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About this Blog

Welcome to the Snell & Wilmer real estate litigation blog. Check back here often for useful news and information about current topics involving real estate litigation. We hope that you will find the blog both timely and helpful, and we invite you to join the discussion by posting comments about the articles and contacting the authors with your thoughts about the posts.

Best Practices: Commercial Lockouts in Arizona

By: Patrick Tighe If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant.  However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, […]

PT
Associate

The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

By: Robert A. Henry and Emily R. Parker The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty […]

BH
Partner

Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.

By: Christian Fernandez Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable […]

The Arizona Supreme Court Confirms that Judgment Liens Attach to Homestead Property

By: Ben Reeves The Arizona Supreme Court recently clarified that a judgment lien does, in fact, attach to the proceeds of the sale of a homestead property. See In re McLauchlan. In sum, if the sale of a home produces more than the homestead exemption amount, then a judgment creditor can collect from those excess […]

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BR
Partner

Don’t Be Lazy with Your Tenders

By Rick Erickson Our clients probably spend significant time, money and effort refining and updating their contract provisions covering indemnification and the duty to defend claims arising on their projects. But they should also consider spending an appropriate and adequate amount of time, money and effort when sending notices, or “tenders,” to enforce those critical […]

RE

Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?

By: Ben Reeves Recent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real property located within Arizona. See TWE Retirement Fund Trust v. Ream, 198 Ariz. 268 (Ct. […]

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BR
Partner

HOA Foreclosure Excess Sale Proceeds Go to Owner

By: Ben Reeves Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale.  We’ve blogged about some these past unreported decisions here and here.  Those decisions, somewhat inexplicably, required excess sale proceeds to be paid to senior creditors.  As we […]

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BR
Partner

When Is A Project Delay Material and Actionable?

By Rick Erickson Welcome to 2022!  This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays.  The COVID-19 pandemic contributed to suspension of work and closure of construction projects worldwide in 2020.  The end of 2021 brought additional delays caused by an inexplicable clog […]

RE

The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction

By: Luke Mecklenburg Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 […]

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LM
Former Associate

Can a Receiver Prime and Strip Liens Against Real Property?

By:  Ben Reeves Courts overseeing receivers generally enjoy broad discretion in directing and approving a receiver’s proposed actions.  But does that authority extend to a receiver not only granting a super-priority lien ahead of existing liens, but also selling the real property free and clear of all liens?  In County of Sonoma v. Quail, 56 […]

BR
Partner

Equine Activity Liability Releases: The Arizona Court of Appeals Finds “Release” of Trail Ride Operator Doesn’t Block Negligence Claim for Participant Riding Injury

By: Amanda Z. Weaver For the first time in nearly twenty years, the Arizona Court of Appeals last week weighed in on Arizona’s equine activity liability statute, finding that a form signed by participants before a trail ride did not qualify as a “release” under the statute, and concluding that participants’ claims of negligence against […]

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Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?

By:  Kevin J. Parker In a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of workmanship and habitability was effective.  In that case, the buyer initialed the builder’s prominent disclaimer […]

KP
Former Counsel

Amada Family Limited Partnership v. Pomeroy: Colorado Court of Appeals expressly affirms the continuing viability of the common-law after-acquired title doctrine and expressly recognizes utility easements by necessity

On May 27, 2021, a division of the Colorado Court of Appeals issued its opinion in Amada Family Limited Partnership v. Pomeroy, 2021 COA 73.  In that case, the court decided two significant issues that apparently had never been expressly ruled on by a Colorado appellate court before: (1) that Colorado’s common-law after-acquired title doctrine […]

LM
Former Associate

Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717

By: Tony Carucci California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “[i]n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing party is the party specified in the contract or not. But what about an action […]

The Show Must Go On: Shuttered Venues Operators Grant Provides Lifeline for Live Music and Theater Venues

By: David Rao Although it’s been a tough twelve months for many live music venues, movie theaters, and performing arts organizations, help may finally be around the corner. On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act was signed into law, creating a $15 billion fund for grants to […]

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DR
Former Associate

More Help For Arizona’s Restaurant & Hospitality Industry On the Way

By Patrick Paul On January 5, 2021, Governor Ducey announced the allocation of $2 million in additional funding to assist local restaurants and other dining establishments expand outdoor dining, protect patrons and staff, and limit the spread of COVID-19. Consistent with Executive Order 2020-60 authorizing the Arizona Department of Liquor Licenses and Control (DLLC) to […]

