The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction

By: Luke Mecklenburg Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use … Continue reading

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Equine Activity Liability Releases: The Arizona Court of Appeals Finds “Release” of Trail Ride Operator Doesn’t Block Negligence Claim for Participant Riding Injury

By: Amanda Z. Weaver For the first time in nearly twenty years, the Arizona Court of Appeals last week weighed in on Arizona’s equine activity liability statute, finding that a form signed by participants before a trail ride did not … Continue reading

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The Show Must Go On: Shuttered Venues Operators Grant Provides Lifeline for Live Music and Theater Venues

By: David Rao Although it’s been a tough twelve months for many live music venues, movie theaters, and performing arts organizations, help may finally be around the corner. On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, … Continue reading

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Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado

Earlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.”  See Woodbridge Condo. … Continue reading

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A Landlord’s Guide to the Center for Disease Control’s Eviction Moratorium

By Colton Addy The Center for Disease Control and Prevention (the “CDC”) and the Department of Health and Human Services (the “HHS”) has issued an order to temporarily halt a landlord’s right to evict certain residential tenants to prevent the … Continue reading

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Arizona, Meet RON!

By: Lauren Podgorski Arizona passed Senate Bill 1030, which authorizes Arizona notaries to perform remote online notarizations, known as “RON.” RON becomes effective as of June 30, 2020.  What is Remote Online Notarization (RON)? Currently, a person must “personally appear … Continue reading

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Vacation Rentals: Liability of the Owner for Injury Suffered by the Renter

By:  Kevin J. Parker With the explosion of the “private” rental business wherein residential property owners rent their house or condo on a short-term basis to third-parties, certain legal issues have arisen with regard to the duties owed by the … Continue reading

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“Bee” Careful: Unique Considerations When Negotiating a Bee Storage Lease Agreement

By: Colton Addy As demand for commercial bees used to pollinate crops (such as almond trees) has grown, so has the demand for facilities to store bees.  Entering a lease agreement for the storage of live bees presents some unique … Continue reading

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Court Addresses HOA Attempt to Restrict Short Term Rentals

By:  Kevin J. Parker In a recent case, the Texas Supreme Court addressed an attempt by a homeowners’ association (“HOA”) to restrict short-term rentals based upon recorded Covenants, Conditions, and Restrictions (“CC&Rs”) applicable to a residential subdivision. The property was … Continue reading

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Condemnation Actions: How Valuable Is Your Evidence of Property Value?

By: Erica Stutman When a government condemns (takes) private property for a public use, the property owner is entitled to receive “just compensation” equal to the property’s market value. Value is typically determined by appraisals, but if the parties cannot … Continue reading

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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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Cybersecurity on Your Project: Why Not Follow National Security Strategy?

By Rick Erickson In its recent Cybersecurity Strategy, the U.S. Department of Homeland Security (DHS) defined “cyberspace” as “the independent network of information technology infrastructure, including the Internet, telecommunications networks, computers, information and communications systems, and embedded processors and controllers.”  … Continue reading

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Not so Fast! How Does Revoking Acceleration of a Note Impact the Statute of Limitations?

By: Ben Reeves Introduction Lenders routinely accelerate notes after a default occurs, calling the entire loan due immediately. Less regularly, a lender may change its mind and unilaterally revoke the acceleration.  Rarely, however, does a lender fail to foreclose on … 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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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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The Contributors to This Blog Are Pleased to Announce That….

Snell & Wilmer’s Real Estate Litigation Group, which provides the content for The Real Estate Litigation Blog, is pleased to announce that it has been recognized in both the national and metropolitan rankings by U.S. News Media Group and Best … Continue reading

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Who says you can’t choose between liquidated damages or actual damages?

In Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) … Continue reading

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Arizona Court of Appeals Awards Attorneys’ Fees in Quiet-Title Action

In Arizona, a party successfully quieting title to property may recover its attorneys’ fees if it satisfies three requirements: (1) the party requests a quitclaim deed from the party adversely claiming title twenty days before bringing the quiet-title action; (2) … Continue reading

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Pacing in Construction Scheduling Disputes

On a high level, construction delay litigation involves sorting out the impacts to the critical project path and determining which party is responsible for those impacts. One of the more difficult elements of this process is determining whether a delay … Continue reading

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Nevada Supreme Court Clarifies the Litigation Waiver of the One-Action Rule

By Bob L. Olson  Nevada has a one-action rule which, with limited exceptions, requires a creditor seeking to recover a debt secured by real property to proceed against the security first prior to seeking recovery from the debtor personally. In … Continue reading

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RICO Madness: The Nuisance of Owning and Operating a Marijuana Facility

By:  Bob Henry On June 7, 2017, the Tenth Circuit Court of Appeals issued its opinion in Safe Streets Alliance, et al. v. Hickenlooper, et al., (No. 16-1048), an opinion that could open the doors to property use litigation involving … Continue reading

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Orchestrating Bias: Arbitrator’s Undisclosed Membership in Philharmonic Group with Pauly Shore’s Attorney Not Grounds to Reverse Award in Real Estate Dispute

By:  Lyndsey Torp The California court of appeal recently issued an unpublished decision in Knispel v. Shore, 2017 WL 2492535, affirming a judgment confirming an arbitration award in a real estate dispute involving Pauly Shore.  The court of appeal held … Continue reading

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Colorado House Bill 1279 stalls over 120-day unit owner election period

With the session more than halfway through, the Colorado Legislature’s 2017 attempts at meaningful construction defect reform may fail again.  This year, the Legislature did not attempt a single-bill construction defect overhaul like those that have failed over the last … Continue reading

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Utah Becomes First State to Enact the Uniform Commercial Real Estate Receivership Act

By:  David Leta On March 25, Utah became the first state to enact the Uniform Commercial Real Estate Receivership Act (“UCRERA”) which was drafted by the National Conference of Commissioners on Uniform State Laws (the “Conference”) and adopted by the … Continue reading

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California Supreme Court Upholds Precondemnation Procedures

By Patrick J. Paul On July 21, 2016, the California Supreme Court in Property Reserve v. Superior Court upheld the state’s precondemnation entry and testing statutes provided they were reformed to allow impacted property owners the ability to have a … Continue reading

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Hold that paintbrush! A glimpse into design-control in planned communities

By: Erica Stutman You are choosing a new paint color for the outside of your house, and you think, “Since all the other houses are beige, I’ll do mine purple.” Not so fast – you better check your community’s governing … Continue reading

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Special Rules for Eviction Actions

By:  Kevin Parker In a recent case, the Arizona Court of Appeals addressed the special rules of procedure for eviction actions. The eviction rules became effective January 1, 2009.  In Sotomayor v. Sotomayor-Munoz, 735 Ariz. Adv. Rep. 28 (March 28, … 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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School district’s condemnation of a private road passes the test

By: Erica Stutman   The power of eminent domain allows a government or quasi-governmental entity to condemn (take) private property for a public use upon a showing of necessity.  In exchange, the property owner must receive “just compensation” equal … Continue reading

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Are Short-Term Vacation Rentals Legal?

By: Ben Reeves The recent explosion in popularity of short-term vacation rentals through services such as Airbnb.com and VRBO.com not only provides terrifying horror stories about problem renters (google it if you’re interested), but also raises serious questions about the … Continue reading

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The FDIC Reigns “Supreme” in Nevada

By: Nathan Kanute For several years, Nevada Courts have considered a myriad of issues related to how Nevada law applies to loans made by banks that are later take over by the FDIC. In the past eight months, the Nevada … Continue reading

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Successful Laches Defense Becoming Commonplace in Colorado

By: Neal McConomy Boiler plate language in responsive pleadings often includes “Plaintiff’s claims are barred by the doctrine of laches” (or “The doctrine of laches bars Plaintiff’s claims” if you prefer the active voice).  However, litigation of a laches defense … Continue reading

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Injunctive Relief for Building Encroachment. Do I Have to Move the House?

By Kevin Parker When a land owner mistakenly builds a house or other building or structure that encroaches on a neighbor’s property, what is the remedy?  Does the offending land owner have to physically remove the structure from the neighbor’s property?   … Continue reading

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

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

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Beneath the Surface: Entek GRB, LLC v. Stull Ranches, LLC and the Continuing Battle Between Surface Owners and Subsurface Owners

By: Neal McConomy On August 14, 2014, the Tenth Circuit vacated and remanded the lower court’s decision regarding a dispute between a surface owner’s and a subsurface owner’s respective rights to access and enjoy land and property rights.  Entek GRB, … Continue reading

