Contracts Are King, Or Are They? How the Case of Abercrombie & Fitch v. Penn Square Mall Effects The Commercial Leasing Landscape

March 18th, 2020

The commercial real estate leasing industry is notable in the extent to which business terms and legal obligations are memorialized in great detail in written contracts.  The exclusive use of written agreements is driven by the subject of the contracts, i.e., real estate, complexity of designing an agreement that may remain in effect for many years, and the potentially conflicting interests and incentives of the landlord and tenant. Perhaps few industries are as awash in standardized contract forms and boilerplate terms like the real estate industry.

It is understandable and appropriate for commercial landlords and tenants to focus their attention on the important task of memorializing their agreements about known issues such as the allocation of risk of potential unknown factors such as damages for water leaks, and other casualty and force majeure events.  In the event of a dispute, the contract is meant to be the determinant of who bears the risk of loss.  However, the parties should not lose sight of the fact that their legal rights and remedies are not based solely on the agreements they may have signed.

In addition to agreement-based rights and obligations, Oklahoma “tort” law imposes all sorts of implied rights and obligations independent of what parties may have formally agreed to.  The foremost “tort” obligation is to use reasonable care so as to avoid damage to others.  The failure to use reasonable care is negligence.

Because of the dominance of formal contracts in the commercial real estate leasing industry, courts in other jurisdictions historically were reluctant to recognize the applicability of tort remedies on commercial contracts. The philosophy was that parties were expected to define their obligations in the written agreements that would be the sole determinants of their rights.

One party could not sue another outside of contract for negligence if the harm was merely economic and the duty arose from the contractual relationship. The recent case of Abercrombie & Fitch v. Penn Square Mall, 2018 OK CIV APP 56, 425 P.3d 757 (Okla. Ct App. 2018), however, teaches commercial landlords and tenants that Oklahoma courts will permit the pursuit of both contractual and negligence theories for economic losses. This case emphasizes the serious risk of claims and damages outside the scope of the parties’ carefully negotiated contracts.

Abercrombie & Fitch v. Penn Square Mall, arose from a water leak in a roof drain line running above the ceiling of the leased premises in Penn Square shopping mall. Abercrombie & Fitch, the tenant, filed suit against Penn Square Mall LP alleging Penn Square “had a contractual duty to maintain the mall’s plumbing lines in good order, condition, and repair,” and that Penn Square breached this duty. Abercrombie asserted theories of breach of contract and negligence against Penn Square, and asserted that as a result of the water leak it “incurred substantial damages in cleanup, repair, lost merchandise, lost profits, and interruption to its business,” and sought damages in excess of $300,000. Despite the existence of a commercial lease with a limitation of liability clause, the case went to trial for damages under both contract and negligence theories.  At trial, the tenant was awarded nothing at all for its breach of contract claims, but the jury awarded $243,000 in lost profits, cleanup, repair, lost merchandise, and interruption to its business on the negligence claim. 

The landlord appealed, arguing that the tenant should not have been able to pursue damages for both breach of contract and negligence, and that the lease contract had a clause waiving such consequential damages.  However, the appeals court ruled that the language of the consequential damages limitation in the contract could reasonably be interpreted to relate only to the tenant’s contractual claims and not its negligence claims.  Therefore, the tenant’s judgment for lost profits, cleanup, repair, lost merchandise, and interruption to its business on the negligence claim was upheld.

Abercrombie & Fitch v. Penn Square Mall is a good reminder that commercial landlords and tenants must consider the extra-contractual risks and remedies under Oklahoma tort law.  As the court in Abercrombie found, a waiver of consequential damages provision, depending upon its wording, may only protect against contractual claims, not negligence claims.  Notice and other procedures may be interpreted to relate to contractual claims unless the contract explicitly includes the full universe of claims—both contractual and non-contractual.

The issue of extra-contractual claims can also arise in the context of determining the scope of an arbitration clause.  If an arbitration clause is drafted narrowly to encompass claims arising under the contract, it may not be broad enough to include negligence claims related to the leased premises and the parties’ relationship as a whole.  Absent unusual situations, care should be taken to ensure that the arbitration scope broadly covers all claims that might arise, not just contractual claims.

