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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
- Richard Herold
- Adam Lang
- Robert Kethcart
- 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
- 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?
- That’s Common Knowledge! Failure to Designate an Expert Witness in a Professional Negligence Case is Not Fatal Where “Common Knowledge” Exception Applies
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
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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That’s Common Knowledge! Failure to Designate an Expert Witness in a Professional Negligence Case is Not Fatal Where “Common Knowledge” Exception Applies
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 of action. Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal. App. 5th 637. Typically, expert witnesses are required to establish the standard of care in professional negligence cases. But in Ryan, the court of appeal held that the “common knowledge” exception applied despite this general rule, because the conduct required by the particular circumstance of the case was within the common knowledge of a layman.… Read More »
Author:
Lyndsey Torp
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Tagged brokers, common knowledge, experts, professional negligence, real estate litigation, summary judgment
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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 »
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acarucci
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Tagged commercial real estate, construction, contractor, developer, foreclosure, Guarantor, guaranty, real estate, real estate litigation
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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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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 »
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acarucci
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Tagged commercial real estate, construction, developer, eminent domain, real estate litigation, real property
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Withdrawal of an Admission in California May Shift Costs—Including Attorneys’ Fees—Incurred in Connection with the Withdrawal
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 it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” Cal. Code Civ. Proc. § 2033.300(b). The court may also “impose conditions on the granting of the motion that are just, including, but not limited to .… Read More »
California Mediation Confidentiality May Apply to Third Party “Participants” Retained to Provide Analysis
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 “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . . civil action . . . .” Cal. Evid. Code § 1119(a) (emphasis added). Similarly, section 1119(b) bars discovery or admission in evidence of any “writing . . . prepared for the purpose of, in the course of, or pursuant to, a mediation .… Read More »
Author:
acarucci
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Tagged commercial real estate, eminent domain, foreclosure, foreclosures, real estate litigation
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California Supreme Court Hands Victory to Private Property Owners Over Public Use
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) 2 Cal.3d 29. This holding was controversial, and the next year the California Legislature enacted Civil Code section 1009 limiting the public’s ability to permanently use private property through an implied dedication.
In the 40-plus years since then, the lower courts have wrestled with the issue of whether the statute limiting implied dedication applies only to recreational uses by the public, or also to nonrecreational uses.… Read More »
Author:
Sean M. Sherlock
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Tagged implied dedication, private property, public use
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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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Avoiding Lender Liability for Credit-Related Actions in California
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 Est. § 35:3 (explaining that the business of lending money is subject to the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., the Fair Employment and Housing Act, Cal. Gov. Code § 12900 et seq., the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq.… Read More »
Author:
acarucci
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Tagged commercial real estate, foreclosure, foreclosures, real estate, real estate litigation, real property
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Applying New California Rules to Your Real Estate Litigation Practice
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 notable new rules.
- Pleading Stage
- New California Code of Procedure section 430.41(a)(2) mandates that the parties meet and confer at least five days before filing a demurrer (California’s motion to dismiss). If the parties fail to meet and confer, the demurring party may submit a declaration to the court explaining why the meet and confer did not happen, and the demurring party is granted an automatic 30-day extension.
Author:
Lyndsey Torp
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Tagged 2016 California Code of Civil Procedure, 2016 California rule changes
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Property Taxes: A Shopping Center May Not Always be a Shopping Center
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). The Arizona State Legislature determines the second factor, the property’s legal classification and corresponding assessment ratio (i.e., tax rate). Given the wide disparity in assessment ratios, classification can be a major issue for taxpayers.
Recently, the Court of Appeals confirmed that a shopping center for valuation purposes may not be a shopping center for classification purposes. Scottsdale/101 Associates LLC v.… Read More »
Author:
Richard Herold
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Tagged movie theater, real estate, shopping center, tax appeal, valuation, zoning
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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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Arizona Court Clarifies Premise Liability
By: Kevin J. Parker
In a recent Arizona Court of Appeals case, the court clarified the rules for liability of a property owner to a person injured on the premises. In Lee v. M & H Enterprises, Inc. and Wal-Mart Stores, Inc. (filed April 21, 2015), the Arizona Court of Appeals addressed the question whether Wal-Mart as the property owner was liable for injuries suffered by an employee of an independent contractor performing construction services on the premises. The injured person sued both Wal-Mart and his employer, the construction company. The court reiterated the general rule that a landowner is not liable for the negligent conduct of an independent contractor on the premises unless the landowner has been independently negligent.… Read More »
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Kevin Parker
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Tagged Premises liability, real estate litigation
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Federal Courts to Apply More Protective State Law when Analyzing Validity of Pre-dispute Jury Trial Waivers in Diversity Jurisdiction Cases
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 protective than the federal law. In re Cnty. of Orange, No. 14-72343, 2015 WL 1727240, at *4–5 (9th Cir. Apr. 16, 2015).