Married Couple’s Acquisition of Title as Joint Tenants Does Not Rebut the Presumption of Community Property

By:  Kevin J. Parker https://www.swlaw.com/people/kevin_parker In re Brace, 470 P.3d 15 (Cal. 2020), a California married couple acquired real property with community funds, and took title as “husband and wife as joint tenants.” When the husband filed a chapter 7 petition in bankruptcy, the bankruptcy trustee sought to include the property in the debtor’s estate. […]

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KP
Former Counsel

Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado

Earlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.”  See Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2, cert. […]

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LM
Former Associate

Statute of Limitations Bars Lender’s Subsequent Action to Quiet Title Against Junior Lienholder Mistakenly Omitted from Initial Judicial Foreclosure Action

By: Lyndsey Torp A recently issued opinion by the Court of Appeal, Fifth Appellate District tells a cautionary tale regarding a lender’s failure to name a junior lienholder in its initial judicial foreclosure action. In Cathleen Robin v. Al Crowell, — Cal.Rptr.3d —-, 2020 WL 5951506, plaintiffs sued defendant, a junior lienholder, for quiet title, […]

LT
Former Senior Attorney

A Landlord’s Guide to the Center for Disease Control’s Eviction Moratorium

By Colton Addy The Center for Disease Control and Prevention (the “CDC”) and the Department of Health and Human Services (the “HHS”) has issued an order to temporarily halt a landlord’s right to evict certain residential tenants to prevent the further spread of COVID-19 (the “CDC Order”). The CDC Order is effective through December 31, […]

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CA
Former Associate

California Judicial Council Votes to Rescind Prohibitions on Eviction and Foreclosure Proceedings

By:  David Rao and Lyndsey Torp The California Judicial Council’s emergency rules staying evictions and judicial foreclosures are coming to an end. On March 27, 2020, the Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority to act in response to the COVID-19 pandemic. On April 6, 2020, the Judicial Council […]

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LT
Former Senior Attorney

Does a Landlord’s Violation of the Arizona Residential Landlord-Tenant Act Constitute Negligence Per Se?

By:  Kevin J. Parker In a recent Arizona Court of Appeals case, Ibarra v. Gastelum, 2020 WL 4218020 (7/23/20), the Court of Appeals addressed the question whether – in a tenant’s personal injury claim against the landlord – a landlord’s violation of the Arizona Landlord-Tenant Act constituted negligence per se. The tenant alleged he was […]

KP
Former Counsel

Does a Broker Forfeit His or Her Commission for Technical Non-Compliance with Department of Real Estate Statutory Requirements?

By: Kevin J. Parker In a recent Arizona Court of Appeals case, CK Revocable Trust v. My Home Group Real Estate LLC, 2020 WL 4306183 (7/28/2020), the Court of Appeals addressed the distinction between “substantive” and “technical” statutory requirements for real estate broker commission agreements. The Court explained that failure to comply with a substantive […]

KP
Former Counsel

Colorado Governor Polis’s Executive Order D 2020 101: Keeping Up with Colorado’s Shifting Eviction Landscape during COVID-19

On March 5, 2020, Colorado Governor Polis issues executive order D 2020 012, which among other things imposed temporary limitations on evictions, foreclosures, and public utility disconnections. After being amended and extended three times (through April 30, 2020 via D 2020-0131, then for an additional 30 days via D 2020 051, and finally for an additional […]

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LM
Former Associate

Arizona Governor Ducey’s Executive Order on Residential Eviction Actions

By:  Bob Henry As part of the State of Arizona’s response to the current public health crisis, on March 24, 2020, Arizona Governor Ducey issued Executive Order 2020-14, titled “Postponement of Eviction Actions.” A copy of the Executive Order is linked here:  https://azgovernor.gov/executive-orders Residential landlords considering taking any action against tenants, including evictions, should be aware […]

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BH
Partner

A Landlord’s Guide to California’s New Statewide Rent Control Laws

By: Colton Addy Applicability of California’s Rent Control Laws:  California Civil Code Sections 1946.2 and 1947.12 took effect on January 1, 2020, and implement statewide rent control in California for most residential properties.  The rent control laws, however, do not apply to a rental property that was issued a certificate of occupancy in the last […]

CA
Former Associate

If You Purchase a House at an HOA Lien Foreclosure, Are You Entitled to Excess Sale Proceeds?

