Monthly Archives: May 2019

FLORIDA REAL ESTATE EXPERT WITNESS TESTIMONY. JOHNSON VS DAVIS. BY JASON STEELE

Quite often real estate licensees violate Florida Standards of Practice for real estate practitioners. These actions can lead to civil lawsuits where both buyers and sellers can suffer significant losses. Chapter 475, Florida Statutes, regulates the real estate industry and is the primary law upon which court decisions are made on monetary damages. Courts also look to prior case law decisions and the testimony of expert witnesses.  That is where you may need assistance from a qualified expert witness.  Jason Steele is a licensed real estate broker with the expertise to assist in such matters (see link below).

www.floridarealestateexpertwitness.com

One of the most common violations by real estate licensees deals with the ruling in Johnson vs. Davis concerning defects in the purchased residential property.  Many courts have interpreted and refined the application of this rule of law. From these cases one can conclude that in a home buyer’s nondisclosure claim against the seller, there are four elements: (1) the seller must have knowledge of a defect in the property; (2) the defect must materially affect the value of the property; (3) the defect must not be readily observable and must be unknown to the buyer; and (4) the buyer must establish that the seller failed to disclose the defect to the buyer.

The key to this legal trend has been to establish that a seller has a duty to disclose known defects. The standard makes this an affirmative obligation to disclose – not just if asked but in any instance where known defects exist. Failure to disclose could result in legal action against the seller.  In essence, this turns the tide and makes the duty one of “seller beware” or perhaps “seller disclose.”  Where does disclosure begin? Who is responsible for disclosure?  What is the agent’s responsibility?  Anyone buying a house faces hidden unknowns. The seller is responsible for disclosing those defects if they materially affect the value. There are many types of defects, including Chinese drywall, mold, lawsuits, sinking slabs, unpermitted electrical, plumbing, etc. The best thing for a real estate agent to do is advise the seller to disclose the material defects that are known, and go one step further by getting a certified building contractor to do an in-depth inspection of their home and provide it to the realtor before the property is listed. This report should not be relied on by the realtor or buyer.  It should be viewed as just an opinion of conditions. The realtor’s buyer should always get their own report (this report is not required by law and is used as a precaution).

There is an old saying that I used as a former Florida Realtor GRI instructor:  “When in danger, when in doubt, write it out, write it out.”  Meticulous record-keeping is a must for any real estate agent. Agents have the responsibility to disclose any defects that are known to them. Most real estate agents deliver a material defect disclosure form that the sellers fill out and sign, which become part of the licensee’s records. I have testified in Johnson vs. Davis lawsuits.  They can be extremely expensive for the seller, the real estate agent, and the buyer if defects are not disclosed.  I have also testified in civil cases involving issues of undisclosed defects.  I recently was retained as an expert witness in a major million dollar plus lawsuit that settled prior to trial.  This case involved real estate agents as the sellers, and their son and daughter (also agents), who listed the property. The facts of that case present a good example of what not to do as a real estate agent.  It all boils down to following the requirements of Chapter 475, Florida Statutes, and the rules of the Agency, including:

1. Dealing honestly and fairly.

2. Accounting for all funds.

3. Using skill, care, and diligence in the transaction.

4. Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the BUYER.

5. Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing.

6. Limited confidentiality, unless waived in writing by a party, will prevent disclosure that the SELLER will accept a price less than the asking or listed price; that the BUYER will pay a price greater than the price submitted in a written offer; the motivation of any party for selling or buying the property; that a SELLER or BUYER will agree to financing terms other than those offered; or any other information requested by party to remain confidential.

7. Any additional duties that are entered into by the original agreement or by separate written agreement.

8. Limited representation means that a BUYER or SELLER is not responsible for the acts of the licensee. Additionally, parties are giving up their rights to the undivided loyalty of the licensee. This aspect of limited representation allows a licensee to facilitate a real estate transaction by assisting both the BUYER and the SELLER, but a licensee will not work to represent one party to the detriment of the other party when acting as a transaction broker to both parties.

For more information on expert witness arrangements please contact me at jason@smithlawtlh.com.

