Beached

Unwonk - Episode 3: Beached

We talk about defining your hairstyle's risk framework, exactly how low on the beach you need to build a sand castle, and the feudal pain of a leasehold estate.

Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.

Please enjoy the links to additional information relating to the questions on this episode:

"I'm still an artist. I'm never gonna do a shit movie, because I've got my modeling to support me." - Milla Jovovich, star of Resident Evil: Apocalypse

"Is it true that most people get attacked by sharks in three feet of water about ten feet from the beach?" - Chief Martin Brody

"The landlords, like all other men, love to reap what they never sowed...." - Adam Smith

[Episode keywords: haircut liability, beach & property law, assignment v subletting a lease.]

Episode Transcript

UNWONK PODCAST - EPISODE 3: BEACHED

Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos. 

As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation. 

On this episode of Unwonk, we learn:

  • That cosmetology is totally different from astrology, 
  • When you can use birdspotting to piss off rich people, and rr
  • How to impress a date with your leasehold estate.

This is Unwonk. We respond to your questions with relevant, useful and comforting information. If you would like to submit a question, please visit our site at Unwonk.com

Even though the information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who opens the mailbox door for a fourth time to make sure it really, really got in there. Yeah, we went there.

And now, our first question.

I got a bad haircut. I told her exactly what I wanted. Even showed a picture. And she delivered something that was completely different. I lost out on an modeling job. Can i sue? It was only a couple of sessions, so it would be a few grand. But I need that money. This lady screwed me out of my opportunity. She owes me that money.

So much in life doesn’t look like the picture we point to. For example, Pictures of food in advertising in versus the sad, slurry that reality serves up. By the way - the best of these is Cheeseburger in a Can - link on our website. 2nd to this is chicken in a can. Basically, you can’t get more of a disparity between the photo of a thing in a can, and the photo of that thing which really doesn’t belong in a can in the first place. Then there’s apartment listing photos versus the disappointing walkthrough. And the haircut you pointed to versus the one you got. 

Let’s talk about what would be an easier case. You go get your haircut. You get your ear cut instead. This makes you unhappy. And bloody. You’ll want to avoid settling anything on-site - some salons may have a policy of a quick payout, or free haircuts for a year, or whatever. But what if your cut gets infected and gets worse? If something like that happened to me, I’d file a complaint with you state Board of Barbering and Cosmetology - these are usually the same agency, though pretty sure cosmetology also covers tarot cards and astrounauts - , and then go back to the salon if I had real damages. You did check, of course, that the person who cut your hair is licensed with the state, yes? The license is supposed to be posted by the station, but I’ve noticed that the name and address are usually concealed a bit, presumably to keep away stalkers and such. Because nothing gets me stalking more than a person chewing gum in my ear and scraping my scalp too hard for an hour. So there’s the objective case of actual physical injury. By the way, a good salon will also have insurance to help deal with situations where there is real objective damage.

But this is not your situation. This is difficult in a few ways. First, what you look like in your new haircut is the combined result of physical skill, visual interpretation, what your hair is physically like,  and how your head and face are structured. I’d love nothing more than to have floppy hair that I can mold to suit my mood and whim. Unfortunately, I have hair similar to a brillo pad that’s been put through a blender. So I can only have one haircut - and it’s mostly of my hair’s choosing. In other words, what you wanted on your head, may have been able to exist IN your head. So, what you want may not have been possible. Second, modeling and any audition based job, is highly subjective, solely in the discretion of someone else’s taste. There’s no telling if you were remotely close to getting the job, even if your hair looked the way you thought it should.

Also, and not to impugn your personal judgment, if this was such an important job, why would you be going to (what sounds like) a new hair stylist, or, even if it was a regular stylist, what spurred you to do something other than tried and true? Life is full of risks. This was one of them that didn’t work out. That said, did they at least shampoo your hair and give you one of those scalp massages? If so, it was worth it, and maybe even something to stalk for. 

While on vacation in Malibu, California, I went to a beach with my family. Someone from the house behind us came out and said it was a private beach and we were trespassing. We even offered to move all the way into the water and only left after she threatened to call the police. Was this legal of her to do?

No worse vacation killer than to be chased of a beach. 

Or, if you’re me, no worse vacation than getting INTO water. When I was 8, we lived on a man-made lake that was filled with zero visibility deep brown water. My family was … zealous about getting into this mud-water for all sorts of things: swimming, water skiing, contemplating the monsters that lurked in the murky unknown below. This planted a seed for a fear of water in me. And this fear blossomed as vacations to clear lakes (this was in the midwest) became a thing in the summer - and I realized quickly that the only thing worse than not being able to see what was below, was being able to see what was below: old tires, rusted sinks, and endlessly long plants that slowly but tightly wrapped themselves around my legs as I passed through, leaving a residue of panic as they slithered off. 

