Category Archives: Arizona Real Estate

First American Title/Financial Corp. May Have Leaked 885 Million Customer Records

Title company faces class action lawsuit for its apparent negligence

By Jeff Sorg, OnlineEd Blog

(May 29, 2019)

A class-action lawsuit is already filed in California after Brian Krebs, a cybersecurity expert, reported 885 million First American files were available without authentication to anyone with a web browser. The data allegedly included bank account numbers, social security numbers, and financial and tax records.

First American was ultimately notified by Brian Krebs of KrebsOnSecurity, who was contacted by a real estate developer in Washington state who said he’d had little luck getting a response from the company when told by him that a portion of its Web site (firstam.com) was leaking tens if not hundreds of millions of records. He said anyone who knew the URL for a valid document at the Web site could view other documents just by modifying a single digit in the link. Brian Krebs posted on his web site, “KrebsOnSecurity confirmed the real estate developer’s findings, which indicate that First American’s Web site exposed approximately 885 million files, the earliest dating back more than 16 years. No authentication was required to read the documents.” *

In their complaint**, Gibbs Law Group alleges, “First American made it incredibly easy for the public to access this private information by failing to implement even rudimentary security measures. Suppose that you are a First American customer. The company provides you with a URL to access your documents on its website. That URL might end in “DocumentID= 000000075.” Now suppose you want to access someone else’s personal file. Type the same URL but alter the Document ID number by one digit—say, “DocumentID=000000076”—and someone else’s personal file will appear. Change the numbers again (and again), and you will reveal still more personal files.”

* Read the entire Brian Krebs posting available on his website here: https://krebsonsecurity.com/2019/05/first-american-financial-corp-leaked-hundreds-of-millions-of-title-insurance-records/

** Class action lawsuit Gritz v. First American Financial Corp., 19-cv-01009, U.S. District Court, Central District of California (Santa Ana).

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark.

National Association of REALTORS® Moves to Dismiss Price-Fixing Lawsuit

Class action lawsuit claims real estate broker franchisors and National Association of Realtors conspire to require home sellers to pay buyer broker fees

By Jeff Sorg, OnlineEd Blog

(May 23, 2019)

CHICAGO (May 18, 2019) – The National Association of REALTORS® (NAR) moved to dismiss the Moehrl v. NAR lawsuit on the basis that the complaint misrepresents NAR rules for the operation of Multiple Listing Services (MLSs), which have long been recognized by the courts across the country as protecting consumers and creating competitive, efficient markets that benefit home buyers and sellers. The filing was made in federal court in Chicago.

“In today’s complex real estate environment, REALTORS® and Multiple Listing Services promote a pro-consumer, pro-competitive market for home buyers and sellers, contrary to the baseless claims of these class action attorneys,” said John Smaby, President of NAR. “Our filing today shows the lawsuit is wrong on the facts, wrong on the economics and wrong on the law.”

NAR’s brief points out that, as the centerpiece of their case, the seven class action law firms who represent one plaintiff have resorted to fundamentally mischaracterizing NAR’s rules. That mischaracterization, according to the NAR’s filing, led the class action attorneys to “dream up” purportedly anticompetitive rules that simply do not exist in NAR’s Handbook or Code of Ethics. In reality, NAR rules specifically direct listing brokers to determine – in consultation with their clients – the amount of compensation to offer buyers’ brokers in connection with their MLS listings. Furthermore, under NAR rules, a buyer’s broker is free to negotiate a commission from the listing broker that is different from what appears in the MLS listing. Neither NAR nor any MLS has any say in setting broker commissions.

Ultimately, these rules create a system of highly competitive markets where consumers receive superior service.

Beyond misreading the facts, NAR’s filing to dismiss demonstrates the shaky legal grounds of the plaintiff’s case, pointing out that the lawsuit disregards legal precedents that have upheld the pro-competitive benefits represented by the MLS system. For example, past court rulings have noted that NAR rules provide a more transparent marketplace, and encourage REALTORS® to share listing information and cooperate in the sale of real estate.

In fact, when considering the structure of commission payments, NAR’s filing notes that listing brokers’ offers of commission to buyers’ brokers on MLSs has been shown to actually increase the number of potential buyers. “When a seller elects to permit their brokers to pay compensation to the buyer’s broker, it frees up buyer cash thereby potentially increasing the number of buyers able to bid for that home and the amount of funds available for the purchase price,” the filing states.

