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Is Your Community a Music Pirate?

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | August 24th, 2018

What do housing and Beethoven have in common?

The great classical composer was the victim of music piracy -- unauthorized versions of his work being circulated. In today’s legal environment, music piracy is a form of copyright infringement -- and many housing properties throughout the country are the modern-day pirates.

Any time music is played in a common area -- for example, a community clubhouse, sales office, fitness center, condo lobby or high-rise elevator -- the property must have a license to use that music. Otherwise, it is breaking the law, which protects artists who own their music against unauthorized use.

We know this because an unnamed member of the National Association of Home Builders was hit recently with a cease-and-desist order for playing music in his apartment development without a license. The NAHB’s Multifamily Housing Council investigated on his behalf, and found the order to be legit, according to an association spokeswoman.

Indeed, the trade group was so concerned that it published a white paper called “Pay to Play?” that explains the issue and tells how to obtain a blanket license to avoid being held liable for copyright infringement. (The report can be downloaded at no charge by visiting nahb.org and searching for “music licensing.”)

Copyright owners have the right to prohibit others from publicly performing their songs. And they often do.

Remember Napster? The website allowed users to exchange music files over a common, free server without regard for copyright laws. But it was shut down after lawsuits by Metallica and Dr. Dre. Similar music platforms have been shut down under the Digital Millennium Copyright Act, which criminalizes “production and dissemination of technology, devices or services intended to circumvent measures that control access to copyrighted works.”

But residential communities, whether run by their builders or associations of owners, either don’t know the law or choose to ignore it. They do so because digital media and the web make it so simple.

“Because music is available easily over the internet through services such as Spotify, Pandora and Apple Music, it is easy to assume that it can be played wherever and whenever one wants,” according to the NAHB report.

But no matter where the music comes from -- the internet, CDs or MP3 players -- it can’t be replayed publically without a license. Purchasing a recording only entitles the buyer to play it privately.

Even if the music is not performed for profit or is not available to nonresidents, the property is liable. If the property provides a stereo, TV or docking station in common areas for residents to play music on, the owner is liable. Even if the property hires a band for a live performance, the community might still need a license.

Of course, musicians don’t run around the country looking for scofflaws. Instead, they hire performance rights organizations, aka PROs, to act on their behalf. These outfits not only search for cases of infringement -- they work with “large networks of agents who patrol places where music is typically played,” the white paper reports -- but they also grant public performance licenses and collect annual royalties.

If a PRO suspects that a property is playing music without permission, it will usually send a letter demanding that the offender stop doing so or obtain a license. “But it won’t stop there,” the NAHB warns. So if a property receives such a missive, act quickly or face the possibility of some heavy fines.

“The PROs are persistent and have the resources to bring suit, but will usually drop a claim if and when the residential community obtains a license,” the white paper states. “In addition, the PROs don’t react well to stonewalling, so failure to respond at all ... can increase the adversarial nature of the communications and make it more complicated and expensive to resolve.”

Rather than wait to be caught, the NAHB says it’s a good idea to obtain a blanket license from each of the three major PROs: BMI, ASCAP and SESAC.

Another alternative is to work with a subscription-based service such as Mood Media, Cloud Cover Music and Pandora for Business. Companies like these offer large amounts of music -- for a fee.

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Escrow Accounts: A Necessary Evil

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | August 17th, 2018

Many homebuyers, particularly first-timers, often question the need for mortgage-related escrow accounts. “Why can’t I pay the charges myself?” they wonder.

There are good reasons, for both you and your lender. But first, a quick explanation of escrow accounts.

Sometimes known as impound accounts, escrow accounts are set up by your lender to pay certain property-related expenses: real estate taxes, homeowner’s insurance, mortgage insurance and sometimes your community association fees.

The money for these payments is collected by your lender (or the company that services your loan) every month, along with the principal and interest you owe on your mortgage. And when those payments are due, the lender disburses them to the proper payee.

Most lenders require escrow accounts to make sure these bills are paid on time, thereby reducing the risk that you will default on the mortgage or incur liens on the property. Either of those possibilities will place a cloud on your title, making the property more difficult to sell -- by you or the bank, should it have to foreclose.

While there is no law, either federal or state, that requires lenders to impose escrow accounts, it is probably a good idea for borrowers to go along. Otherwise, you’d have to come up with large payments once or twice a year to cover these charges. How large? In 2017, the average property tax on a single-family home was $3,399, according to ATTOM Data Solutions -- and that’s just one expense.

Years ago, when banks paid substantially higher rates than they do now, it might have made sense to keep control of your money rather than cede it to your lender. But not now, with banks paying next to nothing.

Without an escrow account, you run the risk of being late on payments for taxes and insurance, or missing payments altogether. If you fail to pay your property taxes, your state or local government may impose fines and penalties or place a tax lien on your home. You could also face foreclosure. And if you fail to pay your taxes or insurance, your lender may add those amounts to your loan balance, add an escrow account to your loan, purchase insurance for you and bill you for it. (And lender-purchased insurance, known as force-placed insurance, is typically more expensive than buying your own policy.)

Indeed, it makes good sense to “budget” for these costs by paying them with 12 monthly installments to your lender.

Again, there is no law requiring escrow accounts. But there is a federal law, the Truth in Lending Act, that protects borrowers by strictly controlling how lenders handle their escrow accounts.

For one thing, the lender is not allowed to collect an excess amount. And there are limits on the amount a lender may require you to put into your account.

Over the course of a year, starting on the anniversary date of your mortgage, you will be required to pay into your account no more than one-twelfth of the total of all payments for all escrowed items.

