Real Estate Litigation | A Snell & Wilmer Blog

When Is A Project Delay Material and Actionable?

Posted on January 2, 2022 by Rick Erickson

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 … Continue reading →

Author: Rick Erickson | Leave a comment Tagged #COVID, breach of contract, construction, construction bonds, construction defect litigation, construction law, construction lending, construction litigation, construction management, contractor, Covid-19, damages, design team, owner, project manager, real estate litigation, residential construction, subcontractor

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

Posted on October 28, 2021 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged Colorado Supreme Court, prescriptive easements, Real Property Litigation

Can a Receiver Prime and Strip Liens Against Real Property?

Posted on August 31, 2021 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged receiver, receivership, receivership certificate, Sonoma v. Quail, super-priority lien

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

Posted on August 26, 2021 by aweaver

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 … Continue reading →

Author: aweaver | Leave a comment Tagged A.R.S. 12-553, equine activity liability, equine releases, negligence

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

Posted on August 3, 2021 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged caveat emptor, construction warranties, home construction, implied warranties, real estate litigation, Warranty of Habitability, warranty of workmanship

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

Posted on June 17, 2021 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged access, after-acquired title, colorado real property, easement by necessity, easements, utility easement

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

Posted on March 26, 2021 by acarucci

By: Tony Carucci California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “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 … Continue reading →

Author: acarucci | Leave a comment Tagged attorneys fees, commercial real estate, construction, contractor, real estate litigation

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

Posted on March 18, 2021 by David Rao

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, … Continue reading →

Author: David Rao | Leave a comment Tagged Grant, Operator, PPP, SBA, Shuttered, Stimulus, SVOG, Venues

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

Posted on January 6, 2021 by Patrick J. Paul

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 … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged bar, Covid-19, Governor Doug Ducey, premises expansion, restaurant, Safest Outside Restaurant Assistance Program

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

Posted on December 1, 2020 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged community property, joint tenancy, real estate litigation

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

Posted on November 13, 2020 by Luke Mecklenburg

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. … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged adverse possession, adverse use, easements, prescriptive easements

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

Posted on October 15, 2020 by Lyndsey Torp

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, … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged Deed of Trust, foreclosure, judicial foreclosure, lender, lien, lienholder, nonjudicial foreclosure, statute of limitation

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

Posted on September 2, 2020 by Colton Addy

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 … Continue reading →

Author: Colton Addy | Leave a comment

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

Posted on August 20, 2020 by Lyndsey Torp

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 … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged #evictions, emergency rules, foreclosures, Judicial Council, moratorium

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

Posted on August 6, 2020 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged negligence per se, personal injury, real estate litigation, residential landlord tenant

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

Posted on August 6, 2020 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged brokerage agreements, forfeiture of commission, real estate litigation, violation of Department of Real Estate regulations

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

Posted on June 18, 2020 by Luke Mecklenburg

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, … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged #COVID, #evictions, Colorado, FED

Arizona Governor Ducey’s Executive Order on Residential Eviction Actions

Posted on March 27, 2020 by Bob Henry

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 … Continue reading →

Author: Bob Henry | Leave a comment Tagged Arizona residential evictions. Executive Order 2020-14

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

Posted on February 6, 2020 by Colton Addy

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 … Continue reading →

Author: Colton Addy | Leave a comment Tagged California, landlord, Landlord Obligations, landlord-tenant, rent, rent control, rental, tenancies, tenant, Tenant Protection Act, Tenant Protection Act of 2019

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

Posted on November 12, 2019 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Excess Sale Proceeds, foreclosure, HOA Lien, real estate litigation

Airbnb Declares End to Party!

Posted on November 4, 2019 by Patrick J. Paul

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. … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged Airbnb, mansion party, nuisance party, party house

Short-Term Rental Legislation & Litigation On the Way!

