Understand the purpose of the Federal Fair Housing Laws and be able to identify the protected classes covered by the Fair Housing Act.

Federal Fair Housing Act (FFHA)

The Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. Other covered activities include, for example, financing, zoning practices, new construction design, and advertising.

The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. For example, a landlord with a "no pets" policy may be required to grant an exception to this rule and allow an individual who is blind to keep a guide dog in the residence. The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces. (The landlord is not required to pay for the changes.) The Act further requires that new multifamily housing with four or more units be designed and built to allow access for persons with disabilities. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units.

The Fair Housing Act provides that while the housing provider must permit the modification, the tenant is responsible for paying the cost of the modification.

Example 1: A tenant, whose arthritis impairs the use of her hands and causes her substantial difficulty in using the doorknobs in her apartment, wishes to replace the doorknobs with levers. Since there is a relationship between the tenant’s disability and the requested modification and the modification is reasonable, the housing provider must allow her to make the modification at the tenant’s expense.

Example 2: A homeowner with a mobility disability asks the condo association to permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles because he alleges that the shingles are less fireproof and put him at greater risk during a fire. There is no evidence that the shingles permitted by the homeowner’s association provide inadequate fire protection and the person with the disability has not identified a nexus between his disability and the need for clay tiles and fiberglass shingles. The homeowner’s association is not required to permit the homeowner’s modification because the homeowner’s request is not reasonable and there is no nexus between the request and the disability.

What is a reasonable modification under the Fair Housing Act?

A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas. A request for a reasonable modification may be made at any time during the tenancy. The Act makes it unlawful for a housing provider or homeowners’ association to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises.

To show that a requested modification may be necessary, there must be an identifiable relationship, or nexus, between the requested modification and the individual’s disability. Further, the modification must be “reasonable.” Examples of modifications that typically are reasonable include widening doorways to make rooms more accessible for persons in wheelchairs; installing grab bars in bathrooms; lowering kitchen cabinets to a height suitable for persons in wheelchairs; adding a ramp to make a primary entrance accessible for persons in wheelchairs; or altering a walkway to provide access to a public or common use area. These examples of reasonable modifications are not exhaustive.

Understand the purpose of the Federal Fair Housing Laws and be able to identify the protected classes covered by the Fair Housing Act.

Federal Fair Housing Act (FFHA)

The Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. Other covered activities include, for example, financing, zoning practices, new construction design, and advertising.

The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. For example, a landlord with a "no pets" policy may be required to grant an exception to this rule and allow an individual who is blind to keep a guide dog in the residence. The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces. (The landlord is not required to pay for the changes.) The Act further requires that new multifamily housing with four or more units be designed and built to allow access for persons with disabilities. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units.

Understanding Virginia's Fair Housing Laws and the Prohibited Actions and Practice

History of Virginia Fair Housing Law

In 1972 the General Assembly enacted Virginia's first fair housing law. The fair housing law that the General Assembly enacted in 1972 was similar to the fair housing law that Congress enacted under the Civil Rights Act of 1968. Since 1972 Virginia's fair housing law has been amended several times. Amendments were generally made to add protected classes.

Today Virginia's fair housing law prohibits discrimination on the basis of race, color, religion, national origin, sex, elderliness, familial status, and handicap. Because Virginia's fair housing law includes elderliness as a protected class it is broader than the federal fair housing law. Elderliness means anyone over 55.

Virginia's Fair Housing regulations list additional actions that are prohibited. Some of the actions that the regulations prohibit on the basis of race, color, religion, sex, national origin, elderliness, familial status or disability include:

1. Failing or delaying maintenance or repairs of sales or rental dwellings;
2. Limiting the use of privileges, services or facilities associated with a dwelling;
3. Discouraging the purchase or rental of a dwelling or exaggerating drawbacks or failing to inform any person of desirable features of a dwelling or a community, neighborhood, or development;
4. Communicating to any prospective purchaser that they would not be comfortable or compatible with existing residents of a community neighborhood or development;
5. Assigning any person to a particular section of a community neighborhood or development or to a particular floor or section of a building;
6. Denying or limiting services or facilities in connection with the sale or rental of a dwelling, because a person failed or refused to provide sexual favors.

