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Religion And Property Law Essay

Abstract

People always have dreamed of purchasing their own homes. But before the purchase, certain measures and guidelines must be met before the sale is consummated and those requisites are spelled out in the law. Is the house safe to live in, and what about the other items and factors that might be integral in the purchase of that home? What if the purchase or sale is congruent to the practice of one’s religion?

Real Estate laws and duties

Warrant of Habitability

            When we purchase or lease out a residential property, certain conditions must be met by both landlords and agents of the property to be purchased or leased. If a landlord would lease out a property, then the landlord must make available for the lesser or purchaser a warrant of habitability (All Business. 2008). In this context, the landlord affirms that the property about to be leased out is safe for the purposes of human habitation (All Business, 2008). It is recognized here that it is partly the responsibility of the landlord to present the unit as safe for habitation, but some part of it is born by the tenant (Lehigh Valley Legal Services, 1996).

            It is also inclusive in the warranty that the unit will be safe for habitation during the entire time of the lease (Legal Match, 2008). Depending on the locale and state ordinances, the general infractions by which the landlord can violate the warranty would be inclusive of the following instances (Legal, 2008). The instances would include a failure of the landlord to  provide hot or cold water to the premises, provide heating during cold periods of the year, functioning electrical power, fire protection such as working smoke detectors, toilet facilities, clean facilities and other violations of building laws (Legal, 2008). But the tenant has the task of repairing any damage that is caused by the tenant themselves (Legal, 2008).

            The landlord, under any circumstance, will have the responsibility under burden of law to provide a safe and liveable home at a fundamental level (Lectric Law Library). This is not inclusive of any reason that may be argued in the lease that the two parties signed (Lectric). Generally, the warranty will be embracing most structures that are leased out or rented out as specified in leases for residential properties, not for commercial property leases (Legal, 2008). In essence, the warranty would embrace lease agreements to apartments, houses, and other types of residential structures rented out for the purpose of habitation (Legal, 2008).  But the same cannot be applied if the residential unit is a condomium (Legal, 2008).

            People who wish to purchase units not yet completed or not yet completed can now be afforded the information needed before they sign documents to purchase the said units (Mullin De Meo, 2008). This is in line with the new guidelines and rules that were set forth in the laws that govern the purchase and sale of properties (Mullin, 2008). But what are the elements that would render a structure fit for habitation? There is a definite criteria by which a unit can be adjudged safe for human habitation (All Business, 2008).

            Aside from the aforementioned instances that would infringe on the warranty of habitability requirement, there are specific questions that must be satisfied by the landlord of the residential structure. First, tenants must be apprised of any potential threats to their safety (All Business, 2008). If the same has not been conducted by the landlord, then the tenants of the unit will have the right to file for a breach of that warranty (All Business, 2008). Second, the tenants must be assured of the soundness of the structure (All Business, 2008). The building must be declared by the landlord, in cognizance of all existing building regulations, that the premises has been rid of structural pests, such as termites, or be free from any structural infirmities (All Business, 2008).

            Apart from the instance of the building being free from pests, the structure must also have sound ceilings and roofs, no punctures on its exteriors, and defective flooring, this may constitute violations of the building code, and may produce reasons for the structure to be found unsafe for habitation (All Business, 2008). These requirements, though cumbersome to some property owners, was stipulated for the protection of tenants against some scheming landlords (All Business, 2008). As is, there are thousands of renters at the mercy of unscrupulous landlords who operate buildings that have been deemed unsafe and unfit for human habitation (All Business, 2008). But what if it were the other way around that the tenant would just claim to have defects in the unit when actually these are non-existent?

            Landlords can protect themselves by first making a thorough and complete evaluation of your units before allowing tenants to lease them out from you (All Business, 2008). This is done by documentation and recording on video or taking pictures of the premises (All Business, 2008).  If the landlord is not fully satisfied with the process that he has conducted, then he can acquire the services of a professional inspector (All Business, 2008). The inspector may be able to afford the landlord the more critical eye in the examination of the unit that the landlord may have passed in the preliminary inspection (All Business, 2008).

Time frame for Warranties of Habitability    

            Warranties of habitability do not possess a fixed or ordinate time frame for expiration like those found in the warranty for contracts (Heather Maconachie, 2005). One legal opinion is that the time frame for the limits on the time for the enforceability of the warranty is not to be considered an “open-ended” scenario (All Business, 2008). But in a Arkansas Supreme Court decision, the Court ruled that a five-year limitation is set in the enforceability of the warranty of habitability (Find Law, 1997). This is in contrast with the accepted definition that the term is for a “reasonable amount of time” (Maconachie, 2005).

Duty to Disclose: The Truth Factor

            A long running discussion in real estate legal circles is the concept of disclosure of agents to their prospective clients some factors that may affect the desire of the client to purchase the unit (Victor Schinnerer, 2005). These would include such factors such as the neighborhood in the immediate area of the development, and if these factors would be a component in the valuation of the property (Schinnerer, 2005). The current rule is that both broker and the seller of the property are accountable to the buyer to disclose all pertinent information that would be essential in the decision of the buyer to purchase the property (Schinnerer, 2005). This is where the doctrine of Caveat Emptor, or “buyer beware”, comes into the picture (Schinnerer, 2005).

            This legal concept is by no means to be understood as a guard against scheming and law-breaking landlords (West, 2008). These landlords usually give false statements about the actual condition of their units to the prospective buyers (West, 2008). The context of this maxim is that the customer is tasked to assure themselves that the quality and state of the product is to their standards and not the sole responsibility of the vendor (West, 2008). But the current trend is the opposite; instead of caveat emptor, the practice of caveat venditor, or “let the seller beware”, has become the norm (West, 2008).

