Westchester attorney says buying the right house could be murder without property condition disclosure

We have all heard about those houses – the Amityville Horror house on Long Island, the John List property in Westfield, New Jersey and the latest movie release, “A Haunting in Connecticut.” They are the houses with a stigma, a history, a murder, a haunting, something that tarnishes the home’s soul, figuratively, and some would say, literally. Yet, whether you are a believer or not, these blemishes on a home’s provenance can most definitely effect its value and reduce the property owner’s ability to unload it. On the other hand, the believers would say it adds a little flavor to your real estate.

So, what is a seller and his or her agent supposed to do? Well, that depends on what state you live in because there is no national property condition disclosure standard. Some states mandate that sellers and their agents disclose all of a home’s dark secrets – whether there was a homicide or a possible ghost siting.

California was the first state, back in the 1980s, to pass a law defining the disclosure duty of an owner and real estate agent when selling a stigmatized property. Here in New York there is no explicit statute. True, state lawmakers enacted the NYS Property Condition Disclosure Act (NYS PCDA) in 2002 but they failed to state with any specificity what happens when an axe killer goes crazy inside a house or when Casper comes a knockin’ on the bedroom door. It should be apparent, however, that the most meticulous inspection and search would not reveal the presence of poltergeists at the premises or unearth the property’s ghoulish reputation in the community.

Prior to enactment of the NYS PCDA, back in 1991, the state’s appellate court had such a ghostly matter before it in Stambovsky v. Ackley, 169 A.D. 2d 254 (1st Dept. 1991). The court held that where the seller not only alleged there were ghostly apparitions in the home but launched a national media campaign about them, she had a duty to inform the buyer because “haunting is not a condition which can and should be ascertained by reasonable inspection of the premises.” However, the court would not impute a similar obligation on the realtor, saying the broker, as agent for the seller, “is under no duty to disclose to potential purchaser a phantasmal reputation of the premises, which are reputed to be possessed by poltergeists.”

When Albany lawmakers enacted the PCDA, they gave the sellers and buyers an option to opt-out of the mandated disclosure report and instead provide the buyer with a $500 credit at closing. Ahhh, yes, the almighty dollar. I have not yet heard of a New York Case involving a stigmatized or haunted house since passage of the PCDA, but under the case of Bishop v. Graziano, 804 N.Y.S. 2d 236 (Suffolk Co. 2005), it would seem that the adage of caveat emptor, or buyer beware, will apply where the parties to a real estate deal opt out of the PCDA, unless there is a negligent misrepresentation of a latent defect, such as in the case of a haunting or curse.

Westchester attorney raises questions about Amanda Knox murder trial in Italy

The prolonged Italian murder trial of American student Amanda Knox is raising more questions than answers. How is a murder trial only held on weekends? How does a jury hear autopsy testimony and other forensic evidence and then get time off for two weeks? How is there supposed to be any continuity in thought or determination on the charges? It makes no sense because it’s happening in Italy.

Sex, lies and baci

Sex, lies and baci

American student Amanda Knox, whom I’ve posted about previously, is on trial for murder with her Italian boyfriend, Raffaele Sollecito, each accused of killing her roommate, Meredith Kercher, in Perugia two years ago. Last night, CBS’s 48 Hours ran a story, raising issues of investigator and prosecutorial misconduct. Again, I don’t have enough evidence to make a determination and you will often find such charges bantied about when Americans are charged with any crime abroad. Yet, it does make you stop and think twice, especially when the prosecutor, Giuliano Mignini, has been previously reprimanded in another murder trial.

A third man, Rudy Hermann Guede of the Ivory Coast, has already been convicted of the killing but he has failed to testify for the prosecution. According to SeattlePI.com, Guede felt that if the prosecutor called him a liar once, then why should he cooperate now. Guede’s lawyer claims his real story will come out on appeal. Now, how long should that take? If a trial can last this long, just imagine how long the appeal will take.

