U.S. District Judge Stephen Wilson at a hearing today in Los Angeles denied the request by Canadian and American foie gras producers for an order to halt enforcement of the law that went into effect July 1. Wilson said he would explain his reasons in a written ruling later.

The ban on foie gras, French for “fat liver,” was signed into law in 2004 by then-Governor Arnold Schwarzenegger. Enforcement was postponed for almost eight years to let producers find an alternative to force-feeding. No substitute method has come to light.

The law bans force-feeding ducks or geese to make foie gras within California and bars sales of foie gras produced elsewhere “if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size. Violators can be fined as much as $1,000 a day.

The plaintiffs include a Canadian association of producers who supply 100 percent of Canada’s imports of foie gras to the U.S., and Hudson Valley, the largest U.S. producer of foie gras. They want to stop the state from enforcing the measure on the grounds it interferes with interstate and foreign commerce and is too vague.

Law’s Vagueness

The statute defines force feeding as using a process that causes a bird “to consume more food than a typical bird of the same species would consume voluntarily,” according to the lawsuit. “In practice, the vagueness of this purported standard makes it impossible for anyone to know at what point a particular bird has been fed more food than the Bird Feeding Law allows,” according to a court filing.

Canadian producers had been selling about $4 million to $5 million of foie gras to wholesalers and distributors in California, who in turn sold it for “tens of millions” to restaurateurs and gourmet stores, said Michael Tenenbaum, a lawyer for the foie gras producers. He questioned whether the law would also apply to sales of down, duck meat and other byproducts of ducks used in foie gras production.

Tenenbaum declined to comment after the ruling.

Brian Pease, an attorney for the Animal Protection and Rights League, said “It’s not a question for the courts to second guess a political branch of government” that enacted the law.

A: When it comes to choosing tenants, careful screening is a must. Landlords check for past “good tenant behavior,” which includes a history of paying the rent on time, positive recommendations from prior landlords, and an absence of terminations or evictions. But these aren’t the only valid criteria — you’ll want someone who makes enough money to reasonably handle the rent, and who can meet your rental terms, such as committing to a yearlong lease or refraining from keeping a pet.

Your move-in date is one of those “rental terms.” Screening for someone who can move in when the unit is available is completely legitimate, because a sound business reason underlies the requirement: You want to begin collecting rent as soon as possible! No one can argue with this.

Landlords often face situations where two or more applicants appear to be roughly equally qualified. At that point, they need a tie-breaker. It’s a safe bet to use the date of application — safe because it’s an objective test and can’t be construed as discriminatory.

But that’s not the same as saying that the first applicant should always get the nod. You’re free to consider all qualified applicants, advance those who appear qualified to a finalists list, and use the date of application only if it’s the only way to break a tie. Most of the time, upon closer study, you’ll see that other factors, such as a higher income, rave recommendations from prior landlords, or a long history of steady renting will naturally elevate one candidate above the rest.

Just be sure that the criteria you’re using are based on sound business reasons, not subjective feelings.

Q: One of our tenants is breaking her lease and moving out two months early. She has been great about finding a new tenant — she presented us with three applicants whom she had prescreened, and we approved one. The applicant will stay for a year and wants to move in right after the original tenant moves out, but we want to spend a couple of weeks doing whatever work needs to be done before a new tenancy begins.

The new person is content to wait, but the original tenant is concerned that she’ll end up paying rent for those two weeks. We understand our duty to use reasonable efforts to re-rent, but we think we’re entitled to a reasonable time for turnover, which the lease-breaking tenant should pay for. –Mike and Bella P.

A: You and your tenant have approached the situation in an admirably civil way. All too often, even in states that require landlords to use reasonable efforts to re-rent, landlords simply pocket the deposit, even when the unit re-rents right away. Tenants either don’t understand that their liability for rent ended at that moment, or they have moved far away and can’t feasibly sue for the deposit’s return.

Tenants who break a lease without a legally justified reason, as appears to be the case here, are wise to do their best to find replacement residents, thus shortening the time that the unit is on the market — time that the original tenant will pay for if the market is soft and it’s hard to find a new tenant. In a hot market with no lack of qualified applicants, the unit might rent right away, and it’s conceivable that the landlord will lose no rent at all.

I’ve answered questions concerning who pays for the landlord’s efforts to market and show the rental when a tenant breaks the lease, but your question is new to me (though it’s logically related, as you’ll see). If you typically keep a unit unoccupied for a period of time between tenants, in order to assess the need for repairs or refurbishing and then do the work, your plan with respect to this vacancy is no different. But, says the tenant, when there’s a voluntary vacancy, the landlord knows that he will not collect rent during that time; why should he collect it now, when the turnover period has simply been advanced a few months?

