Commercial Real Estate Industry

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“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

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

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

Eminent Domain: Be Careful What You Ask For

Posted on February 5, 2016 by Richard Herold

By: Richard Herold and Patrick Paul The condemnation of property for public works may not always be as clean and easy as the government would like. Although local governments are often critical players in the cleanup and redevelopment of contaminated … Continue reading →

Author: Richard Herold | Leave a comment Tagged condemn, condemnation, eminent domain, environmental liability, real estate, real estate litigation, real property, seller disclosures, valuation

Tips on Pursuing and Defending Complaints against Contractors

Posted on January 18, 2016 by Rick Erickson

By Rick Erickson firm bio The often staggering cost of litigation has prompted an equally staggering amount of regulatory complaints against contractors in recent years. Why? Because filing a complaint against a contractor may not cost a complainant anything but time. And … Continue reading →

Author: Rick Erickson | Leave a comment Tagged building code, construction, construction bonds, construction litigation, contractor administration, Registrar of Contractors, regulation of contractors, regulatory complaints, surety liability, workmanship

Lenders Should Contract for the Right to Recover Lost Goodwill Proceeds when Commercial Property is taken in Eminent Domain

Posted on January 14, 2016 by acarucci

By: Anthony J. Carucci Business Goodwill Generally In California, the “goodwill” of a business “consists of the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting … Continue reading →

Author: acarucci | Leave a comment Tagged commercial real estate, condemnation, eminent domain, just compensation, lien, real estate, real estate litigation

The Uniform Law Commission Approves the Uniform Commercial Real Estate Receivership Act

Posted on December 15, 2015 by Ben Reeves

By: Ben Reeves As we previously reported here, several years ago the Uniform Law Commission (the “ULC”) (the organization that drafted such favorites as the Uniform Commercial Code and the Uniform Arbitration Act) determined that states would benefit from a … Continue reading →

Author: Ben Reeves | Leave a comment Tagged model receivership act, real estate litigation, receiver, Uniform Commercial Real Estate Receivership Act

Property Taxes: A Shopping Center May Not Always be a Shopping Center

Posted on November 2, 2015 by Richard Herold

By: Rick Herold, Craig McPike & Ben Reeves In the world of real property taxes, Valuation + Classification = Assessed Valuation. Sounds simple, right? The County Assessor determines the first factor, valuation (subject to certain guidelines under applicable Arizona law). … Continue reading →

Author: Richard Herold | Leave a comment Tagged movie theater, real estate, shopping center, tax appeal, valuation, zoning

Homebuilders Welcome Recent Court Decisions

Posted on September 2, 2015 by Patrick J. Paul

By: Patrick Paul Arizona homebuilders will welcome with open arms two recent legal rulings of substantial impact to their industry. In the first decision, on July 28, 2015, in Sullivan v. Pulte Home Corp., No. 1 CA-CV 14-0199, the Arizona … Continue reading →

Author: Patrick J. Paul | Leave a comment Tagged Clean Water Act, economic loss rule, homebuilder, Water of the United States

Does a title company owe a duty of care to third parties in the recording of legal instruments?

Posted on August 18, 2015 by Ben Reeves

By: Ben Reeves This is precisely the question that the Ninth Circuit recently certified to the Washington Supreme Court in Centurion Properties III, LLC v. Chicago Title Ins. Co. Facts of the Case In this case, Centurion Properties III, LLC … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Centurion Properties v. Chicago Title, duty to third-party, real estate law, title insurance

Upheld: Injured Subcontractor’s Lent Employee Has No Claim Against Landowner or General Contractor After Choosing Workers’ Compensation and Failing to Prove Landowner Controlled the Work

Posted on May 25, 2015 by Rick Erickson

By Rick Erickson (http://www.swlaw.com/attorneys/rick_erickson) On this Memorial Day 2015, I write in honor of my U.S. Marine Corps colleague, Megan McClung, who was killed in Iraq nine years ago this December. Major McClung and I served together in Anbar Province … Continue reading →

Author: Rick Erickson | Leave a comment

Nevada Supreme Court holds that Voluntary Payment Doctrine Prohibits a Party from Recovering Amounts Wrongly Paid to Homeowner’s Association in Order to Prevent Foreclosure

