Minnesota Supreme Court Issues Rare Writ of Prohibition

On July 29, 2020, the Minnesota Supreme Court handed down a rare writ of prohibition in a unanimous order. The order – issued in the case In re: B.H. v. Cengiz Gino Yildirim – overturned an order from the lower court requiring the alleged victim of sexual assault to hand over her cell phone for analysis to the defense.

Issuing a writ of this nature during the pre-trial stage of a Minneapolis Criminal Defense case is highly unusual. While a number of advocacy groups celebrated the decision as a victory for victim’s rights, the writ raises serious questions about the accused’s right to prepare a proper defense in the age of digital technology. These matters were further complicated by the Supreme Court’s finding that later attempts by the defendant to establish a viable need to analyze the alleged victim’s device were not timely raised.

The Facts

The case in question stems from an act of criminal sexual conduct the defendant is accused to have committed on December 9, 2018. According to the court record, the complaining witness B.H. attended a concert with friends during the evening of December 8. Following the concert, B.H. went to a bar and consumed alcohol with friends. When B.H. returned to a friend’s house to sleep, she allegedly woke in the early hours of December 9 to find Cengiz Gino Yildirim touching her. B.H. alleges that she was assaulted three separate times during the night and awoke in the morning to discover Yildirim was gone.

The following morning, B.H. took photos with her phone of Yildirim’s watch on a nearby nightstand. She also photographed blood smears on the sheets. B.H. disclosed the alleged attack the friends, went to the hospital for a sexual assault examination, and reported her allegations to law enforcement. According to B.H., she also communicated with Yildirim about the allegations using the social media platform Instagram. Prior to Yildirim’s arrest, police extracted some digital evidence from B.H.’s cell phone before returning it to her on the same day.

Law enforcement issued criminal charges against Yildirim on March 27, 2019.

Case History

The procedural history of the case prior to the issuance of the writ is extensive despite the fact that a trial has yet to commence. In May of 2019, Yildirim sought the disclosure of “books, papers, documents, photographs, law enforcement office reports, [and] tangible objects which relate to the case.” Later, Yildirim specifically requested that the complaining witness submit her cell phone to an independent forensic inspection. Yildirim also sought the forensic data recovered from the phone by the police. Instead, the State provided Yildirim with a sort of digital timeline of data from the phone, but only for the four-day range between December 7, 2018 and December 10, 2018. This range covered the two days prior to the alleged assault as well as the day that followed.

In November of 2019, Yildirim moved to compel production of the cell phone. While the State and defense initially resolved the motion with an agreement that the State would provide the rest of the data they collected, Yildirim moved to compel again due to the insufficiency of the provided data. On December 12, 2019, the trial court ordered B.H. to turn over the phone, which she failed to do.

Weeks later, Yildirim moved to subpoena the phone pursuant to Minnesota Rule of Criminal Procedure 22.01. The motion sought a subpoena covering “cell phone activity” from November 19, 2018 through March 27, 2019. The court granted Yildirim’s motion, and the defense served the subpoena on B.H.

B.H. moved to quash the motion, arguing that Yildirim’s request was unreasonable. Specifically, B.H. alleged the request fails to show any relevance, specificity, or materiality. At the hearing, Yildirim argued that the limited data recovered from the phone points to additional contacts between B.H. and the police and others. Yildirim alleged B.H. had changed her story over time, and that the cell data could present a different version of her story depending on who B.H. talked to.

B.H. then filed a notice of appeal as well as a motion staying the subpoena. At the hearing for the stay, Yildirim filed an addendum to his brief laying out specific reasoning for the request. Yildirim’s addendum points to “at least three instances” where B.H. allegedly made prior false allegations of sexual assault and also argues the cell data could point to inconsistencies between B.H.’s original report and the statements she made to friends. The trial court denied a motion to stay. B.H. then filed a petition for a writ of prohibition which was denied by the Court of Appeals. The Supreme Court then took up the matter.

The Reasoning of the Supreme Court

The Minnesota Supreme Court disagreed with both the trial court and the Court of Appeals, agreeing that the request for the cell phone was unreasonable. In their order, the Supreme Court found that the court’s issuance of the subpoena for the complaining witness’ cell phone was unauthorized by law.