The tenant’s argument might continue by drawing a parallel between this situation and the landlord’s expectation that a departing tenant pay for advertising and showing costs — there, too, no one underwrites these expenses when the vacancy doesn’t result from a lease break, so why (unless there’s a statute to the contrary) should they apply now?

In both cases, it’s no answer to say, “The tenant was the wrongdoer so he should pay.” That sort of reasoning has no place in a legal analysis over compensating the landlord for the results of the tenant’s lease breaking. The only question is how to accurately compensate the landlord for the damages he has suffered.

There is a way to do this. Look at it this way: Had the original tenant stayed to the end of the term, you’d be facing two weeks of no rent while you refurbish after that. Because of the early departure, you’re facing it two months earlier. Your loss is not having two weeks of rent money in the bank for two months. In other words, your loss is the interest you’d receive for two months on two weeks’ rent. Given today’s dismal interest rates, that’s not too much.

Have another talk with your tenant. Chances are that you can come to an agreement, with the tenant perhaps agreeing to cover your “soft” costs of having to handle a new tenancy when you were not expecting to do so. But expecting the departing tenant to pay rent while you refurbish the rental for a new resident isn’t reasonable.

FONTANA, Calif. (AP) — In the foreclosure-battered inland stretches of California, local government officials desperate for change are weighing a controversial but inventive way to fix troubled mortgages: Condemn them.

Officials from San Bernardino County and two of its cities have formed a local agency to consider the plan. But investors who stand to lose money on their mortgage investments have been quick to register their displeasure.

Discussion of the idea is taking place in one of the epicenters of the housing crisis, a working-class region east of Los Angeles where housing prices have plummeted. Last week brought another sharp reminder of the crisis when the 210,000-strong city of San Bernardino, struggling after shrunken home prices walloped local tax revenues, announced it would seek bankruptcy protection.

Now — and amid skepticism on many fronts — officials from the surrounding county of San Bernardino and cities of Fontana and Ontario have created a joint powers authority to consider what role local governments could take to stem the crisis. The goal is to keep homeowners saddled by large mortgage payments from losing their homes — which are now valued at a fraction of what they were once worth.

“We just have too much pain and misery in this county to call off a public discussion like this,” said David Wert, a county spokesman.

The idea was broached by a group of West Coast financiers who suggest using the power of eminent domain, which lets the government seize private property for public use. In this case, they would condemn troubled mortgages so they could seize them from the investors who own them. Then the mortgages would be rewritten so the borrowers would have significantly lower monthly payments.

Steven Gluckstern, chairman of the newly formed San Francisco-based Mortgage Resolution Partners, says his main concern is to help the economy, which is being held back by the mortgage crisis.

“This is not a bunch of Wall Street guys sitting around saying, ‘How do we make money?'” he said. “This was a bunch of Wall Street guys sitting around saying, ‘How do you solve this problem?'”

Typically, eminent domain has been used to clear property for infrastructure projects like highways, schools and sewage plants. But supporters say that giving help to struggling borrowers is also a legitimate use of eminent domain, because it’s in the public interest.

Under the proposal, a city or county would sign on as a client of Mortgage Resolution Partners, then condemn certain mortgages. The mortgages are typically owned by private investors like hedge funds and pension funds.

Under eminent domain, the city or county would be required to pay those investors “fair value” for the seized mortgages. So Mortgage Resolution Partners would find private investors to fund that.

Mortgage Resolution Partners will focus on mortgages where the borrowers are current on their payments but are “under water,” meaning their mortgage costs more than the home is worth. After being condemned and seized, the mortgages would be rewritten based on the homes’ current values. The borrowers would get to stay, but with cheaper monthly payments. The city or county would resell the loans to other private investors, so it could pay back the investors who funded the seizure and pay a flat fee to Mortgage Resolution Partners.

The company says that overall, all parties will be happy. The homeowners, for obvious reasons. The cities, for stemming economic blight without using taxpayer bailouts. And even the investors whose mortgage investments are seized. Mortgage Resolution Partners figures they should be glad to unload a risky asset.

Rick Rayl, an eminent domain lawyer in Irvine, Calif., who is not connected to the company, isn’t so sure.

“The lenders are going to be livid,” he said. He thinks the plan could have unintended consequences, like discouraging banks and other lenders from making new mortgage loans in an area.

The company says that focusing on borrowers who are current on their loans is a smart way to do business, rewarding those who are already working hard to keep their homes. But, Rayl pointed out, those are also the exact mortgages that investors are eager to keep.