In this country we have a constitutional right to a speedy trial and when a jury is seated they are not supposed to be exposed to media coverage or discuss the matter outside the courtroom. Further, once the jury is charged in a murder case, they are sequestered to keep them focused and away from outside influences in making their decision of guilt or innocence. How can that possibly happen in Italy? How can the jury who is now home for a two-week Easter break not discuss the matter at the Easter dinner table?

I still have not heard enough facts to determine Knox and Sollecito’s guilt or innocence but I do know that the jury who has heard the facts so far cannot possibly make an unbiased determination in that environment. I may be an Italian-American but I am so glad that I practice law in the United States.

Westchester attorney suggests bloggers do some thinking before linking.

A recent “David and Goliath” type case out of Illinois has brought to light, yet again, a potential pitfall of placing links to third party sites on your blogs or websites. It all started when the real estate site Blockshopper.com wrote about the real estate transactions of two attorneys at the law firm of Jones Day. Blockshopper linked to the bio pages of each of the attorneys. That’s called deep linking because they went beyond the homepage of Jones Day. Anyway, Jones Day sued Blockshopper alleging trademark infringement, dilution and unfair competition.

Lisa Fantino Westchester Attorney

Lisa Fantino Westchester Attorney

Trademark law protects the name of a product or service, or any distinctive symbol, product shape or slogan used in advertising or on a website. In order to prove an infringement claim, Jones Day would have to prove that Blockshopper’s use of the mark was likely to cause confusion about the origin, sponsorship or affiliation of the law firm’s goods or services. However, U.S. law also protects free expression and the rights of the trademark owner must be balanced in the marketplace which honors fair use of the mark.

A dilution claim, on the other hand, does not require the likelihood of confusion to protect a registered “famous mark.” All that is required is that use of the renowned mark by a non-owner causes dilution of the “distinctive quality” of the mark. However, just what constitutes a “famous mark” is left to great interpretation in the courts but generally the more recognizable and distinctive the brand name and/or its logo, the greater protection it will likely receive (i.e. – Apple Computers or McDonald’s Golden Arches).

Now, maybe Jones Day was just trying to make a name for itself because anyone who surfs the web knows that linking, even deep-linking, is the toll by which anyone cruises from point to point in cyberspace. Without “linking” the web would be a different terrain of static points and not easily navigable. Further, I don’t see how anyone could confuse a real estate site which offers prospective home buyers market guidance, much the same as Trulia, Zillow or Realtor.com, with a law firm that practices in the areas of financial litigation and regulation. But hey, everyone deserves their 15 minutes, right?

Either way, after six long months and a reported six-figure legal bill for Blockshopper, the case settled with the little guy agreeing to change how it links to Goliath. So now, instead of making it convenient for readers by placing an HTML coded link into their post, Blockshopper will state the long, cumbersome URL address instead. Are they serious? Could the law firm think of nothing better to do? I am just so tired of the rampant waste of resources in this litigious society. True, I am a litigator but let’s challenge things that really matter, things that change people’s lives, rights and economic conditions.

Yet, for my fellow bloggers and friends on Facebook, MySpace, Friendster, etc. here are just a few things to keep in mind when linking:

  • Will your link contribute to the dilution of a famous trademark (remember the standard is relative)?
  • Will you use the trademark in a bad light? Unless you are creating a non-fictional critique of the brand’s product or service, you should steer clear of disparaging the brand name & then linking to it……better to disparage without the link. LOL
  • Avoid using the exact style or logo of the brand’s name, such as the wavy writing of Coca-Cola or the swoosh of Nike’s logo, and instead use the brand name in quotation marks, capitalized, underlined or bolded to distinguish it from the rest of your text.
  • I didn’t bother to link to Jones Day. I figure they got sufficient play out of this case as it is. However, for all my legally minded friends, the Citizens Media Law Project has an excellent article and “links” to all of those legalese-laden court documents.