The Court acknowledged that while prior decisions had upheld the use of in camara review of confidential information belonging to the complaining witness, it also held that cell phone data was different. The Court cited U.S. Supreme Court decision Riley v. California in holding that “cell phones differ in both a quantitative and qualitative sense from other objects.” Given the ability to reconstruct the private details of a person’s life from a cell phone, the Minnesota Supreme Court held that subpoenas for this digital data is held to a higher standard. The Court ruled that Yildirim failed to make the case that the request for the subpoena was reasonable, and granted the writ of prohibition.

Future Questions

In a footnote on Page 8 of the decision, the Supreme Court notes that Yildirim attempted to augment his explanation of the need for a subpoena. B.H. filed a motion to strike the addendum that addressed specific reasons behind the request, and the Supreme Court agreed that the addendum was improper. The end result is that the court did not consider the additional argument from Yildirim regarding the necessity of the cell phone data.

Would that additional argument have made any difference? There is no way to be certain. However, potential evidence of prior false sexual assault allegations or specific inconsistent statements is unquestionably relevant to Yildirim’s defense. It remains to be seen if the Supreme Court would rule similarly in a case where the defense made a timely, complete case for the relevance of the cell phone data.

Gerald Miller is a top-notch and experienced Minneapolis DWI lawyer at Gerald Miller P.A. in Minneapolis, MN. He has more than 35 years of experience in Criminal Defense practice. He has also been a mentor to numerous DUI/DWI defense attorneys.

Extraditing Cyber Criminals in India: Need of The Hour

In the recent past, cyber crimes have become more threatening for individuals, corporates, institutions, and nations. In such times, the law enforcement agencies are finding it difficult to check and prevent the crimes in cyberspace as the perpetrators of the cyber-world are tough to crack and while it incurs a very low cost to carry out a cybercrime, the cost of cracking down or even prevention is extremely high.

Cyberspace, today, is more vulnerable than ever before. As we advance in the technological arena, cyberattacks have gone more sophisticated. The ransomware attacks like WannaCry and Petya have shown the world that cybercrimes aren’t just limited to exposing private information on public platforms anymore, but do have the potential to shatter the global markets and thereby, the economy at a global level.

In the cyber world, it is said that cybercrime has no borders and the fight against it shouldn’t have such demarcations either, but the unfortunate truth is that the world is not on the same page. One country sees good in other’s harm, which is why there is a need to understand that in today’s interconnected world, everyone will have to share the brunt of someone’s loss. Hence, the global powers must collaborate to combat the cyber threat.

If we look at the legal aspect, some laws are still trying to cope up with the various challenges that the cyber world poses. A legal framework for the cyber world was first conceived in India in 1998 through the E-Commerce Act. Afterward, the basic law for cyberspace transactions in India has emerged in the form of the Information Technology Act, 2000. The Act was later amended in the year 2008. Although the IT Act is in place in India since 2000, the solution to cyber crimes is more on paper than on the ground.

If we see from a broad spectrum then we will realize that these things are not just happening with India but it has become a global concern. Cybercrime enforcement comes under the area of legal jurisdiction which creates makes it more complex. It is not that easy to resolve the issue of jurisdiction in cyberspace. It requires efforts from the entire globe. The cyber laws are important as it touches almost all aspects of transactions and activities and anything involving the internet. Interestingly, cyber crimes haven’t yet been defined in any of the Acts in India. So, in our country, it can be understood as a combination of crime and computer. Although, it must be underlined that the I.T. Act does define computer, computer network, data, information, and all other necessary ingredients that form part of cybercrime.

The figures of NCRB have shown an increase in the number of cases registered in the year 2011 against the number of cases that were registered in 2010. The number of cases registered in 2011 under the IT act was about 1791 but out of that only 487 individuals were arrested. There have been reported 496 cases of obscene transmission and publications in electronic form in the year 2011 but only the number of individuals arrested was about 443. This data shows that a need has arisen to make strong laws for such cybercriminals.

It is worth mentioning here that the Information Technology Act, 2000 additionally applies to any crime or contradiction conferred outside India by any individual regardless of his nationality if the act or act constituting the offense or negation includes a computer, computer framework, or system situated in India.

