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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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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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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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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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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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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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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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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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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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

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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 … Continue reading

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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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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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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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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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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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“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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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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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

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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

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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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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

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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

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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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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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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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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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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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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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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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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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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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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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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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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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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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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

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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

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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Purchase Options: Strict Compliance Required

By:  Kevin Parker In a rising real estate market, we tend to see more disputes relating to purchase options.  Given the increase in value, the property owner would rather avoid the option and sell at a higher price.  The option … Continue reading

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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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