Month: March 2014

Daredevils, Purple Paint, News Producers, and Jail

file00086047112Four men were arrested last week for BASE jumping off of One World Trade Center. Here’s video footage of the jump. (The action starts at 2:48. Consider this your foul language warning.) A 16-year-old boy decided to climb to the top of the building, too — apparently because he could and had nothing better to do.

More alerted to the unwanted appeal of the building to daredevils (and those with too much time on their hands), police arrested two CNN producers last week who thought it a good idea to try to enter the property, presumably in an effort to expose its security flaws. According to this article in the New York Times, the producers were confronted by a police officer who told them to stop, but they continued anyway and tried to gain entry further down the street by scaling a fence. There were also “No Trespass” signs posted.

A person commits criminal trespass in Texas if he or she enters or remains on or in property of another without effective consent and the person had notice that the entry was forbidden or received notice to depart but failed to do so. It follows, therefore, that a person doesn’t commit criminal trespass if he isn’t notified first that he isn’t supposed to be there.

There are different ways to provide advance notice that entry is forbidden in Texas. A fence obviously designed to exclude intruders is deemed to be sufficient advance notice. Posting signs reasonably likely to come to the attention of intruders, indicating that entry is forbidden, is sufficient advance notice. And placing vertical lines of purple paint at least eight inches tall and once inch wide at certain height and spatial intervals on trees and posts on the property is deemed to be sufficient advance notice.

I’m a huge extreme sports fan. I always have been. I’m not sure that the threat of arrest is enough to stop someone who wants to jump from 1,700 feet. In fact, the threat of arrest may actually buttress the thrill of the entire activity. Still, I don’t recommend breaking the law, getting arrested, or doing something objectively unreasonable. What right-minded person would?

In our In the News series, we use an article or topic that has been featured recently in the news as a potential learning opportunity.

The Lineup — General Cast of Characters on a Construction Project

I once knew someone in the import/export business. I knew him for a long time. I still didn’t know what exactly he did for a living until I had the chance one day to sit down and ask him 20-30 specific questions about it. If this sounds like an old Seinfeld episode to you, you’d be right.

If you aren’t employed or affiliated with the construction industry in some form or fashion, you may not be familiar with the usual cast of characters involved in construction and improvement projects. While the players can differ from project-to-project, there are five or six key players and positions:

Owner a/k/a Developer

  • owns the land or property being improved
  • may employ one or more Designers and one or more Original Contractors

Designers (Architect & Engineers)

  • directly contract with the Owner to design the improvements
  • may contract with the Owner to administer the construction contract between the Owner and the Original Contractor

Construction Lender

  • directly contracts with the Owner to fund the construction improvements

Original Contractor a/k/a General Contractor

  • directly contracts with the Owner to furnish labor and materials to complete a specified scope of work
  • construction work often overseen to some extent by one or more Designers

Subcontractor

  • directly contracts with the Original Contractor to furnish trade-specific labor and/or materials within the required scope of work

Surety/Bonding Company

  • directly contracts with the Original Contractor and/or Subcontractors to insure the completion of the construction and/or that their beneficiaries are paid for labor and/or materials furnished
  • if someone is “bonded,” it usually means they are insured for something, but what that something is may vary

Now that you’ve imported this knowledge, be generous and export it to others. And, FYI George Costanza, it’s a crime to hold yourself out as an architect in the State of Texas if you’re not licensed as one.

In our “Law 101″ posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more involved and complex discussions.

A Stranger Barged onto My Property and Cut Down A Shrub

Butterfly BushA man drove up to our house, walked up our yard, cut down a part of our butterfly bush, tinkered with something inside of it, and then took off. He left behind the brush clippings, sticks, and broken limbs. We knew there was an AT&T Underground Cable utility pole inside the bush. The reason we planted the bush was to veil the pole’s presence. My wife asked me, “Can AT&T just cut down our bush?”

The right to exclude others from one’s property is recognized as one of the most essential “sticks in the bundle of rights” that are commonly characterized as “property.” But a property owner may choose to surrender a portion of the right to exclude by granting an easement.

An easement is a limited interest in land for a particular purpose. It does not confer the right to possess the property. Instead, it authorizes the person to whom the easement has been granted the authority to use the property for a specified reason. An easement holder generally has a right of unlimited, reasonable use of the easement consistent with its purpose. The person who owns the land that is subject to the easement may not interfere with the easement holder’s right to use the easement for its purpose.