“The MLS system is designed to create competitive markets to facilitate the sale of residential property in a way that benefits both buyers and sellers,” said Smaby.

Contrary to the career class action attorneys’ manufactured rules and claims, the plaintiff’s transaction was subject to the same rules as all transactions facilitated via an MLS: commissions are agreed upon up front by the seller and listing broker – independent of NAR – and commissions are negotiable. These rules have been proven to promote competition and ensure that brokers act in the best interests of their clients.

On the basis of these fundamental arguments that refute the plaintiff’s allegations and reading of legal precedent, as well as a failure to demonstrate harm, NAR is seeking to dismiss the lawsuit “with prejudice.”

[Source – NAR Press Release]

DEFENDANT: The National Association of Realtors, Realogy Holdings Corp., HomeServices of America Inc., RE/MAX Holdings Inc., Keller Williams Realty Inc.
CASE NUMBER: 1:19-cv-01610
COURT: U.S. District Court for the Northern District of Illinois

The National Association of REALTORS® is America’s largest trade association, representing more than 1.3 million members involved in all aspects of the residential and commercial real estate industries

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

About Those Arizona Bed Bugs

Highlights from Arizona Senate Bill 1306 (2011)

By Jeff Sorg, OnlineEd Blog

(April 30, 2019)

(OnlineEd) – Arizona Senate Bill 1306, passed in 2001, assigns specific responsibilities for bedbug control to landlord and tenants of multifamily housing.

Landlord Responsibilities:

  • Keep the dwelling unit free of a bedbug infestation
  • Provide tenants with a copy of the landlord’s responsibilities as outlined in SB 1306 on commencement of each lease
  • Provide educational materials to tenants, including:
    • Measures to prevent and control bedbugs.
    • General information about bedbugs and a description of their appearance.
    • Information about risk factors for attracting bedbugs such as:
      • used or discarded mattresses;
      • used or leased furniture;
      • pre-owned clothing; and
      • traveling without precautions to prevent transferring bedbugs back to the dwelling.
    • Information provided by the US Centers for Disease Control and Prevention and other Federal, State or Local health agencies.
    • Information provided by nonprofit housing organizations.
  • The landlord cannot enter into a lease with a tenant for a dwelling that has a known bed bug infestation.
  • Within seven business days after receipt of a written or electronic notice of a possible bedbug infestation from a tenant, the landlord or their licensed pest control operator shall visually inspect the unit for bedbugs and within seven business days after finding evidence of an infestation, the landlord will start a mitigation process in the unit.
  • Unless the landlord is a licensed applicator, the landlord shall not use any pest control techniques that constitute mitigation and shall use a pest control applicator who is licensed according to Title 32, Chapter 22.
  • The landlord will provide the tenant with written notice of the bedbug mitigation treatment protocol at least three business days before the initial treatment. Notice shall be deemed received by the tenant on the date the notice is personally delivered or mailed first class.
  • Unless otherwise provided in this section, the landlord is responsible for the bedbug mitigation expenses for the dwelling unit and any surrounding units that are infested.

Tenant Responsibilities:

  • The tenant shall maintain the dwelling unit free of an infestation of bedbugs.
  • The tenant shall not move materials into a dwelling that are infested with bedbugs.
  • A tenant who knows of the presence of bedbugs will provide the landlord written or electronic notification within three business days of discovering the presence of bedbugs. Notice provided by the tenant constitutes permission to the landlord to enter the dwelling for the sole purpose of inspecting for or mitigation of the bedbugs.
  • After receiving notice from the landlord of a bedbug inspection or mitigation, the tenant shall allow the landlord and the landlord’s licensed pest control applicator access to the dwelling.
  • The tenant shall comply with the bedbug mitigation protocol established by the licensed applicator, which may include pretreatment activities, temporary evacuation of the dwelling, posttreatment operations and an obligation to report the ineffective treatment or reinfestation to the landlord within three business days.
  • The tenant shall not apply or allow any unlicensed person to apply any bedbug control techniques that constitute mitigation.