A good contract will recognize and address the possibility that parties may resort to tort remedies.  That way, the contract will retain its primacy in governing the rights and obligations of commercial real estate landlords and tenants. To anticipate this problem, the drafter should include language in the contract to this effect: “The parties agree that, regardless of the failure of the sole and exclusive remedy, landlord will not be liable for any consequential damages of whatsoever kind or nature.”

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Street Law: I Found Bed Bugs In My New Apartment, Now What?

January 25th, 2020

Bed bug bites are caused primarily by two species of insects of the Cimex type: Cimex lectularius (the common bed bug) and Cimex hemipterus, primarily in the tropics. Bed bugs’ increased presence across the United States in recent decades can be attributed largely to a surge in international travel and trade. It’s no surprise then that bed bugs have been found time and time again to have taken up residence in some of the fanciest hotels and apartment buildings in some of the nation’s most expensive neighborhoods. Nonetheless, false claims that associate bed bugs’ presence with poor hygiene and uncleanliness have caused apartment residents, out of shame, to avoid notifying landlords of their presence. This serves only to enable the spread of bed bugs.

While bed bugs are, by their very nature, more attracted to clutter, they’re certainly not discouraged by cleanliness. Bottom line: bed bugs know no social and economic bounds; claims to the contrary are false.

The Burden of Proof: Who’s Responsible for Bed Bugs?

With bed bugs on the rise, property managers are questioning the legal ramifications of their new residents. Can they be held liable if a resident files suit over the presence of bed bugs? It is important to understand that the liability issues surrounding bed bug infestations are governed by state and local law. At the end of this article is the Tulsa Ordinance that clearly delineates the circumstances when the owner or the occupant is responsible for bed bugs in single and multi-family dwellings. Responsibilities of property management companies may vary from state-to-state and range from zero liability to significant exposure. Deciding factors for assigning liability include the responsibilities of the owner and resident as defined by the language in lease documents, policies indicated to the prospective resident and the agreement between the management company and the owner.

In most jurisdictions, owners and management companies should take steps to guard against a negligence or gross negligence tort claim. An owner or management company is negligent if it fails to act reasonably in light of foreseeable risks that result in damages to the resident. The damage to the resident must be proximately caused by the negligence of the owner or management company. A defendant commits gross negligence if its acts or failures to act amount to willful or wanton disregard for its responsibilities. In essence, the defendant acted with reckless disregard or in bad faith. For example, ignoring bed bug complaints or attempting to “self-treat” the problem in an ineffective manner could result in a ruling of negligence.”

Bed Bug Lease Addendums Provide Some Level of Protection

Property management companies and property owners are pushing to shift responsibility onto renters and tenants in leases that say that if bed bugs don’t turn up before or soon after a resident moves in, the resident must pay for extermination. One way to ensure that residents, owners, and property managers work together to minimize the potential for any bed bug outbreak in a rental dwelling or apartment community is to include a bed bug addendum in the lease. The primary purpose of a bed bug addendum is to outline the responsibilities and potential liabilities of residents and owners when bed bugs are discovered in a rental dwelling. Yes, it involves extra paper work and time to train employees and educate residents, but preventing a large jury award from a lawsuit is well worth the extra effort.

The problem with the bed bug addendum is most property owners aren’t actually having apartments inspected by licensed pest control operators or firms, nor are they providing copies of the inspection results. In addition to this, bed bug addendums are one sided, purely for the benefit of the property owners, not the residents. More or less residents take full responsibility for bedbug infestations, regardless if they are responsible for the infestation or not. It can take fourteen days or longer for bedbugs who are already established in a dwelling to make their presence known, so forty-eight hours is absolutely a nonsensical amount of time to “identify” a current infestation in a vacant apartment.

Tulsa Code of Ordinances

TITLE 55 – PROPERTY MAINTENANCE CODE

Section 309. – Pest elimination.

