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 the property owner’s proposed construction.  In that case, a landowner wanted to add a pergola to an existing concrete patio on his land.  During a social visit at the property, the property owner asked the town zoning administrator if he needed a permit.  The town zoning administrator told the property owner that no permit was needed. … Read More »

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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 diminishes the value of your property, supports a cognizable damages claim against the neighboring property owner under the law of nuisance.

 As explained by the Vermont Supreme Court in the recent case of Myrick v. Peck Electric Co., 2017 WL 129041 (January 13, 2017), state laws vary on the viability of a claim for aesthetic nuisance. … Read More »

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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 Lender.  In general, by subordination, Party No. 1 with a higher/better lien priority agrees to allow Party No. 2 (usually a lender providing construction funds for the overall betterment of the property) to get a lien position in front of Party No. 1.  Party No.… Read More »

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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 to be trumped by a later-recorded bank deed of trust, if the loan secured by the later deed of trust paid off a lien that had been ahead of the mechanic’s lien.  In a decision filed August 9, 2016, the Arizona Court of Appeals further clarified the scope of such equitable subrogation.… Read More »

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Special Rules for Eviction Actions

By:  Kevin Parker

In a recent case, the Arizona Court of Appeals addressed the special rules of procedure for eviction actions. The eviction rules became effective January 1, 2009.  In Sotomayor v. Sotomayor-Munoz, 735 Ariz. Adv. Rep. 28 (March 28, 2016), the court addressed the question of whether the evicted tenant had timely appealed.  The trial court had entered a formal judgment of eviction; and the tenant had filed various post-judgment motions which the tenant apparently believed extended the tenant’s deadline for filing a notice of appeal.  The Court of Appeals determined that the appeal was untimely because, according to the court, the particular motions filed by the tenant did not extend the appeal deadline. … Read More »

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Statute of Frauds: (1) Email as “Writing” and (2) Email Signature as “Signature”

By:  Kevin J. Parker

Arizona, like most states, has a Statute of Frauds that essentially requires real estate related contracts to be both (1) in writing and (2) signed by the party to be charged.  A.R.S. § 44-101.  Questions often arise as to whether an email can satisfy the “writing” requirement, and whether an electronic signature can satisfy the “signed by the party to be charged” requirement.  The answer to these questions, like many legal questions, is: it depends.  Whether an email can satisfy the “writing” requirement might depend on whether the transaction relates to interstate commerce.  Pursuant to federal statute, 15 U.S.C.… Read More »

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Arizona Court Clarifies Premise Liability

By:  Kevin J. Parker

In a recent Arizona Court of Appeals case, the court clarified the rules for liability of a property owner to a person injured on the premises. In Lee v. M & H Enterprises, Inc. and Wal-Mart Stores, Inc. (filed April 21, 2015), the Arizona Court of Appeals addressed the question whether Wal-Mart as the property owner was liable for injuries suffered by an employee of an independent contractor performing construction services on the premises. The injured person sued both Wal-Mart and his employer, the construction company. The court reiterated the general rule that a landowner is not liable for the negligent conduct of an independent contractor on the premises unless the landowner has been independently negligent.… Read More »

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Injunctive Relief for Building Encroachment. Do I Have to Move the House?

By Kevin Parker

When a land owner mistakenly builds a house or other building or structure that encroaches on a neighbor’s property, what is the remedy?  Does the offending land owner have to physically remove the structure from the neighbor’s property?   Is the harmed neighbor entitled to a mandatory injunction against continuing trespass?  Can the offending land owner invoke equitable “balancing of hardships” and simply pay damages?  In a recent case, the Supreme Court of Rhode Island distinguished the encroachment situation from traditional injunctive relief analysis.  (A court order requiring the offending land owner to remove the offending structure would be a mandatory injunction order.)  The general rule is that a party seeking injunctive relief must prove irreparable harm not remediable by damages. … Read More »

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Homestead Exemption Cannot be Denied on Equitable Grounds

By Kevin J. Parker

Arizona’s homestead exemption allows a person to protect from certain creditors up to $150,000 of their equity in their residence (dwelling house, condominium, or mobile home).  A.R.S. § 33-1101 et seq.  This homestead equity is exempt from non-consensual liens, for example recorded judgments against the owner.  The homestead exemption does not apply as against consensual liens such as a mortgage or deed of trust.

