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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.
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Recent Posts
- The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona
- Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.
- The Arizona Supreme Court Confirms that Judgment Liens Attach to Homestead Property
- Don’t Be Lazy with Your Tenders
- Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?
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
The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona
By: Robert A. Henry and Emily R. Parker The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance … Continue reading
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Bob Henry
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Tagged construction warranties, implied warranties, implied warranty, implied warranty of workmanship and habitability, purchase and sale agreement, real estate, real estate litigation, real property, Warranty of Habitability, warranty of workmanship
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Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.
By: Christian Fernandez Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to … Continue reading
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cfernandez
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Tagged actual damages, actual loss, anticipated loss, commercial real estate, construction, contractor, earnest money, good-faith deposit, insufficient liquidated damages, liquidated damages, liquidated damages too low, loss, non-refundable deposit, penalty, purchase and sale agreement, real estate, real estate litigation, unenforceable penalty
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Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?
By: Ben Reeves Recent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real … Continue reading
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Ben Reeves
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Tagged foreign lis pendens, lis pendens, real estate litigation
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HOA Foreclosure Excess Sale Proceeds Go to Owner
By: Ben Reeves Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale. We’ve blogged about some these past unreported decisions here and here. Those … Continue reading
When Is A Project Delay Material and Actionable?
By Rick Erickson Welcome to 2022! This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays. The COVID-19 pandemic contributed to suspension of work and closure of construction projects … Continue reading
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Rick Erickson
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Tagged #COVID, breach of contract, construction, construction bonds, construction defect litigation, construction law, construction lending, construction litigation, construction management, contractor, Covid-19, damages, design team, owner, project manager, real estate litigation, residential construction, subcontractor
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Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?
By: Kevin J. Parker In a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of … Continue reading
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Kevin Parker
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Tagged caveat emptor, construction warranties, home construction, implied warranties, real estate litigation, Warranty of Habitability, warranty of workmanship
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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 Landlord’s Violation of the Arizona Residential Landlord-Tenant Act Constitute Negligence Per Se?
By: Kevin J. Parker In a recent Arizona Court of Appeals case, Ibarra v. Gastelum, 2020 WL 4218020 (7/23/20), the Court of Appeals addressed the question whether – in a tenant’s personal injury claim against the landlord – a landlord’s … Continue reading
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Kevin Parker
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Tagged negligence per se, personal injury, real estate litigation, residential landlord tenant
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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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If You Purchase a House at an HOA Lien Foreclosure, Are You Entitled to Excess Sale Proceeds?
By: Ben Reeves That pesky excess sale proceeds statute, A.R.S. § 33-727, is making waves again. We previously blogged about this statute here. In the prior post, we explained that excess sale proceeds (i.e., a foreclosure sale price greater than … Continue reading
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Ben Reeves
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Tagged Excess Sale Proceeds, foreclosure, HOA Lien, real estate litigation
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Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan
By: Kevin J. Parker In a recent Arizona Court of Appeals case, Helvetica Servicing, Inc., v. Pasquan, 2019 WL 3820015, (8/15/19), the Court of Appeals addressed the distinction between (1) a construction loan (or refinance of same) and (2) a … Continue reading
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Kevin Parker
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Tagged anti-deficiency, Deficiency judgment, foreclosure, real estate litigation
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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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Colorado Court of Appeals clarifies that a finding of irreparable harm is not required to enter a permanent injunction to enforce an easement
On March 21, 2019, the Colorado Court of Appeals issued its opinion in Rinker v. Colina-Lee, holding for the first time that the “irreparable harm” element typically required to grant a permanent injunction is not needed for injunctions issued to … Continue reading
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Luke Mecklenburg
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Tagged colorado real property, commercial real estate, developer, easements, injunction, irreparable harm, real estate, real estate litigation, real property, Snell & Wilmer
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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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Kevin Parker
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Tagged Premises liability, real estate litigation, Vacation rentals
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Recording “Un-Neighborly” Documents
By: Bob Henry In September 2018, in Baumgartner v. Timmins, 245 Ariz. 334, 429 P.3d 567, the Arizona Court of Appeals provided further clarification on what constitutes an “encumbrance” on a property for purposes of Arizona’s statutory scheme prohibiting the … Continue reading
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Bob Henry
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Tagged A.R.S. § 33-420, Baumgartner, real estate litigation, recording false documents
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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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acarucci
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Tagged commercial real estate, construction, contractor, developer, foreclosure, Guarantor, guaranty, real estate, real estate litigation
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Attorneys’ Fees Are Available in Arizona Eviction Actions
By: Ben Reeves The Arizona Court of Appeals recently held that any successful plaintiff in a forcible detainer action (i.e., an eviction action) may recover an award of its attorneys’ fees and costs incurred at trial under A.R.S. § 12-1178(A). … Continue reading
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Ben Reeves
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Tagged Arizona, Eviction Action, real estate litigation
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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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Kevin Parker
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Tagged real estate litigation, Restrictions on short term rentals, restrictive covenant
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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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Everyone Wins When a Foreclosure Sale Generates Excess Proceeds
By: Ben Reeves Introduction When a foreclosure sale generates more money than needed to pay off the lien, the excess proceeds usually go first to creditors in the order of their priority, and second to the owner after creditors are … Continue reading
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Ben Reeves
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Tagged Excess Sale Proceeds, foreclosure, real estate litigation
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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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What Types of “Damages Claims” Survive a Trustee’s Sale?