Until the lake incidents, I had been a model swimmer, earning “Dolphin” status at my swim classes (in hindsight, there was no real way to differentiate between the top 3 rankings: dolphin, shark and porpoise, and I still don’t know the difference between a dolphin and a porpoise. Wait, beyond that, I don’t care. But I would like to understand the difference between a turtle and a tortoise.Or a penguin and a puffin.). The lakes changed my elite swimmer status. 

Few sensory memories are as vivid as 8 year old me in a lake in wisconsin, the smell of gasoline fumes from the boat’s outboard rengine, the water warm underneath with a hair-thin chilly surface, rising up and down my neck as I bobbed, the frayed knots that held the rope to the water ski handle scraping against my wrists. Just a fat kid almost drowning inside his oversized life jacket, hyperventilating and screaming that monsters are dragging me down. My dad roars something back - I am horrified he’s going to cut the line. In hindsight, he was yelling “you can do it” in a very encouraging way, but the grinding of the motor converted it to a horrific growl. As the motor kicks in, the joints in my elbows jerk straight, pitching my shoulders forward as I rise up for three glorious seconds, and then fall directly forward, flooding my nose, then throat, then lungs with stale and lifeless lakewater.

By the way, I do know that the water was far from lifeless - it’s packed with billions of microscopic parasites and bacteria. It’s also very deceptive to call lake water “fresh water.” 

So this started a lifelong distrust and unease with water, despite growing up with boats and going to summer camp on an island in the Pacific ocean - the shore by that camp was crammed with sea plants a thousand times more grippy and slimy than the lake plants. Rather than desensitizing me to the dread I felt while swimming, these experiences only made it worse. A couple decades passed, and I thought I was over my fear of water when I went to New Zealand a few years ago, and cavalierly volunteered to go on a chartered boat where we would get to swim with dolphins. Despite wearing the most buoyant wetsuit ever created, and slipping into relatively warm waters, the hyperventilation started immediately, with sea water choking my words down. By the way, nothing fills you with more confidence than when an entire 50 foot boat has to make its way to you with a Kiwi barking on the megaphone: YOU OK MATE?, all while a gaggle of pre-teens floats calmly a few feet away.

I eventually calmed down and swam with the dolphins a little bit. But they were the little turd-colored ones, and not the big intelligent gray dolphins that save human lives and can do advanced calculus and such.

Or, were they porpoises?

So, back to your question. If you’re going to talk about beaches, you’re going to have to talk about the public trust doctrine, which holds a principle that certain resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public's use. The public trust doctrine has been a powerful tool for advocates of public access to beaches, notably the Surfrider Foundation. Why have they been advocating? Well, sometimes, people buy waterfront property. Most of the time, they pay a lot of money for that. As a result, they don’t want shitty little people (that’s “the public” in this case), cavorting on the sand in front of their house, doing things like enjoying nature and reading breezy summer novels.

It varies state-by-state, but in the 1970s, the public trust doctrine was the foundation of laws that were passed to make it clear that the entire coastline of the state of California. The public trust doctrine in California - and other states - provides that the sand below the mean high tide line is held for the public. This means nobody can shoo you off of that sand. Further, some areas - notably Malibu - require homeowners to grant an easement to the public even beyond the tide line (with a small “privacy” buffer) if that homeowners is looking for a zoning variance of some kind. Focusing more on Malibu, the app, Our Malibu Beaches, shows you the specifics on various properties and where the public ends and the private begins. In Malibu, some people have apparently gone so far as to construct fake garages to block access to the beach - totally illegal, but so far doesn’t look like it’s been challenged. 

The bay area had had a fight going on for a few years now between the public and a wealthy venture capitalist, who bought property in front of a well-known beach and then shut down the only land-based access to the beach. On a separate note the phrase “venture capitalist,” has such a 19th century vibe - right up there with industrialist, financier and phrenologist.

Some states are not as kind to wandering beach goers. Massachusetts, for example, puts the line of demarcation at the low-tide line, and further makes exemptions for going up to the high tide line only for:  (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to rfloat on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. Not that I’m advising anyone in Massachusetts on this, but as long as you really look like you’re searching for shellfish, you can stick it to the blue-bloods and tramp upon the sticky wet sand between high and low tide marks all you want, and they can’t do anything about it. Until you stop looking like you’re searching for seashells, that is. 

This is an issue that has been around a long time and continues to be fought with passion - another story of the public versus private that continues to be a growing issue.

So, if you’re on the sand, in front of a house, just keep your wits about you and know where to dig a hole your clams in the wet sand for your clambake. Sounds dirty, but that’s totally not a euphemism for anything. Especially if I tell you to mind the crabs.

I just got a job in a new state, which is very exciting. I am only halfway through the one-year lease on my apartment, though. I have no roommates. I do, however, have a friend who is very interested in my apartment. Can I sublease the apartment to him?

Being a tenant can be convenient – living the life of a carefree vagabond, not sure where the next day will take you - but it also sucks in a lot of ways, such as living the live of a carefree vagabond, not sure where the next day will take you. 