As per Section 1(2) of the Information Technology Act, 2000, the Act applies to the whole of our country and also applies to any offense or contravention committed outside India by any person. Further, Section 75 of the I.T. Act, 2000 also mentions the applicability of the Act for any offense or contravention committed outside India. According to this section, the Act will apply to an offense contravention committed outside India by any person, if the act or conduct constituting the offense or contravention involves a computer, computer system, or computer network located in India.

In a bid to nab the hackers transgressing the border, India has entered into agreements with many nations for legal aid in such criminal cases. Information Technology Act is applied to every one of the people regardless of their nationalities (i.e. to non-residents as well) who confers offense under the Information Technology Act outside India, executed the act or lead constituting the offense or contravention includes computer frameworks or computer systems situated in India under Section 1 and Section 75 of the Information Technology Act, yet this statute lacks practical application unless the individual can be extradited to India. Therefore it’s advised that we should have Extradition treaties among countries.

In a cyber-crime, the computer or the data itself is the target of the hacker and also the instrument. Simplistically, it’s an attack by one computer on the other or others. All such acts of crime come under the definition of cyber-crime.

The crimes are increasingly turning inter-national, especially the cyber-attacks have never been a subject to borders. Many serious offenses now have cross-border implications. Even in cases of traditional crimes, the criminals frequently cross borders to escape prosecution. The extradition of a fugitive from India to a foreign country or vice versa is covered by the provisions of the Extradition Act, 1962.

The very Act forms the legislative basis for this area of law. The Act lays down the first principles of the extradition law. The obligation to extradite criminal’s branches out of treaties or arrangements signed by India, with other countries.

It can’t be disputed that the Information Technology Act, 2000 though provides certain kinds of protections but doesn’t cover all the spheres of I.T, where the protection must be provided. The extradition of cybercriminals is still one of the concerns. India hasn’t been able to nab the perpetrators sitting outside the boundary of the country.

The Budapest Convention on Cybercrime calls for provision for extradition and investigation between nations that are a signatory to it. India, however, had refused to ratify this convention since the provisions were drafted by the developed nations without consulting countries like India. It is crucial to note here, that as per media reports; India is reconsidering its position on becoming a member of the Budapest Convention because of the surge in cybercrimes.

Extradition is usually permissible only for relatively more serious offenses, and not for what the law considers as petty offenses. The underlying principles that govern the extradition law, sometimes, make the process more complicated. The crucial of them are the following — Principle of Reciprocity in exchange of fugitives between requesting and requested State; Principle of Dual Criminality; whether the fugitive is seeking asylum from political persecution and trial for an offense of a political character; and others.

The cyber-world requires an enabling and supportive legal structure in tune with the times. This legal infrastructure can only be given by the enactment of the relevant Cyber laws as the traditional laws have failed to grant the same. E-commerce, the biggest future of the Internet, can only be possible if necessary legal infrastructure compliments the same to enable its remarkable growth.

Ramesh Keshav is a law student of iilsindia.

Fight Wrongful Termination with Contract Litigation Lawyers in West Palm Beach

Jonathan Evans, the former City Manager of Riviera Beach, recently filed a lawsuit against the city of Riviera Beach and three individual members of the city council.

In his lawsuit, Evans, who was fired by the city council last September, claims that he was denied separation pay and unable to clear his name from allegations of malfeasance. He also claims that the city accused him of malfeasance to avoid paying him a severance package and that three council members conspired to fire him in retaliation for internal investigations he had initiated. Read more

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Contract Litigation Lawyers in West Palm Beach Explain Everything You Need to Know about Employment Contracts

Lauren Hills resigned from her on-air reporting job at WPEC News in West Palm Beach, Florida in 2016. When she left, she still had 11 months remaining on her contract, which included a liquidated damage clause. She was aware of the clause, but since she was leaving the industry entirely, as opposed to taking an offer from a competing station, she didn’t think it applied.

In November of last year, Sinclair Broadcast Group, the company that owns WPEC, filed a lawsuit against Hills for breach of contract. They were seeking $17,050 in liquidated damages. The company also filed a similar lawsuit against another former reporter, Jonathan Beaton, for $5,700 in damages. Sinclair has since dropped the suit against Hills, but the lawsuit against Beaton continues. Beaton didn’t expect to be sued because, like Hills, he left the industry altogether.