Yes, AT&T can cut down our bush to access their easement. Perhaps they should have picked up the mess they left. But I’m thankful that the repairman chose to hack into the side of the bush least publicly visible. And I’m sure he’s grateful that we didn’t plant a rose bush there instead.

In our “Law 101″ posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more involved and complex discussions.

Law 101: REIT Basics

In our “Law 101″ posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more involved and complex discussions.

  • What is a REIT?

trust relationship is one in which one person, the trustee, holds property or a property interest for the benefit of another person, the beneficiary. Real Estate Investment Trusts (“REITs”) are a type of trust: REITs are companies that own and operate different types of commercial properties such as multifamily, office, retail, and industrial on behalf of their investors. There are also REITs that engage in financing by extending credit or loaning money to real-estate owners and operators.

  • Why do REITs exist?

REITs exist to make money for their investors. They allow investors to take a more passive role in real estate. Investors purchase subscriptions or shares in a REIT that itself holds various properties. The investors themselves aren’t burdened with everyday management issues like collecting rent, responding to maintenance requests, filling tenant vacancies, and the like. REITs effectively allow people—who individually may not be able to afford it—to collectively purchase interests in real estate. REITs may offer tax and other benefits, too.

  • Who dictates REIT rights and obligations?

State and federal laws govern the formation, offering, management, operation, taxation, and termination of REITs. For example, the Internal Revenue Code has several requirements that must be fulfilled in order for an entity to be treated as a REIT. The U.S. Securities and Exchange Commission may enforce regulations directed toward publicly traded REITs. Subscription agreements also impose legal rights and obligations. And, on top of all of this, other statutes, regulations, and case law may impose rights and duties on those who form, offer, manage, operate, and/or invest in REITs, too.

  • Where can you learn more about REITs?

You can learn more about REITs herehere, and here.

  • When should you consult with professionals about your REIT investments?

You may consider consulting with an accountant, financial adviser, and lawyer, among others, before making a REIT investment. Of course, you may consult with these and other professionals after your investment as well.

What’s More Bothersome Than Living by Railroad Tracks?

A residential developer interested in purchasing a piece of real estate adjacent to a railroad track on a public highway was aware of the corresponding sound situation’s possible impact on property values. After all, what’s more bothersome than living by a loud railroad track? Were there measures that could be taken to reduce the noise from the trains? He had heard of something called Railroad Quiet Zones.

In our Just for Fun posts, we underscore certain construction and real estate topics just for the fun of it.

Federal law requires the use of locomotive horns at public highway-rail grade crossings for safety purposes. A grade crossing is a place where a public highway, road, street, or private roadway, including associated sidewalks, and pathways, crosses railroad tracks at the same level as the street. Federal regulations require locomotive engineers to begin sounding train horns at least 15 seconds, and no more than 20 seconds, in advance of all public grade crossings. “Sounding of the locomotive horn with two long blasts, one short blast and one long blast shall be initiated at [the required] location…[and] shall be repeated or prolonged until the locomotive occupies the crossing.” 49 CFR § 222.21. However, federal regulations also empower local governments to reduce or eliminate horn noise by establishing Railroad Quiet Zones.

The phrase Railroad Quiet Zones may be somewhat misleading. It does not mean the absence of sound. Instead, it means that if certain measures are implemented, locomotive operators aren’t required to blast their horns as otherwise required.

There are minimum requirements in order for local governments to establish Railroad Quiet Zones. All the crossings must be equipped with “standard” warning devices, including flashing lights, bells, and gates with power-out indicators. The authority must place advance signs warning that train horns are not sounded at the crossing. And it must be shown that the lack of a train horn doesn’t present a significant risk of loss of life or serious personal injury, or that the significant risk has been compensated for by other means called supplementary safety measures (“SSM”). The regulations go on to list certain pre-approved SSMs.

SSMs essentially fall into five categories. First, closing the crossing. The closing may be permanent or it may be temporary, such as during certain designated quiet periods. Second, installing a four-quadrant gate system. Third, installing a wayside horn at the crossing. Fourth, constructing median barriers on both sides of the roadway approaching the tracks. And fifth, installing gates that completely block all lanes of traffic on one-way streets approaching crossings.

For additional information on Railroad Quiet Zone establishment and strategies, visit the American Public Works Association’s website here.

The aim of the federal regulations covering Railroad Quiet Zones is to strike a balance between the important issues of public safety and quality of life. What’s more bothersome than living by a railroad track? Dying or having the death of another on your conscience.