LegalMatch: Real Estate

Does The First Amendment Include The Right To Tattoo?

Most people don’t know the constitution by heart (sorry if I am breaking this to my fellow law nerds for the first time).  What the average American does know has to do with the more popular rights such as freedom of religion, free speech, and rights dealing with search and seizure. 

Perhaps the most popular constitutional amendment is the first amendment and the right to free speech.  From school classes to movies, issues dealing with free speech are popular and plenty, partly because of the wide range of speech and communication that the first amendment protects.  Speech is protected at various levels depending on the nature and context of the speech communicated. 

There are basically nine categories of unprotected speech: obscenity, fighting words, defamation, child pornography, perjury, blackmail, incitement to commit imminent lawless action, true threats, and incitement to commit crimes. 

A new speech-related issue is taking shape in the context of a tattoo parlor in Hermosa Beach, California. Johnny Anderson is a 33 year old tattoo artist that is bringing a first amendment claim against the city because it has a ban on tattooing based on public safety and welfare concerns. More specifically, the city contends that, tattooing poses health risks, creates “aesthetic concerns,” and would impose a financial burden on the city to provide adequate inspection and regulation. Anderson was hoping to relocate his tattoo parlor to the affluent beach city to attract more customers and increase his clientele.

After losing in his initial claim, Anderson is taking his case to the 9th Circuit to review whether such a ban violates his first amendment right to free speech.  Anderson claims that his custom-deigned tattoos are a form of constitutionally protected art and that his work expresses an individuals beliefs, emotions, and loyalties—all things that have been recognized as protected speech.

Although the language of the first amendment refers specifically to the freedoms of speech (and the press), it in fact encompasses a wide range of expressions beyond the spoken word. Art forms — including plays, music, dance, film, literature, poetry and the visual arts, enjoy liberal first amendment protections and it is under this thread of protection that Anderson is arguing a tattoo parlor should enjoy the same liberties.

LegalMatch has listed some reasons why the protection of free speech, in its many forms, is so important:

* Encourages self-governance

* Promotes societal tolerance and self-restraint

* Helps ensure that government officials do not abuse their power

* Helps develop moral virtue

This should be a very interesting case to follow as approximately 16% of Americans have a tattoo.  I think that Anderson has a good case here. The right to free speech is an essential ingredient to any civilized and healthy society.  Tattoos are art, and they are a form of expression that typically enjoys protection of in other media forms.  They have become increasingly more mainstream in recent times and to ban them altogether in Hermosa Beach seems like an overly broad city ordinance.  Although Anderson is providing a service (an unprotected form of speech) in a sense, it is his design and his speech coming together with the ideas of his customers.  

By: Violet Petran

Weight Watchers Meeting Collapse May Lead to Landlord Liability

I know it is the new year and losing weight and getting in shape is always a popular resolution (it happens to be my resolution for the past 10 years running) but if you are looking for an excuse...here’s one of the best ones out there—the floor literally collapsed at a recent Weight Watchers meeting. Who knew dieting could be so dangerous!!! The good news is, all of the dieters escaped uninjured and managed to move the scales to the corridor, which was not damaged in the accident, and were able to complete their weekly weigh in. Phew!

Whenever events like this happen my mind automatically goes to liability. Specifically, even if this is a freak accident, who is responsible for the damages? Although, I am not sure of the specific liability for the weight watchers case, generally the landlord (or owner) or the premise is responsible for damages relating to the structure of the property, the fixtures, and other relatively permanent elements of the property are considered to be under the landlord's control, and the landlord will probably be liable if they cause hazardous conditions that cause injury or loss. This liability applies even if the landlord did not specifically know of the structural issues.

Landlords are typically not responsible for the elements of the property that are under the leaser's control, such as the furniture, store shelving, and general non-structural maintenance, like keeping the floor free of debris. It’s easy to see how there is a lot of grey area between the two, which explains the high rate of landlord/tenant litigation in the area of commercial and residential leases.

