Volume 4, Number 9

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  Aug. 2009 

Special Message

Dear Members,

Our Subsection is partnering with the American Bar Association to reach out to more attorneys. In this edition of the Newsletter, you will find course descriptions for upcoming programs that may be of interest.

Last month, I invited lawyers whose practices have shifted recently to advise me so that we could include appropriate information concerning such changes to our subscribers. In a new section that he has entitled Transitions, Larry Hummer has edited the responses that we received.


Norm Chernin, co-editor, Real Property Newsletter
E-mail address: nchernin@firstam.com

- Real Property Scheduled Events - View All Real Property Events  Sign Up Now -

September 9, 2009: Law, Politics, Media and Communities: A Common Sense Approach to Land Use Law.
You have a law degree, you have experience in legal matters, you have appeared in court, so you think you should be well qualified to handle any administrative matter involving a real estate development project, such as a zone change, tract map, variance, or any land use matter that requires discretionary approval. Think again!

The strategies and tactics of handling matters before local or state agencies is significantly different from anything else you may have learned. It involves not only legal issues, but political issues, community relations and the media. How do you deal with agency staff, lobbyist restrictions, media calls, campaign contributions, neighbors marching in opposition? . Experienced practitioners will outline the common sense dos and don’ts of administrative land use practice.

Speakers: George Mihlsten, Esq., Latham & Watkins David Goldberg, Esq., Latham & Watkins

September 25, 2009: Top 10 Issues Facing Lenders Who Foreclose on Development Projects. Earn 1 hour of CLE credit.

   September 30, 2009: Real Property Community Outreach Program: Residential Real Estate Transactions. Earn 1.5 hours of CLE credit.

   October 7, 2009: Real Property Community Outreach Program: Structuring Lease Transactions in Troubled Times. Earn 1.5 hours of CLE credit.

Recent Cases

Cases from July 1 through July 31

-Affordable Housing-
-Construction Law-
-Covenants, Conditions & Restrictions-
-Land Use-
-Residential Foreclosure-

-Affordable Housing-
Los Angeles’ affordable housing ordinance imposes rent restrictions that conflict with and are inimical to the Costa-Hawkins Act even if those restrictions apply only to some residential units within a project and do not control rents for the entire project. Although developers had an option to pay a fee instead of complying with ordinance’s affordable housing requirements--because amount of such fee was based on number of affordable housing units that a developer must provide under the ordinance--the in lieu fee provision and housing requirements were inextricably intertwined, and the in lieu fee provision thus was not severable. Developer’s ability to avoid ordinance’s requirements by limiting number of residential units per lot did not eliminate conflict between ordinance and act. Amendment to complaint clarifying that plaintiff would pay an in lieu fee rather than undertake construction of low income housing units in event of an adverse ruling did not constitute a waiver or forfeiture of any of the complaint’s substantive allegations and thus did not render appeal moot.
     Palmer/Sixth Street Properties, L.P. v. City of Los Angeles - filed July 22, 2009, Second District, Div. Four
     Cite as 2009 SOS 4466
     Full text