By: Ben Reeves That pesky excess sale proceeds statute, A.R.S. § 33-727, is making waves again. We previously blogged about this statute here. In the prior post, we explained that excess sale proceeds (i.e., a foreclosure sale price greater than the lien being foreclosed) must be used to pay other lien creditors, in full, before […]

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BR
Partner

Airbnb Declares End to Party!

By Patrick Paul As municipalities around the country evaluate changes to their respective codes in an effort to exert greater control over bad actors in the vacation rental market, Airbnb announced on November 2nd that it is banning party houses.  The move comes in response  to the shooting deaths of five people at a Halloween […]

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Short-Term Rental Legislation & Litigation On the Way!

The advent of the shared economy in the real estate context has provided homeowners and investors alike with expanded opportunities to generate revenue from the use of their real estate. Airbnb and VRBO are two of the most popular companies facilitating short-term rental availability. The rapid growth in this shared real estate economy has served […]

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Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan

By: Kevin J. Parker In a recent Arizona Court of Appeals case, Helvetica Servicing, Inc., v. Pasquan, 2019 WL 3820015, (8/15/19), the Court of Appeals addressed the distinction between (1) a construction loan (or refinance of same) and (2) a home improvement loan (or refinance of same), as it relates to Arizona’s anti-deficiency statute, A.R.S. […]

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KP
Former Counsel

Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect

The Colorado legislature had a busy session this year.  Among the several significant bills it enacted, HB1170 strengthens tenant protections under the implied warranty of habitability.  It became effective on August 2, 2019, so landlords and tenants alike are now subject to its requirements. The bill makes numerous changes to Colorado’s implied warranty of habitability, […]

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LM
Former Associate

CCP 998 Does Not Confer an Independent Right to Attorneys’ Fees

By: Tony Carucci A so-called “offer to compromise” under California Code of Civil Procedure section 998 can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. When making a 998 offer, parties may designate the plaintiff as the prevailing […]

Is a Bankruptcy Plan that Violates Federal Criminal Law Proposed in Bad Faith?

By: Ben Reeves Although legal in many states, marijuana remains illegal under federal criminal law. See 21 U.S.C. § 856(a)(1). One would think that engaging in illegal activity under federal criminal law would preclude relief under federal bankruptcy law. And, in fact, several bankruptcy courts have reached that exact conclusion. See, e.g., In re Rent-Rite […]

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BR
Partner

That’s Common Knowledge! Failure to Designate an Expert Witness in a Professional Negligence Case is Not Fatal Where “Common Knowledge” Exception Applies

By:  Lyndsey Torp In reversing summary judgment for defendants, the California Fourth District Court of Appeal recently held that homeowners suing their real estate broker for negligence did not need an expert witness to establish the elements of their causes of action. Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal. App. 5th […]

LT
Former Senior Attorney

Arizona, Meet RON!

By: Lauren Podgorski Arizona passed Senate Bill 1030, which authorizes Arizona notaries to perform remote online notarizations, known as “RON.” RON becomes effective as of June 30, 2020.  What is Remote Online Notarization (RON)? Currently, a person must “personally appear before or be in the presence of” a notary public in order to have her […]

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Appellate Court Affirms Medical Marijuana Variance in Phoenix

By:  Patrick J. Paul On May 2, 2019, the Arizona Court of Appeals in a memorandum decision, upheld a superior court judgment affirming a variance granted by the City of Phoenix Board of Adjustment (Board) to allow the operation of a medical marijuana dispensary in North Phoenix.  Dreem Green Inc. v. City of Phoenix, 2019 […]

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Colorado Court of Appeals clarifies that a finding of irreparable harm is not required to enter a permanent injunction to enforce an easement

On March 21, 2019, the Colorado Court of Appeals issued its opinion in Rinker v. Colina-Lee, holding for the first time that the “irreparable harm” element typically required to grant a permanent injunction is not needed for injunctions issued to enforce easements. 2019 COA 45. While the facts underlying the case are long and somewhat […]

LM
Former Associate

Vacation Rentals: Liability of the Owner for Injury Suffered by the Renter

By:  Kevin J. Parker With the explosion of the “private” rental business wherein residential property owners rent their house or condo on a short-term basis to third-parties, certain legal issues have arisen with regard to the duties owed by the property owner to the renter.  A recent Virginia Supreme Court case, Haynes-Garrett v. Dunn, 818 […]

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KP
Former Counsel

Land Banking. Why Consider It?

