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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
- When Is A Project Delay Material and Actionable?
- The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
- Can a Receiver Prime and Strip Liens Against Real Property?
- Equine Activity Liability Releases: The Arizona Court of Appeals Finds “Release” of Trail Ride Operator Doesn’t Block Negligence Claim for Participant Riding Injury
- Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?
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 … Continue reading
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Luke Mecklenburg
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Tagged access, after-acquired title, colorado real property, easement by necessity, easements, utility easement
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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
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
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acarucci
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Tagged attorneys fees, commercial real estate, construction, contractor, real estate litigation
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Married Couple’s Acquisition of Title as Joint Tenants Does Not Rebut the Presumption of Community Property
By: Kevin J. Parker https://www.swlaw.com/people/kevin_parker In re Brace, 470 P.3d 15 (Cal. 2020), a California married couple acquired real property with community funds, and took title as “husband and wife as joint tenants.” When the husband filed a chapter 7 … Continue reading
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Kevin Parker
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Tagged community property, joint tenancy, real estate litigation
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Does a Broker Forfeit His or Her Commission for Technical Non-Compliance with Department of Real Estate Statutory Requirements?
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
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Kevin Parker
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Tagged brokerage agreements, forfeiture of commission, real estate litigation, violation of Department of Real Estate regulations
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Arizona Governor Ducey’s Executive Order on Residential Eviction Actions
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
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Bob Henry
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Tagged Arizona residential evictions. Executive Order 2020-14
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Airbnb Declares End to Party!
By Patrick Paul As municipalities around the country evaluate changes to their respective codes in an effort to exert greater control over bad actors in the vacation rental market, Airbnb announced on November 2nd that it is banning party houses. … Continue reading
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Patrick J. Paul
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Tagged Airbnb, mansion party, nuisance party, party house
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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 … Continue reading
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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. … Continue reading
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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 … Continue reading
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Lyndsey Torp
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Tagged brokers, common knowledge, experts, professional negligence, real estate litigation, summary judgment
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Land Banking. Why Consider It?
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
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 … Continue reading
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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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Homie Can’t Do That
By: Patrick J. Paul The Arizona Attorney General recently reached an agreement with Utah-based real estate company Homie which made a splash in the Phoenix market during the fall election with candidate-type signage posted throughout the community urging a “Vote … Continue reading
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Patrick J. Paul
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Tagged Arizona Attorney General, Assurance of Discontinuance, election, Homie, real estate broker
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Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)
By: Kevin J. Parker In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of … Continue reading
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Kevin Parker
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Tagged declaratory judgment, equitable subrogation, real estate litigation, reformation, replacement mortgage, Statute of Limitations
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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. … Continue reading
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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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Wait, You Want An HOA?! Restricting Implied Common-Interest Communities
By: Neal McConomy While the butt of many jokes and a thorn in the side of some property owners, homeowners associations (“HOAs”) serve the vital function of collecting and disbursing funds to care for and maintain common areas of residential … Continue reading
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nmcconomy
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Tagged CCIOA, common-interest communities, HOA, homeowner, homeowners association, homeowners' associations, real estate, real estate litigation, real property, residential, residential construction, residential real estate development
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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 … Continue reading
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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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“But I didn’t know what I was signing….”
By Bobby Kethcart In real estate cases—which frequently involve long purchase agreements, loan documents, personal guarantees, deeds of trust, etc.—we’ve likely all had a client or opposing party who trots out the line that they didn’t know what they were … Continue reading
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Bobby Kethcart
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Developers Celebrate Arizona’s Opportunity Zones
By: Patrick J. Paul President Trump’s Tax Cuts and Jobs Act passed by Congress in December included a new community development program designed to promote investment in low income urban and rural communities. These “Opportunity Zones” provide that every Governor … Continue reading
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Patrick J. Paul
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Tagged Arizona Commerce Authority, IRS, Opportunity Zones, Tax Cuts and Jobs Act, Treasury Department
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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 … Continue reading
Specific Performance of an Option Contract to Purchase Real Property is Barred Absent Agreement on All Material Terms
By: Richard H. Herold On November 14, 2017, the Court of Appeals (Division 1), in Offerman v. Granada, LLC, 2017 WL 5352664, reversed a trial court order directing specific performance of an alleged option to purchase real property, holding that … Continue reading
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 “o evidence of anything said or any admission made for the purpose of, in … Continue reading
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acarucci
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Tagged commercial real estate, eminent domain, foreclosure, foreclosures, real estate litigation
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The “Ugly” Property Next Door is Ruining My Property Value
By: Kevin J. Parker Traditional bases for private nuisance claims include circumstances where noise, light, vibration, or odor emanating from a neighboring property harm the value of your property. Such bases can be objectively verified and quantified. Courts in various … Continue reading
Erasing Any Doubt: Arizona FED Actions Do Not Accrue Until Formal Demand for Possession is Tendered
By: Bob Henry Clearing up any lingering confusion, in Carrington Mortgage Services, LLC v. Woods, 767 Ariz. Adv. Rep. 4 (June 22, 2017), the Arizona Court of Appeals confirmed that residential forcible entry and detainer actions in Arizona accrue for … Continue reading
Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?