Already, the outcry was heard at the first meeting of the joint powers authority on Friday, even as chairman and San Bernardino County chief executive Greg Devereaux said the entity — which was inspired by Mortgage Resolution Partners’ proposal — has not yet decided on a specific course of action.

Timothy Cameron, managing director of the Securities Industry and Financial Markets Association’s asset managers group, told the authority that residents of the region would find it harder to get loans and investors — including pensioners — would suffer losses. He also said such a move would invite costly litigation.

“The use of eminent domain will do more harm than good,” he said. “We need mortgage investors and lenders to come back to these fragile markets — but this plan will force both groups to avoid them.”

But Robert Hockett, a Cornell University law professor who serves as an unpaid adviser to Mortgage Resolution Partners, was unsympathetic. He likes how the plan forces the hand of uncooperative investors, who have sometimes stifled plans to reduce mortgage payments.

“It’s kind of like saying a loan shark objects to anti-predatory lending laws,” Hockett said.

Theodore Woodard, a 62-year-old retired air conditioner installer, said he’d welcome the help on his five-bedroom home in Fontana. So far, he and his wife have kept up with monthly $3,100 payments, plus taxes and insurance, but it hasn’t been easy, and they have watched several neighbors in the well-manicured neighborhood some 50 miles east of Los Angeles lose their homes to foreclosure.

“We’ve been making our monthly payments, barely making them, but we just pay them and try to survive off what’s left,” said Woodard, who estimates his house has lost a third of its value since 2004.

In San Bernardino County, the problem is clear. The median home price has plunged to $150,000 from $370,000 in five years. The combined San Bernardino-Riverside metro area has the highest foreclosure rate of any large metro area in the country, at four times the national average, according to RealtyTrac, which tracks foreclosure properties.

Devereaux, who has seen other plans to fix the housing crisis peter out, is cautious.

“I don’t know whether this will work or not,” he said. “But we do think we have a responsibility to explore it.”

Mortgage applications fell 1.3% from the previous period for the week ending May 25, an industry trade group said.

The Mortgage Banker’s Association released its market composite index, a measure of loan application volume Wednesday. The survey shows both refinancing and purchase activity on the decline from a week earlier. The refinance index alone fell 1.5% and the seasonally adjusted purchase index fell 1.8% from the previous week.

The four-week moving average for the seasonally-adjusted market index grew 3.23%, while the four-week moving average is down 0.67% for the seasonally adjusted purchase index. The same average is up 4.36% for the refinance index.

Mortgage refinance activity remained unchanged, representing 76.6% of all applications from the previous week.

The average contract interest rate for a 30-year, FRM with conforming loan balances declined from 3.93% to 3.91%, the lowest rate in history. The average interest rate for the 30-year, FRM with jumbo loan balances declined from 4.25% to 4.23%.

The average 30-year, FRM backed by the FHA declined from 3.73% to 3.70%.

The average interest rate for a 15-year, FRM fell from 3.26% to 3.23%.

In addition, the average contract interest rate for the 5/1 ARMs fell from 2.83% to 2.77%.

This exercise pen is simple and practical. It’s inexpensive and easy to build, even without power tools. Although I call it an exercise pen, it could have all sorts of uses with minor modifications. I built this pen to keep ducklings on the lawn during the day, but put the ducks in a building at night.

TROY GRIEPENTROG

I used all 2-by-4 untreated pine. The premise is simple: make the pen 8-feet-by-4-feet so a minimal number of cuts will be necessary. It’s 2-feet high so cutting the chicken wire is also easy (assuming you buy or have a 2-foot roll of wire).

Materials List

• 10 8-foot 2-by-4s
• 40’ of 24-inch chicken wire
• 2 hinges (not absolutely necessary)
• Staples for attaching the chicken wire
• 2.5” or 2.75” #8 or #10 screws

Some variation in materials is acceptable. Remember, this is a practical and quick project, so use what you have or use what you like. 2-by-3 lumber would work. Bigger screws are a little stronger, but this pen isn’t necessarily predator proof.

Putting It Together

Start by cutting six 2-by-4s in half. If you want to account for the width of the saw blade, it’s a good idea, but not critical. Take two of the 4-foot sections and cut them in half again. You should now have four 8-foot pieces, 10 four-foot pieces and four 2-foot pieces.

Make a rectangle out of two 4-foot pieces and two 8-foot pieces, but be sure to put the 4-foot pieces between the 8-foot pieces; that is, you’ll drill holes all the way through the 8-foot pieces where you’re going to attach them and the screws will anchor in the ends of the 4-foot pieces. After you’ve secured the corners with at least two screws each, make another rectangle the same way.