By: Lauren L. Munsell For homebuilders, financing a real estate transaction, oftentimes via an institutional lender, is common place in the industry.  But what is land banking and why should it be considered by homebuilders? Land banking is an off-balance sheet financing structure whereby the land banker purchases fee title to the homebuilder’s desired lots […]

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LM
Former Associate

Am I Still Covered Under the Title Insurance Policy?

By: Ian Douglas When transferring property for corporate restructuring or estate planning purposes, an important issue to consider is whether the successor owner will be covered by the grantee’s title insurance policy.  Because title insurance policies insure only the title of the “Insured” identified in the policy, the successor in interest of the named insured may […]

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ID

Recording “Un-Neighborly” Documents

By: Bob Henry In September 2018, in Baumgartner v. Timmins, 245 Ariz. 334, 429 P.3d 567, the Arizona Court of Appeals provided further clarification on what constitutes an “encumbrance” on a property for purposes of Arizona’s statutory scheme prohibiting the recording of “false documents.”  The statute, A.R.S. § 33-420, prohibits the recording of documents that […]

BH
Partner

“Bee” Careful: Unique Considerations When Negotiating a Bee Storage Lease Agreement

By: Colton Addy As demand for commercial bees used to pollinate crops (such as almond trees) has grown, so has the demand for facilities to store bees.  Entering a lease agreement for the storage of live bees presents some unique issues the parties need to consider when negotiating the lease agreement. Don’t Bee Short-Sighted:  Bees […]

CA
Former Associate

What If Your CCP 998 Offer is Silent on Costs?

By: Tony Carucci In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs […]

Homie Can’t Do That

By:  Patrick J. Paul The Arizona Attorney General recently reached an agreement with Utah-based real estate company Homie which made a splash in the Phoenix market during the fall election with candidate-type signage posted throughout the community urging a “Vote for Homie” as significant change and assured that such change would be “coming to your […]

Court Addresses HOA Attempt to Restrict Short Term Rentals

By:  Kevin J. Parker In a recent case, the Texas Supreme Court addressed an attempt by a homeowners’ association (“HOA”) to restrict short-term rentals based upon recorded Covenants, Conditions, and Restrictions (“CC&Rs”) applicable to a residential subdivision. The property was a single-family home. The homeowner rented the home through websites such as VRBO. The HOA […]

KP
Former Counsel

Condemnation Actions: How Valuable Is Your Evidence of Property Value?

By: Erica Stutman When a government condemns (takes) private property for a public use, the property owner is entitled to receive “just compensation” equal to the property’s market value. Value is typically determined by appraisals, but if the parties cannot agree, a judge or jury will determine the amount in a condemnation lawsuit. The parties […]

ES

Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)

By:  Kevin J. Parker In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim.  In that case, a bank’s deed of […]

KP
Former Counsel

Ten Years After Colorado’s Adverse Possession Amendment: a brief look backwards and forwards

In response to national outrage over an infamous adverse possession case in Boulder, Colorado, in which a lawyer and a judge intentionally took their neighbors’ undeveloped land through adverse possession, the Colorado legislature amended the state’s adverse possession statute (C.R.S. § 38-41-101) to make the claim significantly harder to prove.  It did this because it […]

LM
Former Associate

Wait, You Want An HOA?! Restricting Implied Common-Interest Communities

By: Neal McConomy While the butt of many jokes and a thorn in the side of some property owners, homeowners associations (“HOAs”) serve the vital function of collecting and disbursing funds to care for and maintain common areas of residential developments. Without HOAs, neighborhood open spaces, parks, and other amenities risk falling into disrepair through […]

NM
Former Associate

Cybersecurity on Your Project: Why Not Follow National Security Strategy?

By Rick Erickson In its recent Cybersecurity Strategy, the U.S. Department of Homeland Security (DHS) defined “cyberspace” as “the independent network of information technology infrastructure, including the Internet, telecommunications networks, computers, information and communications systems, and embedded processors and controllers.”  To DHS, protecting cyberspace includes threats against “federal and nonfederal information systems.”  In other words, […]

RE

Not so Fast! How Does Revoking Acceleration of a Note Impact the Statute of Limitations?