If a landlord fails to inspect and, if necessary, mitigate an infestation, the tenant can give written notice to the landlord of the tenant’s intention to correct the condition, at the landlord’s expense. If the landlord fails to correct within ten days after being notified, the tenant can order the work to be done by a licensed pest control applicator, submit to the landlord an itemized statement for the pest control services and deduct from any rent due the actual and reasonable cost of the pest control treatment not to exceed five hundred dollars or one-half of the monthly rent, whichever is greater. If the tenant fails to comply with any of their obligations, the tenant may be held financially responsible for bedbug mitigation expenses for the dwelling and surrounding units that are also infested.

This law is for multi-family units. Landlords and tenants of single-family units are advised to work out their own agreement before when negotiating their agreements.

For additional information, please see the entire text of Arizona Senate Bill 1306.

 

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party or cited documents when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

All About Easements: The Easement in Gross

The easement in gross gives the owner of the easement the right to use real property for a particular purpose

By Jeff Sorg, OnlineEd Blog

(April 9, 2019)

(PORTLAND, Ore.) OnlineEd – The easement in gross gives the owner of the easement the right to use real property for a particular purpose. An easement in gross does not attach to or benefit a parcel of land and is usually created for the benefit of a legal person such as a utility company or railroad. The important characteristic of an easement in gross is that it gives the limited right to use another’s land and it is not created for the benefit of any land owned by the owner of the easement.

The land over which the easement in gross crosses is burdened by the easement and is known as the servient tenement. Since the easement right is personal and does not benefit another parcel of land, there is no dominant tenement.

Most easements in gross are for commercial purposes, are not revocable, (the servient tenement landowner cannot revoke the easement), and can be assigned to another legal entity. Some common examples of easements in gross are sewer lines, gas lines, electric lines, cable lines, etc.

Commercial easements in gross provide for the right to cross a property with the physical cable, pipe, power line or the like, as well as the right to re-enter the property after the initial installation to perform maintenance, repairs, and updates.

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

All About Easements: The Easement Appurtenant

An easement appurtenant gives a property owner a right of usage to portions of an adjoining property

By Jeff Sorg, OnlineEd Blog

(April 5, 2019)

(PORTLAND, Ore.) OnlineEd – An easement appurtenant gives a property owner a right of usage to portions of an adjoining property owned by another party. Stated another way, an easement appurtenant is an easement over one parcel that benefits another parcel of land. The property benefiting from the usage right to travel over the easement is called the dominant tenement, or dominant estate. It is called the dominant estate because it is the parcel of real property that has an easement over another piece of property – it dominates. The property that includes the physical easement, that is, the land over which the dominant tenement can travel, is called the servient tenement since it must serve the dominant estate by providing the easement for its use.

The term appurtenant means “attaching to.” An easement appurtenant, then, attaches to the estate and transfers with it unless expressly stated otherwise. More specifically, the easement attaches as a beneficial interest to the dominant estate, and as an encumbrance to the servient estate. Accordingly, the easement appurtenant becomes part of the dominant estate’s bundle of rights and an obligation or encumbrance of the servient estate.

Transfer. Easement appurtenant rights and obligations automatically transfer with the properties, either the dominant or servient estate, whether or not mentioned in the deed.

Non-exclusive use. Both the servient tenement and dominant tenement can use the easement, provided the servient’s usage does not unreasonably obstruct the dominant’s use.


The exhibit shows a conventional easement appurtenant. The driveway marked A belongs to Parcel #2. An easement appurtenant, marked B on the diagram, allows Parcel #3 to use #2’s driveway. Parcel #3 is the dominant tenement, and Parcel #2 is the servient tenement.

Easement by necessity. An easement by necessity is an easement appurtenant legally granted by a court to a property owner because of necessity. Usually, the necessary condition that precipitates the granting of the easement is the need to provide ingress and egress to a property. Ingress means a way to travel into the property, and egress means a way to travel out of the property. Since a property cannot be landlocked and must have access to a public thoroughfare, the court will grant an owner of a landlocked property an easement by necessity over an adjoining property that already has access to a thoroughfare. When this is the case, the landlocked party becomes the dominant tenement, and the land over which the easement is granted is called the servient tenement. In the exhibit, Parcel #1, which is landlocked, owns an easement by necessity, C, across Parcel #2.

