Fraud: An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing such as money.
You cannot build anything on this property legally!
VIOLATIONS OF LAW COMMITTED IN CONJUNCTION WITH THE SALE OF LOT #4 PH-2, EDITH ELLEN ESTATES SUBDIVISION - HAMPTON LAKE. DEVELOPER STEPHEN F. SMITH / REALTOR WAYNE E. DOUGLAS, SR.
* Florida Administrative Code 64E-6, page 13, (7)(a) & F.S. 381.0065(4)(a) Minimum lot size to obtain a septic permit is 1/2 acre, UNRESTRICTED. We DO NOT HAVE 1 TENTH of that amount. This home-site is unbuildable!
* Interstate Land Sales Act HUD - Restrictions MUST be disclosed in writing!
See Complete HUD Act Below.
* The "Infamous Swampland Scam" F.S. 498 - You cannot sell swampland to unsuspecting buyers because you cannot "build" in a swamp. It is ILLEGAL to build ANYTHING in a "State Protected Jurisdictional Wetland". FRAUD!
“SWAMPLAND” SCAM - Attorney General Crist, joined by Florida Department of Law Enforcement Commissioner Guy Tunnell, announced the arrest of a Citrus County man on a fraud charge stemming from the sale of flood-prone Everglades property to buyers who were falsely led to believe they would be able to build homes on the land. The man, Dudley Cohn, 72, was accused of making false promises to buyers and pressuring some of them to pay for the property in full before the federal government informed them that it would be buying the land for much less money. Crist said the scam, which could result in a 30-year prison term, is “reminiscent of the classic scam of selling Florida swampland to unsuspecting buyers.” (see news release)
* F.S. 720 Homeowners Association MUST be DISCLOSED Including Restrictions pertaining to the lot being sold in writing and approved by the purchaser in writing!
Homeowners Association Agreement NEVER disclosed or signed by purchaser!
* Title Policy - The purchaser MUST approve All RESTRICTIONS in WRITING prior to closing escrow!
Policy of Title Insurance can be viewed in it's entirety here:
* Lot sold in VIOLATION of subdivision's building permit!
* MAIL FRAUD - Because payments for lots were transmitted by the U.S. Postal Service, these activities constituted the federal crime of mail fraud under 18 U.S.C. § 1341.
* BREACH OF CONTRACT
1.) "No Homeowners Association Fees" - HOMEOWNERS’ ASSOCIATION / NONE. Homeowners Association Agreement was added to contract without purchaser disclosure, approval, and required signatures. (see Title Policy)
2.) RESTRICTIONS; EASEMENTS; LIMITATIONS: Any RESTRICTIONS not listed on contract, or EASEMENTS beyond 10 ft. rear / 7 1/2 ft. sides (if additional items, see addendum): MUST be attached to contract by ADDENDUM, and provided, that there exists at Closing no violation of the foregoing and none prevent use of the Property for "Single Family Residence".(see Title Policy)
3.) Brokerage Relationship Disclosure
FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS TRANSACTION BROKERS DISCLOSE TO BUYERS AND SELLERS THEIR ROLE AND DUTIES IN PROVIDING A LIMITED FORM OF REPRESENTATION.
As a transaction broker, "Douglas Realty" and its associates, provides to you a limited form of representation that includes the following duties:
* Dealing honestly and fairly.
* Using skill, care, and diligence in the transaction.
* Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer.
* 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.
* Transferee has acquired the subject property for use as a residence, and the "amount realized" for the property does not exceed $300,000.00.
All contracts signed in conjunction with this sale can be viewed here:
Title Policy mailed June 27, 2006 - 4 ½ months after closing escrow upon confronting Realtor Douglas in person having to fly out to Florida from California to address his broken promises? Plaintiff's were in the midst moving at this time, Title Policy was sent to Los Angeles, and plaintiff's were strung along for 6 months by the defendant's, until they became aware of the deception. Plaintiff's attempted to amicably resolve these issues with defendant's before seeking legal action.
After 1 year the above issues have NOT been addressed by the Bradford County Court or Legal System? The majority of court time has been spent answering FRIVOLOUS SLANDER, DEFAMATION of CHARACTER, LIBEL Motions, and the defendant's bogus claims that the plaintiff's have made threats to harm the defendant's???(97 pleadings to Date so far!)Unbelievable!
