The Real News

RELAW, APC
February, 2017
Federal Reporting Requirements Ordered in Five California Counties Extended

The Financial Crimes Enforcement Network (FinCEN) is a bureau of the United States Department of the Treasury that collects and analyzes information about financial transactions in order to combat domestic and international money laundering, terrorist financing, and other financial crimes.  Over the last year FinCEN has been issuing Geographic Targeting Orders ("Orders") requiring the reporting of information regarding certain real estate transactions.

The original Orders impacting five counties in California, namely Los Angeles, San Diego, San Francisco, San Mateo and Santa Clara Counties went into effect August 28, 2016.  This was reported in the RELAW, APC August 2016 Newsletter (previous newsletters can be viewed via the website, www.relawapc.com and click on the "Contact Us" tab).  Under the Order, title companies are required to report specific information about the individuals conducting the transaction if certain criteria are met.  The covered transactions are sales of properties in the amount of $2,000,000 or more, wherein the property being sold is residential.  The buyer must also be a legal entity, paying all cash (no loan), wherein any portion of the funds paid toward the purchase price were not wired.

This Order was originally in effect through February 23, 2017.  However, since the program has been deemed hugely successful, the order has been extended 180 days.  If you are involved in any such transactions during this time period be prepared to provide the information required by the title company to meet this reporting requirement.  The report must include the identity of the individual primarily responsible for representing the buyer (driver's license, passport, or other similar identification), date of closing of the covered transaction, total amount transferred in the form of a monetary instrument, total purchase price of the covered transaction, and address of real property.

Case of the Month
Citizens for Odor Nuisance Abatement (CONA) v. City of San Diego et. Al.
California is known for its beautiful coastline with miles and miles of beaches.  But not all beaches are as inviting as others.  The case of Citizens for Odor Nuisance Abatement ("CONA") versus the City of San Diego ("City") calls into question the habitability of one such beach known as La Jolla Cove.  According to the City's website (sandiego.gov), "La Jolla Cove is a very small beach, tucked between sandstone cliffs.  Because of its extraordinary beauty, La Jolla Cove is one of the most photographed beaches in Southern California.  With small surf in the summer months, the north facing La Jolla Cove is ideal for swimmers, snorkelers, and scuba divers."  The beach is also home to sea lions who create odorous waste that apparently permeates the coast.

This noxious odor resulted in CONA's formation and their filing of a suit against the City for an alleged public nuisance caused by the smell.  At the trial court level, the City motioned for summary judgment.  The trial court granted the City's motion for three reasons.  First, the trail court found the City did not have a duty to prevent any harms created by wild animals.  Second, CONA did not present any triable issues that the City's conduct was the cause of the alleged nuisance.  Third, Civil Code section 3482 barred the nuisance liability.  CONA appealed the trial court's rulings and further argued the City cannot avail itself of immunity under Government Code section 831.2.

In May 2013, former San Diego Mayor Bob Filner issued an emergency finding, declaring bird odors from "cormorants, gulls, pigeons, and pelicans" a public health hazard that required remediation.  The City contracted a company to apply a microbial cleaner to the guano (bird excrement).  The treatment was quite successful in eliminating the odors from the bird guano, but not as successful with eliminating odors caused by sea lion waste.  The sea lion population in La Jolla Cove has grown in recent years, and the buildup of sea lion waste is causing major problems for residents, local businesses, and visitors alike.

In December 2013, CONA sued the City and the State of California for "the foul, noxious and sickening odors emanating from the excrement of cormorants and sea lions deposited on the rocks adjacent to La Jolla Cove".  CONA argued that the City had in recent years constructed a fence that denied human access to the rocks adjacent to La Jolla Cove.  Once humans were denied access, this allowed the sea lions to move in.  The City did build a gate in the fence in late 2013, but this did not solve the problem.  CONA did acknowledge the City had adequately treated the cormorant guano odors but not the sea lion waste odors.

In January 2015, the City moved for summary judgment or, in the alternative, summary adjudication, arguing there was no triable issue.  The City brought evidence that the fence had been completed since 1971.  The sea lions did not start to inhabit La Jolla Cove in large numbers until 2008.  There is no way to link the building of the fence with the sea lion population increase. 

The court concluded the City did not, as a matter of law, have a duty to control an alleged nuisance caused by wild animals.  The court found no legitimate factual dispute that the City's actions caused the alleged nuisance.  The court did sympathize with CONA, but agreed with the trial court's ruling.  The appellate court also agreed with the trial court's recommendation that CONA seek a political action, not a court action to abate sea lion waste and the resulting obnoxious odors in La Jolla Cove.

