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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.
Real Estate Litigation Group Members and Blog Contributors
- Bob Henry
- Kevin Parker
- Matt Fischer
- Adam Lang
- Cory Braddock
- Benjamin Reeves
- Erica Stutman
- Patrick Paul
- Rick Erickson
- Ginny Olmstead
- Neal McConomy
- Michael E. Lindsay
- Bob L. Olson
- Nathan G. Kanute
- Sean M. Sherlock
- Lyndsey Torp
- Anthony Carucci
- Luke Mecklenburg
- Jon Frank
- Kevin Walton
- Lauren Munsell
- Lauren Podgorski
- Addy Colton
- John Sarager
- Ian Douglas
- David Rao
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Recent Posts
- 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
- 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
- The Show Must Go On: Shuttered Venues Operators Grant Provides Lifeline for Live Music and Theater Venues
- More Help For Arizona’s Restaurant & Hospitality Industry On the Way
- Married Couple’s Acquisition of Title as Joint Tenants Does Not Rebut the Presumption of Community Property
Topics
- Anti-deficiency Statute
- Bankruptcy
- Commercial Real Estate Industry
- Construction and Development
- Environmental
- Evictions
- Foreclosures
- Guaranty Contracts
- Judgment Liens
- Medical Marijuana
- Real Estate and Bankruptcy
- Real Estate Appraiser Litigation
- Real Estate Broker Litigation
- Real Estate Purchase/Sale Transaction Litigation
- Real Estate Receivers
- Statutes Affecting Real Estate
- Title Insurance
- Uncategorized
- Zoning
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 was not abrogated by adoption of the after-acquired interest statute; and (2) that utility easements may be implied by necessity.
As is often the case in matters involving access and implied property rights, the facts and history underlying Amada are complicated, but the case’s two most significant rulings are not. … Read More »
Author:
Luke Mecklenburg
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Tagged access, after-acquired title, colorado real property, easement by necessity, easements, utility easement
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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. granted, No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). As detailed below, the Woodbridge II court concluded that the meanings of “adverse” in these two contexts are not coextensive—while “hostility” in the adverse possession context requires a claim of exclusive ownership of the property, a party claiming a prescriptive easement is only required to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Thus, the Woodbridge II court reasoned a claimants’ acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.… Read More »
Author:
Luke Mecklenburg
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Tagged adverse possession, adverse use, easements, prescriptive easements
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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 15 days from May 29, 2020 via D 2020 088), this executive order expired on Saturday, June 13, 2020.
In its stead, the Governor issued a more limited Executive Order—D 2020 101 (the “Order”)—which is effective through July 13, 2020.… Read More »
Author:
Luke Mecklenburg
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Tagged #COVID, #evictions, Colorado, FED
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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, and interested parties should review the bill in detail. Landlords in particular may want to consider retaining legal counsel to make sure they have proper procedures in place to promptly deal with any habitability complaints within the new required timelines. This posting is not intended to provide a comprehensive guide to the changed law, but simply to highlight some of the most significant changes.… Read More »
Author:
Luke Mecklenburg
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Tagged Colorado leasing, HB 1170, Landlord Obligations, Warranty of Habitability
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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 convoluted, for the purposes of the court’s “irreparable harm” holding, the case involves two real property owners along a private road governed by an association agreement. Id., ¶¶ 12-14. Uphill property alterations by the association and other members caused debris to accumulate on Mr.… Read More »
Author:
Luke Mecklenburg
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Tagged colorado real property, commercial real estate, developer, easements, injunction, irreparable harm, real estate, real estate litigation, real property, Snell & Wilmer
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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 believed “there were insufficient ‘obstacles’ to establishing a claim for adverse possession under the existing law.”[1] Effective July 1, 2008, the amendment created a heightened burden of proof, additional element requirements, and the possibility of a losing defendant recovering money from successful plaintiffs for the value of the land they took and the taxes the defendant had paid on that land.… Read More »
Author:
Luke Mecklenburg
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Tagged adverse possession, colorado real property, CRS 38-41-101, real estate, real estate litigation, real property, residential, Snell & Wilmer
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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 own name or on behalf of two or more of its members.
Before May 2017, the pre-litigation requirements that an HOA had to fulfill before bringing a construction defect claim under the Colorado Construction Defect Action Reform Act (“CDARA”) were generally minor. For example, while many declarations required majority approval from the community prior to initiation of claims, in practice, what the industry was seeing is that some HOAs were making it so that only a majority of the HOA Board had to approve bringing the claim, rather than the majority of interested unit owners. … Read More »
Author:
Luke Mecklenburg
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Tagged C.R.S. § 38-33.3-303.5, CCIOA, CDARA, construction defect, HB 17-1279
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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 impact to the critical path by the other party. For example, a contractor cannot collect delay damages for delays caused by the owner if the contractor itself was causing independent impacts that would have pushed off the completion date anyway.
However, the concept of “pacing” provides a potential defense for a party who is not on pace with the as-planned schedule for noncritical activities, even where those activities are still ongoing after the planned completion date.… Read More »
Author:
Luke Mecklenburg
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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 bills addressing specific issues that have been affecting condominium construction along Colorado’s booming Front Range.
This new approach appears to be headed towards much the same outcome as the failed efforts of the past. House Bill 1169 would have given developers a statutory right to repair before being sued by homeowners, and Senate Bill 156 would mandate arbitration or mediation. … Read More »
Author:
Luke Mecklenburg
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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 for a general contractor to sue a subcontractor begins to run when a subcontractor’s scope of work is substantially complete, regardless of the status of the overall project. Sierra Pac. Indus., Inc. v. Bradbury, 2016 COA 132, ¶ 28, ___ P.3d ___. The Court of Appeals interpreted the statute of repose in C.R.S.… Read More »
Author:
Luke Mecklenburg
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