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
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acarucci
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Tagged commercial real estate, real estate litigation
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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
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
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Richard Herold
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Tagged credit bid, Lender's title insurance, trustee's sale
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Green Energy Can Complicate Real Estate Foreclosures
Bob L. Olson A quick drive through almost any newer residential community in the Southwest will show that a lot of residents are embracing “Green Energy” or renewable energy by placing solar panels on their properties. While most people would … Continue reading
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Bob L. Olson
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Tagged alternative energy, fixture, foreclosure, green energy, lease, renewable energy, solar
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Avoiding Lender Liability for Credit-Related Actions in California
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
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acarucci
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Tagged commercial real estate, foreclosure, foreclosures, real estate, real estate litigation, real property
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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 … Continue reading
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Sean M. Sherlock
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Tagged administrative record, CEQA, costs of suit
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Equitable Subrogation Part Deux: Mechanic’s Lien vs. Later Bank Deed of Trust
By Kevin J. Parker https://www.swlaw.com/people/kevin_parker This post follows, almost two years to the day, Rick Erickson’s post of August 29, 2014. As noted by Rick Erickson in his August 29, 2014 post, the Arizona Supreme Court in the Weitz case … Continue reading
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Kevin Parker
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Tagged equitable subrogation, mechanic's lien, real estate litigation
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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 … Continue reading
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Lyndsey Torp
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Tagged 2016 California Code of Civil Procedure, 2016 California rule changes
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Nevada Supreme Court Holds that Foreclosure Of HOA Lien Extinguishes Equal Priority HOA Lien.
By: Bob L. Olson In Nevada’s master-planned communities it is common for one home to be in multiple homeowners’ associations. In such cases there is generally a master association for the master-planned community and then sub-associations for specific developments within … Continue reading
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Bob L. Olson
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Tagged foreclosure, Homeonwers Associations, lien priority, NRS 116.3116, San Florentine, Southern Highlands
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Eminent Domain: Be Careful What You Ask For
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
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Richard Herold
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Tagged condemn, condemnation, eminent domain, environmental liability, real estate, real estate litigation, real property, seller disclosures, valuation
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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). … Continue reading
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Richard Herold
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Tagged movie theater, real estate, shopping center, tax appeal, valuation, zoning
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It just got a little bit easier to enforce judgment liens
By: Ben Reeves Last year, we posted It just got a little bit harder to enforce judgment liens, which analyzed a Court of Appeals decision that invalidated a judgment lien against third-party purchasers due to the judgment creditors’ failure to … Continue reading
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Ben Reeves
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Tagged judgment lien, Lewis v. DeBord, real estate litigation
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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 … Continue reading
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Patrick J. Paul
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Tagged Clean Water Act, economic loss rule, homebuilder, Water of the United States
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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
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
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Bob L. Olson
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Tagged HOA Lien, Nevada Association Services, real estate litigation, SFR Investments
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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 … Continue reading
Arizona Courts Lacks Authority To Stay Forcible Entry And Detainer Judgments When The Judgment Itself Is Not Pending Appeal
By: Nicholas Kunz Can a court stay the execution of a Forcible Entry and Detainer (“FED”) action when the FED judgment itself is not appealed? The Arizona Court of Appeals recently addressed this question, holding that the court did not … Continue reading
A Purchaser Who Doesn’t Inquire May Be Teeing Up For Failure
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
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Erica Stutman
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Tagged equitable easement, equitable servitude, golf course, implied easement, implied servitude, real estate development, real property, restrictive covenant
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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. … Continue reading
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Sean M. Sherlock
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Tagged arbitration, justiciability, ripeness
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Vendees’ Liens—Construction Lenders Beware!