In addition to the liquidated damages clause in the Sinclair employment contracts, they also include a six-month non-compete clause and forced arbitration. The liquidated damages and non-compete clauses are designed to discourage on-air talent from suddenly leaving.

When you’re starting a new job, there’s usually a staggering amount of paperwork involved, and your employment contract may get lost in the shuffle. Rather than just skimming over it and signing it, it’s important to read through it carefully.

Understanding Employment Contracts

For an employment contract to be valid, it must have four components:

  • An offer, which states what you will be doing
  • Acceptance, which means you agree to the contract
  • Intent, which means everyone involved knows the contract can be legally enforced
  • Consideration, which means that something of value is being provided in return for employment

Employment contracts are usually written, but it isn’t a hard requirement. Having a contract in writing makes it more enforceable, though.

Employment contracts also include provisions. A liquidated damage clause, like the one in the Sinclair Broadcasting Group contract, is relatively unusual unless you work in broadcasting.

Some of the most common provisions in employment contracts include:

  • Dispute resolution, which may require arbitration
  • Non-compete agreements, which means you agree to not work for a direct competitor of the company for a specified period after leaving your employment
  • Confidentiality or non-disclosure agreements, which means you agree to keep company information private
  • Exclusive employment agreements, which means you won’t “moonlight” for anyone else doing similar work while you’re employed
  • Termination provisions, which state the terms under which employees can be terminated

Employment contracts can get very detailed. Whether you’re an employer looking to bring a new employee onboard or an employee considering a job offer, having contract litigation attorneys in West Palm Beach review the contract can save time and money. If you’re not happy with the terms of your contract, an experienced attorney can help you develop a counteroffer.

Enforcing Employment Contracts

If an employment contract is breached or broken, the non-breaching party has a few options for enforcing the contract. One option is to request an injunction, which is a court order that requires the breaching party to start or stop doing whatever action is in breach of contract.

Another option is to file a lawsuit for breach of contract, which is the route Sinclair Broadcasting Group took with Hills and Beaton.

Less expensive options for both parties include mediation and arbitration, which are alternative forms of resolving contractual issues. Mediation uses a neutral third party to help all parties agree.

Arbitration is more formal than mediation. An arbitrator listens to both parties involved, reviews the case, and then makes a decision, which is binding for everyone. Some employment contracts require arbitration or mediation.

If you are dealing with a possible breach of contract as an employee or employer, contract litigation lawyers in West Palm Beach can help you chart the best course for resolving your contractual issues.

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After-effects of Divorce on Debt Consolidation

How Will Divorce Affect My Debt Consolidation?

A divorce can be lethal for your emotional and financial health. It can increase your stress level and jeopardize your plan to pay off debts with a debt consolidation plan.

Debt consolidation is a broad term people use to imply the following things: Read more

Stacy B Miller is the content writer and editor at Oak View Law Group whose work has been featured in various blogs and websites. She works to eliminate the stigma of debt and show readers the best options for handling their own debt. Beyond writing about debt, Stacy enjoys cooking and traveling.

Can You Get in Trouble for Driving While High on Marijuana?

Ohio law treats driving while impaired by marijuana the same as driving under the influence of alcohol. State statutes refer to both alleged criminal offenses as operating a vehicle while intoxicated (OVI), and courts impose the same types of penalties regardless of whether a person gets convicted of driving while drunk or high. Read more

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Which OPERS Retirement Plan is Best

The Ohio Public Employees Retirement System (OPERS) offers three types of plans. Which is the best for you will depend on your circumstances and how involved you want to be in controlling how money put toward retirement and possible long-term disability is invested. Considerations to take include your age, whether you are married, whether you have children, your expected expenses after you turn 65, and if you have one or more health conditions that could force you to stop working before you reach retirement age.

The same caveats apply to participants in the State Teachers Retirement System (STRS) in Columbus, Ohio, and participants in the School Employees Retirement System. Each option must be weighed carefully. Those and other public sector employee retirement programs offer complicated choices to enrollees.

As disability attorneys based in Columbus, OH, the lawyers with the Jones Law Group welcome opportunities to advise government workers, public safety personnel, and university faculty on their retirement and disability plan options. We cannot offer definitive answers here, but we will outline some basic features of the three OPERS choices.