THE SUBDIVISION PERMIT
HUD LAW
Effective June 21, 1980, the provisions of the Act that prohibit misrepresentations or practices that would result in defrauding purchasers generally apply to sales or lease programs of 25 or more lots offered pursuant to a common promotional plan where any means or instruments of transportation or communication in interstate commerce, or the mails, are used.
If your offering has 25-99 lots that are part of a common promotional plan, your offering is exempt from registration, but is subject to the antifraud provisions, unless your offering is exempt under any of the provisions stated in 24 CFR 1710.5
Part IV--Statutory Exemptions Requiring No Determination by HUD The discussions that immediately follow pertain to 15 U.S.C. 1702(a) (1) through (8). The exemptions are set forth in the regulations at 24 CFR 1710.5 (a) through (h). These provisions exempt sales from both the anti-fraud and the registration provisions of the Act.
(a) Twenty-five Lots. (15 U.S.C. 1702(a)(10) and 24 CFR 1710.5(a)). (fewer than 25 lots)
(b) Improved Lots, 15 U.S.C. 1702(a)(2). (A home is built)
(c) Evidence of Indebtedness. (15 U.S.C. 1702(a)(3) and 24 CFR 1710.5(c)). (typically a note)
(d) Securities. (15 U.S.C. 1702(a)(4) and 24 CFR 1710.5(d)).
(e) Government Sales. (15 U.S.C. 1702(a)(5) and 24 CFR 1710.5(e)).
(f) Cemetery Lots. (15 U.S.C. 1702(a)(6) and 24 CFR 1710.5(f)).
(g) Sales to Builders. (15 U.S.C. 1702(a)(7) and 24 CFR 1710.5(g)).
(h) Industrial or Commercial Developments. (15 U.S.C. 1702(a)(8) and 24 CFR 1710.10(h)).
The developer must comply with the Act's anti-fraud provisions (15 U.S.C. 1703(a)(2)) for sales of lots in the subdivision that are exempt under these provisions. Developers should be particular aware of the requirements of 15 U.S.C. 1703(a)(2)(D).
(a) One Hundred Lot Exemption. (15 U.S.C. 1702(b)(1) and 24 CFR 1710.6). (h). It should be noted that the ``25 lot'' exemption under Sec. 1710.5(a) cannot be used in connection with the ``100 lot'' exemption.
(b) Twelve Lot Exemption. (15 U.S.C. 1702(b)(2) and 24 CFR 1710.7).
This section exempts the sale of lots from the registration requirements of the Act.
(c) Scattered Site Exemption. (15 U.S.C. 1702(b)(3) and 24 CFR 1710.8).
(vii) At the time of closing, a current title insurance binder, policy or title opinion reflecting the condition of title must be issued or presented to the purchaser showing that, subject only to exceptions which are approved in writing by the purchaser at the time of closing, marketable title to the lot is vested in the seller. In order to satisfy this requirement, a developer may want to obtain the purchaser's written approval of exceptions to title prior to closing, although the actual title binder, policy or opinion must be current at the time of closing and show that title is vested in the seller. If closing occurs and the purchaser has not approved the exceptions to title in writing, the sale would not be exempt under this provision. The party that bears the cost of the title binder, policy or opinion is not relevant to eligibility for the exemption. Unless otherwise defined by state law, the time of closing is the date that legal title to the property is transferred from seller to buyer.
Definitions
(a) Anti-Fraud Provisions means the provisions of the Act that prohibit the use of any sales practices, advertising or promotional materials that: would be misleading to purchasers; contain any misrepresentation of material facts or untrue statements; or would operate as a fraud or deceit upon a purchaser. Also prohibited are representations that roads, sewer, water, gas or electric services or recreational amenities will be provided or completed by the developer without so stipulating in the contract. The relevant provisions are set forth in 15 U.S.C. 1703(a)(2). The regulations that implement the anti-fraud provisions are set forth in 24 CFR part 1715, subpart B.