Facts/Procedural History
In 2007, plaintiff County of Orange (the “County”) hired defendant Tata America International Corporation (“Tata”) to develop a property tax management system. Id. at *5. In 2008, the parties entered into a contract for that purpose, which included an unambiguous jury trial waiver.… Read More »
California Case Requires Arbitration Despite Lack of Actual Controversy
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. But under a recent California Court of Appeal opinion, no actual controversy is required to compel arbitration over a disagreement. Bunker Hill Park Limited v. U.S. Bank National Association, — Cal.Rptr.3d —, 2014 WL 6684796 (Cal.App. 2 Dist.). To avoid being compelled to arbitrate purely academic disagreements, parties should draft their arbitration clauses to limit arbitrable disputes to those that have ripened into actual controversies.… Read More »
Author:
Sean M. Sherlock
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Tagged arbitration, justiciability, ripeness
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Easements Made Easier: Building Pipelines with the Power of Eminent Domain Under the Natural Gas Act
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 private property when those easements are necessary and cannot be obtained consensually (by contract) from the landowners. Columbia Gas Transmission, L.L.C. v. 76 Acres More or Less, 2014 WL 2960836 (D. Md. June 27, 2014). the Columbia Gas Court recently held that (1) the property’s legal description need not be attached to sufficiently identify the property to be condemned, and (2) even in the absence of a federal condemnation statute authorizing immediate possession of the property, the condemning plaintiff may obtain an order to take immediate possession of the property since it would be wasteful and inefficient to skip over one or more parcels in the construction process – only if the condemning plaintiff is capable of satisfying the requirements for preliminary injunctive relief under Fed.R.Civ.P.… Read More »
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Richard Herold
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Tagged condemnation, easements, eminent domain, natural gas act, pipelines
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Real estate salesperson succeeds in mission to collect commission
By: Erica Stutman
A.R.S. § 32-2152 allows a real estate broker or salesperson to file a court action to collect earned compensation if he was a “qualified licensed broker or salesperson at the time the claim arose.” In Focus Point Prop., LLC v. Johnson, 689 Ariz. Adv. Rep. 4 (June 19, 2014), plaintiff Cleo Johnson tested the meaning of a “qualified” licensee, arguing that her salesperson was not entitled to his commission because his license could have been revoked at the time he performed his services.
In 2009, Johnson, trustee of a trust, hired Jeff Kantor from Focus Point Properties to sell a commercial property owned by the trust and also to assist with rehabilitation activities and leasing. … Read More »
Author:
Erica Stutman
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Tagged A.R.S. 32-2153(B), A.R.S. § 32-2152, broker commissions, Cleo Johnson, Focus point, real estate agent, real estate broker, real estate salesperson
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The Registrar is Changing the Game for Complaints Against Arizona Contractors
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 Registrar overhauled its procedures for handling complaints and adjudicating contested cases against Arizona contractors. You should be following these changes before the Registrar rolls out its new approach this summer.
The Registrar regulates contractor licensing and enforcement of workmanship standards against thousands of licensees throughout Arizona. In doing so, the Registrar dictates administrative remedies available to property owners on residential and commercial projects. … Read More »
Author:
Rick Erickson
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Tagged administrative remedies, contractor complaints, contractor licensing, enforcement, Registrar of Contractors, regulation of contractors
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Commercial Real Estate Broker Liens
Arizona, by statute, allows a commercial real estate broker in certain limited circumstances to record a lien against the owner’s real property which is the subject of the commission agreement, in order to protect the broker’s entitlement to their commission. See A.R.S. §§ 33-1071 – 1076. The lien rights apply only to commercial real property and residential property with five or more residential units. The lien rights apply only to leasing and rental transactions, not sales. The lien is enforceable by a foreclosure action the same as a mortgage. The statutes identify very specific protocols that need to be followed. For example, in order to take advantage of such lien rights, such lien rights must be referenced in the pertinent brokerage/listing agreement between the broker and the owner of the real property; a preliminary notice of intent to lien must be recorded no later than 15 days before the date the tenant takes possession; and in certain circumstances a notice of lien must be filed within 90 days after the tenant takes possession. … Read More »
Author:
Kevin Parker
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Tagged broker commissions, broker lien, real estate litigation
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Arizona Residential Mortgage Brokers: Potential Additional Liability Exposure on the Horizon
by Bob Henry
Arizona Senate Bill 1026, introduced by Senator Ableser, proposes some significant changes to the law governing Arizona’s residential mortgage brokers that could expand their potential liability arising out of their day-to-day business dealings.