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Where Indian tribe brought a partially successful challenge to a landfill project adjacent to tribal land, trial court did not abuse its discretion in determining that the cost of litigation was disproportionate to band's individual stake in the matter and awarding the tribe attorney's fees under Code of Civil Procedure Sec. 1021.5 because record provided a reasonable basis to find that the band was attempting to protect environmental quality, not just tribe's interest, and that evidence offered to counter tribe's claim of no financial interest was incompetent and inadmissible. Litigation conferred a significant benefit where each of the areas that the trial court found inadequate under the California Environmental Quality Act involved an important environmental consideration and where it permitted affected parties to provide additional input on remand. Trial court did not err in declining to reduce award by 50 percent based on limited success in effort to prevent project from going forward where challengers achieved success on qualitatively--as opposed to quantitatively--significant issues.
     Riverwatch v. County of San Diego Department of Environmental Health (Gregory Canyon Ltd) - filed June 12, 2009, certified for publication July 2, 2009, Fourth District, Div. One
     Cite as 2009 SOS 4147
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-Construction Law-
Where corporation was not qualified for a contractor's license and plaintiffs were thereby entitled to recover all compensation paid for unlicensed work, such recovery could not be reduced by claim of offset for materials and services provided in connection with the unlicensed work.
     White v. Cridlebaugh - filed July 29, 2009, Fifth District
     Cite as F053843
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-Covenants, Conditions, & Restrictions-
Where plaintiffs challenged amendments to a declaration of restrictions for property owners in a planned development as not having complied with declaration’s amendment provision, amendments were potentially voidable and trial court erred in finding them void ab initio and therefore subject to collateral attack at any time; Code of Civil Procedure Sec. 343’s four-year statute of limitations was applicable to plaintiffs’ claims and began to run as each amendment was recorded and thereby made effective. Trial court erred in rejecting statute of limitations defense to plaintiffs’ claims filed seven years after the amendments were passed and recorded. Plain language of declaration’s paragraph 16—which provided that declaration’s terms would expire by a set date "unless the owners of a majority of said lots have executed and recorded…in the manner required for a conveyance of real property, a writing in which they agree"—required a majority of property owners to execute and record a document agreeing to extend declaration’s applicability in the same manner in which a deed or other instrument conveying real property would be executed and recorded; provision did not require that each owner individually express his agreement in a separate recorded document. Trial court's finding that defendant provided competent evidence that a majority of owners had agreed to extend was sufficient to support a judgment in favor of defendant. Trial court abused its discretion in sustaining objections to homeowner consent forms in which the property owners' names and the property descriptions on the forms were not identical to the names and property descriptions appearing on the deeds to the properties, as paragraph 16 could not reasonably be read to require owner consent forms to include a legal description of the properties or that each consenting owner sign his name in the exact same manner as he took title to the property.
     Costa Serena Owners Coalition v. Costa Serena Architectural Committee - filed June 24, 2009, publication ordered July 17, 2009, Fourth District, Div. One
     Cite as 2009 SOS 4355
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-Land Use-
Written agreement between city and a third party providing that necessary consent or approvals would not be unreasonably withheld was not a waiver of general substantial evidence standard of review for plaintiff’s writ petition. Even assuming plaintiff had demonstrated a due process right to meaningful notice and an opportunity to be heard prior to city’s resolution, trial court did not err in concluding due process had been afforded where record indicated plaintiff had actual notice and was in fact heard prior to city’s vote. City requirement that an entity seeking to hold mitigation land must "demonstrate sufficient capability in terms of resources, available staff, and offices to provide sufficient management of the land and to respond in a timely manner to issues that arise thereupon" or the requirement that it "must be accountable to the members of the immediate community for the entity’s management of the land" was not unconstitutionally vague. Such criteria did not impermissibly conflict with state law and was not preempted by federal law.
     The Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (SPS Development Services, Inc.) - filed July 21, 2009, Fourth District, Div. Two
     Cite as 2009 SOS 4452
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-Residential Foreclosure-
Debtor’s right under California’s Home Equity Sales Contract Act to rescind the sale of his foreclosed home never expired where the sale did not comply with HESCA provision regarding notification of revocation right, debtor’s agreement with purchaser did not expressly release HESCA rights, and buyer did not come forward with any evidence suggesting debtor actually knew of his HESCA rights at the time of signing the agreement.
     Hoffman v. Lloyd - filed July 20, 2009
     Cite as 08-15814
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Reader Reactions
So - What do you think of the Real Property News?  Please send us your comments and suggestions. This is your newsletter.


Los Angeles County Bar Association
2009 Real Property Section Newsletter
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

Michael S. Klein

First Vice-Chair
Pamela L. Westhoff

Second Vice-Chair
Gregg J. Loubier

Theresa C. Tate

Sarah V. J. Spyksma

Immediate Past-Chair
Donald C. Nanney

Section Administrator
Terrina Scott


Eric Altoon
Nedra E. Austin
Babak B. Baradaran
Susan J. Booth
James L. Brat
Norman A. Chernin
Robert T. Flick
Daniel L. Goodkin
Brian Richard Hochleutner
Linda S. Koffman
Rebecca H. Lessley

Peter J. Niemiec
Robert C. Pearman
Leslie D. Reed
D. Eric Remensperger
David C. Sampson
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto

Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Richard Mah
Land Use Planning & Environmental Law, Claire Hervey Collins
Real Estate Finance, Caroline Dreyfus
General Real Estate Law, Nadav Ravid
Title Insurance, Gytis L. Nefas


Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.