In the News

In the News: You Can’t Hang that Flag in this Neighborhood

A Fort Worth homeowners’ association is reported here and here as disallowing its residents from flying an American flag. State law prohibits HOAs from disallowing homeowners from flying the Texas flag, the flag of any branch of the United States armed forces, and the United States flag, subject to certain restrictions.

The hangup? The flags at issue aren’t red, white, and blue. The banned flags are black, white, and blue: a representative tribute to law enforcement, especially those injured and killed in the line of duty. s-l300

Homeowners are reportedly being issued citations.

How is this issue to be resolved? At the end of the day, the homeowners govern themselves. Therefore, they ultimately should have the ability to change the rules through their voting power, should they so choose. For now, however, the HOA is reported to be controlled by its developer. This isn’t unusual during the early stages of a neighborhood’s development.

What protocols are in place to motivate the developer to adhere to the will of the homeowners during the developer’s control period? Has the developer received complaints from other homeowners about these “non-conforming” flags? If the developer allows these non-conforming United States flags, does it open the door to having to allow other, non-conforming flags and symbols?

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.


Captain Kidd’s Treasure Found? Who Owns Found Treasure?

Captain Kidd’s treasure is reported to have been found off the coast of Madagascar. Kidd’s adventures inspired Robert Louis Stevenson to write his novel, Treasure Island. Can you keep treasure you find in the ocean?DSC04197-B

The general rule is finders, keepers. However, the answer depends on several factors, including where the treasure is found and whether anyone else has a lawful claim to it.

For example, treasure found in United States federal territorial waters may be treated differently than treasure found in international waters. Similarly, if you find a modern Maersk ship under water, its “treasure” may be treated differently than if you find antiquated treasure in a 1620’s Spanish galleon whose owner is dead or unknown and unlikely to pop out of the woodwork.

Finding treasure isn’t all roses. Uncle Sam expects U.S. citizens to pay income tax on any such discovery. But that’s a price I’d be willing to pay.
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.

In the News: Dallas Cowboys Stadium Sues Luxury Suite Renter

lease rent duty to mitigate dallas cowboys stadiumThe Dallas Morning News reported last week that the Dallas Cowboys Stadium is suing a resident of Washington D.C. who has leased a luxury suite but allegedly failed to pay for it.

The lease is for a 20-year term at a rough rate of $500,000/year. Yeah, that totals $10 million. According to the article, the renter paid for a few years but then stopped. In their petition, the Cowboys Stadium cites a provision of the lease that would appear to allow them, upon the renter’s default, to terminate the renter’s use and possession of the suite and declare the entire unpaid balance of the lease fee immediately due and payable.

That’s right. It’s the Cowboys Stadium’s position that they now get the luxury suite back as well as the rent they would have received from the renter had she continued to occupy the suite for the remainder of the 20-year term. Can they do that?

Maybe. As a general rule the Cowboys Stadium would probably have to mitigate their damages by looking for an alternative lessee and deducting/offsetting fair market value rent received from that lessee from the damages they seek in this lawsuit. However, without seeing the actual suite lease agreement, it’s impossible to say whether this “zone defense” would apply. And, frankly, I’d like to spend a few weekends in the suite in order to assess whether any subsequent lease the Cowboys Stadium may enter into for the space actually represents a fair market value.

So all of you Cowboys fans with disposable income of $500,000/year may be help someone out by renting a suite. Or maybe not. But, hey. How about them Cowboys?

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.

Power to Quarantine Those Exposed to Ebola

dallas texas ebola quarantineEbola is in Dallas. Well, one case of the virus is here. The first one in the United States. The speed and effectiveness of the response have been placed under the microscope. The media was quick to report that some of the people who may have been exposed to the virus did not voluntarily quarantine themselves. According to this article, Texas’s State Health Commissioner signed an order legally compelling “four close family members of the Ebola patient in Dallas to stay in their home.” Can he do that? What are the consequences if the order isn’t obeyed?

Yes, the commissioner can do that. The Texas Health and Safety Code contains the Communicable Disease Prevention and Control Act. The Act empowers the appropriate health authority to adopt and implement control measures including detention, restriction, quarantine, and preventive therapy over individuals, animals, places, or objects, as appropriate. The Act also puts into place a process whereby an order from the judicial branch may be obtained in certain circumstances. The idea, of course, is to prevent the spread of disease and protect the public health.

Failure to comply with the commissioner’s order may constitute a felony, punishable by jail time and/or a fine.

My undergraduate degree is in microbiology. I worked as a microbiologist before law school. The Ebola virus is a serious matter. But with a swift and effective response, education, and reasonable safety measures, it shouldn’t be the end of the world. Still, I hope this lamentable event evokes some positive response to counter this disease and help those who may suffer from it and their loved ones. It’s amazing what we can accomplish when we work together.

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.

Foreclosing a “House of God”

The Star-Telegram recently reported that High Point Church, a non-denominational Christian church in Arlington, Texas, may be losing its property — 423,000 square feet of building space and acres of undeveloped land — to its lender. The article states that the church has defaulted on $31.5 million in loans and that its property has been posted for a June 3 foreclosure auction on the steps of the Tarrant County Courthouse. The pastor is quoted as saying that the church was “shocked” about the foreclosure proceedings; he says the church was expecting a rollover loan instead.

texas foreclosureLoans are often secured by collateral. Basically, foreclosure is a legal procedure in which the lender terminates the borrower’s interest in the collateral so that the lender may gain title to it and/or force a sale to satisfy the debt secured by the collateral. Texas recognizes both judicial and non-judicial foreclosures. A judicial foreclosure requires a lawsuit, the presentation of formal evidence, and a judgment from the court. A non-judicial foreclosure, in contrast, does not require a court’s involvement. In Texas, non-judicial foreclosures are also sometimes called “strict foreclosures,” although these terms may not actually be synonymous here or in other states.

Lenders dislike the negative publicity that may result from foreclosing property of religious institutions. However, if a borrower doesn’t pay as agreed, then a lender may have little choice but to foreclose in order to be made whole or cut its losses. Sometimes there are alternative arrangements that can be made that appease both the lender and the borrower. Let’s hope in this particular case that wisdom and prudence guide the actions of everyone involved.

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.

Sriracha Hot Sauce Declared a Nuisance

file000604431874Jalapeño, serrano, cayenne, and tabasco are different peppers that give zest to meals and sauces. One type of pepper may be enough to get the job done. Yet adding different peppers may bring more heat, too.

The maker of Sriracha hot sauce, Huy Fong Foods, is in the news again. According to various news sources (see here and here, for example), the City of Irwindale, California has declared unanimously that Huy Fong Foods’ factory is a public nuisance. In other words, the city council itself, and not a judge or a jury, has determined that the factory constitutes a nuisance. This is true even though Irwindale had already filed a lawsuit asking a judge or a jury to decide that very issue, and that lawsuit is still pending. The end result: Huy Fong Foods now has 90 days to remedy the alleged emission problem or the city may enter the factory and make changes or shut it down.

Would the outcome have been any different had Huy Fong Foods filed suit first seeking a ruling that its activities do not constitute a nuisance? Could Huy Fong Foods argue that the city council’s recent declaration is an attempt to circumvent the judicial process? Probably. Would this be a successful argument? In and of itself, perhaps not. Cities are invariably endowed with legal authority to protect the health and safety of their citizens.

There’s usually more than one way to address a legal problem. One approach may be enough to get the job done. Yet a multifaceted approach may bring more heat, too.

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.

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.