(b) Common Promotional Plan means any plan undertaken by a single developer or a group of developers acting together to offer lots for sale or lease. A common promotional plan is presumed to exist if land is offered by a developer or a group of developers acting in concert and the land is contiguous or is known, designated, or advertised as a common development or by a common name. The number of lots covered by each individual offering has no bearing on whether or not there is a common promotional plan.
Title 24 – Housing and Urban Development
CHAPTER X – OFFICE OF ASSISTANT SECRETARY FOR HOUSING – FEDERAL HOUSING COMMISSIONER, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (INTERSTATE LAND SALES REGISTRATION PROGRAM)
PART 1715 – PURCHASERS’ REVOCATION RIGHTS, SALES PRACTICES AND STANDARDS – Table of Contents.
Subpart B – Sales Practices and Standards
Sec. 1715.20 Unlawful sales practices – regulatory provisions.
In selling, leasing or offering to sell or lease any lot in a subdivision it is an unlawful sales practice for any developer or agent, directly or indirectly, to:
(i) Represent a lot as a home-site or building lot unless: Potable water is available at a reasonable cost; The lot is suitable for a septic tank operation or there is reasonable assurance that the lot can be served by a central sewage system;
(4) The lot is free from periodic flooding.
Sec. 1715.25 Misleading Sales Practices.
Generally, promotional statements or material will be judged on the basis of the affirmative representations contained therein and the reasonable inferences to be drawn therefrom, unless the contrary is affirmatively stated or appears in promotional material, or unless *adequate safeguards have been provided by the seller to reasonably guarantee the occurrence of the thing inferred. For example, when a lot is represented as being sold as 1.89-acre home-site, the inference is the purchaser will be able to develop the land as such, for which it is suitable for development, and *defects except those which are disclosed in writing to the prospective purchaser prior to conveyance.
The following is considered misleading:
(c) Land use representations. Representing uses to which the offered land can be put unless the land can be put to such use without unreasonable cost to the purchaser and unless no fact or circumstance exists which would prohibit the immediate use of land for its represented use.
*(h) Lot size. Representation of the size of a lot offered unless the lot size represented is exclusive of all easements to which the lot may be subject, except for those for providing utilities to the lot.
(l) Guaranteed refund. Use of the word "guaranteed refund" or similar language implying a money-back guarantee unless the refund is unconditional.
(o) Resale program. Making any representation that implies that the developer or agent will resell or repurchase the property being offered at some future time unless the developer or agent has an ongoing program for doing so.
Here is a professional opinion on this matter.
Number: AGO 96-20 Date: March 7, 1996 Subject: Real estate broker's liability not relieved by contract
Mr. Richard T. Farrell Secretary, Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
RE: REAL ESTATE BROKERS--CONTRACTS--BUSINESS AND PROFESSIONAL REGULATION, DEPARTMENT OF--broker's liability not relieved by sales agreement. Ch. 455 and 475, Fla. Stat.
Dear Mr. Farrell:
You ask substantially the following question:
Can a licensed real estate broker or salesperson be absolved of a legal responsibility or professional duty by language contained in a sales agreement between a seller and a buyer of real estate?
In sum:
A licensed real estate broker or salesperson cannot be relieved of a professional duty or shielded from liability for a violation of the professional practices act by language contained in a sales agreement between a seller and a buyer of real estate. Any provision of a contract that purports to remove a real estate broker's or salesperson's liability for misrepresentation or other wrongdoing undermines public confidence in a regulated profession and is contrary to public policy and, therefore, void.
Historically, the contract utilized in residential sales and purchases has been jointly developed and approved by the Florida Bar and the Florida Association of Realtors (FAR). A new alternative contract has been developed and distributed by FAR without consultation with or approval by the Florida Bar. This new contract purports to absolve real estate brokers and sales-persons from any civil liability for misrepresentations made in conjunction with the sale of residential real estate.