By: Ben Reeves Introduction Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against … Continue reading
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Ben Reeves
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Tagged ARS 33-811, foreclosure sale, real estate litigation, trustee's sale, wrongful foreclosure
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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
Oregon and Nevada Adopt the Uniform Commercial Real Estate Receivership Act
By: Ben Reeves Nevada and Oregon join Utah in adopting the Uniform Commercial Real Estate Receivership Act (the “Act”) promulgated by the Uniform Law Commission. We have been following the development of the Act since its drafting stages. If you want more … Continue reading
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Ben Reeves
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Tagged Commercial Real Estate Receivership Act, real estate litigation, uniform law commission
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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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Ben Reeves
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Tagged Best Lawyers, National Tier 1, real estate litigation, U.S. News Rankings
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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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acarucci
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Tagged commercial real estate, eminent domain, foreclosure, foreclosures, real estate litigation
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Arizona Supreme Court Clarifies Area Variance Standard; Property Owners May Obtain an Area Variance When Special Circumstances Existed at Purchase
By: Nick Wood, Adam Lang, Noel Griemsmann, and Brianna Long In Pawn 1st v. City of Phoenix, the Arizona Supreme Court rejected a Court of Appeals rule that would have unduly restrained alienation of property in Arizona. The Court of Appeals … Continue reading
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Ben Reeves
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Tagged LLC v. Phoenix, Pawn 1st, real estate litigation, variance, zoning
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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
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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Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!
By: Ben Reeves What law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. … Continue reading
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Ben Reeves
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Tagged choice-of-law provisions, deficiency action, real estate litigation, Statute of Limitations
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Federal Court Issues Permanent Injunction and Permanently Shuts Down Santa Ysabel’s Desert Rose Bingo
By: Anthony J. Carucci On December 12, 2016, Judge Battaglia of the United States District Court for the Southern District of California issued the Court’s long-awaited ruling on the State of California and Federal Government’s motions for summary judgment in … Continue reading
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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Washington Answers the Question of Whether Title Companies Owe a Duty of Care to Third Parties…
By: Ben Reeves Last year (as we blogged about here and wrote a more in depth Law360 article about here), the Ninth Circuit certified to the Washington Supreme Court the question of whether title companies owe a duty of care … Continue reading
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Ben Reeves
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Tagged Centurion, duty, gratuitous recording, real estate litigation, title company liability
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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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Landlords Must Not be Arbitrary When Denying a Tenant’s Request To Sublease or Assign
By: Richard Herold So, you’re a landlord who’s entered into a 30-year lease, the lease has rent escalation clauses which are dramatically out of step with the market, and it’s your view that you are therefore losing money every month. … Continue reading
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Richard Herold
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Tagged Arizona real estate, commercial real estate, landlord, lease, real estate litigation, tenant
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California’s One-Action Rule May Apply to Federal Lenders
By: Anthony J. Carucci California’s one-action rule provides that “here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years … Continue reading
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acarucci
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Tagged anti-deficiency, commercial real estate, deficiency, foreclosure, foreclosures, Guarantor, guaranty, one-action rule, real estate, real estate litigation, real property
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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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Kevin Parker
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Tagged appeal, eviction, landlord-tenant, real estate litigation
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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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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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acarucci
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Tagged commercial real estate, condemnation, eminent domain, just compensation, lien, real estate, real estate litigation
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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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Ben Reeves
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Tagged deficiency action, Guarantor, lost profits, offset, real estate litigation
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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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Ben Reeves
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Tagged model receivership act, real estate litigation, receiver, Uniform Commercial Real Estate Receivership Act
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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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Kevin Parker
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Tagged electronic signature, real estate litigation, statute of frauds
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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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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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Ben Reeves
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Tagged HOA Liens, Nevada, real estate litigation, SB 306, Super-Priority Liens
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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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Ben Reeves
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Tagged real estate litigation, short-term rentals, zoning
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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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Kevin Parker
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Tagged Premises liability, real estate litigation
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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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nmcconomy
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Tagged Colorado, equitable defenses, laches, real estate, real estate litigation, real property, statute of limitation