By: Ben Reeves Introduction Lenders routinely accelerate notes after a default occurs, calling the entire loan due immediately. Less regularly, a lender may change its mind and unilaterally revoke the acceleration.  Rarely, however, does a lender fail to foreclose on its real property collateral before the statute of limitations expires.  In Andra R. Miller Designs, […]

BR
Partner

California Supreme Court Clarifies Deadline to File Anti-SLAPP Motions in Light of Amended Pleadings

By: Tony Carucci California’s “anti-SLAPP” (“SLAPP” is an acronym for strategic lawsuit against public participation) statute—codified at California Code of Civil Procedure section 425.16 et seq.—is the primary vehicle for defending against any action involving petitioning or free speech. The statute was designed to provide an early and fast summary judgment-like procedure to allow defendants […]

“But I didn’t know what I was signing….”

By Bobby Kethcart In real estate cases—which frequently involve long purchase agreements, loan documents, personal guarantees, deeds of trust, etc.—we’ve likely all had a client or opposing party who trots out the line that they didn’t know what they were signing, or they didn’t read or understand what they were signing, so the document shouldn’t […]

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Developers Celebrate Arizona’s Opportunity Zones

By: Patrick J. Paul President Trump’s Tax Cuts and Jobs Act passed by Congress in December included a new community development program designed to promote investment in low income urban and rural communities.  These “Opportunity Zones” provide that every Governor may nominate up to 25% of qualifying low-income Census tracts for consideration in the program […]

Property Owner Entitled to Rely on Zoning Administrator Advice

By:  Kevin J. Parker In the recent case of In Re Langlois/Novicki Variance Denial, 175 A.3d 1222, 2017 VT 76 (2017), the Vermont court addressed the question of whether a property owner could enforce – by equitable estoppel principles – a representation by a town zoning administrator that no permit or variance was needed for […]

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KP
Former Counsel

Under Colorado House Bill 17-1279, HOA Boards Now Must Get Members’ Informed Consent Before Bringing A Construction Defect Action

By: Luke Mecklenburg Last year, I wrote a post calling attention to stalled efforts in the Colorado legislature to pass  meaningful construction defect reform.  Shortly thereafter, the legislature got it done in the form of House Bill 17-1279.  This bill creates an important pre-litigation notice-and-approval process whenever an HOA initiates a construction defect action in its […]

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LM
Former Associate

California’s Right To Repair Act Is The Sole Remedy For Damages For Construction Defects In New Residential Construction

By: Mark Johnson The California Supreme Court ruled in McMillin Albany LLC et al. v. The Superior Court of Kern County, (1/18/2018) 4 cal. 5th 241, that California’s Right to Repair Act, California Civil Code sections 895 et seq. (“Act”) is the sole remedy for construction defect claims for economic loss and property damages regarding […]

MJ
Former Partner

What Types of “Damages Claims” Survive a Trustee’s Sale?

By: Ben Reeves Introduction Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against the sale going forward.  See A.R.S. § 33-811(C).  In other words, if you have an […]

BR
Partner

When Does a Contractor Legally Abandon a Construction Project?

By Rick Erickson Lately, we’ve been spending more time as litigators pursuing and defending claims of abandonment against contractors. It has become apparent that abandonment is often misinterpreted in its legal meaning and effect.  Here are some thoughts on abandonment to consider. On its face, the concept of abandonment is simple enough. For any number […]

RE

Withdrawal of an Admission in California May Shift Costs—Including Attorneys’ Fees—Incurred in Connection with the Withdrawal

By: Tony Carucci Under California Code of Civil Procedure section 2033.300, a court may permit a party to withdraw an admission made in response to a request for admission upon noticed motion. The court may only do so, however, “if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and […]

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Oregon and Nevada Adopt the Uniform Commercial Real Estate Receivership Act

By:  Ben Reeves Nevada and Oregon join Utah in adopting the Uniform Commercial Real Estate Receivership Act (the “Act”) promulgated by the Uniform Law Commission.  We have been following the development of the Act since its drafting stages.  If you want more information about the Act, check out our prior posts about the drafting process, what the […]

BR
Partner

Is the Issuance of a City Use Permit Referable? Not When It Is an Administrative Act

By: Adam E. Lang Arizona’s Constitution gives electors in cities, towns, and counties the ability to refer legislation that was enacted by their local elected officials to the ballot for popular vote. Ariz. Const. art. IV, Pt. 1 § 1(8). But only legislative acts are referable; administrative acts are not. In general, a legislative act […]

AL

Specific Performance of an Option Contract to Purchase Real Property is Barred Absent Agreement on All Material Terms

By:  Richard H. Herold On November 14, 2017, the Court of Appeals (Division 1), in Offerman v. Granada, LLC, 2017 WL 5352664, reversed a trial court order directing specific performance of an alleged option to purchase real property, holding that the alleged option was too indefinite to be specifically performed because the parties did not […]

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RH
Former Partner

The Contributors to This Blog Are Pleased to Announce That….