The bill proposes amendments to A.R.S. § 6-909, which currently sets forth various “prohibited acts” for those who are engaged in the business of making or negotiating “mortgage loans” in the State of Arizona. If enacted, S.B. 1026 would impose upon mortgage brokers an independent duty to verify a loan applicant’s ability to repay a loan, which historically has been the obligation (from a business perspective) of the institution actually providing the loan to the borrower, and not a statutory obligation or duty of the person or institution helping a borrower secure the loan.… Read More »
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Bob Henry
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Tagged Arizona Mortgage Broker Liability, S.B. 1026, Senate Bill 2026
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Bidding on State Land Trust Leases: Even the Top Revenue-Generating Bids Must be Balanced Against Qualitative “Best Use” Factors Designed to Protect the Land
The Court of Appeals recently held that that the Commissioner of the State Land Trust Department properly balanced Wildearth Guardians, Inc.’s higher revenue-generating bid against “best use” qualitative factors set forth in the Arizona Administrative Code. As a result, the appellate court affirmed the Commissioner’s decision to award a 10-year grazing lease to the Knights for their 28-year record of stewardship and protection of the leased land near Springerville, Arizona, despite the $79,344 in additional revenue over 10 years which would have been generated for the benefit of Arizona’s public schools by the Wildearth Guardian’s bid. Wildearth Guardians, Inc.… Read More »
Author:
Richard Herold
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Tagged Grazing Leases, Real Estate Leases
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Suing a Licensed Real Estate Professional May Require You to Complete and Turn In Your Homework.
By: Cory L. Braddock
A lawyer must have a good faith belief, after reasonable inquiry, that a lawsuit he files is grounded in fact and warranted by existing law. Ariz. R. Civ. P. 11. In other words, lawyers violate Arizona’s rules of civil procedure when they file frivolous lawsuits. In Arizona, the legislature has, at least in some cases, added an additional layer of scrutiny to lawsuits filed against licensed professionals. Specifically, a plaintiff must certify whether or not expert testimony is necessary to prove the licensed professional’s standard of care or liability for the claim. See A.R.S. § 12-2602(A). When expert testimony is necessary, the plaintiff is required to serve a preliminary expert opinion affidavit with their Rule 26.1 initial disclosure.… Read More »
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Cory Braddock
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Tagged expert opinion, real estate agent, real estate broker
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Arizona’s Anti-deficiency Statute, A.R.S. 33-814(G), Cannot be Prospectively Waived Says the Court of Appeals
By: Ben Reeves
In Parkway Bank & Trust Co. v. Zivkovic, 662 Ariz. Adv. Rep. 26 (Ct. App. 2013), the Arizona Court of Appeals held that provisions in loan documents purporting to waive the applicability of A.R.S. § 33-814(G) violate Arizona public policy and, therefore, are not enforceable under Arizona law.
A.R.S. § 33-814(G) provides that if a lender has a trustee’s sale foreclose of a “property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling . . . [then] no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses.” This statute is generally referred to as the “anti-deficiency” statute as it generally prevents lenders from suing homeowners for the difference between the amount owed on their mortgage and the value of their home.… Read More »
Author:
Ben Reeves
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Tagged A.R.S. § 33-814, anti-deficiency, Parkway Bank v. Zivkovic, real estate litigation, waiver
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Sign those Real Estate Agreements!
By: Bobby Kethcart
The Statute of Frauds is a BIG deal in real estate transactions and litigation. (This is our second post about it already…) We know it requires (most) agreements related to real estate to be in writing—agreements for the sale of an interest in real property, agreements for a lease of longer than one year, agreements authorizing or employing a broker or agent to buy or sell real property for compensation or a commission, and even some agreements to pay referral commissions if they can’t be performed in less than a year. We also know that the Statute of Frauds only requires the written agreement to be signed “by the party to be charged,” i.e.… Read More »
Author:
Bobby Kethcart
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Tagged A.R.S. 44-101, broker commissions, real estate broker, statute of frauds
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Broker Beware?
By: Erica Stutman
While oral contracts are often enforceable, certain categories of contracts must be documented in a signed writing or an action for breach of the contract will be barred by the statute of frauds. See A.R.S. 44-101 for Arizona’s statute of frauds. The statute of frauds plays an important role in real estate transactions, as agreements for the sale of an interest in real property and for leases longer than one year fall within the statute, as do most real estate broker or agent agreements. A less obvious category that may affect a real estate agent or broker’s ability to collect commissions is an agreement which is not to be performed within one year from the date the agreement is made.… Read More »
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Erica Stutman
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Tagged A.R.S. 44-101, broker commissions, real estate agent, real estate broker, real estate litigation, Rudinsky, statute of frauds
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