Posted on September 3, 2019 by Patrick J. Paul

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 … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged #2672, #partyhouse, #scottsdale, #shorttermrental

Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan

Posted on August 23, 2019 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged anti-deficiency, Deficiency judgment, foreclosure, real estate litigation

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

Posted on August 20, 2019 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged Colorado leasing, HB 1170, Landlord Obligations, Warranty of Habitability

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

Posted on June 7, 2019 by acarucci

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. … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, construction, contractor, real estate, real estate litigation, Snell & Wilmer

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

Posted on May 20, 2019 by Ben Reeves

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, … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Garvin v. Cook, Medical Marijuana, Ninth Circuit Marijuana Case

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

Posted on May 16, 2019 by Lyndsey Torp

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 … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged brokers, common knowledge, experts, professional negligence, real estate litigation, summary judgment

Arizona, Meet RON!

Posted on May 15, 2019 by Lauren Podgorski

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 … Continue reading →

Author: Lauren Podgorski | Leave a comment

Appellate Court Affirms Medical Marijuana Variance in Phoenix

Posted on May 13, 2019 by Patrick J. Paul

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 … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged Board of Adjustment, cannabis, CHAA, DHS, Medical Marijuana, pot

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

Posted on May 7, 2019 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged colorado real property, commercial real estate, developer, easements, injunction, irreparable harm, real estate, real estate litigation, real property, Snell & Wilmer

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

Posted on April 19, 2019 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged Premises liability, real estate litigation, Vacation rentals

Estoppel Certificate? Estop and Check Your Lease

Posted on April 9, 2019 by Lauren Podgorski

By: Lauren Podgorski If you are leasing space in a building, there may come a time when you receive a request from your landlord to fill out and sign an estoppel certificate. Estoppel certificates are usually sent to tenants in … Continue reading →

Author: Lauren Podgorski | Leave a comment Tagged Estoppel Certificate, landlord, lease, tenant

Land Banking. Why Consider It?

Posted on March 30, 2019 by Lauren Munsell

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 … Continue reading →

Author: Lauren Munsell | Leave a comment Tagged homebuilder, land bank, landbank

Am I Still Covered Under the Title Insurance Policy?

Posted on March 14, 2019 by Ian Douglas

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 … Continue reading →

Author: Ian Douglas | Leave a comment

Recording “Un-Neighborly” Documents

Posted on March 5, 2019 by Bob Henry

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 … Continue reading →

Author: Bob Henry | Leave a comment Tagged A.R.S. § 33-420, Baumgartner, real estate litigation, recording false documents

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

Posted on March 1, 2019 by Colton Addy

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 … Continue reading →

Author: Colton Addy | Leave a comment Tagged Bee, Bee Colony Box, Bee Facility, Bee Lease Agreement, Bee Storage, Bee Storage Agreement, Bee Storage Facility, commercial bees, commercial real estate, farm, farm products, farming, lease, Lease Agreement, livestock

What If Your CCP 998 Offer is Silent on Costs?

Posted on January 17, 2019 by acarucci

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 … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, construction, contractor, developer, foreclosure, Guarantor, guaranty, real estate, real estate litigation

Homie Can’t Do That

Posted on December 10, 2018 by Patrick J. Paul

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 … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged Arizona Attorney General, Assurance of Discontinuance, election, Homie, real estate broker

Attorneys’ Fees Are Available in Arizona Eviction Actions

Posted on November 30, 2018 by Ben Reeves

By: Ben Reeves The Arizona Court of Appeals recently held that any successful plaintiff in a forcible detainer action (i.e., an eviction action) may recover an award of its attorneys’ fees and costs incurred at trial under A.R.S. § 12-1178(A). … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Arizona, Eviction Action, real estate litigation

Court Addresses HOA Attempt to Restrict Short Term Rentals

Posted on November 15, 2018 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged real estate litigation, Restrictions on short term rentals, restrictive covenant

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

Posted on October 19, 2018 by Erica Stutman

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 … Continue reading →

Author: Erica Stutman | Leave a comment Tagged assemblage, condemnation, eminent domain, highest and best use, just compensation, project influence

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

Posted on September 18, 2018 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged declaratory judgment, equitable subrogation, real estate litigation, reformation, replacement mortgage, Statute of Limitations

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

Posted on September 10, 2018 by Luke Mecklenburg

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. … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged adverse possession, colorado real property, CRS 38-41-101, real estate, real estate litigation, real property, residential, Snell & Wilmer