309.1 Infestation. Structures shall be kept free from insect and rodent infestation. Structures in which insects or rodents are found shall be promptly exterminated by approved processes that will not be injurious to human health. After pest elimination, proper precautions shall be taken to prevent re-infestation.

309.2 Owner. The owner of any structure shall be responsible for pest elimination within the structure prior to renting or leasing the structure. Where the infestations are caused by defects in the structure, the owner shall be responsible for pest elimination.

309.3 Single occupant. The occupant of a one-family dwelling or of a single-tenant nonresidential structure shall be responsible for pest elimination on the premises.

309.4 Multiple occupancy. The owner of a structure containing two or more dwelling units, a multiple occupancy, a rooming house or a nonresidential structure shall be responsible for pest elimination in the public or shared areas of the structure and exterior property. If infestation is caused by failure of an occupant to prevent such infestation in the area occupied, the occupant shall be responsible for pest elimination.

309.5 Occupant. The occupant of any structure shall be responsible for the continued rodent and pest-free condition of the structure.

107.6 Transfer of ownership. It shall be unlawful for the owner of any dwelling unit or structure who has received a compliance order or upon whom a notice of violation has been served to sell, transfer, mortgage, lease or otherwise dispose of such dwelling unit or structure to another until the provisions of the compliance order or notice of violation have been complied with, or until such owner or the owner’s authorized agent shall first furnish the grantee, transferee, mortgagee or lessee a true copy of any compliance order or notice of violation issued by the Code official and shall furnish to the Code official a signed and notarized statement from the grantee, transferee, mortgagee or lessee, acknowledging the receipt of such compliance order or notice of violation and fully accepting the responsibility without condition for making the corrections or repairs required by such compliance order or notice of violation.

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The Federal Protecting Tenants at Foreclosure Act is Permanent

October 5th, 2019

The Protecting Tenants at Foreclosure Act of 2009 expired on December 31, 2014. Now it is back and it is permanent. The law limits the rights of new owners of foreclosed properties from evicting tenants after a foreclosure, and was passed as a result of widespread hardships after the collapse of the mortgage markets. By 2014, it was felt that such protections were no longer necessary. But the law has been revived. On May 24, 2018, President Trump signed into law a bill which contained major rollbacks to the Dodd Frank Act. It ALSO revived the Protecting Tenants at Foreclosure Act of 2009 and makes it permanent.

Tenants cannot be evicted after a foreclosure, and can stay until the expiration of their lease term. The only exceptions are if the rent is dramatically below market (whatever that means) or if the tenant is closely related to the borrower. It provides protections to bona fide tenants in foreclosed properties where the foreclosed mortgage is a “federally related mortgage loan” (a very broad category of mortgage loans as defined in the federal Real Estate Settlement Procedures Act (“RESPA”)). An amended version of the Tenants Protection Act is available here.  A sample letter for tenants and advocates to use to implement the Tenants Protection Act is available here.

Are Commercial Loans Covered?

An important question for lenders, mortgage holders and servicers is whether the Tenants Protection Act is limited to residential one- to four-family mortgage loans, or whether commercial loans are covered.  The answer is that some commercial loans are covered; where a loan is made to an individual or entity to purchase or improve property which is one- to four-family residential property, the Tenants Protection Act provisions for notice and eviction must be followed, even if the borrower took the applicable mortgage loan for a commercial purpose.  Commercial purpose loans that meet the definition of “federally related mortgage loans” must comply with the Tenants Protection Act.

A “federally related mortgage loan” is any loan (other than a temporary loan such as a construction loan), which is secured by a first or subordinate mortgage on real property that is designed to be a one- to four-family residential property (including condominiums and manufactured homes), and the property has to be located in a U.S. state.  Refinancings and purchase money mortgages are included.  The mortgage loan (1) must be made by a lender that is either federally regulated or its deposits are insured by the Federal Government; (2) is insured, guaranteed or supplemented by the Federal Government; (3) is made in conjunction with programs administered by HUD or by another federal agency; (4) is intended to be sold to Fannie Mae, Ginnie Mae or Freddie Mac; (5) is made by a “creditor” as defined by the Consumer Credit Protection Act (15 USC §1602(f)) and that creditor makes or invests in $1,000,000 worth of residential real estate loans per year; (6) is a reverse mortgage made by one of the aforementioned lenders; (7) is an installment sales contract for residential one- to four-family residential property.