Just look at the language we use: “Tenant.” Comes from the French for “holding,” as in “I’m just barely holding on to this apartment and any semblance of adult responsibility.” Then there’s the landlord, a concept that goes all the way back to the Roman empire and feudal society. The landlord owned the land that the peasants were tied to. Landlord and tenant tensions were recorded as early as this era, notably the case of Decimus v. Pomponius filed in 112 AD, in which Decimus (the tenant) attempted to sue Pomponius (the landlord) for a constantly leaking chamber pot. Rather than hear the case, the court promptly executed Decimus on the grounds of being a bitchy peasant.

When you think about it, the only difference between the tenant and landlord is a piece of paper giving different rights to each one. Well, there’s a shitload of other differences. Just illustrating the point.  

As long as we’re playing with words, on the bright side, a tenant doesn’t just hold a piece of paper giving temporary access to a shoddy studio apartment. You are actually the possessor of something called a leasehold estate, which sounds much, much more impressive. So next time you’re trying to impress on a date, subtly slip that into conversation with some other fancy talk: “I’d hate the night to end so early. Would you like to come up to my leasehold estate for a vessel of coffea arabica that’s been subject to the chemical processes of wetting, dissolution, and diffusion, known to someone at your level as drip coffee?”

So, can you sublease your apartment to your friend? Let me ask you a question: Would you rather continue to be liable for the lease, or would you rather live in a world where you don’t run the risk of footing the bill when your friend’s meth lab explodes, scorches the carpet, and also burns the building down? If the latter, then let’s talk sublease versus assignment.

What is a sublease? In this situation, it would be a contract between you, here the master tenant (don’t let the power of that go to your head), and your friend, the subtenant, to rent the apartment. A sublease can also rent just a portion of the apartment. This would be useful if you wanted to rent just a room out to someone. Under a sublease, your friend wouldn’t have a direct legal relationship to your landlord. You would still continue to pay the rent, and your friend would pay you directly. And if you’ve ever loaned money to a friend or otherwise engaged in financial activity, you know that this is totally not a recipe for disaster. 

A lease assignment, on the other hand, is an entire transfer of your leasehold estate to someone else. Your landlord and your friend become landlord/tenant, and you are pretty much entirely out of the picture. Like anything else in law, however, there are exceptions. States have various rules and conditions on what applies to an assignee. Some states, for example, say that any provisions of the lease that were personal against the original tenant – say, no ball gag use after midnight due to paper thin walls – are not enforceable against the new tenant.

Clearly, if you want to wash your hands clean, an assignment is the way to go. So what’s stopping you? Your lease, for one thing. Leases don’t like to be assigned in a vacuum.

Think of this in two steps: What does your lease say? And, What does the law say?

If the lease doesn’t say anything about subleasing or assignment, you’ll need to check on applicable state law, because different states have dealt with silent leases in different ways. Some states don’t allow sublease or assignment without the landlord’s consent. And that consent can be reasonable in some states – meaning the landlord can’t be a dick about it - and absolute in others – meaning the landlord can do what the landlord wants. Or, in the case of a silent lease, there may be no restrictions at all. 

If the lease does address either or both of these topics, you may still need to check state law to make sure it complies. If the lease says that the landlord has the absolute right of consent, it may really be the case that your state requires the landlord to be reasonable in that situation, and the state law will override the language in the lease. 

So, a word about why states are so different from each other on a lot of things legal. Due to the 10th amendment, which wasn’t in the original constitution and ranks 10th out of 27 – putting it not even in the top third of amendments and yet it still applies – states can govern anything not specifically delegated to the federal government: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

So, while there is certainly a lot of similarity between states on topics, local culture, history and needs cause certain issues to be treated differently. Like real estate. Laws about driving. Or the age of consent. Whoa. Just googled that expecting most states to be 18. The majority is 16. There goes my low hanging fruit joke about the south.  

There are certain aspects of real estate and landlord/tenant law that federal law does govern, including discrimination issues when choosing who to rent to. And also, this whole discussion is about residential leases. Commercial leases are a whole different thing.

In the end, though, as with anything in the legal world, it always helps to have good relationships. If your landlord is a total dick, you’re going to have a hard time getting him to do anything. Except for cashing rent checks very quickly, of course. You’ll probably find more landlords leaning towards a sublease rather than an assignment. It’s less work, fewer credit checks, and so on. But, if you want to help build your case, have your friend put together a packet with relevant items: resume, credit report, landlord reference letters, etc. You can also provide a form of lease assignment to make it easier. The goal here is to get yourself out both physically and legally. 

You may want to reach out to your local rent board or tenant’s interest group for more information on this.  In the meantime, congratulations on your new job and good luck running away from your problems by moving to another state.

Thanks for listening to this episode of Unwonk. 

Please visit our site at Unwonk.com to submit your questions, and to learn more about the topics discussed on today’s episode.

On the next episode, we learn about:

  • The 8 unbelievable legal facts you won’t believe about privacy law,
  • 6 things that will shock you about stuff, and
  • 12 blahs that will meh you about bluuuuhs.