Which profession has standing to determine building structural integrity? Assume that a claim regarding a building and the soil (erosion) are at issue in Florida. The claim indicates a building contractor dispositions the issue verbally and is documented by an (hearsay) a homeowner to form a legal basis of necessity to bypass statute and bylaws requiring a vote. Does Florida generally require that a particular profession (a Professional (state certified) Engineer) to measure and then disposition if there is an issue and to what degree? Update: Specifically, Section 718.301(7), Florida Statutes states: In any claim against a developer by an association alleging a defect in design, structural elements, construction, or any mechanical, electrical, fire protection, plumbing, or other element that requires a licensed professional for design or installation under chapter 455, chapter 471, chapter 481, chapter 489, or chapter 633, such defect must be examined and certified by an appropriately licensed Florida engineer, design professional, contractor, or otherwise licensed Florida individual or entity.
I assume that you don't mean &quot;standing&quot; in the legal sense (i.e. who has a right to sue over something). The question of whether a building has structural integrity is an evidentiary issue. As a result, any competent evidence may be introduced to convince the finder of fact of the issue, and the finder of fact (in a civil matter) will resolve that issue based upon a preponderance of the evidence. There are lots of ways that it could be proven (or disproven): Some instances of lack of structural integrity would be so obvious that a mere authenticated photograph or video clip offered by a lay person would be sufficient to prove the issue. A recent citation from a city inspector would argue strongly for a problem. A recent issuance of a certificate of occupancy would argue strongly for a lack of a problem. Any contractor with a license adequate to do that work would probably be competent to render an opinion. Sometimes an architect would be competent to testify. A licensed or certified building inspect might be competent to testify. Structural integrity is usually the province of someone trained as a civil engineer with a structural engineering speciality. But often evaluating the condition of the soils would be considered a separate speciality to be evaluated by a soils engineer, often as a consultant whose work is used by the structural engineer to form an overall opinion. Except in the case of a lack of structural integrity that it obvious to a lay person that can be proved with a simple photograph or video clip, or can be established with a citation or a certificate of occupancy, anyone presenting a factual opinion regarding the structural integrity of a building would have to be accepted by a court as an expert witness. A court's acceptance of someone as an expert witness is a process that would typically involve presentation of the qualifications of the expert in terms of education, licensure, experience, and history of publications in the area, as well as some defense of the validity of the discipline in which the expert witness is skilled as having a scientific basis and is relevant to the question at hand in this particular case. In a fully litigated case, these issues are typically resolved in pre-trial motion practice and a pre-trial evidentiary hearing in the case of a dispute over whether the area in which the witness has expertise provides is a valid approach, as discipline, to answer the question in a scientifically reliable way. But this broad based attacks on an entire approach to addressing an issue don't usually come up in the case of the standard building and engineering professions. Also, in a fully litigated case, the parties normally disclose an official report of the expert witnesses offered and make them available to be deposed prior to the trial. This requirement is often dispensed with, however, in litigation over preliminary matters. The issue of what kind of expert testimony is competent to prove a disputed issue of fact is determined on a case by case basis. There is not a body of law that spells out in any real specificity what kind of evidence is or is not competent to prove the issue. The general rules of evidence apply and there might be (but probably isn't) case law under the rules of evidence for expert testimony that is on point to resolve your particular issue. More often, there will be pronouncements in variously kinds of professional licensing statutes regarding what someone with a particular qualification is qualified to do, and those are evaluated with respect to a particular tendered witness in a manner that does not preclude someone else who might also have different qualifications that are also relevant to some aspect of the issue from also testifying to the factual issue presented. Of course, that fact that an expert witness meets the minimum threshold to testify in court under the rules of evidence doesn't end the analysis. An expert witness is introduced in order to persuade the judge that the expert's opinion is correct. And, the more highly credentialed a witness is, the more relevant the credentials the witness holds, and the better the witness is at communicating the basis for the opinion of the witness to the judge or jury, the more likely it is that the finder of fact will give weight to the opinion of the witness and rule consistently with the opinion of the witness. So, on one hand, a contractor or inspector would probably be less credible than a structural engineer working with a soils engineer. On the other hand, someone with great technical expertise who isn't a good communicator, or can't deftly respond to an opposing attorney's cross-examination question without falling into a &quot;trap&quot; laid by that attorney, could still be a poor expert witness. Many technically skilled expert witnesses are more timid than necessary in formally giving opinions in court because they are used to discussing ideas in non-adversarial contexts where pointing out the limitations of your conclusions is welcomed and the colleague experts evaluating your opinion know not to give those limitations undue weight.