OPERS Traditional Pension Plan

This is the kind of plan many people think of when they hear “government pension.” A participant’s employer makes all the contributions to the retirement and disability program, and benefits are paid out based on the participant’s years of service and the person’s age at the time he or she left public sector employment.

If you sign up for the Traditional Pension Plan, you do not need to pay attention to the stock market, 401(k)s or any of the quarterly and annual paperwork needed to manage investments. You will also have the option, unique among OPERS plans, to set up an annuity.

A possible downside is that the pension is fixed at what OPERS is required to pay based on the years-of-service-and-age formula.

OPERS Member-Directed Plan

Signing up for the OPERS Member-Directed Plan lets you set up your own retirement fund and control how a portion of your employer’s retirement plan contribution match is invested. You will need to designate a percentage of each paycheck to retirement.

While the Member-Directed Plan gives you the most say in where your money goes and potentially offers the largest returns on investments, it also limits your options for accessing your retirement funds. Unlike the traditional and combined plans, the Member-Directed Plan does not provide long-term disability benefits. It also does not pay a death benefit to the survivor of a plan participant.

OPERS Combined Plan

Columbus, Ohio, OPERS participants who opt for the Combined Plan get to control the investment of the portion of their paycheck they designate for retirement while also having their employers contribute to a traditional pension fund. At retirement, a Combined Plan participant receives fixed payments based on years of service and age at the time of separation. The participants also get to draw from their own retirement account that they managed like a 401(k).

The big caution here is that Combined Plan participants can lose principal when they invest their own funds. On the other hand, OPERS guarantees payment from the traditional pension portion of the plan.

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What to Do if Your Vehicle is Repossessed

We all depend on transportation to get us to work, run errands, and more. For most of us, that means having a dependable vehicle that can get us from point A to point B. Unfortunately, vehicle repossession is a real threat for many families.

If you wake up to discover that your vehicle has been repossessed, there are some steps you should take, according to a repossession lawyer in Ohio.

Know why your vehicle was repossessed

First, you have to know why your vehicle was repossessed. The most likely reason is that you defaulted on your loan. If you do not make timely payments, if you don’t make full payments, or if you’ve stopped making payments altogether, your creditor has the right to take your vehicle and recoup the losses it has incurred.

However, there are other reasons why your vehicle might be repossessed. For example, it may be a case of not stipulating the terms of vehicle insurance on the loan contract, or not making insurance payments. If there is any confusion as to why your vehicle was repossessed, you should definitely give your creditor a call.

Understand your rights

It’s easy to feel a bit helpless if your car is repossessed. Because it has been repossessed due to a breach of contract that was caused by you, you may feel like there isn’t anything you can do, but it is important to know that you still have rights.

Although your vehicle can be repossessed, the items inside cannot. If you left something in your car, you have every right to reclaim those items. However, alterations you made to the vehicle aren’t likely to apply. If you just installed a high-quality speaker system, it will most likely have to stay with the car.

Determine the best way to get your vehicle back

You will likely want to get your vehicle back after it has been repossessed, but there are a few different ways you can go about it.

If you have the money to pay off the loan and pay the repossession fees, that is definitely the best course of action. The key is speaking with your lender and buying it before it goes to auction, otherwise, you’ll have to buy your own car back when it goes up on the auction block.

If you don’t have the money to buy it back, you can try and work out new payment terms with your lender. However, if you’re struggling financially, it’s a good idea to speak with a bankruptcy attorney. In some cases, you may discover that filing for Chapter 13 bankruptcy is the best course of action. It can allow you to regain possession of your vehicle while the terms of the loan are negotiated.

What to do if you allow your car to be sold at auction

If you can’t afford to purchase your vehicle in full, if your lender refuses to alter the terms of your loan, or if Chapter 13 bankruptcy isn’t an option, you may have to allow your car to be sold at auction.

However, keep in mind that you may still owe your creditor money. For example, if you had $10,000 left on your loan, but the car only sold for $7,000, then you still owe $3,000.

With so many things to consider, it’s always a good idea to enlist the help of a repossession lawyer in Ohio who can help you figure out the best course of action.