Protecting Tenants at Foreclosure Act of 2009 Basics

As a refresher, the Tenants Protection Act requires immediate successors in interest to foreclosed properties, including banks that take title to property after foreclosure, to provide a notice to vacate to any bona fide tenant at least ninety (90) days prior to evicting those tenants as a result of foreclosure.  In the event a foreclosure does take place, the Tenants Protection Act requires the successor owner of foreclosed property to honor any existing leases with renters until the end of the lease terms.  Protection is not available for the former mortgagor, the mortgagor’s spouse, child or parent.  A “bona fide” lease is the result of an arm’s-length transaction, and the rent has to be fair market value or government subsidized.  The Tenants Protection Act also provides Section 8 tenants in foreclosed properties certain protections.

Dodd-Frank Clarifies When Prior Notice of Foreclosure Occurs

A major change in the Tenants Protection Act brought about by Dodd-Frank concerns the interpretation of the provision that allows bona fide tenants of foreclosed properties to continue to reside at the property for the remaining term of the lease executed with the former owner only if that lease was entered into “as of the date of foreclosure”.  Prior to the amendment found in Dodd-Frank, it was unclear when the “date of foreclosure” occurred.  If the cut-off period began when foreclosure notices were sent, borrowers and tenants could no longer enter into leases that would have to be honored once the foreclosure notices were mailed and advertised.  Thus, under the prior version of the Tenants Protection Act, a foreclosing owner would take the position that leases entered into AFTER the date the foreclosure notice was mailed were not effective, and the foreclosing owner would not have to honor those leases.

Dodd-Frank changes all that by clarifying the phrase and explaining “For purposes of this section, the date of a notice of foreclosure shall be deemed to be the date on which complete title to a property is transferred to a successor entity or person as a result of an order of a court or pursuant to provisions in a mortgage, deed of trust or security deed.”    Unfortunately, ambiguity remains.  While Dodd-Frank clarifies that “notice of foreclosure” does not mean any correspondence or advertising undertaken by the mortgagee leading up to the foreclosure sale, it leaves the post-foreclosure timeframe unclear.  Put more simply, Dodd-Frank shifts the ambiguity from pre-foreclosure sale to post-foreclosure sale.  This is due to the use of the term “complete” in the new definition, i.e., what does “complete title” mean?

Debate is already underway as to whether “complete title to a property is transferred to a successor” occurs at the time of the foreclosure sale or at the time of recording of the foreclosure deed.   In Bankruptcy Courts, Judges who have opined on the issue of when the foreclosure sale is final from a bankruptcy perspective find that the foreclosure is final when the gavel goes down completing the auction, and the purchase and sale agreement is executed by the buyer.  On the other hand, there is an argument that the buyer at foreclosure who tenders a deposit and signs the purchase agreement only has equitable title; no legal title passes until the foreclosure deed is tendered to the buyer.  Still another interpretation is made by the foreclosing owner who seeks to evict any holdover borrowers or tenants from the property after foreclosure.  Post-foreclosure property owners are going to have to watch out for borrowers and mortgagors whose properties are in the process of foreclosure, as they could enter into lease agreements with tenants AFTER the foreclosure sale date, but before the foreclosure deed goes on record, and the foreclosing owner would be required by law to honor those lease and tenancy agreements.