What you are describing seems to raise the defense of necessity. I cannot pinpoint the line for you or tell you whether any particular action would lie on one side or the other, but I can describe the test. In Maryland, there are &quot;five elements necessary to consider before applying the defense of necessity&quot; (Marquardt v. State, 164 Md. App. 95, 135-36 (2005), citing Sigma Reproductive Health Center v. State, 297 Md. 660, 677-79 (1983)): The harm avoided — this need not be physical harm but also may be harm to property as, for instance, where a firefighter destroys some property to prevent the spread of fire which threatens to consume other property of greater value. The harm done — this is not limited to any particular type of harm but includes intentional homicide as well as intentional battery or property damage. An illustration is supplied: `[A]s where A, driving a car, suddenly finds himself in a predicament where he must either run down B or hit C's house and he reasonably chooses the latter, unfortunately killing two people in the house who by bad luck happened to be just at that place inside the house where A's car struck — it is the harm-reasonably-expected, rather than the harm-actually-caused, which governs.' Intention to avoid harm — to have the defense of necessity, the defendant must have acted with the intention of avoiding the greater harm. Actual necessity, without the intention, is not enough. However, an honest and reasonable belief in the necessity of his action is all that is required. The relative value of the harm avoided and the harm done. The defendant's belief as to the relative harmfulness of the harm avoided and the harm done does not control. It is for the court, not the defendant, to weigh the relative harmfulness of the two alternatives. To allow the defense the court must conclude that the harm done by the defendant in choosing the one alternative was less than the harm which would have been done if he had chosen the other. Optional courses of action; imminence of disaster. The defense of necessity applies when the defendant is faced with this choice of two evils: he may either do something which violates the literal terms of the criminal law and thus produce some harm, or not do it and so produce a greater harm. If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law. For example, &quot;[a] prisoner subjected to inhuman treatment by his jailors is not justified in breaking prison if he can bring about an improvement in conditions by other means.&quot; Marquardt at 137: in order for the defense of necessity to have been warranted in this case, appellant must have presented &quot;some evidence&quot; that there was a choice between two evils, that no legal alternatives existed, that the harm appellant caused was not disproportionate to the harm avoided, and that the emergency was imminent.
This particular statement ("Person A lacks professionalism and integrity") may be protected because it isn't sufficiently factual to be susceptible of being proved true or false. Milkovich v. Lorain Journal Co. established that the test is whether "a reasonable factfinder could conclude that the statements [...] imply [a defamatory assertion]". The court mentioned that "loose, figurative, or hyperbolic language" would negate the impression that "[the speaker] was seriously maintaining [the defamatory claim]. The court also considered "the article's general tenor". It also emphasized that the statement was "sufficiently factual that it is susceptible of being proved true or false". Said in other ways: Is the statement "sufficiently factual to be susceptible of being proved true or false"? Can the statement "reasonably be interpreted as stating actual facts about an individual"?
The fault lies with the people who vandalized your house. In general, whoever causes you damage is responsible (liable) for that damage. This is true whether or not you are selling your house, having guests over, letting a friend stay over for a night or a week, or whatever the circumstance is. Insurance is there to cover many such losses: if a friend trashes your house in a drunken rage, your insurance will cover the damage, but they will invoke the doctrine of subrogation whereby they get to go after the friend, and you have to cooperate. In a situation where nobody has a clue who did the damage, the only possible way that the agent has any responsibility is if they were negligent in their duty to take care of the house. For your specific case, you'd need to discuss the forensic facts with your attorney. But generally speaking, the issue would be whether the agent had breached his/her professional duty of care, which is best understood as comparing his actions (or lack) compares to actions of other professionals in the same circumstance. If a house has 3 or 4 sets of visitors simultaneously, it is really not possible for an agent to supervise all of them at once. So the question would be, was this the result of one concentrated vandalism attack, or serial vandalism. The former is more in the realm of "stuff happens", and the latter is indicative of an endemic lack of care. To repeat, the fault lies with the miscreants who vandalized your house. You, or your insurance company, may nevertheless have to bear the financial burden. Your insurance company will certainly have an interest in spreading responsibility to the realty firm, if warranted by the facts.
The Rules of Professional Conduct apply only to lawyers and are the foundation for a lawyer to be suspended from the practice of law or disbarred or receive other license related professional discipline. They are neither criminal offenses, nor on their own, a grounds for a civil lawsuit (although they may be relevant to an element of a civil cause of action giving rise to a lawsuit). The Rules of Professional Conduct also prohibit using a non-lawyer as a sock puppet to violate the Rules of Professional Conduct. But, the Rules of Professional Conduct themselves are not applicable to pro se parties or even to non-lawyer parties who are acting fully independently of the lawyers they have retained. In some circumstances, a violation of Rule of Professional Conduct 3.4(g) could also constitute the crime of extortion, or could constitute duress such that an action taken in the course of litigation or a business deal is not actually legally considered to be voluntary and making it potentially voidable. But this would not always, or necessarily even usually, be the case. Incidentally, Rule of Professional Conduct 3.4 is one of the Rules of Professional Conduct with the most state to state substantive variations and it also has multiple differing interpretations even in cases where the language is verbatim identical between states. The appropriate scope of this rule as a matter of policy is one of considerable controversy. And, it isn't unusual for the converse to happen (i.e. for a criminal prosecutor or an attorney regulation system official to force the hand of a civil litigant in the course of negotiations about those charges).