Virginia's Fair Housing Law applies to property managers, owners, landlords, real estate agents, banks, savings institutions, credit unions, insurance companies, mortgage lenders and appraisers. If you're working with a property manager or real estate agent to buy a home or locate a rental or if you're trying to get a mortgage or homeowner's insurance you cannot be treated differently because of your race, color, religion, sex, national origin, elderliness, familial status or disability.

Who do you believe?

Bush Neilsen is a highly respected pro-title industry commentator says  of  April Charney's post on loan Securitization:

Chaney Post

The link below has copies of many satisfaction of mortgages that were "executed" by the same Linda Green who appeared on the 60 minutes segment on robo-signing.  These documents, which we all rely on to clear title, are clearly a problem.  We as a country are now infested with this plague of uncertainty that clouds a vast but unknown number of title.  And, this cloud-on-the-title problem extends to the majority of residential mortgage loan transactions executed during the last 10 plus years in this country because of the failure of securitization which is why the industry needed (and still is using) after-the-fact robo-signers to begin with.  This blighted title problem is not just a problem for loans in foreclosure.  The attached satisfaction of mortgages "signed" by Linda Green date back to 2006.  The 60 minutes segment focused on assignment of mortgages, but this is another chapter in the book of LPS and DOCX.  There were/are likely more than 100 "Linda Greens" furiously signing these important documents around the country.  Who thought up this evil plan?  Who put the plan into action systemically around the country? And who knew about this plan, when and what did they do about it?

http://4closurefraud.org/#!/entry/22605"

Neilsen Response

Pardon me, but this type of thinking is total crap.  Loans have been sold in pieces since the beginning of the 20th century.  Securitization is not evil.  The robo-signer affidavits stated true facts in almost every instance.  Titles are not clouded throughout the United States. 

Those who would like to claim that they are are doing the nation a disservice, and are not acting as good citizens.

There were similar movements during the wave of foreclosures in the 1930's.  Much of our foreclosure case law was written then.  The collective personal tragedy is very real.  These claimed clouds and defects in title are not real.

Bush Nielsen


J. Bushnell Nielsen
Reinhart Boerner Van Deuren s.c.
N16 W23250 Stone Ridge Drive, Suite One | Waukesha, WI 53188
Office: 262-951-4514 | Cell: 262-993-1900 | Fax: 262-951-4690

Town Point Center West

4805 Virginia Beach Blvd

4805 Virginia Beach Blvd.

Virginia Beach, VA

Town Point Center West

4801 Virginia Beach Blvd

4801 Virginia Beach Blvd.

Virginia Beach, VA

State Recordation Fees/MERS and More Tax Evasion

Over the past several years, the real estate industry in the United States has undergone a near collapse. House prices have been reduced so far by 25% nationwide due to the bursting of real estate bubble. The only vibrant part of the real estate market in the present economic recovery is the millions of foreclosed homes being sold to bargain hunters.

Some smaller States, the Dakotas, Nebraska, Alaska, have managed to avoid a big downturn in prices and hope to continue to do so. The big States most affected by the real estate disaster though, California, Michigan, Nevada, Florida, have lost more than one-half on home values in many major cities.

The History

The Wall Street investment banks, beginning in the late 1980s, initiated and bought millions of home mortgage loans to be repackaged as Mortgage Backed Securities (MBS) and sold to investors across the country and the world. In order to have their investment offerings certified as safe by the investment ratings agencies, the Wall Street banks used almost exclusively Fannie Mae/Freddie Mac qualified mortgages on the assumption such loans have already undergone a serious scrutiny under federal regulations. In reality though the two quasi-government agencies did little to oversee the quality of the of the mortgage loans they were certifying, buying and selling.

The MBS marketing effort worked. The ratings agencies, paid huge fees solely by the investment banks, certified the Wall Street MBS offerings as mostly prime-grade investments. Congress, Fannie Mae and the Security and Exchange Commission greatly encouraged the MBS trade. Now, millions upon millions of these same mortgage loans are delinquent, some for longer than two years. Millions upon millions more American households still paying their mortgage have a property that is worth far less now than the mortgage loan balance.

It has been discovered that most of the loans in the Wall Street MBS packages and those held by Fannie Mae/Freddie Mac, in fact, did not meet federal regulatory standards, not even close. Just about every player in the real estate industry had a large hand in this fraud: mortgage lenders, banks, sellers, buyers, brokers, appraisers, lawyers, middlemen, federal and state agencies, Congress and last five Presidents. The result is a home foreclosure rate that is unheard of already and looking likely to accelerate.