False, Fraudulent, and Bad Faith DMCA Take Down Claims

Picture this.  You’re are a YouTube personality who happened to hit it big and before you know it you are relying on income from your YouTube channel as your sole source of income.  Your videos consist mainly of criticizing or commenting on issues that are important to you.  However, with this rise in fame also comes a rise in detractors – people who are not happy that you are criticizing them.  These detractors want nothing more than to hurt you and prevent others from hearing your criticisms.  So, what do these detractors do? They file a DMCA takedown notice claiming that your video (or videos) are infringing on their copyright.  You are now in the position of defending yourself or risking copyright strikes by YouTube.  Worse, even if you file a counter-notice, the video will still have been offline for some time, causing a serious interruption in your source of income.  Do you have any recourse against these bad-faith, fraudulent takedown notices?  The answer is yes, and this article discusses what those options are.

Congress passed the Digital Minimum Copyright Act (the “DMCA”) in 1998 to address the changing world of copyrights in lieu of the rise of the internet.  Over two decades later, the DMCA still provides an efficient mechanism to allow copyright holders to easily have infringing content removed from an internet service provider like YouTube without the need to file expensive lawsuits.

The DMCA, among other things, created a notice-takedown process that, if followed by service providers (like YouTube), insulates them from copyright liability for any infringing content posted on their site.  In general, the way that the takedown-notice procedure works is as follows:

  • A copyright holder files a takedown notice, under penalty of perjury, with a service provider claiming that the site is hosting infringing content owned by the copyright holder;
  • The service provider then removes the allegedly infringing content and notifies the person who posted the content;
  • The posting party then has the right to file a counter-notification, informing the service provider that the content is not infringing; and
  • If a counter-notice is filed, the service provider must re-host the content unless the original copyright holder files a lawsuit.

In most cases, this process works well and allows content creators, especially small content creators, the ability to police their works without needing to resort to expensive, federal copyright litigation.

However, people have been able to abuse this process to attack enemies and competitors, and to censor critics.  Critics often use small portions of video or text from the person they are criticizing to put the criticism in context.  This use, as discussed below, would clearly be fair use and allowable.  However, the person being criticized will then file a DMCA takedown notice claiming that, because snippets of his videos or text are used, the video infringes on his copyright.  These takedowns are not valid and are nothing more than attempts to censor perfectly acceptable speech and shield the person from criticism.

The DMCA provides a remedy for these bad-faith takedowns, specifically:

Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

17 U.S.C.A. § 512

Thus, if someone files a fraudulent DMCA takedown notice, they can be sued for the damages caused, along with the costs and attorneys’ fees that were incurred in pursuing those damages.  In many cases, the costs of attorneys’ fees can far outweigh the actual damages.

The big issue that arises in these types of cases is “fair use.”  Fair use is defined as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

17 U.S.C. § 107

One of the most important things to remember about fair us is that “fair use is not just excused by the law, it is wholly authorized by the law.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016).  Thus, even if someone is using a copyrighted work, if it is being used as authorized by 17 U.S.C. § 107, the use is not infringing.

What many of these fraudulent takedown requests hang their hat on is that their copyrighted content was included in some way in the video in question.  However, they fail to undertake any sort of good-faith analysis as to whether fair use is applicable or not.  Most often, uses of a copyrighted work, especially snippets of that work, to criticize the work or the author are protected by fair use.  However, the sender of the notice doesn’t actually have a legitimate concern about copyright infringement, but instead is concerned with attempting to censor critics or punish people the sender does not like.

Unfortunately for these senders, the Court has addressed this issue and concluded that “a copyright holder must consider the existence of fair use before sending a takedown notification” and “form a subjective good faith belief that a use is not authorized[.]” Id at 1153.

Therefore, if the sender did not conduct a good faith, fair use evaluation before sending the takedown notice, they can be subject to liability, including damages, attorneys’ fees, and costs.

If you have been the subject of a bad-faith DMCA takedown notice, you should contact an attorney at Smith & Associates for a free consultation to discuss your situation and your potential remedies.