Paragraph 19 of this new contract states:
"PROFESSIONAL ADVICE; BROKER LIABILITY: Broker advises Buyer and Seller to verify all facts and representations that are important to them and to consult an appropriate professional for legal advice (for example, interpreting contracts, determining the effect of laws on the Property and transaction, status of title, foreign investor reporting requirements, etc.) and for tax, property condition, environmental and other specialized advice. Buyer and Seller hold Broker harmless and release Broker and Broker's officers, directors, agents and employees from all liability for loss or damage, whether caused by Broker's negligence or otherwise, in connection with (1) Seller's failure to disclose material facts in accordance with this Contract; (2) Broker's representations regarding the Property's condition or square footage; (3) Broker's performance, at Buyer's and/or Seller's request, of any task beyond the scope of services regulated by Chapter 475, F.S., as amended, including Broker's referral, recommendation or retention of any vendor, (4) services or products provided by any vendor, and (5) expenses incurred by any vendor. Buyer and Seller each assume full responsibility for selecting and compensating vendors. For purposes of this paragraph, Broker will be treated as a party to this Contract. This paragraph will survive closing." (e.s.)
The question has been raised whether a contractual provision can shield real estate brokers or salespersons from liability for wrongdoing. Further, language included in paragraph 13 providing that representations by the broker must be included in the contract in order to be binding on the buyer, seller or broker also calls into question broker liability.[1] These provisions purport to absolve the broker from liability for any representations not included within the contract or for loss or damage resulting from the broker's negligence or other actions.
In enacting Chapter 455, Florida Statutes, which relates to the general regulation of certain professions and occupations, and Chapter 475, Florida Statutes, which relates particularly to the regulation of real estate brokers and salespersons, the Florida Legislature has stated that such regulation is necessary for the protection of the health, safety, and welfare of the public.[2]
The Legislature has authorized the discipline of these professionals for certain conduct that is contrary to the public welfare and policy. Section 455.227(1)(a), Florida Statutes, provides that disciplinary action will be taken against a licensed professional who makes misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession. Among the penalties that may be imposed for such violations are refusal to license, suspension or permanent revocation from the practice, restriction, imposition of an administrative fine not to exceed $5,000 for each offense, issuance of a reprimand, probation, or corrective action.[3]
Chapter 475, Florida Statutes, authorizes the Florida Real Estate Commission to impose additional penalties. The commission may deny an application for licensure, place a licensee on probation, suspend a licensee, revoke a license, impose an administrative fine, or issue a reprimand if it finds that a licensee:
"(a) Has violated any provision of s. 455.227(1) or of 475.42.
(b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction . . .; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public. (c) Has advertised property or services in a manner which is fraudulent, false, deceptive, or misleading in form or content."[4] (e.s.)
Thus, it is a violation of the practices act for which a licensed real estate broker or salesperson may be disciplined to misrepresent or make any fraudulent representations regarding a property offered for sale. Moreover, section 475.421, Florida Statutes, makes it a misdemeanor of the first degree for any person to publish or cause to be published by means of a newspaper, periodical, radio, television, or written or printed material any false or misleading information for the purpose of offering for sale or of causing or inducing another person to purchase, lease, or rent real estate in this state. Accordingly, Chapters 455 and 475, Florida Statutes, clearly make misrepresentation, concealment, and fraud by real estate brokers and salespersons contrary to the public policy of this state.
The Supreme Court of Florida in Zichlin v. Dill[5] recognized that real estate brokers in Florida occupy a status with recognized privileges and responsibilities, enjoying a monopoly to engage in a lucrative business:
"Ultimately we must determine just what duty the broker owed appellant. Did he owe a duty to any one except the owner who had listed the property? Evidently the chancellor was of the view that he owed no duty to the buyer. In this he was in error. Generally speaking an agent is responsible only to his principal. This, however, is different. The broker in Florida occupies a status under the law with recognized privileges and responsibilities. The broker in this state belongs to a privileged class and enjoys a monopoly to engage in a lucrative business. . . .
The state, therefore, has prescribed a high standard of qualifications and by the same law granted a form of monopoly and in so doing the old rule of caveat emptor is cast aside. Those dealing with a licensed broker may naturally assume that he possesses the requisites of an honest, ethical man."
More recently, the Second District Court of Appeal in Ellis v. Flink[6] relied on the Court's opinion in Zichlin in holding:
"The law of Florida is very clear that . . . real estate broker[s] and salesmen, owed the [appellees], a duty of honesty, candor, and fair-dealing . . . even if there were no principal-agent relationship at all."
Clearly the Legislature, through the enactment of the professional practices acts, and court decisions prescribe the professional responsibility that real estate brokers and salespersons owe to their clients and to the public. The FAR contract appears to seek avoidance of the courts' proscriptions and circumvention of legislative and court imposed duty.