But the same Wall Street banks that bought off the ratings agencies and the government in order to cheat their customers and got away with it could not stop themselves from also committing massive tax evasion and the blatant violation of state laws across the nation with almost all of their MBS offerings. This is the fraud that might place the majority of US home ownership titles into serious question.

Triple-net-lease investment properties are properties that through the lease structure, the tenant is responsible for the [1] taxes, [2] insurance, and [3] maintenance and management of the building — the three "nets."

Despite the economic downturn and the fact that many aspects of the commercial real estate industry still need time to season before true recovery takes place, some niche segments of the market are actually performing extremely well. In fact, some are at the same level they reached at the height of the market.

Triple-net-lease investment properties, in particular, may be a true bright spot on the commercial investment horizon. Here’s why.

Foreclosures Stop ~ For Now

At approximately 11:10 AM, EDT, today Fox new reconfirmed its prior news release of Friday last past that some major banks including JP Morgan Chase, BOA, Ally (the former residential finance arm of GMAC) and Wells Fargo have suspended all existing foreclose actions in 23 states because of irregular and possible improper and illegal paperwork mistakes in prior foreclosures already concluded. The DOJ is conducting a probe in regards of these actions to determine if those and other banks may have committed fraud. Alleged improper robo-signing is only one of the allegations made to date. More of these concerns and allegations may be found at

 For the New York Times Article

and an announcement made by Reuters in WASHINGTON | Wed Oct 6, 2010 7:15pm EDT. Some of you may recall we first called this to your attention via email dated last Friday, October 1, 2010. We have made every attempt to verify what we then suggested. Obviously these concerns may further deepen the real estate crisis and have adverse affects on related industries, including the title industry. One of those concerns would be what affect would such a turn of events have upon the current title insurance industry claims situation, particularly in the event that some appellate courts were to determine that a previously insured title is faulty as a result of the recent disclosure and practices and, previously insured titles coming through the foreclosure process were thereafter unwound?

For the Full Article

19th century home is moving ~ Two-story, 200-ton house about 300 feet.

  Transporting the house will take about 24 hours. The house has an interesting history. Land records of the city of Virginia Beach show the two-story brick house existed in 1886 and was the residence of O.B. Mears and family. Mears was a Civil War hero and a superintendent of schools in Princess Anne County. Long iron beams attached to wheeled dollies will pass through these holes lengthwise, then smaller iron beams will create a steel mat beneath. Matyiko brothers will employ jacks to lift the house slowly away from what is left of the basement.

COMMON ASBESTOS-CONTAINING MATERIALS IN THE WORKPLACE AND HOME

If your workplace or home home was built before 1980, there is a chance that some of the materials used to build it contain asbestos. Asbestos containing materials can be found throughout the house from pipes to furnaces to floors and can pose a risk to families especially if they are in poor condition.

Asbestos may still be present even if the homeowner has replaced equipment or remodeled areas of the house either by themselves or through a contractor. If you are about to begin a remodeling or replacement project and have concerns about the presence of asbestos, it is recommended you consult with a residential asbestos inspector to ensure your safety.

Many homeowners accidentally exposed themselves to asbestos by cutting, tearing or sawing asbestos-containing materials. When asbestos fibers are released they can be inhaled which could lead to serious health problems years later.

Household items and areas that may contain asbestos include:

Exterior

Asbestos may be present in cement roofing, shingles or siding materials

Fireplace

Asbestos might be found in artificial ashes and embers used in gas fireplaces

Flooring

Resilient floor tiles composed of vinyl asbestos, asphalt and rubber

The bottom or backing of vinyl floor tiles

Asbestos may be present in adhesives used to install floor tiles

Furnaces

Asbestos could be present in door gaskets as well as duct and outside insulation

Pipes

Pipes may be covered by an asbestos blanket or asbestos tape

Stoves

Wood burning and coal burning stoves may contain asbestos on door gaskets and their surrounding insulation.

Walls

Spray on soundproofing, textured paint and patching/joint compounds

Thanks to Roberta Walters of Mesothelioma Web for passing this along.

MORTGAGES; STRUCTURED FINANCE; MEZZANINE LOANS; New York court provides broad interpretation of "default cure" in structured finance intercreditor agreement. Mezzanine lender takes loss. 

