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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Examining Denver’s new construction defect reform ordinance

Construction defect reform is a hot-button issue in Colorado.  This is especially true along the booming Front Range, where rapidly increasing population has driven the prices of renting and buying property a mile high.  Developers maintain that building condominiums is … 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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Tips on Pursuing and Defending Complaints against Contractors

By Rick Erickson firm bio The often staggering cost of litigation has prompted an equally staggering amount of regulatory complaints against contractors in recent years. Why? Because filing a complaint against a contractor may not cost a complainant anything but time. And … Continue reading

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Lenders Should Contract for the Right to Recover Lost Goodwill Proceeds when Commercial Property is taken in Eminent Domain

By: Anthony J. Carucci Business Goodwill Generally In California, the “goodwill” of a business “consists of the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting … Continue reading

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Guarantors’ “Lost Profits” Completely Offset Lender’s Deficiency Claim

By: Ben Reeves Believe it or not, lenders can breach loan agreements too…and when they do, there can be significant consequences. In Great Western Bank v. LJC Dev., LLC, 726 Ariz. Adv. Rep. 21 (Ariz. Ct. App. Nov. 10, 2015), … Continue reading

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The Uniform Law Commission Approves the Uniform Commercial Real Estate Receivership Act

By: Ben Reeves As we previously reported here, several years ago the Uniform Law Commission (the “ULC”) (the organization that drafted such favorites as the Uniform Commercial Code and the Uniform Arbitration Act) determined that states would benefit from a … 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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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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Statute of Frauds: (1) Email as “Writing” and (2) Email Signature as “Signature”

By:  Kevin J. Parker Arizona, like most states, has a Statute of Frauds that essentially requires real estate related contracts to be both (1) in writing and (2) signed by the party to be charged.  A.R.S. § 44-101.  Questions often … 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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Offensive Discovery after Strudley and Changes to the Colorado Rules of Civil Procedure

By: Neal McConomy Toxic tort cases often involve real property, especially in areas with large mining and energy sectors like the West and Southwest. The cases frequently have large potential damage values and require extensive discovery. Numerous expert witnesses, vast … 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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Does a title company owe a duty of care to third parties in the recording of legal instruments?

By: Ben Reeves This is precisely the question that the Ninth Circuit recently certified to the Washington Supreme Court in Centurion Properties III, LLC v. Chicago Title Ins. Co. Facts of the Case In this case, Centurion Properties III, LLC … Continue reading

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HOA Super Priority Legal Battles Continue in the Silver State: What Senate Bill 306 Means for Nevada HOAs, Lenders and Homeowners

By:  Aaron D. Ford and Karl O. Riley In 1991, the Nevada Legislature enacted the Uniform Common-Interest Ownership Act (UCIOA) which had been promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) (the Statute). This law provides … Continue reading

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New Landlords Should Not Ignore Arizona’s Requirement To Register With The County Assessor’s Office

By: Cory L. Braddock With ongoing price volatility in Arizona’s residential real estate market, homeowners may be tempted to become recreational landlords. Anyone considering renting their home, however, should be aware that Arizona law requires residential rental property owners to … 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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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 … Continue reading

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Guarantors Can Waive Anti-Deficiency Protections

By:  Richard H. Herold and Ben Reeves In Arizona, guarantors can now be held liable for deficiencies even where borrowers avoid liability due to Arizona’s anti-deficiency statute. Arizona courts have been active in the last few years in addressing the … Continue reading

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Upheld: Injured Subcontractor’s Lent Employee Has No Claim Against Landowner or General Contractor After Choosing Workers’ Compensation and Failing to Prove Landowner Controlled the Work

By Rick Erickson (http://www.swlaw.com/attorneys/rick_erickson) On this Memorial Day 2015, I write in honor of my U.S. Marine Corps colleague, Megan McClung, who was killed in Iraq nine years ago this December.  Major McClung and I served together in Anbar Province … 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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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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Church Property Tax Liability in Arizona for Commercial Leases

By: Bob Henry Arizona House Bill 2128, which was signed into law by Governor Doug Ducey on March 23, 2015, has potential impact on the commercial real estate leasing market.  The bill enables owners of real property that is leased … 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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If Receiver’s Sales Aren’t Foreclosures, What Are They?

By:  Ben Reeves & Bob Olson When no statute specifically authorizes a court-appointed receiver to sell real property, what type of sale is it?  The Supreme Court of Nevada recently addressed this question, holding that “a receiver sale of real … 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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Are Vacant Lots Protected Under Arizona’s Anti-deficiency Statutes?