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

Posted on August 31, 2018 by nmcconomy

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 … Continue reading →

Author: nmcconomy | Leave a comment Tagged CCIOA, common-interest communities, HOA, homeowner, homeowners association, homeowners' associations, real estate, real estate litigation, real property, residential, residential construction, residential real estate development

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

Posted on August 20, 2018 by Rick Erickson

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.” … Continue reading →

Author: Rick Erickson | Leave a comment Tagged breach of contract, builder, chief information officer, construction, construction law, construction management, contractor, cyber, cyber threat, cybersecurity, design team, DHS, electronically stored information, ESI, general contractor, homeland security, information systems, liability insurance, national security, national security strategy, network security, project manager, real estate, real estate development, risk management, subcontractor

Everyone Wins When a Foreclosure Sale Generates Excess Proceeds

Posted on July 13, 2018 by Ben Reeves

By: Ben Reeves Introduction When a foreclosure sale generates more money than needed to pay off the lien, the excess proceeds usually go first to creditors in the order of their priority, and second to the owner after creditors are … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Excess Sale Proceeds, foreclosure, real estate litigation

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

Posted on July 2, 2018 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Acceleration, Andra R. Miller v. U.S. Bank, Deed of Trust, Promissory Note, Revocation

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

Posted on June 14, 2018 by acarucci

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 … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, construction, developer, eminent domain, real estate litigation, real property

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

Posted on May 29, 2018 by Bobby Kethcart

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 … Continue reading →

Author: Bobby Kethcart | Leave a comment

Developers Celebrate Arizona’s Opportunity Zones

Posted on April 27, 2018 by Patrick J. Paul

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 … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged Arizona Commerce Authority, IRS, Opportunity Zones, Tax Cuts and Jobs Act, Treasury Department

Property Owner Entitled to Rely on Zoning Administrator Advice

Posted on April 17, 2018 by Kevin Parker

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 – … Continue reading →

Author: Kevin Parker | Leave a comment Tagged estoppel, Real eestate litigation, zoning

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

Posted on April 6, 2018 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment Tagged C.R.S. § 38-33.3-303.5, CCIOA, CDARA, construction defect, HB 17-1279

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

Posted on March 6, 2018 by Mark Johnson

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”) … Continue reading →

Author: Mark Johnson | Leave a comment Tagged construction, construction defect claims, new residential construction, property damage, residential

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

Posted on February 23, 2018 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged ARS 33-811, foreclosure sale, real estate litigation, trustee's sale, wrongful foreclosure

When Does a Contractor Legally Abandon a Construction Project?

Posted on January 15, 2018 by Rick Erickson

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 … Continue reading →

Author: Rick Erickson | Leave a comment Tagged abandon, abandonment, breach, breach of contract, claims, construction, construction litigation, contract, contractor, developer, legal excuse, licensing, owner, Registrar of Contractors, subcontractor

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

Posted on January 11, 2018 by acarucci

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 … Continue reading →

Author: acarucci | Leave a comment Tagged real estate litigation

Oregon and Nevada Adopt the Uniform Commercial Real Estate Receivership Act

Posted on January 4, 2018 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Commercial Real Estate Receivership Act, real estate litigation, uniform law commission

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

Posted on December 22, 2017 by Adam Lang

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). … Continue reading →

Author: Adam Lang | Leave a comment Tagged administrative act, electors, initiative, legislative act, petition, referable, referendum, rezoning, use permit, zoning

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

Posted on December 5, 2017 by Richard Herold

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 … Continue reading →

Author: Richard Herold | Leave a comment Tagged appraisal, option

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

Posted on November 2, 2017 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Best Lawyers, National Tier 1, real estate litigation, U.S. News Rankings

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

Posted on October 27, 2017 by acarucci

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 “o evidence of anything said or any admission made for the purpose of, in … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, eminent domain, foreclosure, foreclosures, real estate litigation

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

Posted on October 10, 2017 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged LLC v. Phoenix, Pawn 1st, real estate litigation, variance, zoning