 New York State Supreme Court Justice Lowe (a trial judge in the New York system) ruled that investors who had acquired a piece of a a mezzanine lender could not foreclose on its mezzanine lien and take Stuyvesant Town/Peter Cooper Village (Stuyvesant Town) from its current owner and a foreclosing mortgage lender without paying the accelerated senior loan on the property of $3+ billion. The ruling, if upheld and followed, will add considerably to the power of senior commercial real estate (CRE) mortgage lenders versus subordinate "mezzanine" lenders where assets have decreased massively in value.

 When the deal was formed in 2007, a consortium of investors bought Stuyvesant Town, a, 11,200-unit Manhattan residential development, for $5.4 billion. This "top of the market" price was the highest price ever paid for contiguous U.S. realty. Buyers financed the purchase with a $3 billion securitized first-mortgage loan and a $1.4 billion mezzanine loan secured by the ownership interest in the owner. The project is now said to be worth less than $2 billion. The owner defaulted on the senior mortgage and mortgagee accelerated the loan later that month.

BANKRUPTCY; AUTOMATIC STAY; LEAVE TO FORECLOSE; MERS: Noteworthy bankruptcy decision clarifies the rules about foreclosure of MERS related mortgages. It's all about the note.

 In re Tucker, Case No. 10-61004 (W.D. Bkrtcy 9/20/10)

 The case law throughout the country recently has exhibited great uncertainty as to the role and authority of MERS in foreclosures. Many of these cases have been complicated by the language of statutes in judicial foreclosure jurisdictions that may impose greater burdens on mortgagees than might exist elsewhere. In addition, there has been some authority that tangentially discusses the role of MERS with respect to other issues, and these cases may have further muddied the waters. An important course of this nature has been the Bekistri case, decided by the Missouri Court of Appeals (284 S.W.3d 619 (Mol App. 2009) and regularly appearing in briefs and discussions around the country. Another important decision - also a non-foreclosure decision, has been the Landmork case in the Kansas Supreme court. Both cases have given some support to the notion that a recordation of a mortgage with MERS is a mullity in cases in which the lender does not also give MERS the note, creating some question as to whether the mortgage can be foreclosed to collect the unpaid debt.

LANDLORD/TENANT; MODIFICATION OF LEASE; REQUIREMENT OF WRITING: In Florida, under certain circumstances, written contracts can be modified by a subsequent oral agreement of the parties even though the written contract purports to prohibit such modification. For example, an oral modification may be enforced where otherwise a party would be a victim of fraud or where the subsequent conduct of the parties indicates the acceptance of the oral modification.

The parties’ original lease did not require the tenant to maintain property insurance. Their renewal lease did. The parties agreed orally that the landlord did not have to be added to the policy until the policy came up for renewal. About six weeks before the insurance policy came up for renewal, but after the new lease was in effect, the tenant's restaurant was destroyed by fire. The landlord received nothing from the tenant's insurance recovery, but did receive payment under its own policy.

LANDLORD/TENANT; SURRENDER: The mere taking of keys to leased premises by a landlord does not give to an inference that the landlord has accepted surrender of the premises.

Sirdah v. North Springs Associates, LLLP, 2010 WL 2278184 (Ga.App 6/8/10.)

Even though Georgia law generally obligates an injured party to mitigate damages, this general rule to mitigate damages does not apply to lease contracts. In Georgia, the rule is: "if a tenant abandons leased premises without authorization prior to the expiration of the term, the landlord is not required to mitigate damages by releting the premises. Rather, he may allow the premises to remain vacant and hold the tenant responsible for accruing rent."

MORTGAGES; ASSIGNMENTS OF RENTS; FORECLOSURE PURCHASERS: Purchaser of property at a foreclosure sale must disgorge to prior mortgagee rental income generated by the property, even though there is no privity of contract between the purchaser and such prior lender

Higdon v. Regions Bank, ___ S.W.3d ___ , 2010 Westlaw 1924019 (Tenn. Ct. App. 5/13/10).  (Another aspect of this case was the subject of yesterday's DD) 

Stinnetts refinanced an existing deed of trust loan on their Property with a loan obtained from ORNL.   On September 9, 1999, Weather Tamer advanced additional money to the Stinnetts, secured by a deed of trust that subsequently was assigned to KeyBank USA, N.A. Finally, on September 20, 1999, the Stinnetts obtained another loan from ENM, Inc. Such loan was secured by a third deed of trust which was subsequently assigned to Regions Bank ("Regions").