By:  Ben Reeves No, of course not.  Arizona’s anti-deficiency statutes only prohibit deficiency judgments after a trustee’s sale of a “dwelling”.  Under no definition can a vacant lot constitute a “dwelling”.  This was the Arizona Supreme Court’s holding in BMO … Continue reading

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Can an Unsigned Minute Entry Create a Judgment Lien?

By:  Ben Reeves It appears that 2014 was a banner year for Arizona law on judgment liens.  Indeed, we recently posted about the Lewis v. DeBord decision, which invalidates judgment liens vis-à-vis third-party purchasers if the judgment creditor fails to … Continue reading

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Transfer of Property Title to a Holding Company Did Not Divest Landowner of Owner-Occupant Status Under A.R.S. § 33-1002(B)

By:  Richard G. Erickson Recently, in Marco Crane & Rigging Co. v. Masaryk, 703 Ariz. Adv. Rep. 29 (Dec. 30, 2014), the Arizona Court of Appeals established that a subcontractor on a residential project has no lien rights against an … Continue reading

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Update – Prospective Waivers of “Fair Market Value” Hearings are Definitely Void.

By:  Ben Reeves In 2013, we blogged about the Arizona Court of Appeals’ determination that prospective contractual waivers of “fair market value” hearings are unenforceable as a matter of public policy.  The link to our prior blog post is here.  … 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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Guarantor Waivers Narrowed

By:  Lyndsey A. Torp and Sean M. Sherlock A general waiver by a guarantor of “all defenses” does not actually waive “all defenses.”   California Bank & Trust v. Del Ponti, — Cal.Rptr.3d —, 2014 WL 6908141 (Cal.App. 4 Dist.).  That … Continue reading

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It just got a little bit harder to enforce judgment liens

By:  Ben Reeves Introduction As everyone knows, the enactment of the Statute of Westminster II in 1285 ushered the concept of a “judgment lien” into English law.  The statute – for the first time in English legal history – authorized … 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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Nevada Supreme Court adds New Elements to Constructive Eviction Claims.

By Bob L. Olson Nevada, like many jurisdictions, has recognized the ability of a tenant to vacate property if it becomes unfit for occupancy for the purpose for which it was leased.  This is commonly known as a “constructive eviction.”  … 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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General Contractor’s Prospective Waiver Of Its Lien Rights Is Enforceable In California

By: Lyndsey Torp http://www.swlaw.com/attorneys/lyndsey_torp In another decision favoring lenders (See http://www.swlaw.com/blog/real-estate-litigation/2014/08/29/arizona-supreme-court-to-contractor-sorry-but-equitable-subrogation-of-a-banks-later-deed-of-trust-trumps-earlier-mechanics-lien-rights/), the California Court of Appeal, in an opinion published in September 2014, entitled Moorefield Construction, Inc. v. Intervest Mortgage Investment Company, et al., D065464, held an original contractor can … 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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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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New California Case Illustrates Peril of Full Credit Bid

By: Sean M. Sherlock In a new California case, a lender that made a full credit bid at a foreclosure sale lost its right as mortgagee under a lender’s insurance policy for damage to the property that occurred prior to … Continue reading

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Lenders Beware: the Nevada Supreme Court Holds That Foreclosures of Homeowners’ Association Liens May Extinguish First Priority Deeds of Trust

By:  Bob L. Olson Nevada has adopted the Uniform Common Interest Ownership Act of 1982 (the “Act”) which governs homeowners’ associations (“HOA”). One particular provision of that Act, enacted by Nevada in 1991 and later amended, and codified as NRS … 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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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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Nevada Supreme Court Clarifies Mechanic and Materialman Lien Issues

By:  Nathan Kanute and Bob Olson On August 7, 2014, the Nevada Supreme Court issued two opinions dealing with the priority of mechanics’ liens and the proof required for a materialman to establish a lien.  These cases provide valuable guidance to … Continue reading

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A Subsequent Developer has no Ability to Force a Public Body to Call an Abandoning Developer’s Performance Bonds for Infrastructure Improvements.