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

Posted on October 6, 2017 by Kevin Walton

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) … Continue reading →

Author: Kevin Walton | Leave a comment Tagged colorado real estate, developer, liquidated damages, real estate

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

Posted on September 22, 2017 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged equity receivership, real estate blog, receivership claims, SEC v. Wells Fargo

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

Posted on September 14, 2017 by Kevin Walton

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) … Continue reading →

Author: Kevin Walton | Leave a comment

Pacing in Construction Scheduling Disputes

Posted on September 11, 2017 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment

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

Posted on September 6, 2017 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged nuisance, real estate litigation

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

Posted on September 1, 2017 by Bob L. Olson

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 … Continue reading →

Author: Bob L. Olson | Leave a comment Tagged affirmative defense, anti-deficiency, deficiency, Hefetz, Hefetz v. Beavor, NRS 40.430, NRS 40.435, NRS 40.453, NRS 40.455, one form of action rule, one-action rule, Rule 8

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

Posted on August 24, 2017 by Rick Erickson

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 … Continue reading →

Author: Rick Erickson | Leave a comment Tagged attorneys fees, breach of contract, construction law, contractor, homebuilder, homeowner, implied warranty, implied warranty of workmanship and habitability, insurance coverage, liability insurance, residential construction

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

Posted on July 21, 2017 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Federal RICO, Medical Marijuana, nuisance, Safe Streets

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

Posted on July 6, 2017 by Bob Henry

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 … Continue reading →

Author: Bob Henry | Leave a comment Tagged Arizona residential FED actions; Arizona residential forcible entry and detainer actions; A.R.S. § 12-1173.01; Notice to Vacate

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

Posted on June 19, 2017 by Lyndsey Torp

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 … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged arbitration, arbitrator, bias, disclosure, real estate

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

Posted on June 16, 2017 by Sean M. Sherlock

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) … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged implied dedication, private property, public use

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

Posted on June 12, 2017 by Rick Erickson

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 … Continue reading →

Author: Rick Erickson | Leave a comment Tagged appeals, contractor complaints, homeowners, judicial review, jurisdiction, recovery fund, Registrar of Contractors, residential construction

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

Posted on June 8, 2017 by acarucci

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 … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, real estate litigation

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

Posted on May 2, 2017 by Ben Reeves

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. … Continue reading →

Author: Ben Reeves | Leave a comment Tagged choice-of-law provisions, deficiency action, real estate litigation, Statute of Limitations

Landlords Beware: Subordination Agreements

Posted on April 27, 2017 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged subordination

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

Posted on April 14, 2017 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment

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

Posted on April 11, 2017 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged A.R.S. 33-811(C), Statute of Limitations, trustee's sale, waiver

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

Posted on March 27, 2017 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment

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

Posted on February 28, 2017 by Richard Herold

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 … Continue reading →

Author: Richard Herold | Leave a comment Tagged credit bid, Lender's title insurance, trustee's sale

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

Posted on January 19, 2017 by acarucci

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 … Continue reading →

Author: acarucci | Leave a comment Tagged real estate, real estate litigation

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

Posted on December 5, 2016 by Erica Stutman

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 … Continue reading →

Author: Erica Stutman | Leave a comment Tagged eviction, Forcible Entry and Detainer, Sunquest, Tucson Lot 4

Green Energy Can Complicate Real Estate Foreclosures

Posted on November 24, 2016 by Bob L. Olson

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 … Continue reading →

Author: Bob L. Olson | Leave a comment Tagged alternative energy, fixture, foreclosure, green energy, lease, renewable energy, solar

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

Posted on November 10, 2016 by Richard Herold

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 … Continue reading →

Author: Richard Herold | Leave a comment Tagged franchise litigation, franchisee, Guarantor, landlord, lease, tenant

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

Posted on October 25, 2016 by Luke Mecklenburg

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 … Continue reading →

Author: Luke Mecklenburg | Leave a comment

Avoiding Lender Liability for Credit-Related Actions in California

Posted on October 21, 2016 by acarucci

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 … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, foreclosure, foreclosures, real estate, real estate litigation, real property