Snell & Wilmer’s Real Estate Litigation Group, which provides the content for The Real Estate Litigation Blog, is pleased to announce that it has been recognized in both the national and metropolitan rankings by U.S. News Media Group and Best Lawyers for the 2018 edition of “Best Law Firms.”  We achieved the following rankings:  •            National […]

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BR
Partner

California Mediation Confidentiality May Apply to Third Party “Participants” Retained to Provide Analysis

By: Tony Carucci California Evidence Code section 1119 governs the general admissibility of oral and written communications generated during the mediation process. Section 1119(a) provides that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or subject […]

Arizona Supreme Court Clarifies Area Variance Standard; Property Owners May Obtain an Area Variance When Special Circumstances Existed at Purchase

By:  Nick Wood, Adam Lang, Noel Griemsmann, and Brianna Long In Pawn 1st v. City of Phoenix, the Arizona Supreme Court rejected a Court of Appeals rule that would have unduly restrained alienation of property in Arizona. The Court of Appeals found that the City of Phoenix Board of Adjustment acted beyond its authority when it […]

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BR
Partner

Who says you can’t choose between liquidated damages or actual damages?

In Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) at the time of contracting, it was difficult to ascertain the amount of actual damages […]

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KW

What Happens When a Secured Creditor Files a Late Claim in an Equity Receivership?

By: Ben Reeves Pitting a receivership court’s inherent equitable powers against pre-existing property rights can lead to some pretty interesting questions.  In SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339, 1343-44 (11th Cir. 2017), the Eleventh Circuit recently examined whether a district court’s inherent authority to establish a claims submission process allowed the court […]

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BR
Partner

Arizona Court of Appeals Awards Attorneys’ Fees in Quiet-Title Action

In Arizona, a party successfully quieting title to property may recover its attorneys’ fees if it satisfies three requirements: (1) the party requests a quitclaim deed from the party adversely claiming title twenty days before bringing the quiet-title action; (2) the party tenders five dollars for the execution and delivery of the deed; and (3) […]

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KW

Pacing in Construction Scheduling Disputes

On a high level, construction delay litigation involves sorting out the impacts to the critical project path and determining which party is responsible for those impacts. One of the more difficult elements of this process is determining whether a delay would have occurred regardless of one party’s critical path impact due to a separate, independent […]

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LM
Former Associate

The “Ugly” Property Next Door is Ruining My Property Value

By:  Kevin J. Parker Traditional bases for private nuisance claims include circumstances where noise, light, vibration, or odor emanating from a neighboring property harm the value of your property. Such bases can be objectively verified and quantified.  Courts in various states depart, however, on the issue of whether pure unsightliness of a neighboring property, which […]

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KP
Former Counsel

Nevada Supreme Court Clarifies the Litigation Waiver of the One-Action Rule

By Bob L. Olson  Nevada has a one-action rule which, with limited exceptions, requires a creditor seeking to recover a debt secured by real property to proceed against the security first prior to seeking recovery from the debtor personally. In the event that a law suit is filed in violation of the one-action rule, final […]

BO

Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims

By Rick Erickson On August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor.  The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that […]

RE

RICO Madness: The Nuisance of Owning and Operating a Marijuana Facility

By:  Bob Henry On June 7, 2017, the Tenth Circuit Court of Appeals issued its opinion in Safe Streets Alliance, et al. v. Hickenlooper, et al., (No. 16-1048), an opinion that could open the doors to property use litigation involving marijuana facilities.   One of the issues in Safe Streets was whether a property owner can […]

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BR
Partner

Erasing Any Doubt: Arizona FED Actions Do Not Accrue Until Formal Demand for Possession is Tendered

By:  Bob Henry Clearing up any lingering confusion, in Carrington Mortgage Services, LLC v. Woods, 767 Ariz. Adv. Rep. 4 (June 22, 2017), the Arizona Court of Appeals confirmed that residential forcible entry and detainer actions in Arizona accrue for statute of limitations purposes when a party entitled to possession makes a formal demand for […]