While it is widely recognized that competent parties have the freedom to contract and that their agreements, voluntarily and fairly entered into, will be held valid and enforced by the courts, the right to contract is subject to the limitation that the agreement must be legal.[7] To be valid, the contract must contain a lawful subject matter, consideration, or purpose, and the contract must not violate the Constitution or statutes or be contrary to public policy. Thus, contracts that violate principles designed to protect the public welfare are illegal.[8] If a provision in a contract is, in effect, illegal, it is not made legal by the fact that the illegal provision is incidental to the accomplishment of a lawful purpose.[9]
Thus, the courts have held that an agreement or contract that violates a statute or is contrary to public policy is illegal, void and unenforceable.[10] The freedom of competent parties to contract is, therefore, always subject to the limitation that the agreement must not be against public policy.
The provisions of the practices acts regulating the conduct of real estate brokers and salespersons were enacted by the Legislature to protect the public from potential economic loss and to instill public confidence in real estate sales practices. Moreover, the practices acts clearly make misrepresentation, concealment, and fraud contrary to the public policy of this state. In light of the prohibitions contained in Chapters 455 and 475, Florida Statutes, any provision of a contract that seeks to remove liability for such acts undermines public confidence in a regulated profession and is contrary to public policy and, therefore, void.
[1] Paragraph 13 of the FAR contract (revised Oct. 1995) provides:
"COMPLETE AGREEMENT: This Contract is the entire agreement between Buyer and Seller, and all representations by Broker or found in printed material about the Property, including the listing information sheet, on which the parties relied are expressed in this Contract. Except for brokerage agreements, no prior or present agreements or representations will bind Buyer, Seller or Broker unless incorporated into this Contract. . . . "
[2] See, s. 475.001, Fla. Stat. (1995). And see, s. 455.201(2)(a), Fla. Stat. (1995). See also, Horne v. Florida Real Estate Commission, 163 So. 2d 515, 517 (Fla. 1st DCA 1964), stating that the purpose of Ch. 475, Fla. Stat., is "to protect the public by permitting only those who possess special qualifications of aptitude, ability and integrity to engage in the business."
[3] Section 455.227(2), Fla. Stat. (1995).
[4] Section 475.25(1), Fla. Stat. (1995).
[5] 25 So. 2d 4, 4-5 (Fla. 1946). And see, Ahern v. Florida Real Estate Commission, 6 So. 2d 857, 858 (Fla. 1942), stating:
"The real estate business has become a highly specialized one and the real estate broker is now the confidant of the public in much the same manner as the lawyer and the banker. His relation to the public exacts the highest degree of trust and confidence and the law imposes on [the real estate commission] the duty of enforcing its standards."
See also, Quinn v. Phipps, 113 So. 419, 425 (Fla. 1927), in which the court stated:
"The real estate business is not an avenue by which one may practice the tricks of his trade or prey on the innocent and unsuspecting purchaser, nor is it a cloak to cover fraud and deception, or a means for designing persons to short-circuit those who would deal squarely and in good faith. It is indeed a highly respectable business or profession; its ethics are well defined and presumed to be known to those who patronize or engage in that business. . . ."
[7] See, Nizzo v. Amoco Oil Company, 333 So. 2d 491 (Fla. 3d DCA 1976).
[8] See, Stewart v. Stearns & Culver Lumber Company, 48 So. 19 (Fla. 1908).
[9] See, Stewart, supra; Wall v. Bureau of Lathing & Plastering of Dade County, 117 So. 2d 767 (Fla. 3d DCA 1960).
[10] Wechsler v. Novak, 26 So. 2d 884 (Fla. 1946) (the general right to contract is subject to limitation that agreement must not violate Federal or State Constitutions or state statutes or ordinances of a city or town or some common law); Bond v. Koscot Interplanetary, Inc., 246 So. 2d 631 (Fla. 4th DCA 1971), appeal after remand, 276 So. 2d 198 (Fla. 4th DCA 1973) (agreement which violates statute or is contrary to public policy is illegal, void and unenforceable as between the parties); Department of Motor Vehicles v. Mercedes-Benz of North America, Inc., 408 So. 2d 627 (Fla. 2d DCA 1981) (on grounds of public policy, clauses in a contract which violate a statutory provision are nugatory and will not be given effect).
