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VOLUME 11 | NUMBER 12 | DECEMBER 2016
 
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IN THIS ISSUE
 
Introductory Remarks
>
Coming Events
>
Save the Date!
>
Recent Cases
>
 
Real Property Executive Committee:

SECTION OFFICERS

Chair
Susan J. Booth

First Vice Chair
Caroline Dreyfus

Second Vice Chair
Claire Hervey-Collins

Treasurer
Eric Altoon

Secretary
Misty Sanford  

Immediate Past Chair
Brant Dveirn  

Barristers Liaison
Christopher Bordenave

Section Administrator
Fatima Jones

 

EXECUTIVE COMMITTEE MEMBERS

Nedra E. Austin
Janna Boelke
James Earle
George Fatheree
Robert T. Flick
Daniel L. Goodkin
Owen P. Gross
Marybeth Heydt
Teresa Y. Hillery
Ben Howell
Laurence L. Hummer
Trudi Lesser
Kyle B. Marks
Beth Peterson
Linda E. Spiegel
Kelsey M. Thayer
Loretta Thompson
Seth Weissman

 

EMERITUS MEMBERS

Michael Bayard
Norm Chernin
Peter Gelles
Byron Hayes
Gordon Hunt
Bryan Jackson
Michael Klein
Mark Lamken
Gregg Loubier
Victor Marmon
O'Malley Miller
Donald Nanney
Gytis Nefas
James Richman
Ronald Silverman
Sarah Spyksma
Theresa Tate
Timothy Truax
Richard Volpert
Ira Waldman,
Pamela Westhoff
Norma Williams
Paula Reddish Zinneman

 
SUBSECTION CHAIRS

Commercial Development and Leasing
Marcia Gordon
Construction Law
Donna Kirkner
Finance
Jane Hinton
General Real Property
Rachel Sanders
Land Use Planning & Environmental Law
Beth Hummer
Title Insurance
Zi Lin

 

 

Introductory Remarks

Thank you for supporting the Real Property Section. We strive to keep our members and the real estate community informed through the planning and implementation of substantive programs. We are excited about and look forward to bringing you more relevant topics in 2017. Happy Holidays!!

Sincerely,
Teresa Y. Hillery
Editor, Real Property Section Newsletter
E-mail address: Teresa.Hillery@fnf.com


 
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Coming Events
 
What I Wish I Had Known as a Junior Lawyer!
January 12, 2017

Please join us for this discussion of the various attorney roles in the life cycle of real estate assets and general advice to junior lawyers about how to make their clients happy. Our speaker will be Brian Woram, Executive VP and General Counsel of KB Home. This evening program will be held at the LA County Bar, with cocktails to follow.

> Click here for more information
 
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Save the Date!
 
Traps to Avoid and War Stories from Mid-Level Associates
February 16, 2017
6:00—8:00 p.m. (1 hour CLE)
 
Real Estate Business Finance for Lawyers
Location and time TBA


 
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Recent Cases
 
-Assignments -

Under New York law—which governs a challenge to the assignment of mortgage loans by a New York securitized trust—borrower does not have standing to challenge such an assignment, which allegedly breaches a term or terms of a pooling assignment agreement, because the beneficiaries, not the borrower, have the right to ratify the trustee's unauthorized acts. An assignment after the publicized closing date is voidable, but not void.

Mendoza v. JPMorgan Chase Bank, N.A. - filed Dec. 13, 2016, Third District
Cite as 2016 S.O.S. 6407
Full text click here >

 
-Broker Commissions -

Real estate broker's action for enforcement of an alleged unwritten agreement that defendants would pay plaintiff a commission upon defendants' purchase of a home was barred by the statute of frauds. Plaintiff could not establish equitable estoppel as an exception to Civil Code Sec. 1624(a)(4)'s requirement that an agreement to employ a person to buy or sell real estate be in writing, because, as a licensed broker, its reliance upon an unwritten agreement could not have been reasonable in the absence of actual fraud. Judicially recognized exception to Sec. 1624(a)(4), allowing broker to recover when principal enters into a binding purchase agreement that contemplates a commission for the broker, did not apply where no such contract was entered into during period in which plaintiff was acting as defendants' broker.

Westside Estate Agency, Inc. v. Randall - filed Dec. 1, 2016, Second District, Div. Two
Cite as 2016 S.O.S. 6154
Full text click here

 
-CEQA-

City agency's expedited review of "environmental leadership development project," as certified by the governor under the California Environmental Quality Act—including the construction of an arena housing a professional basketball team and other entertainment events—reflected a thorough and exhaustive study of all environmental impacts to be anticipated that were not considered in the "program" environmental impact report for a previously proposed project at the site, and identification of numerous mitigation measures to lessen adverse impacts to the extent feasible. Trial court's denial of consolidated petitions to set aside the certification of the environmental impact report and related permits for the construction of the arena and adjacent facilities was thus supported by substantial evidence.