BH
Partner

Orchestrating Bias: Arbitrator’s Undisclosed Membership in Philharmonic Group with Pauly Shore’s Attorney Not Grounds to Reverse Award in Real Estate Dispute

By:  Lyndsey Torp The California court of appeal recently issued an unpublished decision in Knispel v. Shore, 2017 WL 2492535, affirming a judgment confirming an arbitration award in a real estate dispute involving Pauly Shore.  The court of appeal held that the arbitrator’s failure to disclose her membership in the Los Angeles Lawyers Philharmonic Group […]

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LT
Former Senior Attorney

California Supreme Court Hands Victory to Private Property Owners Over Public Use

By:  Sean M. Sherlock In 1970 the California Supreme Court held that, under certain circumstances, private property owners impliedly dedicate their property to the public if they permit the public to use it. Gion v. City of Santa Cruz (1970) 2 Cal.3d 29.  This holding was controversial, and the next year the California Legislature enacted […]

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Appeals of Rulings by The Registrar of Contractors Must Be Timely Filed in Superior Court.

By Rick Erickson Recently in Johnson v. Arizona Registrar of Contractors, the Arizona Court of Appeals affirmed dismissal of a homeowner’s late appeal of an adverse decision by the Registrar of Contractors (“Registrar”).  After successfully pursuing a complaint to suspend a roofing contractor’s license, the homeowner tried but failed to get her roofing repair costs […]

RE

Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?

By: Anthony J. Carucci In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to […]

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Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!

By: Ben Reeves What law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April 15, 2017).  It turns out, the note controls. The Facts In ZB, ZB, […]

BR
Partner

Landlords Beware: Subordination Agreements

By: Kevin J. Parker In the recent Arizona Court of Appeals case Earle Investments, LLC v. Southern Desert Medical Center Partners, 762 Ariz. Adv. Rep. 12 (2017), the Court of Appeals addressed the question of the scope of a subordination agreement signed by the property owner (Lessor/Landlord) at the request of the Lessee/Tenant and Lessee/Tenant’s […]

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KP
Former Counsel

Colorado House Bill 1279 stalls over 120-day unit owner election period

With the session more than halfway through, the Colorado Legislature’s 2017 attempts at meaningful construction defect reform may fail again.  This year, the Legislature did not attempt a single-bill construction defect overhaul like those that have failed over the last half-decade.  Rather, it has sought to enact reforms on a piecemeal basis, with several smaller […]

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LM
Former Associate

What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?

By: Ben Reeves Ever wonder what happens if a person challenges the timeliness of a trustee’s sale after the sale already occurred? Waiver of the argument of course!  And, in the case of Wells Fargo Bank, N.A. v. Waltner, the affirmance of an eviction judgment. In the Waltner case, Wells Fargo Bank, N.A., as Trustee […]

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BR
Partner

Utah Becomes First State to Enact the Uniform Commercial Real Estate Receivership Act

By:  David Leta On March 25, Utah became the first state to enact the Uniform Commercial Real Estate Receivership Act (“UCRERA”) which was drafted by the National Conference of Commissioners on Uniform State Laws (the “Conference”) and adopted by the Conference at its annual meeting in July 2015. The Utah Uniform Commercial Real Estate Receivership […]

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BR
Partner

Arizona Supreme Court Holds a Credit Bid at a Trustee’s Sale Should Not be Credited to a Title Insurer Under a Standard Lender’s Title Policy To the Extent the Bid Exceeds the Collateral’s Fair Market Value

By:  Richard H. Herold The Arizona Supreme Court recently addressed what impact, if any, a lender’s credit bid at an Arizona trustee’s sale has on an insurer’s liability under Sections 2, 7 and 9 of the standard’s lender’s title policy (“Policy”), holding in Equity Income Partners, LP v. Chicago Title Insurance Company, 241 Ariz. 334, […]

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RH
Former Partner

Federal Court Issues Permanent Injunction and Permanently Shuts Down Santa Ysabel’s Desert Rose Bingo

By: Anthony J. Carucci On December 12, 2016, Judge Battaglia of the United States District Court for the Southern District of California issued the Court’s long-awaited ruling on the State of California and Federal Government’s motions for summary judgment in the Iipay Nation of Santa Ysabel tribe’s (the “Tribe”) Desert Rose Bingo case. The State […]