After the first year, you will be required to make up any difference in the amount owed and the amount collected: There’s almost always a shortfall in the first year, because your payments are usually based on estimates as opposed to actual bills. Lenders will either ask for a lump-sum payment or allow you to catch up with an acceptable increase in your monthly escrow payment over the upcoming calendar year.

In addition, the lender may require a cushion, not to exceed an amount equal to one-sixth of the total needed for the year, to make sure there is never a shortage again.

Lenders are also required to perform an annual escrow account analysis and notify you of any deficit or surplus in your account. If there is a shortage, you can be required to correct it. If there is a surplus of more than $50, the lender must ask if you’d like it returned or applied to the next year’s escrow amount.

If you have a fixed-rate mortgage, your payment for principal and interest will never change, month to month. But because the other fees collected for your escrow account can change, and often do, your total house payment is likely to change with them.

In some jurisdictions, once you have paid down the balance of your mortgage to a certain percentage of the original loan amount, you have the right to terminate your escrow account. In Illinois, for example, 65 percent is the benchmark -- as long as you are current with your payments.

But why would you? After all, escrow accounts are usually the easiest way to handle these recurring payments.

Finally, if you have questions about or issues with your escrow account, call the company administering your account. Follow up in writing if necessary. By law, the servicer must acknowledge your question or complaint in writing within 20 business days of receipt, and must resolve the issue within 60 business days (or state the reason for its position). Until the complaint is resolved, however, you should continue making the required payment.

If you’re not satisfied, and your servicer is registered in your state, escalate your complaint to the agency in your state that regulates the mortgage business. If your servicer is a national or out-of-state institution, contact the federal Consumer Financial Protection Bureau at 855-411-2372 or consumerfinance.gov.

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When Moving, Beware of Fraudsters

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | August 10th, 2018

Anyone who has ever moved from one residence to another probably has a tale to tell about an unscrupulous mover.

Here are a few stories gleaned from a federal fraud prevention video:

-- Susan Parr, who was moving from Washington to North Carolina, said, “The guy showed up and he said, ‘Do you have the cash?’ I said I’d be happy to write him a check, but he wouldn’t take a check.”

-- Ron Karlosky, going from St. Louis to Washington, D.C., had to pay $1,500 to get his household goods back, only to find many of them smashed.

-- Reana Kovalcik, relocating from Chicago to New York, said, “When your movers are five hours late, you’re concerned. When you can’t get ahold of your moving company, you’re concerned.” The end result for her was a bump in the price: from $900 to $2,000.

At the national level, a movers’ trade association has its antennae out for fraudsters, and wants to prevent consumers from being scammed. And a federal agency cracks down on any scallywag outfits it finds.

The American Moving & Storage Association (AMSA) has started a consumer protection and certification program called ProMover.

“The ProMover program promotes ethical principles in the moving and storage industry, and works with federal and state governments to mitigate unethical moving practices,” the AMSA says. “It clearly separates professional movers from rogue operators.”

At the same time, the Federal Motor Carrier Safety Administration (FMCSA) offers a wealth of knowledge for the 35 million of us who move every year.

FMCSA is a unit of the Department of Transportation, and its primary job is to reduce commercial vehicle crashes and fatalities. But it offers several resources to help stop moving fraud on its website (fmcsa.dot.gov) as part of its Protect Your Move campaign. For example, its look-up service allows people to research complaints against movers and obtain other relevant information, such as what kind of insurance the carrier has. Go to protectyourmove.gov, or call the FMCSA at 888-368-7238.

Here’s how rogue movers often operate, according to the FMCSA: “Without ever visiting your home or seeing the goods you want moved, they give a low estimate over the telephone or internet. Once your goods are on their truck, they demand more money before they will deliver or unload them. They hold your goods hostage and force you to pay more -- sometimes much more than you thought you had agreed to -- if you want your possessions back.”

Here are a few red flags that a moving outfit may not be reliable:

-- The mover doesn’t offer or agree to an onsite inspection of your household goods, instead giving you an estimate over the phone or online, sight-unseen. A reputable company will send out an agent who looks over your goods, going from room to room. They estimate the weight of the stuff you want to move, along with other important details, then provide a written estimate of the charges.

-- Bad guys demand cash or a large deposit before they’ll even show up. A good mover will want payment (in cash, or by certified or traveler’s check) when its crew arrives to pick up your stuff. Some movers also accept charge cards, but make sure you ask first.

-- Fraudsters sometimes ask you to sign blank or incomplete documents. Never sign anything that isn’t filled out completely, isn’t signed by the mover’s agent and doesn’t contain the mover’s address, phone number and licensing and insurance information.

-- Scoundrels won’t provide a written estimate, but will promise to determine the exact charges once the truck is loaded and weighed. Don’t bite. Once a bad guy has your goods on his truck, you are stuck. You’ll have to pay to get them back.

-- Beware if the company’s website has no local address and no information about their registration or insurance.

-- It’s a bad sign if a rental truck arrives, rather than a company-owned fleet truck. Remember, you can stop the move anytime something seems fishy, right up until the movers themselves actually enter your house. After that, if something has your antennae wiggling, call the police.

By law, all interstate movers are required to give you a copy of the FMCSA-prepared brochure called “Your Rights and Responsibilities When You Move.” But you can download the pamphlet in advance from FMCSA’s website and get some good information.

Also available on the site are the agency’s “Ready to Move?” brochure, and a checklist with suggestions such as checking potential movers with the Better Business Bureau, asking whether they are registered with the FMCSA and learning whether they have an official DOT registration number.

Remember, it is always better to be safe than sorry, especially when it comes to giving someone the responsibility of handling your property.

-- Freelance writer Mark Fogarty contributed to this report.

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