EDITH ELLEN ESTATES SUBDIVISION ILLEGAL VIOLATIONS OF LAW
01.) MINIMUM subdivision lot size REQUIRED by law in the State of Florida which must sustain a WATER WELL & OSTDS is 21,780-sq. ft. exclusive of water bodies, easements, wetlands, paved roads, etc. §381.0065(4)(a), F.S. Front lot border must be parallel to the street & rear border, side borders at right angles, and no border can be less than 100' feet in length. State of Florida Department of Health Chapter 64E-6, Florida Administrative Code Standards for Onsite Sewage Treatment and Disposal Systems.
02.) Federal Interstate Land Sales Full Disclosure Act – (15 U.S.C. §1701, et seq.) (the “Federal Act”) and the regulations promulgated thereto (C.F.R. §17001.1, et seq. (1991) Developer/agent must disclose restrictions, adverse conditions, and lot defects. Developer must comply with the Act’s anti-fraud provisions. (15 U.S.C. 1703(a)(2))
03.) HUD Anti-Fraud Provisions 24 C.F.R. §1710.15(4) (Purchaser MUST approve of exceptions/restrictions on mandatory Title Policy in writing before closing escrow.) Title 24 HUD Sec. 1715 (Unlawful/misleading sales practices) can be argued in court by attorneys. A “Property Report” must be given to purchaser by developer/agent, which is required by law and report includes lot restrictions, defects, adverse conditions, etc. 24 C.F.R. § 1710.3 (2003) This is a narrative disclosure to be provided to each purchaser before the contract is signed.
04.) Florida Uniform Land Sales Practices Law - Chapter 498, F.S. which covers fraud, misrepresentation, ability to develop property (the infamous swamp land sale), suitability of property for development when prohibited by environmental or other regulations, etc. (Purchaser MUST approve of exceptions/restrictions in writing before closing escrow.)
05.) Florida State Statute 720 Homeowners Association – 720.401 Disclosure Prior to Sale of Residential Parcels in writing. This disclosure is required if covenants or deed restrictions apply to the subdivision. Subdivision has not complied with Statute 720, is in violation, and cannot be regulated under chapter 718-Condo’s, 719-Coop’s, 721 Vacation & Timeshares, or 723 Mobile Homes. The disclosure must be supplied by the developer or by the parcel owner if the sale is by an owner that is not the developer.
06.) Edith Ellen Estates was permitted for 34 home-site lots & 1 boat dock. Since under the 100-lot requirement for HUD, the subdivision was exempt from registration but NOT anti-fraud laws. HUD anti-fraud laws require subdivisions with MORE THAN 25 lots to comply with all Anti-Fraud provisions as required by the Federal Act established in 1968. The Act is similar to and modeled after the securities act established in the 1930’s. Disclosure is required in writing and MUST be approved by purchaser in writing as required by the law. The current law has been in effect since June 21, 1980 (15 U.S.C. 1702(a)(10) and 24 CFR 1710.5(a). Note: 4 additional lots have been added to subdivision in violation of permit issued by SRWMD. All Jurisdictional Wetland Areas & 35 ft. Buffers were required to be owned and controlled by HOA.
07.) Realtor has received ADDITIONAL payment in lieu of cash in the form of ‘ waterfront land’ as payment/commission, which is not disclosed in writing as required by law. ANY kickback / ‘thing of value’ received above disclosed 10%, by law requires FULL DISCLOSURE and compliance with ALL HUD provisions required by the Federal Act, beginning with the sale of the first lot sold in the subdivision.
08.) Developer must provide written assurances that each lot is approved for the installation of a septic tank at time of sale from appropriate government authority.
09.) Sales contract must include good faith cost estimates for providing water & sewer, etc. and must include all costs associated with obtaining the services.
10.) Developer must recite verbatim all restrictions that apply to the lots being offered. In the alternative, the developer may attach a complete copy of all restrictions affecting the lots. If the restrictions do not apply to all the lots in the offering, the developer should specify which lots are affected by the restrictions. In addition, the developer should explain who has the authority to enforce the restrictions and indicate whether or not the restrictions are recorded.
