Vol. 6, No. 2  Join the Real Property Section  Contact Us  Archive • February 2011


Special Message

An unusual underwriting question was recently posed to me and I solicit your comments in answering it. The facts are: Husband and wife own real property as joint tenants. Husband alone executes senior deed of trust. Subsequently husband and wife execute junior deed of trust. The junior lender forecloses. Then the senior lender forecloses. What title did the senior lender get? If wife had argued that title was community property, only owned as joint tenants for convenience, the senior deed of trust might not be enforceable at all. But that argument is probably moot because the junior deed of trust was enforceable against her interest. Does the doctrine of after-acquired title apply to permit the senior lender to acquire the entire property owned by the junior lender, or does the senior lender only get what it encumbered—an undivided half-interest resulting from a severance of the joint tenancy by its encumbrance?

Sincerely,

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

 Recent Cases
Cases from January 1 through January 30 

CEQA
Environmental Law
Homeowners Associations -
    Construction Law

Inverse Condemnation

Land Use
Land Use
Land Use
Trust Deed Foreclosure
Water Law

CEQA
CEQA challenge to city council and redevelopment agency resolutions and to agreements entered into by city to carry out redevelopment was moot when project was substantially complete prior to entry of judgment. Lack of certificate of completion did not preclude finding that project was substantially complete. 
    Wilson & Wilson v. City Council of Redwood City - filed January 25, 2011, First District, Div. Five
    Cite as 2011 S.O.S. 492
     
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Environmental Law
When construing motions to intervene of right, courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of National Environmental Policy Act-based cases.
    The Wilderness Society v. United States Forest Service - filed January 14, 2011
    Cite as 09-35200
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Homeowners Associations
Construction Law

Recorded declaration of covenants, conditions, and restrictions, which purported to require that a homeowners association arbitrate any construction defect claim the association might have against the developer, did not--under either state or federal law--create an enforceable agreement to waive judicial remedies.
    Villa Vicenza Homeowners Association v. Nobel Court Development, LLC - filed January 11, 2011, Fourth District, Div. One
    Cite as D054550A
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Inverse Condemnation
Plaintiff's claim for inverse condemnation did not accrue until city's occupation of the property became wrongful, which did not occur until the eminent domain proceeding was dismissed. 
    Cobb v. City of Stockton - filed January 26, 2011, Third District
    Cite as 2011 S.O.S. 523
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Land Use
Amateur radio operator owning property within city had standing to bring challenge to ordinance regulating the height of antenna in residential areas and dispute was ripe for adjudication. City's order to remove antenna was supported by substantial evidence this particular antennae was incompatible with the neighborhood based in part on safety and aesthetic concerns. City reasonably accommodated plaintiff's ability to participate in amateur radio communications when it allowed him to keep his roof-mounted antenna. Ordinance cannot be applied to deal with radio frequency interference due to federal preemption and was unenforceable in part because apparent inconsistent height limitations rendered that portion of it unconstitutionally vague.
    Zubaru v. City of Palmdale - filed January 27, 2011, Second District, Div. Five

    Cite as 2011 S.O.S. 593
     
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Land Use
City's approval of developer's plan to build community of single family homes, to be accessed via construction of a concrete bridge and roadway crossing over city-owned parkland, violated charter provision requiring voter approval to encumber parkland. Litigation concerning applicability of charter provision was distinct from prior litigation regarding EIR for same project, so judgment in the prior proceeding lacked res judicata effect upon the subsequent one.
    Citizens Planning Association v. City of Santa Barbara (Peak-Las Positas Partners) - filed January 25, 2011, Second District, Div. Six
    Cite as B216006
     
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Land Use
Plaintiff was not required to engage and exhaust the town's administrative process before seeking judicial remedies where there was no remedy available to plaintiff in the administrative process. Administrative mandamus was not the exclusive remedy available to plaintiff where town's anticipatory breach of development agreement did not involve a quasi-judicial determination. Contractual provision stating that neither party would be in default for a cause beyond the reasonable control of the parties, including "governmental restrictions imposed or mandated by governmental entities other than Town," did not excuse town from performing where town's grant assurances to the Federal Aviation Administration caused FAA to express reservations concerning development project. Trial court properly instructed the jury to determine the parties' intent concerning the definition of FAA rules. Because a court's task in interpreting a contract is to ascertain the intent of the parties, federal law concerning whether a grant assurance is technically a rule of the FAA is relevant only if the parties considered such federal law when they entered into the contract. Developer's acknowledgment of FAA funding and participation in matching funding did not amount to a consent to the FAA's restrictions. Refusal of town manager and deputy town manager to comply with terms of development agreement to achieve the ends of this agreement until the FAA's objections were resolved was a repudiation of the contract. Evidence did not support town's claim that it desired to comply with the development agreement in good faith where town officials were actively working with the FAA to terminate developer's right under the agreement to build the project.
    Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes - filed December 30, 2010, Third District
    Cite as 2011 S.O.S. 54
     
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Trust Deed Foreclosures
Plaintiff, who alleged that bank promised to assist in her efforts to maintain ownership of her home after she fell behind in payments, but failed to make such efforts and completed foreclosure proceedings in violation of that promise, stated claims for promissory estoppel and fraud where plaintiff could have reasonably relied on the bank's promise to work on a loan reinstatement and modification if she did not seek bankruptcy relief under chapter 13, the promise was sufficiently concrete to be enforceable, and plaintiff's decision to forgo chapter 13 relief was detrimental because it allowed the bank to foreclose on the property.
    Aceves v. U.S. Bank, N.A. - filed January 27, 2011, Second District, Div. One
    Cite as 2011 S.O.S. 620
     
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Water Law
Amendment to Water Code Sec. 1525(a) passed by a simple majority of the legislature did not explicitly impose a tax and therefore is not facially unconstitutional. Fee scheme set forth by Sec. 1525 is not facially an ad valorem tax on a real property interest. Neither Sec. 1540 nor Sec. 1560 imposes fees on water rights of the United States; statutes therefore do not facially violate the Supremacy Clause or state or federal rights to equal protection or due process. Remand was necessary to determine whether associated costs of regulatory activity were reasonably related to the fees assessed on payers and to determine value of federal contractor's beneficial interest in water supply.
    California Farm Bureau Federation v. State Water Resources Control Board - filed January 31, 2011
    Cite as S150518
     
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Los Angeles County Bar Association
2010 Real Property Section Newsletter
REAL PROPERTY SECTION PUBLICATIONS
Daniel L. Goodkin, Editor, Real Property Section Review
Norman A. Chernin, Editor, Real Property Section Newsletter

SECTION OFFICERS
Chair
Pamela L. Westhoff

First Vice Chair
Gregg J. Loubier

Second Vice Chair
Theresa C. Tate

Treasurer/Crocker Chair
Sarah V. J. Spyksma

Secretary
Norman A. Chernin

Immediate Past Chair
Michael S. Klein

Section Administrator
Terrina Scott

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
Brant Dveirin
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Ryan Iwasaka

Linda S. Koffman
Trudi J. Lesser
Peter J. Niemiec
Robert C. Pearman
Leslie D. Reed
D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto


SUBSECTION CHAIRS
Commercial Development and Leasing, Nadav Ravid
Construction Law, Richard Mah
Land Use Planning and Environmental Law, Laurence L. Hummer
Real Estate Finance, Owen P. Gross
General Real Estate Law, Brian R. Hochleutner
Title Insurance, Vanessa A. Widener

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