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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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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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Ben Reeves
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Tagged anti-deficiency, NRS 40.455, real estate litigation, receiver sales, U.S. Bank v. Palmilla
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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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Kevin Parker
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Tagged encroachment, injunction, real estate litigation, trespass
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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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Ben Reeves
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Tagged judgment lien, Lewis v. DeBord, real estate litigation, Sysco v. Hoskins
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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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Ben Reeves
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Tagged byers v. wik, judgment enforcement, judgment lien, Lewis v. DeBord, real estate litigation
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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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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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Ben Reeves
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Tagged HOA Lien, Nevada, NRS 116.3116, real estate litigation, SFR Investments v. U.S. Bank
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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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Ben Reeves
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Tagged developer, performace bonds, Ponderosa Fire v. Coconino County, real estate litigation
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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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Ben Reeves
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Tagged bad-boy guaranty, carve-out, investors warranty v. arrowhead, non-recourse, real estate litigation
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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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Erica Stutman
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Tagged Brandt, condemnation, easement, General Railroad Right-of-way Act of 1875, real estate litigation, reversionary interest
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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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Ben Reeves
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Tagged bankruptcy, beneficiary deed, property of the estate, real estate litigation
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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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Ben Reeves
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Tagged equitable subrogation, mechanic's lien, real estate litigation, Weitz v. Heth
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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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Kevin Parker
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Tagged broker commissions, broker lien, real estate litigation
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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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Bob Henry
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Tagged construction defect litigation, implied warranty of workmanship and habitability, real estate litigation, Yanni
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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
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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Matthew Fischer
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Tagged Arizona real estate, AZRE Magazine, blog, commercial real estate, real estate litigation, Snell & Wilmer
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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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Ben Reeves
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Tagged A.R.S. § 33-814, CSA 13-101 Loop LLC v. Loop 101 LLC, fair market value hearing, real estate litigation, waiver
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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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Ben Reeves
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Tagged Arizona, ARS 33-814, Helvitica Servicing v. Pasquan, real estate litigation, Wells Fargo v. Brewer
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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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Erica Stutman
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Tagged 9-462.02, mobile home, nonconforming, real estate litigation, Stagecoach, zoning
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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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Ben Reeves
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Tagged merger of rights, Mid Kansas v. Dynamic Development, real estate litigation, Wells Fargo v. Riggio
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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 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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Richard Herold
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Tagged condemnation, eminent domain, essential nexus, just compensation, land use, real estate litigation, rough proportionality, unconstitutional conditions, unconstitutional taking
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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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Ben Reeves
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Tagged A.R.S. § 33-814, anti-deficiency, Parkway Bank v. Zivkovic, real estate litigation, waiver
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Green construction sounds great, but…
It isn’t always easy being green. Snell & Wilmer partner Marc Erpenbeck talks about emerging litigation issues generated by the proliferation of green construction projects in this informative article entitled “Understanding LEEDigation, The fast-growing trend of GREEN building spurs new … Continue reading
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Ben Reeves
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Tagged AZRE Magazine, Green Construction, LEEDigation, real estate litigation
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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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Adam Lang
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Tagged 12-1101, 33-420, petition to quiet title, real estate litigation, wrongful recordation
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Broker Beware?
By: Erica Stutman While oral contracts are often enforceable, certain categories of contracts must be documented in a signed writing or an action for breach of the contract will be barred by the statute of frauds. See A.R.S. 44-101 for … Continue reading
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Erica Stutman
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Tagged A.R.S. 44-101, broker commissions, real estate agent, real estate broker, real estate litigation, Rudinsky, statute of frauds
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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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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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Ben Reeves
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Tagged blog, real estate litigation, Snell & Wilmer
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