11.) Purchaser’s Acknowledgment. The developer must obtain a written receipt from the purchaser acknowledging that the purchaser received a written statement(s) of all liens, reservations, taxes, assessments and RESTRICTIONS applicable to the lot and good faith estimates of the cost of providing electric, water, sewer, gas and telephone service to the lot.
12.) At the time of closing, a current title insurance binder, policy or title opinion reflecting the condition of title must be issued or presented to the purchaser showing that, subject only to exceptions which are approved in writing by the purchaser at the time of closing, marketable title to the lot is vested in the seller.
13.) 18 U.S.C. § 1341 - MAIL FRAUD - Because payments for lots were transmitted by the U.S. Postal Service, these activities constituted the federal crime of mail fraud under 18 U.S.C. § 1341.
14.) BREACH OF CONTRACT.
Legal Summary - NO contract, Disclosure, Property Report, or Title Report subjected ONLY to exceptions approved in writing by the purchaser prior to recording of deed exists as required by law.
a.) Right to Rescind Transaction and obtain a refund of all money paid (15 USC § 1703(C). b.) Civil liability to Developer/Seller/agent which include damages and other relief (15 USC § 1709) c.) CRIMINAL Penalties, Fines, and Imprisonment are applicable. (15 USC §1717) d.) Civil Money Penalties applicable, maximum $1,000,000 per person. (15 USC § 1717a.)
LEGAL DEFINITIONS
Corruption: Lack of integrity or honesty (especially susceptibility to bribery) use of a position of trust for dishonest gain.
Collusion: A secret understanding between two or more persons to gain something illegally, to defraud another though an agreement.
Conspiracy: In order for the government to prove the crime of conspiracy, all that it must show is that two or more persons came together to form a mutual agreement or understanding to achieve an unlawful goal.
Slander: Oral defamation, in which someone tells one or more persons an untruth about another which untruth will harm the reputation of the person defamed.
Defamation: Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.
Libel: To publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement, which claims to be fact, and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue.
Frivolous: A frivolous suit is one without any legal merit. In some cases, such an action might be brought in bad faith for the purpose of harassing the defendant. In such a case, the individual bringing the frivolous suit might be liable for damages for Malicious Prosecution. frivolous adj. referring to a legal move in a lawsuit clearly intended merely to harass, delay, or embarrass the opposition. Frivolous acts can include filing the lawsuit itself, a baseless motion for a legal ruling, an answer of a defendant to a complaint which does not deny, contest, prove, or controvert anything, or an appeal which contains not a single arguable basis (by any stretch of the imagination) for the appeal. A frivolous lawsuit, motion or appeal can result in a successful claim by the other party for payment by the frivolous suer of their attorney’s fees for defending the case. Judges are reluctant to find an action frivolous, based on the desire not to discourage people from using the courts to resolve disputes.
Abuse of process: The use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.
Fraud: The intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud. Quite often there are several persons involved in a scheme to commit fraud and each and all may be liable for the total damages. Inherent in fraud is an unjust advantage over another which injures that person or entity. It includes failing to point out a known mistake in a contract or other writing (such as a deed), or not revealing a fact which he/she has a duty to communicate, such as a survey which shows there are only 10 acres of land being purchased and not 20 as originally understood. Constructive fraud can be proved by a showing of breach of legal duty (like using the trust funds held for another in an investment in one's own business) without direct proof of fraud or fraudulent intent. Extrinsic fraud occurs when deceit is employed to keep someone from exercising a right, such as a fair trial, by hiding evidence or misleading the opposing party in a lawsuit. Since fraud is intended to employ dishonesty to deprive another of money, property or a right, it can also be a crime for which the fraudulent person(s) can be charged, tried and convicted. Borderline overreaching or taking advantage of another's naiveté involving smaller amounts is often overlooked by law enforcement, which suggests the victim seek a "civil remedy" (i.e., sue). However, increasingly fraud, which has victimized a large segment of the public (even in individually small amounts), has become the target of consumer fraud divisions in the offices of district attorneys and attorneys general. See also: constructive fraudexemplary damagesextrinsic fraudfraud in the inducementfraudulent conveyanceintrinsic fraud