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

Posted on October 5, 2016 by Lyndsey Torp

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, … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged abandon, abandoned property, foreclosure, lost property, personal property, records

Developer Awarded Cost of Preparing Administrative Record in CEQA Lawsuit

Posted on September 22, 2016 by Sean M. Sherlock

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 … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged administrative record, CEQA, costs of suit

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

Posted on September 14, 2016 by Ben Reeves

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 … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Centurion, duty, gratuitous recording, real estate litigation, title company liability

California Supreme Court Upholds Precondemnation Procedures

Posted on September 9, 2016 by Patrick J. Paul

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 … Continue reading →

Author: Patrick J. Paul | Leave a comment

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

Posted on August 30, 2016 by Kevin Parker

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 … Continue reading →

Author: Kevin Parker | Leave a comment Tagged equitable subrogation, mechanic's lien, real estate litigation

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

Posted on August 4, 2016 by mlindsay

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 … Continue reading →

Author: mlindsay | Leave a comment

Landlords Must Not be Arbitrary When Denying a Tenant’s Request To Sublease or Assign

Posted on July 8, 2016 by Richard Herold

By: Richard Herold So, you’re a landlord who’s entered into a 30-year lease, the lease has rent escalation clauses which are dramatically out of step with the market, and it’s your view that you are therefore losing money every month. … Continue reading →

Author: Richard Herold | Leave a comment Tagged Arizona real estate, commercial real estate, landlord, lease, real estate litigation, tenant

Hold that paintbrush! A glimpse into design-control in planned communities

Posted on June 27, 2016 by Erica Stutman

By: Erica Stutman You are choosing a new paint color for the outside of your house, and you think, “Since all the other houses are beige, I’ll do mine purple.” Not so fast – you better check your community’s governing … Continue reading →

Author: Erica Stutman | Leave a comment Tagged architectural committee, CC&Rs, design-control, HOA, homeowners association

Common Law Indemnity Claim Affirmed on Justifiable Beliefs

Posted on June 22, 2016 by Rick Erickson

By Rick Erickson https://www.swlaw.com/people/rick_erickson Yesterday, the Arizona Court of Appeals issued an interesting opinion in Hatch Development v. Solomon. Hatch illustrated two key points in real estate and construction litigation: (1) a contractor’s indemnity does not always require an expressly … Continue reading →

Author: Rick Erickson | Leave a comment Tagged Arizona real estate, common law indemnity, construction, construction defect litigation, implied indemnity, indemnity, real estate, residential construction, restatement of restitution, sewer installation, statute of limitation

California’s One-Action Rule May Apply to Federal Lenders

Posted on June 3, 2016 by acarucci

By: Anthony J. Carucci California’s one-action rule provides that “here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years … Continue reading →

Author: acarucci | Leave a comment Tagged anti-deficiency, commercial real estate, deficiency, foreclosure, foreclosures, Guarantor, guaranty, one-action rule, real estate, real estate litigation, real property

Governor Ducey Vetoes Water and Development Bills

Posted on June 2, 2016 by Patrick J. Paul

By Patrick J. Paul With the second regular legislative session of Governor Doug Ducey’s tenure complete, the Governor exercised his veto pen rejecting several laws impacting water and land development. On May 9th, Governor Ducey vetoed two measures that could … Continue reading →

Author: Patrick J. Paul | Leave a comment

Applying New California Rules to Your Real Estate Litigation Practice

Posted on May 18, 2016 by Lyndsey Torp

By: Lyndsey Torp Several new California procedural rules went into effect on January 1, 2016. While we are several months into the new year, litigators may need a reminder of these new rules. The list below summarizes several of the … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged 2016 California Code of Civil Procedure, 2016 California rule changes

California Case Deals with Nuisance Lawsuit Intended to Delay Foreclosure

Posted on May 11, 2016 by Sean M. Sherlock

A recent California case provides good precedent for dealing with nuisance lawsuits that are intended to delay valid foreclosures. In Brown v. Deutsche Bank National Trust Company —Cal.Rptr.3d—, 2016 WL 2726229 (May 9, 2016), plaintiff sued defendants to stop them … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged demurrer, foreclosure, judicial notice

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