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Forcible Entry and Detainer Actions: Courts May Not Consider Tenant’s Hardship

By: Erica Stutman If you own property and a tenant wrongfully refuses to vacate the premises (for example when the lease expires or after proper written notice of termination), you may have a quick and easy remedy to have the tenant removed. Arizona’s forcible entry and detainer (FED) statute allows a person to bring a […]

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ES

Green Energy Can Complicate Real Estate Foreclosures

Bob L. Olson A quick drive through almost any newer residential community in the Southwest will show that a lot of residents are embracing “Green Energy” or renewable energy by placing solar panels on their properties. While most people would agree that increasing the use of alternative energy is socially responsible, there are a number […]

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BO

Franchisors Should Consider Signing a Conditional Lease Assignment Rather Than a Franchisee’s Lease

By:  Richard H. Herold In Franchise & High Properties, LLC v. Happy’s Franchise, LLC, a 2015 decision issued by the Court of Appeals in Michigan, the franchisor, Happy’s Pizza Franchise, LLC, signed a five-year lease for the commercial space to be occupied by its franchisee, Happy’s Pizza #19, Inc.  The franchisor did so to secure […]

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RH
Former Partner

Sierra Pacific v. Bradbury goes unchallenged: Colorado’s six-year statute of repose begins when a subcontractor’s scope of work ends

It’s official: the October 20, 2016 deadline to petition for certiorari  to the Colorado Court of Appeals on its decision in Sierra Pacific Industries, Inc. v. Bradbury has passed, so it appears that decision will stand. In Sierra Pacific, the Court of Appeals held as a matter of first impression that the statute of repose […]

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LM
Former Associate

Avoiding Lender Liability for Credit-Related Actions in California

By: Anthony J. Carucci Aside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See generally 11 Cal. Real Est. § 35:3 (explaining that the business of lending money is subject to the Unruh […]

What Do I Do With This Stuff? Dealing With Abandoned Property After Foreclosure

By: Lyndsey Torp You’ve successfully foreclosed on a commercial building in California, and, thankfully, the borrower moved out after foreclosure or after a period of tenancy. But the borrower left behind all sorts of property – furniture, filing cabinets, records, and other assorted property.  While you may be tempted to just toss it all in […]

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LT
Former Senior Attorney

Developer Awarded Cost of Preparing Administrative Record in CEQA Lawsuit

Lawsuits under the California Environmental Quality Act (“CEQA”) typically proceed as petitions for administrative mandamus. This means the petitioner is asking the court to review an agency’s decision and ultimately issue a mandate directing the agency to set aside its decision.  In this respect the court acts like an appellate court, reviewing the agency’s decision.  […]

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Washington Answers the Question of Whether Title Companies Owe a Duty of Care to Third Parties…

By: Ben Reeves Last year (as we blogged about here and wrote a more in depth Law360 article about here), the Ninth Circuit certified to the Washington Supreme Court the question of whether title companies owe a duty of care to third parties when they record legal instruments. We finally have an answer… “We answer […]

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BR
Partner

California Supreme Court Upholds Precondemnation Procedures

By Patrick J. Paul On July 21, 2016, the California Supreme Court in Property Reserve v. Superior Court upheld the state’s precondemnation entry and testing statutes provided they were reformed to allow impacted property owners the ability to have a jury trial to determine damages associated with such entry and testing. The California Department of […]

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Equitable Subrogation Part Deux: Mechanic’s Lien vs. Later Bank Deed of Trust

By Kevin J. Parker https://www.swlaw.com/people/kevin_parker This post follows, almost two years to the day, Rick Erickson’s post of August 29, 2014. As noted by Rick Erickson in his August 29, 2014 post, the Arizona Supreme Court in the Weitz case (2014) had determined that equitable subrogation principles were applicable to enable an earlier-recorded mechanic’s lien […]

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KP
Former Counsel

“Rip and Tear” Damage Remains Covered Under CGL Policy as “Accident”—for Now.

By: Michael Lindsay and Luke Mecklenburg The Colorado Supreme Court has approved a settlement between the parties to an appeal of the 2012 Colorado Pool Systems v. Scottsdale Insurance Company Court of Appeals case, leaving that ruling intact.  The ruling parses a fine line between uncovered costs of repairing defective work and covered costs of […]

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