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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
- Jenna Le
- Ian Douglas
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Recent Posts
- Short-Term Rental Legislation & Litigation On the Way!
- Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan
- Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect
- CCP 998 Does Not Confer an Independent Right to Attorneys’ Fees
- Is a Bankruptcy Plan that Violates Federal Criminal Law Proposed in Bad Faith?
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
Short-Term Rental Legislation & Litigation On the Way!
The advent of the shared economy in the real estate context has provided homeowners and investors alike with expanded opportunities to generate revenue from the use of their real estate. Airbnb and VRBO are two of the most popular companies facilitating short-term rental availability. The rapid growth in this shared real estate economy has served as a disruptor of sorts to the traditional hotel and hospitality industry, causing that industry to revisit its own models in order to better compete.
The popularity of short-term rental use, however, has created a whole new set of problems about which property owners, state and local governments, renters, and those impacted by the explosion of short-term rentals should be aware.… Read More »
Author:
Patrick J. Paul
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Tagged #2672, #partyhouse, #scottsdale, #shorttermrental
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CCP 998 Does Not Confer an Independent Right to Attorneys’ Fees
By: Tony Carucci
A so-called “offer to compromise” under California Code of Civil Procedure section 998 can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. When making a 998 offer, parties may designate the plaintiff as the prevailing party and provide that the plaintiff may seek attorneys’ fees allowed by law, or expressly include the plaintiff’s attorneys’ fees within the amount of the offer. But does an offer that simply provides that the plaintiff may seek attorneys’ fees “allowed by law” provide the plaintiff with an independent right to attorneys’ fees?… Read More »
Author:
acarucci
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Tagged commercial real estate, construction, contractor, real estate, real estate litigation, Snell & Wilmer
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What If Your CCP 998 Offer is Silent on Costs?
By: Tony Carucci
In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer is that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” Cal.… Read More »
Author:
acarucci
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Tagged commercial real estate, construction, contractor, developer, foreclosure, Guarantor, guaranty, real estate, real estate litigation
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California Supreme Court Clarifies Deadline to File Anti-SLAPP Motions in Light of Amended Pleadings
By: Tony Carucci
California’s “anti-SLAPP” (“SLAPP” is an acronym for strategic lawsuit against public participation) statute—codified at California Code of Civil Procedure section 425.16 et seq.—is the primary vehicle for defending against any action involving petitioning or free speech. The statute was designed to provide an early and fast summary judgment-like procedure to allow defendants and cross-defendants to file a motion to dismiss either an entire complaint, specific causes of action, or even just portions of a cause of action, and to require the plaintiff to respond before conducting discovery. By facilitating an early challenge to a plaintiff or cross-complainant’s claims, the anti-SLAPP statute allows the responding party to avoid the costs and delay that chill the exercise of constitutionally protected rights.… Read More »
Author:
acarucci
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Tagged commercial real estate, construction, developer, eminent domain, real estate litigation, real property
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Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?
In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer to compromise is explained in section 998(c)(1):
… Read More »If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.
Author:
acarucci
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Tagged commercial real estate, real estate litigation
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Developer Awarded Cost of Preparing Administrative Record in CEQA Lawsuit
Lawsuits under the California Environmental Quality Act (“CEQA”) typically proceed as petitions for administrative mandamus. This means the petitioner is asking the court to review an agency’s decision and ultimately issue a mandate directing the agency to set aside its decision. In this respect the court acts like an appellate court, reviewing the agency’s decision. There are no witnesses or trial exhibits or jurors or opening statements. The court reads the parties’ briefs, hears their arguments, and makes its decision based on the evidence in the administrative record of proceedings.
The administrative record is often voluminous. It includes not only the environmental reports, but also all project application materials, staff reports and related documents, public notices, written comments and responses, all evidence or correspondence submitted to or relied upon by the agency, hearing transcripts, written findings, and more. … Read More »
Author:
Sean M. Sherlock
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Tagged administrative record, CEQA, costs of suit
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Governor Ducey Vetoes Water and Development Bills
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 have allowed developers to manipulate the requirements of Arizona’s Groundwater Management Act of 1980: Senate bills 1268 (adequate water supply requirements) and 1400 (county water supply). The bills’ sponsor, Senator Gail Griffin, had expressed concerns that the federal government was exercising too much control of the water supply in Cochise County in its efforts to ensure the continued flow of water in the San Pedro River.… Read More »
Author:
Patrick J. Paul
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Offensive Discovery after Strudley and Changes to the Colorado Rules of Civil Procedure
By: Neal McConomy
Toxic tort cases often involve real property, especially in areas with large mining and energy sectors like the West and Southwest. The cases frequently have large potential damage values and require extensive discovery. Numerous expert witnesses, vast amounts of real property testing, and significant document production are common. The cost of engaging in this far reaching discovery is often a significant factor in early settlement negotiations. Toxic tort defendants have a substantial incentive to settle disputes before engaging in discovery no matter the likelihood of success at trial because the discovery costs alone represent a sizeable expense that cannot be recovered even with a successful verdict at trial.… Read More »
Author:
nmcconomy
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Tagged Civil Procedure, Colorado, Colorado Rules of Civil Procedure, discovery, Lone Pine orders, offensive discovery, quash, toxic tort
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Homebuilders Welcome Recent Court Decisions
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 Court of Appeals held that homebuilders do not owe a duty of care to subsequent (non-original homeowners) for economic losses arising from latent construction defects unaccompanied by physical injury to persons or other property.
The fairly simple fact scenario follows. In 2000, Pulte Home Corporation sold the home at issue to the original homeowners, who, in 2003, sold the property to the Sullivan Plaintiffs. … Read More »
Author:
Patrick J. Paul
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Tagged Clean Water Act, economic loss rule, homebuilder, Water of the United States
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The EPA Approves New Environmental Due Diligence Standard
By: Patrick Paul
On December 30, 2013, the United States Environmental Protection Agency (EPA) issued its final rulemaking recognizing the newly amended ASTM standard practice for Phase 1 Environmental Site Assessments, E 1527-13 as satisfying the agency’s All Appropriate Inquiries (AAI) rule at 40 C.F.R. Part 312. Curiously, EPA did not remove the existing reference to the prior E1527–05 standard. In fact, EPA specifically provided that “today’s rule does not require that any party use this standard.” Rather, the new rule at least temporarily provides an additional method to achieve AAI without altering the existing requirements or otherwise mandating new requirements. … Read More »
Author:
Ben Reeves
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Tagged 40 CFR 312, ASTM standards, Environmental standards, EPA, Phase 1
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