Party wall easement. A party wall is a common wall shared by two separate structures along a property boundary. Party wall agreements generally provide for severalty ownership of half of the wall by each owner, or at least some fraction of the width of the wall. Ownership in severalty means individual ownership; ownership is “severed” from all others. Also, the agreement grants a negative easement appurtenant to each owner against the other owner’s wall. A negative easement gives each party the right to restrain or control the use of the other party’s use in some way, such as unlimited use of the wall or a destructive use that would jeopardize the adjacent property owner’s building. The party wall easement also establishes responsibilities and obligations for the maintenance and repair of the wall.

Other structures that are subject to party agreements are common fences, driveways, and walkways. Common means they are shared between the properties – they are of common or shared ownership and on the property line between the affected properties.

++ Remember: A negative easement appurtenant does not allow the owner of the dominant estate to cross over the servient estate. Instead, the dominant estate has the right to restrict some activity or use of the servient estate.

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A negative easement appurtenant does not allow the owner of the dominant estate to cross over the servient estate. Instead, the dominant estate has the right to restrict some activity or use of the servient estate. Example: Developer Jovan purchased a tract of land abutting Oceanfront Lake and divided it into two parcels. Lot A is on the shoreline, and Lot B is farther back from the shore. Lot B has a good view of the lake because it is situated on higher ground that overlooks Lot A, but it is located behind Lot A and could be lost if Lot A builds a two-story house. Because Jovan wants the best price for each parcel, the view of the lake from Lot B is protected by adding a deed restriction in Lot A’s deed to limit any structure built on Lot A to a single story.

In the example above, the owner of Lot B is the owner of a negative easement appurtenant. The dominant estate, Lot B, can prohibit specific activity on Lot A, the servient estate, that could block or restrict the view of the lake. In this situation, Lot B’s owner does not have an affirmative easement appurtenant and cannot cross over the land of Lot A to reach the lake, since only the view is protected. Though not applicable to the above example, it is possible to have both an affirmative and negative easement at the same time. If an easement was created for access to the lake and to limit the height of any structure, then the owner of Lot B would have both negative and affirmative easements.

Easements appurtenant are created in these ways:

By grant or reservation – An easement created by grant or reservation is created by the express written agreement of the landowner. This is most frequently done in the deed but can be done in a separate recorded instrument. When done by grant, the owner of a property gives to someone else the easement right. When done by reservation, the owner of the property retains an easement on land conveyed to another. For example, you sell your property but keep the right to travel over the sold parcel to walk to the ocean.

By intent or necessity – The right to ingress (entry) and egress (exit) is required by law. Any property that is landlocked, meaning it has no ingress and egress, has these rights. A landlocked landowner has a right to an easement to cross the land of another to reach a public right-of-way. This type of easement available to a landlocked owner is called an easement by necessity and is outlined in Oregon Revised Statutes, specifically ORS 376. The servient estate in the easement by necessity may be entitled to compensation for the easement.

By prescription – An easement by prescription is the use of the land of another that meets these requirements;

  • Open and notorious (obvious to anyone);
  • Actual, continuous (uninterrupted for the entire required period);
  • Adverse to the rights of the true property owner;
  • Hostile (in opposition to the claim of another, not “hostile” in the ordinary sense); and
  • Continuous for a statutorily defined period (10 years in Oregon).

An easement by prescription gives the dominant tenant the right of use of the property, not ownership of the property.

By implication – An easement by implication arises out of the conduct of the parties. This means it is an implied easement, not a written easement. An easement by necessity is distinguished from an easement by implication in that the easement by necessity arises only when “strictly” necessary. In contrast, the easement by implication can occur when “reasonably” necessary. For example, the right lot owners have in a subdivision to use a roadway on the approved subdivision plan without requiring a specific grant or easement to each new lot.

By condemnation – The government’s right to use the land of an owner is created by the exercise of the government’s right of eminent domain. Eminent domain includes not only the right of the government to obtain an ownership interest in the property of a private owner; it also provides for the right of the government to create a use easement over the land of a private property owner to benefit the government-owned land. For example, the US Bureau of Land Management uses its power of eminent domain to create an easement of right of way over private property to access government-owned, but landlocked forestland.

Easements appurtenant can be terminated by one of these ways:

  • Release of the easement by the dominant owner
  • Merging the dominant and servient lands into one tract
  • Abandonment of the easement by the dominant owner
  • The reason the easement was created no longer exists
  • Expiration of the time for which the easement was given

©OnlineEd; All rights reserved.

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers, visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared, or otherwise republished.

OnlineEd® is a registered Trademark