Posted on April 30, 2015 by Bob L. Olson

By: Bob L. Olson On September 30,2014, we posted “Lenders Beware: the Nevada Supreme Court Holds that Foreclosures of Homeowner’s Association Liens May Extinguish First Priority Deeds of Trust” which discussed the recent decision of SFR Investments Pool 1, LLC … Continue reading →

Author: Bob L. Olson | Leave a comment Tagged HOA Lien, Nevada Association Services, real estate litigation, SFR Investments

Federal Courts to Apply More Protective State Law when Analyzing Validity of Pre-dispute Jury Trial Waivers in Diversity Jurisdiction Cases

Posted on April 22, 2015 by Sean M. Sherlock

By Anthony J. Carucci The Ninth Circuit Court of Appeals recently held that federal courts sitting in diversity jurisdiction must apply the underlying state law to determine the validity of pre-dispute jury trial waivers where the state law is more … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged jury, waiver

Church Property Tax Liability in Arizona for Commercial Leases

Posted on April 8, 2015 by Bob Henry

By: Bob Henry Arizona House Bill 2128, which was signed into law by Governor Doug Ducey on March 23, 2015, has potential impact on the commercial real estate leasing market. The bill enables owners of real property that is leased … Continue reading →

Author: Bob Henry | Leave a comment Tagged commercial real estate, HB 2128, leasing

A Purchaser Who Doesn’t Inquire May Be Teeing Up For Failure

Posted on April 2, 2015 by Erica Stutman

By: Erica Stutman Picture this: While on the hunt for new development opportunities, you stumble across a golf course in the middle of a high-end community, and you think this would be the perfect spot for more houses, or … Continue reading →

Author: Erica Stutman | Leave a comment Tagged equitable easement, equitable servitude, golf course, implied easement, implied servitude, real estate development, real property, restrictive covenant

Inverse Condemnation: When is Your Claim Precluded by the Arizona Statute of Limitations?

Posted on February 19, 2015 by Richard Herold

By: Richard Herold An inverse condemnation of a landowner’s property can occur when a governmental entity: (1) physically takes the property without compensation; or (2) passes a new law that has a serious impact on the value and/or utility of … Continue reading →

Author: Richard Herold | Leave a comment Tagged inverse condemnation

Guarantor Waivers Narrowed

Posted on December 18, 2014 by Sean M. Sherlock

By: Lyndsey A. Torp and Sean M. Sherlock A general waiver by a guarantor of “all defenses” does not actually waive “all defenses.” California Bank & Trust v. Del Ponti, — Cal.Rptr.3d —, 2014 WL 6908141 (Cal.App. 4 Dist.). That … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged defense, Guarantor, guaranty, waiver

California Case Requires Arbitration Despite Lack of Actual Controversy

Posted on December 9, 2014 by Sean M. Sherlock

By: Lyndsey A. Torp and Sean M. Sherlock For parties to litigate a contract dispute in a court of law, the parties’ disagreement must have ripened into an actual controversy presenting more than a mere academic difference of opinion. … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged arbitration, justiciability, ripeness

Nevada Supreme Court adds New Elements to Constructive Eviction Claims.

Posted on December 5, 2014 by Bob L. Olson

By Bob L. Olson Nevada, like many jurisdictions, has recognized the ability of a tenant to vacate property if it becomes unfit for occupancy for the purpose for which it was leased. This is commonly known as a “constructive eviction.” … Continue reading →

Author: Bob L. Olson | Leave a comment Tagged commercial lease, constructive eviction, evict, eviction, landlord, lease, tenant

General Contractor’s Prospective Waiver Of Its Lien Rights Is Enforceable In California

Posted on November 12, 2014 by Lyndsey Torp

By: Lyndsey Torp http://www.swlaw.com/attorneys/lyndsey_torp In another decision favoring lenders (See http://www.swlaw.com/blog/real-estate-litigation/2014/08/29/arizona-supreme-court-to-contractor-sorry-but-equitable-subrogation-of-a-banks-later-deed-of-trust-trumps-earlier-mechanics-lien-rights/), the California Court of Appeal, in an opinion published in September 2014, entitled Moorefield Construction, Inc. v. Intervest Mortgage Investment Company, et al., D065464, held an original contractor can … Continue reading →