Yes. There is both a duty to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a right for the court to demand access to other specific records. In england-and-wales the applicable rules are found in Part 31 of the Civil Procedure Rules. For example: Standard disclosure 31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. Specific disclosure (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. Party's control 31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control. (2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it. Right of inspection 31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies. (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. Inspection and copying 31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. And, in case there's any doubt that this applies to electronic records: Meaning of document 31.4 In this Part – ‘document’ means anything in which information of any description is recorded;
12 USC Ch 38A regards single family mortgage foreclosures and 12 USC Ch 38 regards multifamily mortgage foreclosures, however both law applies to mortgages held by or guaranteed by the federal government; nothing in those laws establishes an exception to the right to foreclose in case of kidnapping or some other special circumstances. There has to be written notice of the judicial proceeding, but it is not required that the owner be physically handed and made aware of that notice. Outside of those cases involving the federal government as the foreclosing party, the details are determined by state law. In Washington, there might be a non-judicial foreclosure under RCW 61.24.031, where you get a Notice of Default. The requirement is that you send the borrower a letter giving the relevant information ("YOU MUST RESPOND..."). You must exercise "due diligence" in providing notice, which is defined in subsection (5), which includes (and is not limited to) sending both first-class and either registered or certified mail, return receipt requested, a letter to the address in the beneficiary's records for sending account statements to the borrower and to the address of the property encumbered by the deed of trust You also have to call 3 times, then another certified letter receipt: there is, again, no condition that says "if you can't find the person, you cannot foreclose". One part of the process is that the borrower can apply for mediation under the Foreclosure Fairness Act, guidelines here. However, this would require that someone be able to act on the borrower's behalf, which may not be the case.
This is called a bailment. There is a pretty general outcome. First, I will discuss bailments. To get to the meat of the answer skip down to the horizontal break. Here is some info from a Maryland case. I omitted citations and added emphasis. Danner v. Int'l Freight Sys. of Washington, LLC (D. Md., 2012) Maryland is a state which may honor the fine print. There are three types of bailments, the most common one is the type you are asking about, the bailment for mutual benefit. (You watch my coat, I give you a few dollars. As opposed to, "Hey will you watch my computer while I go to the bathroom?) A bailment relationship can arise in a variety of ways. In modern usage, there are three general categories of bailments: (1) for the sole benefit of the bailor; (2) for the sole benefit of the bailee; and (3) for the mutual benefit of both. The property should be returned in the same condition as it was delivered. A reasonable standard of care applies. When the subject matter of a mutual bailment for hire is delivered by the bailor to the bailee, it must be returned by the bailee in substantially the same condition ordinary wear and tear excepted. Put another way, the bailee in accepting possession of the bailed property assumes the duty of exercising reasonable care in protecting it. If the property is damaged, the bailee (the person holding the coat) is automatically found to have failed to take reasonable care. They need to explain the damage and how it was not their fault. Then the bailor (the guy who owns the coat) needs to explain why, in spite of the excuses, the bailee is the one responsible. When the bailed chattel is either not returned or returned in a damaged condition without legal excuse, a prima facie case of lack of due care or negligence is made out. It is then the duty of the bailee to go forward with proof that the loss or injury was occasioned by a cause which excuses the bailee, thereby providing a complete defense as the bailee is not an insurer. The bailor is then, by reason of his burden of proof, required to overcome this defense by establishing by a preponderance of the evidence that the bailee failed to use ordinary care and diligence to safeguard the bailor's property, and that failure to perform his duty caused the loss to the bailor. So the bailee is responsible for negligence, but is not an insurer. As long as they provide the care that an ordinary person would provide in keeping their own coat, they are not responsible. A bailee may be liable for negligence, but is not strictly liable for loss of bailed property. This is because a bailee for hire is not an insurer of the safety of the property entrusted to its care, but . . . owes only such care as persons of common prudence in their own situation and business usually use in the custody and keeping of similar property belonging to themselves. Another case, this one from Washington, tells us a little about limiting liability. Eifler v. Shurgard Capital Management Corp., 861 P.2d 1071, (Wash.App. Div. 2, 1993) Again, internal quotes omitted and emphasis added. These are the guys who do not honor the fine print. The case tells us that the bailee, if the bailee is a professional bailee, cannot limit liability. A professional bailee is one (1) whose principal business is to act as bailee, and (2) who deals with the public on a uniform rather than individual basis. When a bailment for mutual benefit is also a professional bailment, public policy will not permit the bailee to limit his or her liability for negligence. The court cites a popular leading California Supreme Court case (Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92 (1963)) and provides a "test to be applied in determining whether exculpatory agreements violate public policy" - in other words, if that fine print gets thrown out. The more of these elements that are true about the situation, the harder it is for the fine print to cover the bailee's ass: 1) Service to the public, perhaps even necessary to some 2) Offers the service to pretty much any customer 3) The bailee has a position of bargaining power by virtue of the service offering 4) Standard exculpatory language, take it or leave it 5) No option to pay more money for better protection 6) Property is placed under the control of the bailee Bottom line is that if the state follows this model, the fine print is not enforceable. Thus, the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.