The Arizona Court of Appeals decided on July 22, 2014 that a developer cannot compel a public entity to call its performance bonds to complete infrastructure improvements on a construction project that a prior developer abandoned due to bankruptcy.  Ponderosa … 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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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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Guarantors Remain Liable for “Carve-out” Obligations, Despite Non-recourse Loan

By:  Ben Reeves Introduction Believe it or not, guaranty contracts mean what they say.  If a guarantor agrees to reimburse a lender for misappropriated security deposits, unpaid taxes, and the cost of enforcement, then – not surprisingly – courts will … Continue reading

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Governmental Power and Property Lines

By: Neal McConomy On May 27, 2014, the Colorado Supreme Court issued its opinion in Town of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014 CO 37.  Overturning the rulings of both the trial court and the Colorado Court … Continue reading

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Guarantors Score Two Victories Before the Nevada Supreme Court.

By:  Bob Olson and Nathan Kanute On May 29, 2013, the Nevada Supreme Court issued two decisions that all real estate lenders need to be aware of because they have the potential to eliminate the ability of a lender to … Continue reading

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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 … Continue reading

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Nevada Supreme Court and District Court Issue Decisions Regarding Nevada’s Limitations on Deficiency Judgments.

By:  Bob Olson and Nathan Kanute In 2011 the Nevada Legislature enacted Assembly Bill 273 (“AB 273”) which amended NRS 40.459 by limiting deficiency judgments to the difference between the amount the lender paid to acquire the loan or obligation and … Continue reading

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Is the Future Bright for Commercial Real Estate in Arizona?

By Cory L. Braddock AZRE Magazine recently published an interesting article discussing the outlook for the commercial real estate market in Arizona.  To give it a read, click here.

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Borrowers Can Avoid Liability Even After a Trustee’s Sale

By:  Ben Reeves Since a lender must have a valid debt and valid lien to conduct a trustee’s sale, a borrower that allows the foreclosure sale to occur impliedly agrees that the debt and lien are valid.  In Madison v. … Continue reading

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Unmitigated Waivers: Guarantors Remain Liable Despite 4-Year Delay in Foreclosure Sale

By:  Ben Reeves If a lender delays foreclosure allowing years of default interest to accrue such that a guarantor’s obligation increases from $6 million to $12 million, should the guarantor remain on the hook for the full $12 million?  In … 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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Amendments to Arizona’s Anti-deficiency Statute Exclude Homebuilders from Anti-Deficiency Protection

By:  Ben Reeves Last Tuesday, April 20, 2014, Arizona’s Governor, Jan Brewer, signed HB 2018 into law.  This bill closes a long-standing loophole that allowed commercial homebuilders to take advantage of Arizona’s anti-deficiency statute, even though the statute was originally … 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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Arizona Supreme Court Holds That Property Owner Who Quarreled With Light Rail Construction Should Be Compensated For Lost Access

By Eric H. Spencer Late last week, the Arizona Supreme Court handed down a decision that clarified the rights of property owners who lose access to an abutting road and, in the process, reinforced the principle that both elimination and … Continue reading

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Sellers Cannot Look to the Appraiser When Lenders Pull the Plug on a Prospective House Flip

By:  Eric Spencer An outgrowth of Arizona’s housing downturn in recent years has been the proliferation of would-be real estate investors who purchase, renovate and flip residential properties.   On the other hand, in part to prevent the next downturn from … 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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A Section 363 Sale Does NOT Transfer Property Free and Clear of an Equitable Servitude

By:  Ben Reeves Sales in bankruptcy court under 11 U.S.C. § 363 (called “363 Sales”) are often used to sell property during a bankruptcy case.  The 363 Sale process provides an efficient procedure to liquidate estate property and offers several … 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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Beyond Real Estate: Publicly Traded Homebuilders (And Other Public Companies) Must be Aware of Cybersecurity and Data Breach Disclosure Requirements Applicable to SEC Filings

By:  Richard H. Herold Generally speaking, publicly traded homebuilders and other public companies must disclose material information in their SEC filings.  “Information is considered material if there is a substantial likelihood that a reasonable investor would consider it important in … Continue reading

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Not All Property Acquired Post-Petition is Safe from Creditors

By:  Ben Reeves Although property obtained by a debtor after filing for bankruptcy is usually safe from creditors, a recent case from the Ninth Circuit Bankruptcy Appellate Panel allowed a Chapter 7 Trustee to sell real property obtained by 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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Mortgage Lenders Can’t Jump Ahead of Mechanic’s Liens

By:  Ben Reeves In Weitz Co., LLC v. Heth, 223 Ariz. 442, 314 P.3d 569 (Ct. App. Nov. 26 2013), the Arizona Court of Appeals held that the plain language of Arizona’s mechanic lien statute, A.R.S. § 33-992(A), does not … Continue reading

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The EPA Approves New Environmental Due Diligence Standard