While the Regions deed of trust was executed after the KeyBank deed of trust, Regions recorded its deed of trust prior to KeyBank, thereby making the Regions lien prior to the KeyBank lien.

The Regions deed of trust included a mortgage acceleration clause that could be executed upon the borrower's breach of the terms of the applicable loan agreement. It also contained standard assignment of rents language providing that "Borrower . . . assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration [of the deed of trust] . . . or abandonment of the Property, have the right to collect and retain such rents as they become due and payable."

MORTGAGES; FORECLOSURE; FUTURE ADVANCES; PROTECTION OF SECURITY: A lender who forecloses on a deed of trust is secured not only as to the amount of debt secured by its original deed of trust, but also for amounts advanced by such lender to pay off debts secured by a prior deed of trust, notwithstanding the existence of a recording tax requirement..

Higdon v. Regions Bank, ___ S.W.3d ___ (Tenn. Ct. App. 2010).  (Another aspect of this case will be the subject of tomorrow's DD) 

Stinnetts financed their purchase of the Property it through a secured loan from Bank, which recorded a deed of trust against the Property. In April 1998, the Stinnetts refinanced the Property with a loan obtained from ORNL, and the Bank deed of trust was released. On September 9, 1999, Weather Tamer advanced additional money to the Stinnetts, secured by a deed of trust which was subsequently assigned to KeyBank USA, N.A. Finally, on September 20, 1999, the Stinnetts obtained another loan from ENM, Inc. Such loan was secured by a third deed of trust which was subsequently assigned to Regions Bank ("Regions").

It is not a violation of the Racketeer Influenced and Corrupt Organization Act to rent an apartment to an alien so long as the landlord does not prevent or take any affirmative steps to prevent government authorities from detecting the alien’s unlawful presence.

Delrio-Mocci v. Connolly Properties Inc.

Residents of a multi-dwelling complex alleged that the owners actively sought out illegal aliens as prospective tenants because their immigration status made it easy for the owners to exploit such tenants in violation of state and federal statutes. The residents also alleged that the owners segregated their apartment buildings according to impermissible criteria to avoid confrontation amongst the building’s residents. Certain of the residents sued the apartment complex owner in federal court.

The United States District Court granted the owner’s motion to dismiss, holding that, absent proof that the landlord had engaged in some other unlawful conduct, it was not a violation of the Racketeer Influenced and Corrupt Organization Act (RICO) to rent an apartment to an alien. The Court found that even if the landlord knew that some of its tenants were illegal aliens, so long as it did not prevent or take any affirmative steps to prevent government authorities from detecting the aliens’ unlawful presence, it did not violate the statute. The Court also held that providing aliens with obvious information that any fugitive would know was not an activity in violation of the RICO. It noted that even if the owner had segregated its residents, such behavior could not be seen as taking an affirmative step to conceal illegal aliens’ presence from authorities.

The United States District Court also found that the owner’s behavior did not “encourage” or “induce” a pattern of racketeering activity in violation of the Immigration and Nationality Act (INA). Merely providing housing, the Court ruled, was not enough to constitute an INA violation.

Home Warranty Companies' Payments to Real Estate Brokers and Agents

June 25, 2010 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 3500

[Docket No. FR-5425-IA-01]

Real Estate Settlement Procedures Act (RESPA): Home Warranty

Companies' Payments to Real Estate Brokers and Agents

AGENCY: Office of General Counsel, HUD.

ACTION: Interpretive rule.

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SUMMARY: Under section 8 of RESPA and HUD's implementing RESPA regulations, services performed by real estate brokers and agents as additional settlement services in a real estate transaction are compensable if the services are actual, necessary and distinct from the primary services provided by the real estate broker or agent, the services are not nominal, and the payment is not a duplicative charge.

A referral is not a compensable service for which a broker or agent may receive compensation. This rule interprets section 8 of RESPA and HUD's regulations as they apply to the compensation provided by home warranty companies to real estate brokers and agents. Although interpretive rules are exempt from public comment under the Administrative Procedure Act, HUD nevertheless welcomes public comment on this interpretation.