesses, "Actually, I already termed the employee, and I was hoping you'd say it was okay." Manager calls HR and says, " Can I terminate this associate? She is out on Family Medical Leave because she just had a baby, but we think she's been doing a terrible job." In the first scenario, what's done is done. Hindsight suggests that managers should consult with HR prior to making termination decisions for several reasons: The manager might not know the employment history that HR has in the file; The manager might not know the precedents set by previous decisions, policies, and exceptions; and The manager might not be aware of the potential liability created by testing recent case law. In the second situation, the employee is on federally protected leave, and that's not a good time to terminate.  HR's back office rant following this call goes like this, "Why didn't the manager coach the employee when she started to suspect her? Why didn't the manager investigate, warn or suspend the employee before now? Why is this the first we're hearing of this?" Bottom line for managers: Your job is much more enjoyable and results......
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The Royal Society for Putting Things on Top of Other Things

Horseback RidersBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA From time to time, a property owner or possessor will give permission to others to use or rent out parts of her property and put things on it. A soda machine, a vending machine, a gas line, or even a pipe trestle. Those who use that land in this manner have a duty of care to third parties to prevent injury. The same duty that the possessor has. Here is a fun fact pattern. The land possessor runs a horse farm. He rents out horses to be ridden on the property. A customer asks for a mild horse. The land possessor gives the customer what he believes to be a mild horse. The customer takes said horse out for a ride. Said horse is not mild. Said horse goes where it wants to go and takes the customer along with him. Injury ensues: "Plaintiff and his wife rode under the trestle along the indicated road, with plaintiff's horse in the lead. After proceeding about 400 feet to the north at a walk, plaintiff turned his head to the left and called to his wife. As he made this movement, plaintiff's horse suddenly reeled about to the left and began racing back on the road toward the trestle, gaining speed as it went. Plaintiff attempted in vain to control or stop the horse by pulling back on the reins as hard as he could with both hands, but the horse kept going......
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The Janitor Did It

JanitorBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA "The childish propensity to intermeddle was the characteristic which the [property possessor] should have taken reasonable precautions to guard against."* Sometimes the courts come up with lyrical gems that get right to the heart of the matter. Through pages and pages of drivel, more often than not there is one pithy sentence which sums up the whole case and rule. I often wonder why the esteemed appellate justices do not just give us the facts of the case and the one pithy sentence. The books would be a lot smaller and cases a lot clearer.** The above quote comes from a case which held both a tenant and the janitor the tenant retained liable for personal injuries to a three-year-old. The proof was that the tenant was in charge of a school. The tenant also, in the same building, housed families. (It was a hotel, and the tenant was the United States Navy). The tenant retained a janitorial service to clean said school on the weekends. Said janitorial service did so. Sometimes, they would stack the furniture -- desks and chairs -- in a pile. (To make cleaning the floor easier?) One weekend, a child was present in the school. Not a stretch, considering the building also contained living quarters. He climbed up on the furniture pile and promptly fell out the window. From the fourth floor. The case had a lot to do with outdated and inapplicable classifications of the child ......
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Serve But Be Insured

InsuranceBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA One of my practice areas is insurance coverage work. I represent people and help businesses work out issues with insurance companies regarding whether a particular lawsuit, loss, or claim is covered by insurance. For many people and businesses, insurance is a must and coverage is a matter of everyday life and business practice. Drive a car, get insurance. Own a home, get homeowners insurance. Run a business, purchase a CGL policy. Get business interruption coverage. A gray area is when we are not quite acting as a person or a business. We are volunteering. We are working selflessly for others. For the common good. Sometimes we are paid. Sometimes we are not. The soccer league, church council, and the HOA cannot get along without us. There are important decisions to be made for the soccer league, for the church, and for the condominium complex. But those decisions have implications! People are affected by them. People are denied permission to do things. The HOA must act if it has information. If the collective “it” of the HOA knows of a dangerous condition, act it must, as we know. But what if only some of the directors are aware of the dangerous conditions? What if that director or directors do nothing? And what if someone gets hurt? He gets sued! And he could, in California, be personally liable for not acting on that knowledge. Yes, personally liable, separate and apart from the HOA ent......
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United We Stand, Separate Interests We Sue?