Author: Lyndsey Torp | Leave a comment Tagged contractor, deed, foreclosure, lien, loan, mechanics, owner, subordination, waiver

New California Case Illustrates Peril of Full Credit Bid

Posted on October 6, 2014 by Sean M. Sherlock

By: Sean M. Sherlock In a new California case, a lender that made a full credit bid at a foreclosure sale lost its right as mortgagee under a lender’s insurance policy for damage to the property that occurred prior to … Continue reading →

Author: Sean M. Sherlock | Leave a comment Tagged foreclosure bid, Full credit bid, lender's insurance, mortgagee insurance

Easements Made Easier: Building Pipelines with the Power of Eminent Domain Under the Natural Gas Act

Posted on September 29, 2014 by Richard Herold

By: Richard H. Herold Any person or entity seeking to construct a natural gas pipeline and successful in obtaining a certificate of convenience and necessity from the Federal Energy Regulatory Commission may exercise the power of eminent domain to obtain easements across … Continue reading →

Author: Richard Herold | Leave a comment Tagged condemnation, easements, eminent domain, natural gas act, pipelines

Nevada Supreme Court Clarifies Mechanic and Materialman Lien Issues

Posted on August 22, 2014 by Nathan Kanute

By: Nathan Kanute and Bob Olson On August 7, 2014, the Nevada Supreme Court issued two opinions dealing with the priority of mechanics’ liens and the proof required for a materialman to establish a lien. These cases provide valuable guidance to … Continue reading →

Author: Nathan Kanute | Leave a comment Tagged lien priority, materialman's lien, mechanic's lien

Colorado Supreme Court Revisits Rule Against Perpetuities

Posted on August 14, 2014 by golmstead

By: Ginny Olmstead http://www.swlaw.com/attorneys/virginia_olmstead In March of this year, the Colorado Supreme Court revisited a fundamental doctrine of property law, which it described as “long cherished by law school professors and dreaded by most law students: the infamous rule against … Continue reading →

Author: golmstead | Leave a comment

Guarantors Score Two Victories Before the Nevada Supreme Court.

Posted on July 17, 2014 by Bob L. Olson

By: Bob Olson and Nathan Kanute On May 29, 2013, the Nevada Supreme Court issued two decisions that all real estate lenders need to be aware of because they have the potential to eliminate the ability of a lender to … Continue reading →

Author: Bob L. Olson | Leave a comment Tagged deficiency, foreclosure, Guarantor, one-action rule

Nevada Supreme Court and District Court Issue Decisions Regarding Nevada’s Limitations on Deficiency Judgments.

Posted on June 18, 2014 by Bob L. Olson

By: Bob Olson and Nathan Kanute In 2011 the Nevada Legislature enacted Assembly Bill 273 (“AB 273”) which amended NRS 40.459 by limiting deficiency judgments to the difference between the amount the lender paid to acquire the loan or obligation and … Continue reading →

Author: Bob L. Olson | Leave a comment Tagged AB 273, anti-deficiency, deficiency, Eagle SPE, foreclosure, Sandpointe

Is the Future Bright for Commercial Real Estate in Arizona?

Posted on June 6, 2014 by Cory Braddock

By Cory L. Braddock AZRE Magazine recently published an interesting article discussing the outlook for the commercial real estate market in Arizona. To give it a read, click here.

Author: Cory Braddock | Leave a comment

Borrowers Can Avoid Liability Even After a Trustee’s Sale

Posted on May 28, 2014 by Ben Reeves

By: Ben Reeves Since a lender must have a valid debt and valid lien to conduct a trustee’s sale, a borrower that allows the foreclosure sale to occur impliedly agrees that the debt and lien are valid. In Madison v. … Continue reading →

Author: Ben Reeves | Leave a comment Tagged A.R.S. 33-811(C), anti-deficiency, BT Capital, Moran AZ Financial v. Gotses

Unmitigated Waivers: Guarantors Remain Liable Despite 4-Year Delay in Foreclosure Sale