Next, attach the 2-foot corner “posts.” It’s a good idea to put screws through both the 8-foot pieces and 4-foot pieces that you’re attaching to the posts. It will make the entire structure stronger. You should now have the basic frame for the pen. If you don’t want to mess with putting a top on the pen, simply staple chicken wire all the way around it and you’re done. But if you want to keep cats or wild birds from getting in the top, read on.

TROY GRIEPENTROG

Topping it Off

Attach three of the 4-foot pieces of lumber to the top rectangle. Place them 2-feet apart on center so that the chicken wire will reach across the span without much overlap.

I added a “door” to the top of the pen. Of the four sections created in the top by the separating 2-by-4s, I put mine in the second section. Putting the door in an end section would probably be better because the birds always run to one end when you’re trying to catch them. But if you put the door in an end section, you have to account for the corner posts, which complicates the project.

To build the door, make another rectangle, this time using the 4-foot sections for the long sides. You should have a 4’ piece of lumber left over at this point. Cut two 20.25-inch pieces from that to make the door. You’ll want it to fit somewhat loosely so that you can open and close it. Attach it with hinges. I made rough handles with the left over ends of the 2-by-4s.

Cover the door and the top with chicken wire and you’re done. The pen isn’t terribly heavy, so it’s easy to tip it up to get the birds out.

If you want better predator protection, heavier wire attached more securely should improve your chances of success. You might also want to add something to the top to provide some shade for your birds.

TROY GRIEPENTROG

Ducklings enjoy spending time on the lawn on a sunny spring day.

Job seekers who give up looking for employment are not counted as unemployed. They become invisible to the statisticians, but when the job picture improves, as it has in recent months, they flood employment lines and have a huge, unforeseen impact on unemployment rates.

Likewise, sellers who take their homes off the market create an invisible supply of properties that might play a big role In boosting inventories when better prices encourage sellers to put them back on the market.

The dramatic drawdown in inventories in most markets over the past year has led some to wonder whether a sizeable volume of properties will be listed for sale at the first sign of price recovery, possibly killing or dampening price appreciation (See Are Sellers Withdrawing?).

Tallahassee broker Joe Manausa made a convincing case for the “Forgotten Inventory,” as he calls it, in a post last week on Active Rain, a site popular with real estate professionals.

“Would you be surprised/shocked to discover that the homes listed for sale in the MLS only represents about 20 percent of the real inventory of homes that need to be sold?” he wrote.

“You might never have thought about it, but there have been a lot of homes that failed to sell during the housing correction, and those that remain unlisted and unsold are a group that I call the Forgotten Real Estate Inventory. It is the growing group of homeowners who have given up hope of selling their home, but they still want to move.”

In fact, the numbers potential listings owned by frustrated home sellers may not be as forgotten as some believe, nor quite as large. A survey by Move, Inc. last November found that the number of homeowners who have delayed selling their home because of the real estate market had not grown in the previous 18 months-a period that included increases in sales and prices stimulated by the federal tax credit- but actually declined slightly. The Move stidy found that some 17.5 percent of owners today say they have delayed selling their homes because of the real estate market where they live compared to 19.3 percent in March 2010. However., that inventory is still sizable and close to Manausa’s estimate.

On the other hand, Milton Ezrat, senior economist and market strategist for Lord Abbett financial advisors, had a more aggressive estimate of the invisible inventory. He estimates the shadow inventory, in which he includes homes held off the market by their owners waiting for better prices, to be double the “official” visible inventory reported by the National Association of Realtors. Visible and invisible inventories together constitute about an18 to 24 months’ supply, even at today’s diminished “official” inventories, he estimates.

Manausa believes his Forgotten Inventory is mostly on the high end of this price spectrum, but the Move study found the largest demographic to be moistly owned by middle-aged, middle income families. More homeowners ages 35 to 49 (22 percent) and those making $40,000-$49,000 a year (21 percent) said they’ve delayed selling their home in the past year as compared to other age groups. which may indicate growing families in need of more space are having a difficult time moving up as a result of today’s market conditions.

Just how much of a price increase will it take to encourage sellers to re-list their homes? Far more than most markets will see this year, if projections prove true. In fact, Move found that today’s frustrated homeowners are less tempted to sell in response to incremental price increases than they were in 2009. Price increases in June 2009 of 20 percent or less would have motivated 61.6 percent of homeowners to sell. Now, however, price increases of 20 percent of less would motivate 55.4 percent. Based on the survey, a 5 percent increase in prices today would motivate only 11.7 percent of owners to sell their homes. The decline in pending price-motivated inventory suggests many owners may have sold their homes when the tax credit temporarily raised prices in 2010.