Mission Bay Alliance v. Office of Community Investment and Infrastructure (GSW Arena LLC) - filed Nov. 29, 2016, First District, Div. Three
Cite as 2016 S.O.S. 6031
Full text click here >

 
- Duty of Disclosure -

Buyer and seller were represented by a brokerage acting as "dual agent" through an "associate licensee." It was undisputed that the brokerage owed the buyer a duty to learn and disclose all information materially affecting the value or desirability of the property, including any discrepancy between the square footage of the residence's living area as advertised and as reflected in publicly recorded documents. The associate licensee, who functioned on the broker's behalf in the real property transaction, owed to the buyer an "equivalent" duty of disclosure under Civil Code Sec. 2079.13(b).

Horiike v. Coldwell Banker Residential Brokerage Company - filed Nov. 21, 2016
Cite as 2016 S.O.S. 5825
Full text click here > 

 
-Escrow Liability -

Defendant escrow company—whose employee negligently listed the wrong name of the insured purchaser of a business when securing a new certificate of insurance for the business, the first of a series of missteps by several persons that eventually led to plaintiff giving a personal guarantee to save the business—did not owe a duty of care to plaintiff because he was not a party to the escrow, was not mentioned in the escrow instructions as a third party beneficiary, and did not sustain his losses as a direct result of the escrow company's negligence.

Alereza v. Chicago Title Company - filed Nov. 16, 2016, publication ordered Dec. 9, 2016, Third District
Cite as 2016 S.O.S. 6285
Full text click here >  

 
-Execution Sale -

Trial court erred in ordering restitution and cancellation of the sheriff’s deed of sale of judgment debtor’s home to a third party, after finding that the underlying judgment was obtained by fraud. Because Code of Civil Procedure Sec. 701.680(a)) unequivocally states that an execution sale is "absolute and shall not be set aside for any reason," and the purchaser was not the judgment creditor, the sole remedies available for the judgment debtor were recovery of the proceeds of the sale under Sec. 701.680(b) or to seek equitable redemption. Judgment debtor was not entitled to equitable redemption because purchaser was not guilty of unfairness and did not manipulate the system or take undue advantage, and the property was not sold for a grossly inadequate price.

Lee v. Rich - filed Nov. 30, 2016, Fourth District, Div. Three District, Div. Three
Cite as 2016 S.O.S. 6145
Full text click here

 
-Homeowners Association -

Complaint against homeowners association directors, based on decisions and statements they made in duly noticed board meetings while conducting board business, involved acts or activities in furtherance of constitutionally protected activity within the meaning of the anti-SLAPP statute.

Lee v. Silveira -filed Dec. 5, 2016, publication ordered Dec. 8, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 6276
Full text click here

 
-NEPA-

Further environmental impact analysis of an underground light rail line project was not required when defendant transit officials analyzed and adopted additional mitigation measures for construction-related noises and vibration in the area of plaintiff's property after the release of the final environmental impact statement. Failure to see the need for these mitigation measures at the time the FEIS was released did not violate the National Environmental Policy Act. Regardless of whether temporary relocation was considered a mitigation measure or a source of harm, defendants did not violate NEPA as long as they took a hard look at each alternative and discussed the extent to which adverse effects could be avoided. Defendants did not violate NEPA by not specifically requiring "isolated slab track" technology to mitigate operational noise and vibration from trains passing below plaintiff's property.

Japanese Village, LLC v. Federal Transit Administration - filed Dec. 6, 2016
Cite as 2016 S.O.S. 14-56837
Full text click here

 
- Residential Development -

City abused its discretion in interpreting its general plan to permit residential development on certain property that had been public open space, where the city based that interpretation on a prior resolution permitting residential development. In light of the contents of the general plan, no reasonable person could interpret that plan to include the resolution enacted more than 30 years earlier.

Orange Citizens for Parks and Recreation v. Superior Court (Milan REI IV LLC) -filed Dec. 15, 2016
Cite as 2016 S.O.S. 6422
Full text click here

 
-Right to Repair Act -

Pre-litigation procedure required by legislation commonly known as SB 800 or the Right to Repair Act—which includes a requirement that a potential defendant in an action alleging defects in the construction of new housing be permitted to attempt repairs prior to being sued—applies to all such claims, subject to limited exceptions set forth in the statute, whether such claims are pled under the statute or common law.

Elliot Homes, Inc. v. Superior Court (Hicks) - filed Dec. 2, 2016, Third District
Cite as 2016 S.O.S. 6159
Full text click here

 
-Unlawful Detainer -

Where unlawful detainer judgment was reversed on appeal and tenant granted a new trial, tenant was entitled to recover any damages caused by premature eviction, without having filed an affirmative cross-complaint.

Beach Break Equities, LLC v. Lowell - filed Nov. 22, 2016, publication ordered Dec. 14, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 6393
Full text click here

Where tenant prevails in unlawful detainer action, and seeks attorney fees under Civil Code Sec. 1174.21—which authorizes such fees where the landlord sought to recover uninhabitable premises, under circumstances described in Civil Code Sec. 1942.4—the applicability of Sec. 1942.4 is properly determined at a hearing on a post-trial fee motion, and need not have been determined at trial.

Active Properties LLC v. Cabrera; Superior Court of California, County of Los Angeles - filed Oct. 26, 2016
Cite as 2016 S.O.S. 6290
Full text click here

 
 
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