            Under this context, the practice would hold that the seller and the broker of the property is beyond assailment for the non-disclosure of the facts of the area surrounding the project if the latter did not have any direct claim of ownership over them (Schinnerer, 2005). It is a fair warning to the buyer of the property that the piece of property might be defective and that the buyer understands this condition by which they purchase the property (West’s Encyclopedia of American Law, 2008).  But in recent times, the trend of assigning responsibility to the brokers and sellers of the property has been more enforced (Schinnerer, 2005). Sellers must now disclose what is termed “off-site” conditions that may have a bearing on the value of the property (Schinnerer, 2005).

            How inclusive is the scope of this duty? The concept of “materiality’ has been deemed as the most appropriate norm of the scope of the duty (Schinnerer, 2005). In essence, the guiding factor in disclosing facts to the buyer or prospective client is the importance of the facts, or the “materiality” of the fact, to the decision of the buyer in acquiring the said property (Schinnerer, 2005). In a nut shell, if the seller or broker would themselves look at the property, would they consider such a fact material to their decision in buying the property (Schinnerer, 2005)?

Orthodox Jewish Laws: Getting a house?

            Secular courts have often been called to enforce or decide on issues or even statutes that have been laid down by religious entities (Michigan Law Review, 1973). However, the courts are not forced to be the enforcer or interpreter of the laws set forth by that religious body (Michigan, 1973). This is why it is imperative that American legal circles keep abreast with the tenets of religious statutes (Don Ford, 2007). Why is it important? The development of the common law is laid in the roots of Canon Law (Ford, 2007).

            Canon can be defined as a rod or ruler, if we were to use the Greek root word for the term, kanon (Ford, 2007). But the term that is used for the paper finds its roots in the word ius which can be translated as a system or the end point of a judicial process (Ford, 2007). This system is the process by which certain issues in courts are resolved, such as marriage and inheritance cases (Ford, 2007). But in the case or orthodox Jews, the applying set of rules would fall under the ambit of the Halakha, the collective revelation of God to the Jews (Knowledge Rush, 2003).

            Complex rules govern the application of the Halakh to the real estate process. As the secular laws are only concerned with the laws on the safety and the disclosure procedures of the property, the halachic process would even include the day and the “type” pf builders that would construct the house for the Orthodox Jew (Rabbi Eli Mansour, 2008). If the builders were “day” workers, those that are contracted for a daily wage, those laborers would be banned to perform any work on the house if the days would fall on Jewish holy days, inclusive of the Shabbat, or the Sabbath day (Mansour, 2008). If a person would infringe on this providon, or halacha, the person would not be permitted to occupy the house (Mansour, 2008).

            But the person who violated the Halakha may opt to sell the home to another fellow Jew, and the buyer would be allowed to occupy the house (Mansour, 2008). This was written as a form of punishment for those who would allow work to be done on their homes in violation of the Shabbat rule (Mansour, 2008). But even this rule is not al-encompassing (Mansour, 2008). If the person who hired non-Jew workers who built his house on the Shabbat would be put in financial jeopardy and has no other shelter available other than the house, then the person can be permitted to occupy the residence (Mansour, 2008).

References

All Business. (2008). What is an implied warranty of habitability? Retrieved November 10,       2008, from

            http://www.allbusiness.com/legal/contracts-agreements-real-estate/4094-1.html

Ford, D. (2007). Canon law research guide. Retrieved November 11, 2008, from

            http://www.nyulawglobal.org/globalex/Canon_Law.htm

Knowledge Rush. (2003). Halakha. Retrieved November 10, 2008, from

            http://www.knowledgerush.com/kr/encyclopedia/Halakha/

Lectric Law Library. (n.d.). Legal definition of implied warranty of habitability. Retrieved         November 10, 2008, from http://www.lectlaw.com/def/i013.htm

Legal Match. (2008). Implied warranty of habitability. Retrieved November 10, 2008, from

            http://www.legalmatch.com/law-library/article/implied-warranty-of-habitability-  lawyers.html

Lehigh Valley Legal Services. (1996). Warranty of habitability. Retrieved November 10,            2008,   from

            http://www.tenant.net/Other_Areas/Penn/lvls/llt4wh.html

Maconachie, H. (2005, February). Residential developers; reduce your risk of future legal          claims. Owen Bird Report.

            http://www.owenbird.com/~ASSETS/DOCUMENT/PDF/1/

            OBReport_ConstructionLaw_February2005.pdf.

Mansour, E.J. (2008). Daily halacha. Retrieved November 11, 2008, from

            http://www.dailyhalacha.com/Display.asp?ClipDate=3/14/2008

Michigan Law Review. (1973). Enforceability of religious law in secular courts-its kosher,           but is it constitiutional? Volume 71, number 8 Michigan: Michigan Law Review    Association.   

Mullin De Meo. (2008). Real estate agents-duties and liability. Real Estate Update

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Volume 3     issue 1

            http://www.realestatelawvictoria.com/2007_website/

            newsletter_pdfs/2008%20Winter.pdf.

Schinnerer, V.O. (2005). Duty ot disclose off-site conditions. Retrieved November 10, 2008,     from https://www.schinnerer.com/risk_mgmt/real_estate/dty2disc.html

West’s Encyclopedia of American Law, 2nd Edition. (2008). Caveat emptor and caveat    venditor. Retrieved November 10, 2008, from

            http://legal-dictionary.thefreedictionary.com/caveat+emptor

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