A recent LegalMatch study revealed a high level of inquiries both on the plaintiff and defendant sides for residential and commercial liability. When renting properties, either on the landlord or tenant side, I think it is wise to invest in insurance. Renters insurance is very easy to get and relatively cheap. Landlord insurance is essential as there will always be issues when you are renting your premises to other people. In the end, the old motto, “better safe than sorry” is the best way to approach situations such as these!

Commercial Real Estate Meets Supply and Demand

With the housing crisis seemingly under control, everyone can sit back, relax, and watch our fragile economy come back to fruition, right?  Well, not quite.  Though the program is designed to help those in the greatest need keep or buy a new home, people are still cautious and with good reason.  Like monkeys being tested in a lab, if you’re constantly electrocuted every time you reach for that proverbial food pellet, chances are the next time one drops you’d probably cower in the corner. 

 

And that’s what a lot of people are doing, so to speak anyway.  You’d think with all the economic stimulation going on, someone would be spending money.  It’s really the opposite.  The average amount of money stocked away in savings accounts has increased by 5 percent in the last three months alone.  Not to mention the great new trend of short-selling (when a homeowner sells their home for below what they owe on their mortgage).  Why would anyone in their right mind do that?  Because paying back $50,000 is a lot more manageable then trying to scrap together enough money each month to pay off a $500,000 mortgage.  In other words, their house is already in negative equity and the homeowner is trying to cut their losses by selling before they become homeless.

 

But at the same time, all this scrimping and saving is helping the average American get back on their feet.  The only thing it’s not helping is the economy and of course the commercial real estate market.  Unless your head’s been under a rock the past few months, you’re probably already aware of the impending commercial property crisis.  The crisis can be attributed to many factors, such as the crackdown on loans and lines of credit from banks – a theory most notably popularized by analysts and pundits alike.  But to a larger extent, it seems an even bigger factor in bringing the commercial real estate industry to its knees is the aforementioned scrimping and savings.

 

Anyone who has taken a basic economics course will be familiar with the principle of supply and demand.  As long as there are consumers who want a product or service, the industry that provides that product or service will survive and thrive.  But once those consumers are gone then the industries will go down.  And what also happens when industries fall, the office buildings and storage warehouses they once owned or rented will also no longer be needed.  Why have a 10,000 square foot warehouse to store all those Now! CDs if no one is buying them; furthermore why risk loaning money to those purveyors of that fine compilation CD?  To me, the crisis can be solved by a simple injection of consumer confidence.  As they say, if you build it they will come?

 

So what does all this mean for Joe Schmoe?  Well it’s great for the American public.  We’ll keep getting cheap deals on flat-screen TVs and cars as long as big industry is in the hole.  It may sound a little schadenfreude, but hey, with all that money you’re saving you can keep from getting foreclosed on in style.  Or just spend it all on a good bankruptcy attorney.  Whichever is easier.

Cutting Income Tax with Property Exchange.

Income tax can mount up quickly—especially if you own multiple investment properties. And when you start selling old properties and acquiring new properties, the chunk of cash that comes out of your “profit” and goes to taxes can end up severely crippling your purchasing power.

But if you own investment property and want to shake off irksome income tax, it would be wise to consider a 1031 exchange (also known as a Like-Kind exchange). A 1031 exchange allows you to “exchange” an investment property for a replacement property—so long as the replacement property carries a greater (or equal) level of debt than the previous property. 

This means, simply: if you plan on trading up and exchanging one of your current properties for one with a higher value (generally a more expensive or larger property), you can proceed as if you were exchanging the properties instead of selling one and buying the other. It’s because of this that like-kind exchanges allow you to avoid paying any income tax on the sale of your initial property.

 

 Complicated?

Somewhat-- especially if you factor in “boot” (taxable property gain). But figuring out if you qualify for a 1031 exchange can salvage up to 30% of your purchasing power—money that would otherwise be paid to the government as tax. Getting in touch with a property exchange lawyer can put you on the right track to saving hundreds or even thousands of dollars in income taxes. Check with an attorney before you sell investment property, and figure out how you can save money on real estate.

 

 By Kate Beall