By: David A. Sprentall A recent Arizona Court of Appeals decision highlights a lien priority risk for secured construction lenders when the financed project fails. The problem—known as a “vendee lien”—is most likely to arise when up-front deposits are paid by … Continue reading
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Ben Reeves
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Tagged 44 Monroe, construction lending, quiet title, vendee lien
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Homestead Exemption Cannot be Denied on Equitable Grounds
By Kevin J. Parker Arizona’s homestead exemption allows a person to protect from certain creditors up to $150,000 of their equity in their residence (dwelling house, condominium, or mobile home). A.R.S. § 33-1101 et seq. This homestead equity is exempt … Continue reading
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Kevin Parker
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Tagged foreclosure, homestead exemption, judgment liens, real estate litigation
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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 … Continue reading
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Richard Herold
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Tagged condemnation, easements, eminent domain, natural gas act, pipelines
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Colorado Supreme Court Revisits Rule Against Perpetuities
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
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golmstead
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Seller Liability for Disclosures (or Non-Disclosures), Part 2
May 12, 2014 By: Kevin J. Parker In our blog post dated April 29, 2013, Matthew Fischer discussed the case Lerner v. DMB Realty, LLC (Arizona Court of Appeals, November 27, 2012). In that case, the Arizona Court of Appeals … Continue reading
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Kevin Parker
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Tagged real estate, seller disclosures, seller liabilty, seller non-disclosures
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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 … Continue reading
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Rick Erickson
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Tagged administrative remedies, contractor complaints, contractor licensing, enforcement, Registrar of Contractors, regulation of contractors
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ABOR Fences Out a Property Owner’s Quiet Title Action
By: Cory L. Braddock In May of last year, the Arizona Court of Appeals determined that “the statute of limitations does not run against a plaintiff in possession who brings a quiet title action purely to remove a cloud on … Continue reading
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Cory Braddock
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Tagged petition to quiet title, statute of limitation
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Bona Fide Tenancies for a Term Remain Protected
By: Julie E. Maurer A recent California Court of Appeals decision determined that the federal Protecting Tenants Against Foreclosure Act (“PTFA”) impliedly overrides state laws that provide less protection to tenants, but expressly allows states to retain the authority to … Continue reading
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Julie Maurer
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Tagged foreclosures, Nativi v. Deutsche Bank Nat'l Trust Co., Protecting Tenants Against Foreclosure Act, PTFA, tenant
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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
By: Richard H. Herold 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. … Continue reading
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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 … Continue reading
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Cory Braddock
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Tagged expert opinion, real estate agent, real estate broker
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Protecting Your Project From Litigation: Limited Liability Company vs. Partnership
If you have multiple investors/owners, one of the benefits of using a Limited Liability Company (LLC) to own real property rather than using a partnership is that the LLC offers better protection of the real property from creditors of any … Continue reading
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Kevin Parker
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Tagged Limited Liability Company, LLC, real property
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Anticipating Earnest Money “Damages” – Don’t Assume It
By Bob Henry The Arizona Supreme Court issued an opinion last month in Thomas v. Montelucia Villas, LLC, 2013 Ariz. LEXIS 152 (June 14, 2013) that adds a few wrinkles to efforts by sellers in real estate transactions to retain … Continue reading
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Bob Henry
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Tagged earnest money, real estate litigation, Thomas v. Montelucia Villas
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The Risk of Intent in Your Letter of Intent
By: Richard Herold Although the press frequently reports cavalierly on the execution of a “letter of intent” (“LOI”), as if it is a meaningless document, a LOI can be enforced if the parties intend to be bound, which turns primarily … Continue reading
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Richard Herold
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Tagged letter of intent, real estate, statute of frauds
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Statutory Caveat Emptor Survives…or Does It?
By: Matthew P. Fischer Arizona has codified the concept of caveat emptor (i.e., buyer beware) for three particular circumstances. Pursuant to A.R.S. § 32-2156, real property sellers are not obligated to disclose: (1) deaths or felonies that have occurred on … Continue reading
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Matthew Fischer
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Tagged 32-2156, blog, caveat emptor, DMB Realty, Lerner, real estate litigation, seller disclosures, Snell & Wilmer
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