In sum, post-foreclosure property owners must give ninety (90)-day pre-eviction notices to bona fide tenants, but the date on which that notice has to be given will now be later in the process — on or after the date the foreclosure deed is recorded.  Ninety (90)-day notices sent on behalf of the servicer during the foreclosure process will no longer satisfy the Tenants Protection Act.  Post-foreclosure property owners should do everything they can to ensure that foreclosure deeds are recorded expeditiously after a foreclosure sale to cut off the rights of mortgagors from entering into new lease agreements with bona fide tenants so that the new owner does not have to contend with honoring the terms of those new lease agreements.

Further, since bona fide leases survive the foreclosure until the end of their term, the tenants have state law based remedies for violations of the tenants’ rights against successors in interest in foreclosed properties. Nativi v. Deutsche Bank National Trust Company, 223 Cal. App. 4th 261 (2014).

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OKLAHOMA ALLOWS INDEPENDENT CONTRACTORS TO OPT OUT OF WORKERS COMP COVERAGE

March 5th, 2019

Generally, every employee hired in Oklahoma or who is injured in Oklahoma is covered by the workers’ compensation laws of the state.  Independent contractors are not employees and are therefore not covered.

The issue of whether a person or entity is an employee or an independent contractor is a complicated one. Nevertheless, the Workers’ Compensation Commission provides CC-Form-36A: Affidavit of Exempt Status under the Administrative Workers’ Compensation Act and CC-Form-36C: Cancellation of Affidavit of Exempt Status for use by contractors. The Affidavit of Exempt Status is a two-page document, and the independent contractor must complete and sign both pages. The second page includes an 11-part checklist to aid in determining whether the person is or is not a bona fide independent contractor. The form states “[i]f the greater weight of the statements do not describe your business, you should not sign the attached Affidavit …”. In other words, there is no single factor which controls. The Affidavit of Exempt Status which the proposed independent contractor must complete includes questions such as whether the company exercises very little control over his work; whether he is engaged in business for others; whether the company does not supply the things needed to perform his job; whether the work he does is not the regular business of the company; and whether he has the right to terminate the relationship without any liability.

Just because a person has incorporated or is an LLC does not automatically transform that person into an independent contractor. That is but one factor. A written contract with the customer/owner will not alone transform the worker into an independent contractor. Independent contractors and companies alike must be aware of this area of the law in order to avoid the myriad of problems which can arise from misclassifying a worker.

With the new tax laws benefitting independent contractors with a 20% deduction from their income, now is a good time for companies to re-assess any persons/entities which may be classified as independent contractors.

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Street Law School: Getting A Criminal Record Expunged Is Getting Even Easier Than Before

November 14th, 2018

On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned.  Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction five years after completion of their sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven years, and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12).  This 2018 change to the law reduces the waiting period from ten years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past fifteen years; and omits a requirement that the person first be pardoned.  Oklahoma’s additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies may be further explained by any Oklahoma attorney that includes expungements as a part of their practice.

Links to the Oklahoma Statutes dealing with expungement of criminal records:

Convictions and arrest records (Section 18 Expungement)
Identity Theft (Section 19a Expungement)
Expungement of a Victim’s Protective Order (Section 60.18 Expungement)
Deferred or delayed sentences (Section 991(c) Expungement)
Expungement for Victims of Human Trafficking (Section 19c Expungement)
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In Oklahoma you can easily change your “regular” LLC into a Series LLC.

October 26th, 2018

Have you got a regular LLC? Considering whether or not to change it into a Series LLC? Here are some of the things to think about before making the change:

  1. Are you in a Series LLC state? In Oklahoma the answer is: Yes! So you can file an amendment to your Articles of LLC to legally convert your regular LLC into a Series LLC.
  2. If you want to start a whole new Series LLC, you can do that too.
  3. If your LLC is from a non-Series LLC state, and if it is really important to you to keep your existing LLC’s history, Tax ID number, etc., you can move your LLC’s corporate home to Oklahoma and simultaneously convert it into a Series LLC. That would allow you to keep your existing history. You would then dissolve your existing LLC in your home state, to cancel it off the books. And finally, you’d have to reintroduce your newly converted Series LLC, this time as a foreign entity, back into your home state.
  4. Are you in a state that isn’t Series LLC friendly? All states permit LLCs from out-of-state to cross-register in, when required. The same goes for Series LLCs (you cross-register the parent only; there is no way to cross-register Series LLC Cells at this time).
  5. Beware of California which looks at each Cell in the Series LLC as a distinct entity for tax purposes. As such, every Cell would register with the Franchise Tax Board and pay the state’s minimum $800/year franchise tax fee!
  6. There are many variables when you’re structuring a business. Unless you talk to someone who’s got some knowledge and experience on the legal side, it’s hard to know what you don’t know. And that can leave you vulnerable.
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Street Law Firm: Oklahoma is open for medical marijuana businesses. Now what?