By:  Patrick Paul On December 30, 2013, the United States Environmental Protection Agency (EPA) issued its final rulemaking recognizing the newly amended ASTM standard practice for Phase 1 Environmental Site Assessments, E 1527-13 as satisfying the agency’s All Appropriate Inquiries (AAI) … Continue reading

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California Amends its Anti-Deficiency Statute

By:  Ben Reeves As of January 1, 2014, California amended its anti-deficiency statute to stop mortgage lenders from “collecting” from homeowners on post-foreclosure debts.  Although the amendments were designed to tackle a purely consumer / residential real estate issue, only … Continue reading

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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.  … Continue reading

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Arizona Court of Appeals Holds That Certain Residential Developers Are Not Protected By The Anti-Deficiency Statute After Foreclosure Of A Deed Of Trust On Vacant Land

By Eric Spencer and Adam Lang Nearly three years ago, in M&I Marshall & Isley Bank v. Mueller, the Arizona Court of Appeals held that the Arizona anti-deficiency statute protects a borrower who started, but never completed, construction of a … Continue reading

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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 … 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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Developers and Homebuilders: The Ramifications of Yanni v. Tucker Plumbing, Inc.

By Bob Henry On November 20, 2013, Division Two of the Arizona Court of Appeals issued its opinion in Yanni v. Tucker Plumbing, Inc., 2013 Ariz. App. LEXIS 235.    While the opinion was a victory of sorts for the real … Continue reading

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Partition Disputes

Partition is a statutory procedure whereby co-tenants (for example joint tenancy, tenancy-in-common, community property) can file a court action to physically divide or sell the property.  See A.R.S. § 12-1211 et seq.  Unless the co-tenants have a private partition agreement, … Continue reading

Author: Kevin Parker | 1 Comment Tagged ,

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Guarantors Beware! A.R.S. § 33-814 May Not Save You from a Deficiency Judgment

By:  Ben Reeves In First Credit Union v. Courtney, 309 P.3d 929, 669 Ariz. Adv. Rep. 18 (Ct. App. 2013), the Arizona Court of Appeals rejected three creative arguments that A.R.S. § 33-814 protected the guarantors from paying on their guaranty.  … Continue reading

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The Uniform Law Commission Makes Progress Drafting a Model Act on the Appointment and Powers of Real Estate Receivers

By:  Ben Reeves If all goes as planned, the Uniform Law Commission will finalize and promulgate a model act dealing with the appointment and powers of commercial real estate receivers at some point in 2015.  Last month, the Drafting Committee … 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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A Compilation and Summary of Real Estate Related Legislation Enacted by the 51st Arizona Legislature

On Friday June 14, 2013, at 12:59 a.m., on the 152nd day of the regular legislative session, the 51st Arizona Legislature adjourned sine die, or “without assigning a day for a further meeting or hearing.”  Generally, except as otherwise noted … Continue reading

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CC&Rs Remain Subject to Statutory Modification

By:  Andy Stone Future legislation may impact current CC&R obligations.  In an important decision for all communities, homeowner associations, builders, and developers, the Arizona Court of Appeals recently held that new laws may apply retroactively to modify or eliminate CC&R … Continue reading

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AZRE Article Discusses Social Media Resources for the Industry

By:  Matthew P. Fischer In the most recent issue of the magazine AZRE: Arizona Commercial Real Estate (September October 2013), reporter and former editor Peter Madrid wrote on social media coverage of the Arizona commercial real estate industry in his … Continue reading

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Can You Waive the Right to a “Fair Market Value” Hearing?

By:  Ben Reeves We finally have an answer to the question of whether parties can contractually waive the right to a “fair market value” hearing under Arizona law – and the answer, according to the Court of Appeals – is … 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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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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A Lender Holding Two Liens Can Foreclose on the Senior Lien and Sue on the Junior Lien

By:  Ben Reeves In Wells Fargo Bank, N.A. v. Riggio, No. 1CA-CV-12-0430 (Ariz. Ct. App. June 4, 2013), the Arizona Court of Appeals held:  (i) that the “merger of rights” doctrine does not “merge” a lender’s first and second lien … 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 U.S. Supreme Court’s Latest Attempt to Differentiate a Fair Quid Pro Quo in the Developer’s Permitting Process From an Unconstitutional Taking

By:  Rick Herold Introduction The U.S. Supreme Court has issued an important decision in an attempt to add clarity and help government land use planners understand the difference between reasonable requests and unreasonable demands rising to the level of unconstitutional … Continue reading

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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 … Continue reading

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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 … Continue reading

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