Homeowner Uses Doorbell Speaker to Spook Would-Be Burglar

The term "Internet of Things" ("IoT") refers to the ever-growing network of physical objects that feature an IP address for internet connectivity, and the communication that occurs between these objects and other Internet-enabled devices and systems.  For the average household this means basically connecting many "smart devices" via the internet, typically via one's home wi-fi network.  People use the IoT to control their coffeemaker for when it should start a pot of coffee in the morning, to check if their garage door is open, to turn on lights in their home or adjust their home's thermostat remotely, all using "apps" on their smart phone.

A growing industry utilizing IoT is smart home security systems.  They are easy to install by the homeowner and can cost as much or as little as the home owner can afford.  The homeowner can add as many sensors and features as they want.

One homeowner in particular was happy he installed a smart doorbell.  His doorbell was connected to his home wi-fi system.  It contains a motion detector, video camera, and a speaker.  When the motion detector was triggered by someone at the front door of this home, the homeowner was alerted via an app on his smart phone.  He was able to use his smart phone to watch and record the video of who it was knocking on his front door.  Since the homeowner wasn't home, no one opened the front door.  The stranger left, but returned a few minutes later with gloves on, again alerting the homeowner via the motion detector and smart phone app.  When the homeowner saw the stranger hop up onto his roof, he knew he had to act.  He used his smart phone to activate the speaker on the doorbell and scare off the stranger.  He then was able to call the local police department.

Even if the homeowner is home, they can see who is outside their front door without opening it.  This is a great security feature for single people who are home alone and worried about who's on the other side of the door.  They can now see who is knocking and what they are doing without opening the door and granting access to whomever it is that is outside.

Each homeowner will have to do their own homework to determine what, if any, home security system is right for them.  However, there are some things all homeowners should do.  Always lock all doors and windows when away, but also recommended for when you are home, especially when it's dark outside.  Advertise that you have an alarm system, even if you don't have one.  It may deter many would be thieves.  At the minimum, get sensor lights that turn on when they sense motion, but also look into security cameras and other motion sensing technology to help keep you and your family as safe as possible.

Alternatives to Email for Avoiding Wire Fraud

The aftermath of a successful wire fraud phishing expedition is stressful and unpleasant for all parties involved. These attacks are the result of scammers becoming aware of a real estate transaction and inducing one or more of the parties therein to wire funds to them instead of their intended recipient.

It makes sense that real estate has become a target of these scammers as billions of dollars change hands in real estate transactions annually.  The scammers know this and they know that the funds are often moving via wire, a form of transfer that results in funds being available for withdrawal almost immediately upon receipt.  This is key to the scam because the longer it takes for the money to be available the better the chance that the scam will be discovered and stopped.

Using secure email sounds like the way to go to prevent these cyber-attacks.  Indeed, keeping information about these transactions out of the hands of the scammers is imperative to securing a real estate transaction.   However, most secure email systems are cumbersome, not intuitive, and typically do not work on smart phones or similar devices, which have become common in today's business world.  Therefore, many companies or employees either do not use their secure emails or the systems are compromised by parties working around the complications inherent therein.

Due to the continuing failure of email to protect transaction, alternatives must be considered to protect consumers.  Regular mail is still an option.  Another option is the use of a secure server.  Unlike traditional emails, which transmit information from one point to another between servers, a secure server maintains information in one place.  The users have to go to the data instead of the data traveling over the internet, protecting the data from possible interception in transit.  A secure server can also provide an avenue to avoid the challenges inherent in secure emails.  For example, a good secure server can and should include a simple user interface for the easy and quick uploading of information and documentation.  With the proper security protocols, a secure server can safely be accessed on a smartphone.  Our firm, like many other law firms, uses such a secure server to enable our clients to access their legal documents, many of which are confidential and/or privileged such that they must be protected from interception by third parties.

One company developing a secure server specifically for the escrow and settlement industry is Solve Solutions.  Their secure server is specifically designed for the purpose of providing a platform for settlement service providers to interact with their consumers to facilitate the exchange of information and data.  The Solve platform specifically focuses on the areas of security, user friendliness and secure storage, all of which are of particular concern for the settlement industry.  For more information about the Solve Solutions secure server or to schedule a free demonstration please contact Randall Harris (310) 892-0617 or email info@solvesw.com .

Upcoming Speaking Engagements

For March 2017, Jennifer has the following speaking engagements:

Facilitator at the ALTA Springboard Event in Dallas, Texas - Wednesday & Thursday, March 8 & 9, 2017

Teaching Business Principles, Practices and Law class for the Escrow Training Institute in Costa Mesa - Saturday, March 25, 2017

For details about one or more of these events feel free to contact our office.


 

 

Jennifer Felten, Esq., Principal & Editor
(805) 265-1031
jennifer@relawapc.com 
Feel free to call  or email for a free consultation.

 
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