July 13th, 2018

On July 26, application information and requirements for licenses will be available at omma.ok.gov. Applicants must be at least 25 years old, reside in Oklahoma, and must be registered to conduct business in the state as well as meet other licensing requirements. Entities can have ownership consisting of no more than 25% ownership by non-Oklahoma residents. The license application fee for growers, processors, and dispensaries will be $2,500.

To be prepared for state licensing you should:

  • Read through the Regulations and determine what business type you’d like to have.
  • Setup your Cannabis Company Formation since you need to be a registered business for licensing approval.
  • You’ll also need a Cannabis business plan for licensing.

OSDH will continue to provide the most up to date information as the program is fully implemented.

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Qualified Opportunity Funds Self-Certification News

May 20th, 2018

The IRS released Opportunity Zone FAQs on April 24, 2018 explaining that an eligible entity will be able to self-certify to become a Qualified Opportunity Fund (QOF) by filing a form to be released this summer with its timely filed (including extensions) federal income tax return for the taxable year.

As part of the extensive Tax Cuts and Jobs Act of 2017 (TCJA), Congress created a little known but beneficial tax program to incentivize investments into “qualified low-income communities” aka Qualified Opportunity Zones designated by the governors of each state. The investment is made through a QOF which is generally a privately managed investment vehicle organized as a corporation, partnership or limited liability company for the sole purpose (at least 90 percent of its assets) of investing directly into a certified qualified opportunity zone property. The IRS has issued a Revenue Procedure, but more rules will follow this summer.

Similar, but in many ways more advantageous, to Section 1031 tax deferred or like-kind exchanges, taxpayers who roll over (re-invest unrealized capital gains) sales proceeds within 180 days of the sale or exchange of non-zone assets (including stock, partnership interests, real estate and property used for personal purposes) before December 31, 2026, will be able to take advantage of the beneficial tax treatment this provision provides. The tax incentives available to investors in QOFs are significant. First, investors can defer capital gains taxes until the earlier of the date on which the QOF investment is sold or exchanged, or December 31, 2026. Second, capital gains taxes are reduced when the investment is maintained for at least 5 years, and additional tax cuts are available for investments held for periods of 7 and 10 years. Third, if the investor holds the investment in the QOF for at least 10 years, the investor is eligible for an increase in basis equal to the fair market value of the investment on the date that the investment is sold or exchanged. Additional, more complex incentives may also be available.

Here is the link to a map of all of the OZs that have been designated, including the 117 in Oklahoma chosen by our Governor. The investment must be in one of these zones via a QOF. Criteria the Governor used in selecting the OZs included community interest and support for additional investment, the potential of at least one “ready to go” or otherwise identifiable project, and that the identified project addressed one of the following target uses: industrial/business development, housing, or agriculture.

Now we know that the IRS will establish a simplified QOF certification process that real estate investors should find attractive. Self-certification should result in a fast and less expensive process for investors and sponsors of QOFs. Just how simple and inexpensive this process will be, of course, depends on what is required in the actual tax form released by the IRS.

Huddleston Law Offices will monitor guidance from the IRS on Opportunity Zone Funds and provide updates when guidance is released.

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Street Law School: My Neighbor’s New Video Camera Faces My House! Now What?