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Landlords Need Not Deny Puppy Love

By: Erica Stutman Dog-lovers will be happy to know they may rent property to a tenant and the tenant’s dog without necessarily being subject to strict liability if man’s best friend turns out to be not-so-friendly after all.  In Spirlong … Continue reading

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Arizona Chamber of Commerce Forms Policy Group for Real Estate and Community Development Issues

By:  Bob Henry The Arizona Chamber of Commerce & Industry has formed a new policy committee for “Real Estate and Community Development Issues.”  The Arizona Chamber’s policy committees—now 16 different committees that cover policy areas ranging from “Budget & Government Reform” … Continue reading

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Social Media Concerns Potentially Affecting Arizona’s Real Estate Industry

By:  Jefferson R. Hayden  http://www.swlaw.com/attorneys/jefferson_hayden A growing number of governmental authorities are cracking down on the use of social media with regard to commercial transactions.  In Arizona, for example, legislation was proposed restricting an employer’s right to access social media … Continue reading

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Arizona Supreme Court to Contractor: Sorry But Equitable Subrogation of a Bank’s Later Deed of Trust Trumps Earlier Mechanics’ Lien Rights

By Rick Erickson http://www.swlaw.com/attorneys/rick_erickson The smoke has finally cleared in a hard and long-fought battle between a bank and contractor both claiming priority to foreclose millions of dollars on a Phoenix condominium project. The project, well-known as Summit at Copper … Continue reading

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Full Credit Bid Rule Bars Recovery for Wrongfully Enjoined Lender

By:  Michelle Keogh On June 30, 2014, Judge James A. Teilborg, a Senior District Judge in Arizona, ruled that Tri City National Bank (“TCNB”) was not entitled to bond money posted by the plaintiffs after TCNB was wrongfully enjoined from … Continue reading

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Legal Pot Leads to Possible Nuisance Suits, but Viability is Unlikely

By: Neal McConomy Almost four months into Colorado’s legalization of recreational marijuana for adults aged twenty-one and over, the weather is warming, windows are opening, and outdoor spaces are getting more use.  All the while, a segment of the Colorado … Continue reading

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Brandt Revocable Trust v. U.S. – the United States’ theory of land ownership derailed

By: Erica Stutman In Brandt Revocable Trust v. U.S., the United States Supreme Court held that abandoned railway rights-of-way that had been granted to railroad companies under the General Railroad Right-of-Way Act of 1875 left underlying landowners with property free … Continue reading

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Lender’s Title Insurance: When Should Courts Measure the Fair Market Value of Property Affected by a Title Defect?*

By:  Andy Stone Title insurance is designed to pay for damages caused by any defects to title that the title company should have discovered but did not.  Lender’s title insurance protects lenders who lose money due to a title defect, … 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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Frustration of Purpose: A Frustrating Doctrine

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

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A Non-Purchase Money Second Deed of Trust is Not Protected by Arizona’s Anti-deficiency Statute

By:  Ben Reeves & Julie Maurer Arizona anti-deficiency laws do not prohibit a non-purchase money lender from suing on its note after foreclosure by a senior lender.  In Wells Fargo Bank, N.A. v. Brewer, No. 1CA-CV 12-0383 (Ariz. Ct. App. … Continue reading

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Understanding zoning nonconforming uses is no walk in the park, but a mobile-home park may be treated as a unified use.

By:  Erica Stutman When Arizona municipalities adopt new zoning ordinances and regulations, existing property owners have the right to continue using their property for the use in place when the new ordinance or regulation becomes effective, including the right to … Continue reading

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Owners of Multifamily Housing Beware

By:  Julie Maurer Owners and developers of multifamily housing beware—you may be held responsible for your architect’s oversight. A growing number of state and federal courts are in universal agreement that owners and developers cannot sue their architects for designs … Continue reading

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Moving From Quiet Title to Wrongful Recordation

By: Adam Lang Pretend you own real property in Arizona that you want to sell.  You have a buyer.  You enter into a purchase contract.  But when the buyer runs a title report, she learns that someone else has wrongfully … Continue reading

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Introducing the Snell & Wilmer Real Estate Litigation Blog

The Snell & Wilmer Real Estate Litigation Group is proud to announce the launch of its new blog.  After decades of handling commercial disputes and trials involving real estate, the Group was officially formed in 2008.  The firm’s real estate … Continue reading

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