HOABy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Continuing my theme of misquoted quotes and special rules for HOAs, let's talk about the individual unit owners. The HOA can be sued for issues in the common areas that lead to injuries or damage. What about the person who owns the unit near the common area? Doesn't he also -- as a tenant in common of the condominium project -- own an interest in that common area? Can he be sued as well? Ordinary principals of duty would suggest he could be. Take the prior case example about the unit owner that installs lights as an additional security measure to ward off crime she knows is happening near her unit. What if she knew about that burgeoning crime and did not take action? One factor mitigates attaching liability and it is the one that got the HOA in trouble in that case. We know it, right people? Control. In most cases, the owner of the "separate interest" -- i.e., the adjoining unit -- is not allowed to put anything in the common area. This is true even though the unit owner technically owns a piece of the common area by virtue of her ownership of the individual unit. This unit owner tried to effect a security measure in the common area and was rebuked by the HOA and one of its members. So it seems likely on that basis for the unit owner not to be sued. (There it was, the ......
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Condominiums, Covenants, and Restrictions

Common AreaBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Everyone has their own story or has heard the stories. Those living in condominium complexes cannot so much as hang a Christmas decoration outside their unit without the blessing of the HOA or the CCRs. Everything outside the four interior walls is the condo owner's and everything outside is a "common area." The ins and outs of who can do what and who is responsible for what is subject to precise analysis of the CCRs and HOA established rules and regulations for each particular complex. But the general gist is that the HOA will be responsible for maintaining the common areas and the owner for maintaining his unit. What if an injury arises from lack of maintenance of the common area? Or the owner is not given permission to install, maintain, or repair something which, by doing, he thinks will prevent injury. The question thus arises after the inevitable injury: Who is responsible for that injury? In California, under such circumstances, the HOA "is, for all practical purposes, the Project's 'landlord.'"* In one case, a condominium project was beset by a crime wave. There was crime after crime. One condominium owner wanted to install a light near his unit to help prevent crimes from occurring there. The HOA denied him permission, citing the CCRs, which did not allow individual unit owners to install security apparatus. The HOA also argued that it was constrained by budget and majority membership approval of improving the ......
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Danger in the Basement? Rent It Out

Scary BasementBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA So in American Horror Story, after some certain traumatic events occur and the building's history is uncovered, the protagonists STILL don't move out of the house. The writers are nuanced enough to know that the audience will ask the question "Why do they not move out now?" So they actually attack this head on. Money problems prevent both an immediate move-out and obstruct a potential sale. So because I like to think I am still more nuanced than the newly nuanced writers, I counter with: "Why don't you just rent the place out?" Somebody could move in and you could get paid for it. Not only will you get paid rent, you will also be removed from liability for injuries to third parties entering on the premises, the thinking goes. Well, the first part would be true. The second part -- non-liability of an owner not in possession -- is not as clear. We know from our previous entries that possession and control are big factors in imposing liability. An absent landlord is not necessarily in possession, and may or may not have control. The law we know trends to basic duty of care obligations. The out-of-possession owner must act as a reasonably prudent person in similar circumstances. They have to do those things that they can do to prevent injury, such as inspect the premises as permitted by the lease or between renters. You may be relieved while out of possession if there wa......
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Don't Look Under the Gazebo!

GazeboBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA So let's talk American Horror Story and the liability of prior owners for dangerous conditions. Our favorite fun subjects, right? Before things got too silly, there's an episode where [spoiler alert] somebody dies and gets buried under the gazebo. This being a horror show, the victim is not content stay under the gazebo. Said victim gets out and causes all sorts of mayhem, including injuries and some pretty serious property damage. Would you stop throwing stuff around? If you, dear reader, saw a great investment opportunity in this property and bought it nonetheless, would you be liable for this victim's subsequent mayhem on your tenants? OK, well, let's put it in slightly more realistic terms. Let's say you build a nice fish pond in your back yard, because you like Japanese carp. You get that promotion and transfer across the country and away you go.  You sell the property to Mrs. Investor, who is most definitely going to rent it out. She does, and the new family moves in and their toddler drowns in the pond. Are you, dear reader -- seller -- liable for that wrongful death claim? Come on -- you know the answer. What were we discussing all last year? Control. Once you sell the property, do you have the ability to go back in and warn the new tenant about the pond? Can you remove it? You think the new owner would like you going on the ......
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An Exciting 2013 Awaits

James Bond BarrelBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA I saw and liked the latest James Bond flick. I say latest and not "new" because I realize it was released last year and by now everyone is discussing Django Unchained. I will be ready to discuss that film in six months, when I have time to see it. Skyfall was good, but something about it bugged me. In discussing it with my brother and reading some reviews after the fact, it occurred to me: it wasn't any fun. It was so serious! Who wants to see a drunk, depressed James Bond? Not me. He didn't even say "Shaken, not stirred." They just showed the bartender shaking the martini. Fellow blog persons, as we look back at 2012, I hope I avoided Skyfall syndrome. This should be fun. Even though we discussed some serious stuff, hopefully we had fun. We have pretty thoroughly discussed the types of situations that can lead to landlord liability for injuries or damages to others, and the circumstances for attaching liability. It's all about notice, control, and the opportunity to correct people. Having thoroughly flogged that horse to death, we're going to shift gears and start talking about issues to look for in defending against such actions. There are (as usual) three main areas we're going to look at. See? This is fun! First, we'll delve into some detail about which persons or entities are the "landlord" for purposes of imposing liability. Is it the owner,......
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