March 19th, 2018

You have just noticed that your neighbor’s front door camera directly faces your door and/or window. With the new motion sensitive video surveillance systems and online cloud storage of all video, you are recorded every time you open the door. Maybe this makes you uncomfortable, and you feel a loss of privacy. But is this illegal?

It is estimated that the average American is caught on camera more than 75 times each day. We are all recorded more than we realize, and while sometimes it makes us feel safer, other times it makes us uncomfortable, or worse, feel violated. For better or worse, being recorded is now a fact of life. Our society and legal system have been playing catchup with this growing trend to regulate the use of cameras and punish people who abuse the technology. Unless your neighbor is misusing the video recorded, perhaps by posting it on social media sites, there is likely not much that can be done.

Property owners have the right to place cameras in and around their home for security reasons. The cameras should either be easily noticeable, or there should be signs warning visitors that they are being recorded. The cameras should not be used to record neighbors or anyone where they have a reasonable expectation of privacy, such as inside their house, a hot tub, or any place where that person would expect that no one is looking at them without their permission or knowledge.

Penalties for being a video “peeping tom” are severe. Oklahoma Statute §21-1171, commonly known as the “Peeping Tom” law, prohibits the use of video equipment in a clandestine manner to record others without consent in areas where they have a reasonable expectation of privacy. This law does not affect your right to a home surveillance system unless your cameras are recording any private area of your neighbor’s property (i.e. interior rooms, fenced backyard, etc.).

Once you have a properly configured security camera system installed, you should be aware of your rights and responsibilities to operate the system. Oklahoma Statute §13.176.3 prohibits anyone from intercepting or disrupting your security camera signals, either to your internal storage device or to an external monitoring center.

Another Oklahoma law, Oklahoma Statute §21-1993, prohibits others from tampering with or disabling your security cameras. This can include covering the camera lens, manipulating the signal, disconnecting the device, or destroying any part of the system.

If someone does record you without your knowledge and permission when you are somewhere that should be private, the law will look at the intent with which you were recorded. If your neighbor’s door camera was for security and positioned so that it just happened to see inside your home as you entered and exited (a time when you might not normally expect privacy), then it would likely be legal. But if your neighbor has set up cameras to be a high-tech Peeping Tom, he very well may be committing a crime.

By court decision, Oklahoma already recognizes a limited cause of action in tort founded on invasion of privacy. Munley v. ISC Financial House, Inc., 584 P.2d 1336 (Okl. 1978). In addition 21 O.S. 1971 § 839.1 prohibits appropriation for one’s own benefit of another’s name or likeness and makes such appropriation a misdemeanor. Section 839.2 provides a cause of action for damages resulting from the appropriation.

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Street Law School: I am buying property. Should I buy title insurance?

March 19th, 2018

If you are getting a home loan, you will always have to purchase a lender’s policy of title insurance. Even when you have a choice, I always recommend that everyone buying a home get an owner’s title insurance policy. For a low, one-time cost, you get an insurance policy that protects what is most likely your most significant investment.

Mortgage lenders make getting a title insurance policy that protects them a requirement for giving you a loan for very important reasons. While it’s uncommon for someone’s homeownership to be attacked, if you are unlucky enough to have it happen, you will be thankful for the protection.

Your seller or builder must have good title, but that may not actually be the case — and they may be long gone by the time a problem surfaces, leaving you with the title problem. Title insurance covers you for various threats that affect your ownership, including a forged deed that happened long ago; or a sale that happens without the seller clearing all the liens, and not being able to later clear all the liens.

Even if everything is on the up and up, mistakes happen, and things get missed, so you don’t want to be the one who ends up paying for the error. Even without title insurance, it may be possible to sue the offending party, but it will be on your dime and at your risk. This is just not a smart chance to take when you can pass it on to a title insurance company.

While it does pay to shop around for title insurance services, the cost of the actual insurance policy premium is almost always the same at all the title and closing companies in Oklahoma. However, other settlement closing costs can vary, and are often discounted in order to get your title insurance business. Most, but not all Oklahoma title insurance agents are attorneys, so you may want to check to see if an attorney owns the title insurance company you select.

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