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The Do’s And Don’ts Of Hiring a Calgary Divorce Lawyer MM Law

Divorce can be a life-shattering event, and many people don’t handle it well. When the divorce proceedings follow, you want to know you will be protected by a qualified and knowledgeable Calgary divorce lawyer. The right family law firm can tirelessly advocate for you and your children while in the courtroom. Never try to represent yourself because you stand to lose a lot without the right representation, and divorce will almost always have emotional ties that can fog your judgment: Read more

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A Comprehensive Guide to the Provisions of Compensation for Land Acquisition in Australia

Australia is a big country with six states and two territories. They are New South Wales, Queensland, South Australia, Western Australia, Tasmania, Victoria. (North and Australian capital. The total area of Australia is 768 million hectares with a population of 2.41 crores people.

Just like any other country, the Australian government acquires land from its inhabitants for the construction of roads, cities, gas pipelines, railway tracks, etc. In exchange for the acquired land, it provides the compensation amount to the people. Today, in this article, we will talk about the provisions of compensation for land acquisition in Australia and try to understand how individuals can get a reasonable sum of the compensation amount.

The Land Administration Act 1997

As per the Land Administration Act 1997 (LAA), the Australian government can acquire land for public works. The Minister for Land, the Department of Regional Development and Lands, the State and local governments, agencies with their own special statutory powers, and property acquisition staff monitor the process of land acquisition in Australia.

In most cases, the land purchasing Agency makes it mandatory for the landowner to go through the registration process and agree to a fixed price after the evaluation of the land. On the other hand, the government also uses compulsory acquisition if serious attempts at negotiation have failed, Land is urgently needed for public works and the landowner is agreed to section 168 (1) (b) of the PTA.

To complete a mandatory land acquisition process, the concerned agency needs Proof of negotiation, Indemnity to the Minister for Lands against any claims or costs, evidence of an owner’s consent to the acquisition, and a statement from the local government (section 56 of the LAA) that the land is needed for the construction of roads.

To acquire the land, A Notice of Intention to Take (NOITT) should be lodged with the land gate and registered against the relevant title and must be published in newspapers. The Documents must also be served to the owner, occupier, or any related parties. The notice contains the full Info about the relevant land, the interest in land, public work details, reasons why the land is suitable for acquisition, etc.

The landlord can object to the acquisition of land within 60 days of registration of the NOITT. So, the landowner can ask for the return of the acquired land if the land was acquired one year ago but has not been used for the intended work or it can be sold jointly by its former owner if unused.

The power of state or local governments in land acquisition

The LAA allows the state or local governments to conduct surveys and perform feasibility surveys or to commence work for the urgent acquisition of lands. For such works, notice must be given in advance as shown in the chart:

Entry for the feasibility study 30 days (s182)
Railways, under a Special Act  7 days (s183)
Entry for the survey, inspection 48 hours (s184)
Entry for temporary occupation 7 days (s185)
Entry for the urgent beginning of the work 7 days (s186)


Land Acquisition Compensation

All those government agencies that acquire land from individuals are responsible for providing the compensation amount to the needy people. The state department involves in land acquisition and acts from the side of client agencies. The client agencies talk about the compensation amount for the acquired land as per the provisions of LAA.

In general cases, government agencies evaluate the base price and current market price of the land and offer the compensation amount to the people accordingly. In case of dispute, related parties can negotiate with the help of a local property lawyer and strike a mutually beneficial deal. The lawyer can help you in the survey and plan preparation, negotiation with government agencies, legal complexities and fulfill the procedural requirements of the NTA.


Final Words

Land acquisition in Australia is a common happening. The federal and state governments acquire land for public works. By following the above-mentioned tips, you can have fair compensation from the government in exchange for the acquired land.

Michael Birch  is a senior Corporate & Civil lawyer at Law office of Sydney, Australia and focuses his practices in the areas of Building Construction Law, Civil Litigation, Commercial Contracts, Commercial Litigation, Domestic and Commercial Conveyancing, Probate, Mediations, Conciliations and Arbitrations. Mr Michael has extensive knowledge in real estate development, real estate finance, real estate lending, asset management, asset purchase and sales, commercial leasing, mixed-use development and planned communities, including condominium ownership.