 In a recent opinion, the Arizona Court of Appeals addressed the question of whether a property owner could be precluded on equitable grounds from asserting the homestead exemption.  Rogone v. Correia (Opinion filed September 25, 2014). … Read More »

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Seller Liability for Disclosures (or Non-Disclosures), Part 2

May 12, 2014

By:  Kevin J. Parker

In our blog post dated April 29, 2013, Matthew Fischer discussed the case Lerner v. DMB Realty, LLC (Arizona Court of Appeals, November 27, 2012).  In that case, the Arizona Court of Appeals addressed, among other things, the viability of a claim wherein a buyer of residential real estate alleged that the seller had an obligation – under the facts of that case – to disclose that they were selling because of the presence of a registered sex offender next door.

The complicating factor was that Arizona, by statute, expressly states that sellers are not obligated to disclose the existence of registered sex offenders in the vicinity. … Read More »

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Commercial Real Estate Broker Liens

Arizona, by statute, allows a commercial real estate broker in certain limited circumstances to record a lien against the owner’s real property which is the subject of the commission agreement, in order to protect the broker’s entitlement to their commission.  See A.R.S. §§ 33-1071 – 1076.  The lien rights apply only to commercial real property and residential property with five or more residential units.  The lien rights apply only to leasing and rental transactions, not sales.  The lien is enforceable by a foreclosure action the same as a mortgage.    The statutes identify very specific protocols that need to be followed.  For example, in order to take advantage of such lien rights, such lien rights must be referenced in the pertinent brokerage/listing agreement between the broker and the owner of the real property; a preliminary notice of intent to lien must be recorded no later than 15 days before the date the tenant takes possession; and in certain circumstances a notice of lien must be filed within 90 days after the tenant takes possession. … Read More »

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Partition Disputes

Partition is a statutory procedure whereby co-tenants (for example joint tenancy, tenancy-in-common, community property) can file a court action to physically divide or sell the property.  See A.R.S. § 12-1211 et seq.  Unless the co-tenants have a private partition agreement, any co-tenant can compel sale or physical division of the property through the statutory partition process.  Under the statutory partition process, the court appoints commissioners to study whether a physical division of the property is appropriate.  If so, the property will be physically divided among the co-owners.  If not, the property will be sold by the commissioners and the net proceeds divided among the co-owners. … Read More »

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Protecting Your Project From Litigation: Limited Liability Company vs. Partnership

If you have multiple investors/owners, one of the benefits of using a Limited Liability Company (LLC) to own real property rather than using a partnership is that the LLC offers better protection of the real property from creditors of any individual part-owner (LLC member or partner).  A judgment creditor of an LLC member is limited to getting a charging order against the member’s interest in the LLC.  The charging order gives the judgment creditor the rights of an assignee of the member’s interest.  This assignee position simply gives the judgment creditor the “passive” right to receive the distributions from the LLC (if any) that would otherwise go to the LLC member. … Read More »

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Purchase Options: Strict Compliance Required

By:  Kevin Parker

In a rising real estate market, we tend to see more disputes relating to purchase options.  Given the increase in value, the property owner would rather avoid the option and sell at a higher price.  The option holder can make a large profit by simply exercising the option.  In 2003, the Arizona Supreme Court set forth many important legal principles relating to option contracts in real estate transactions.  In Andrews v. Blake, 205 Ariz. 236, 69 P.3d 7 (2003), the lessee of a plant and tree nursery had an option to purchase the property for $300,000.  The owner/landlord claimed that the lessee failed to timely exercise the purchase option. … Read More »

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