Posted on May 14, 2014 by Ben Reeves

By: Ben Reeves If a lender delays foreclosure allowing years of default interest to accrue such that a guarantor’s obligation increases from $6 million to $12 million, should the guarantor remain on the hook for the full $12 million? In … Continue reading →

Author: Ben Reeves | Leave a comment Tagged Guarantor, guaranty, impairment of collateral, mitigation of damages, Pi'ikea v. Williamson, waiver

Arizona Supreme Court Holds That Property Owner Who Quarreled With Light Rail Construction Should Be Compensated For Lost Access

Posted on April 22, 2014 by Eric Spencer

By Eric H. Spencer Late last week, the Arizona Supreme Court handed down a decision that clarified the rights of property owners who lose access to an abutting road and, in the process, reinforced the principle that both elimination and … Continue reading →

Author: Eric Spencer | Leave a comment Tagged eminent domain, just compensation, right of access

The Registrar is Changing the Game for Complaints Against Arizona Contractors

Posted on April 8, 2014 by Rick Erickson

By Rick Erickson http://www.swlaw.com/attorneys/rick_erickson Sweeping changes at the Registrar of Contractors have the construction and real estate industries concerned and curious. The Registrar recently received some poor performance reports by the Auditor General and State Ombudsmen. As a result, the … Continue reading →

Author: Rick Erickson | Leave a comment Tagged administrative remedies, contractor complaints, contractor licensing, enforcement, Registrar of Contractors, regulation of contractors

Beyond Real Estate: Publicly Traded Homebuilders (And Other Public Companies) Must be Aware of Cybersecurity and Data Breach Disclosure Requirements Applicable to SEC Filings

Posted on March 14, 2014 by Richard Herold

By: Richard H. Herold Generally speaking, publicly traded homebuilders and other public companies must disclose material information in their SEC filings. “Information is considered material if there is a substantial likelihood that a reasonable investor would consider it important in … Continue reading →

Author: Richard Herold | 1 Comment Tagged SEC, securities, Securities Litigation

Frustration of Purpose: A Frustrating Doctrine

Posted on December 26, 2013 by Erica Stutman

By: Erica Stutman Next Gen Capital, LLC v. Consumer Lending Associates, LLC illustrates the difficulty a tenant faces when trying to avoid liability for breaching a lease based on the “frustration of purpose” defense. No. 1 CA-CV 12-0624 (Ariz. Ct. … Continue reading →

Author: Erica Stutman | Leave a comment Tagged frustration of purpose, next gen capital v. consumer lending associates, real estate litigation

Partition Disputes

Posted on November 27, 2013 by Kevin Parker

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, … Continue reading →

Author: Kevin Parker | 1 Comment Tagged partition, real estate litigation

The Uniform Law Commission Makes Progress Drafting a Model Act on the Appointment and Powers of Real Estate Receivers

Posted on October 31, 2013 by Ben Reeves

By: Ben Reeves If all goes as planned, the Uniform Law Commission will finalize and promulgate a model act dealing with the appointment and powers of commercial real estate receivers at some point in 2015. Last month, the Drafting Committee … Continue reading →

Author: Ben Reeves | Leave a comment Tagged model act, power to sell, real estate receiver, uniform law commission

CC&Rs Remain Subject to Statutory Modification

Posted on October 3, 2013 by Andy Stone

By: Andy Stone Future legislation may impact current CC&R obligations. In an important decision for all communities, homeowner associations, builders, and developers, the Arizona Court of Appeals recently held that new laws may apply retroactively to modify or eliminate CC&R … Continue reading →

Author: Andy Stone | Leave a comment Tagged ARS 33-814, CC&R obligations, Hawk v. PC Village

AZRE Article Discusses Social Media Resources for the Industry

Posted on September 30, 2013 by Matthew Fischer

By: Matthew P. Fischer In the most recent issue of the magazine AZRE: Arizona Commercial Real Estate (September October 2013), reporter and former editor Peter Madrid wrote on social media coverage of the Arizona commercial real estate industry in his … Continue reading →

Author: Matthew Fischer | Leave a comment Tagged Arizona real estate, AZRE Magazine, blog, commercial real estate, real estate litigation, Snell & Wilmer

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