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An ePublication of the Los Angeles County Bar Association
Volume 7, Number 3 • March 2012 • Archive of Past Issues
Real Property Home Page

Special Announcement

This month I think there is something of interest for just about every reader in the variety of cases summarized. Enjoy!

Sincerely,

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

Coming Events

Cramdowns in Real Estate Bankruptcies and Protecting the Guarantor: A Guide to Commercial Real Estate Loan Reductions through Bankruptcy

Many commercial real estate loans will mature over the next five years, with a good portion of them due in 2012. As the "extend and pretend" era wanes, more borrowers are facing the prospect of default. Increasingly, instead of consenting to foreclosure, they are considering a Chapter 11 bankruptcy and a cramdown to effectively restructure the loan.

Date: March 21, 2012
Location: LACBA Offices

Click here for more information and to register for this event.

Lawyers Meet Dirt. What Could Possibly Go Wrong?

This presentation will serve as an introduction to the basic concepts of civil and geotechnical engineering as they relate to design, construction and performance in the built environment. We will discuss geotechnical engineering issues, the role of the geotechnical engineer, and how soils are stabilized to support the structures that are built on them. We will also address common problems that lead to claims and disputes by incorporating representative case histories as examples.

Date: March 27, 2012
Location: LACBA Offices

Click here for more information and to register for this event.

Leasing Representation on Behalf of Institutional Clients: The Good, the Bad, and the Somewhat Arcane

Representing institutional entities, such as REITs, pension funds, life insurance companies and the like, requires special consideration and compliance with some unique rules when it comes to leasing. Join our widely recognized and distinguished leasing experts who will analyze the specialized provisions you are likely to see in your next deal with an institutional landlord or tenant, such as ERISA, no related party representations, rent vs. non-rent income, anti-terrorism, self-insurance, union labor requirements, and the like.

Date: March 28, 2012
Location: LACBA Offices

Click here for more information and to register for this event.

CREW California Conference 2012 "The Next Wave in Commercial Real Estate"

Click here for more information.

SAVE THE DATE!!!

May 30, 2012: Real Property Section Installation and Awards Dinner – Biltmore Hotel 6:00 p.m. – 8:00 p.m.

October 30, 2012: 41st Annual Crocker Symposium on Real Estate Law and Business – Biltmore Hotel 7:30 a.m. – 5:00 p.m.

Recent Cases

From February 1 to February 29

CEQA
Easements
Environmental Law
Environmental Law
Environmental Law
Homeowners Associations
Land Use
Landlord and Tenant
Eminent Domain

Landlord and Tenant
Partition Actions
Real Estate Brokers
Real Property Litigation
Rent Control
Water Law
Zoning

CEQA
Trial court concluded that there was substantial evidence of a fair argument that the proposed construction would cause significant environmental impacts. It was error to find categorical exemptions from CEQA applicable based on a finding that the possible significant impacts were not due to "unusual circumstances." Fair possibility of significant impacts was, in and of itself, sufficiently unusual to require preparation of an EIR.
Berkeley Hillside Preservation v. City of Berkeley (Logan)
filed February 15, 2012, First District, Div. Four
Cite as 2012 S.O.S. 772
Full text click here

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Easements
While diminution in value to the dominant estate is a proper measure of damages for the loss of an appurtenant easement, a court may apply a different measure of damages in the appropriate circumstances. Where defendant's failure to reconvey easement prevented plaintiff from selling property to a buyer who had a particular need for the property, it was appropriate to include the amount that plaintiff would have netted from such sale as an item of damages.
SCI California Funeral Services, Inc. v. Five Bridges Foundation
filed February 14, 2012, First District, Div. Five
Cite as 2012 S.O.S. 717
Full text click here

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Environmental Law
Plaintiffs' four-year delay in bringing NEPA action after agency's issuance of FEIS supported finding of lack of diligence, particularly where the bringing of the action appeared to have been inspired solely by the court's rejection of a similar action brought by other plaintiffs, and where the plaintiffs in the new action were long aware of the previous one. It was an abuse of discretion for district court, despite plaintiffs' lack of diligence, to apply laches where there was no prejudice to defendants because construction had not even begun. Burden of continuing litigation costs will not support a finding of prejudice with respect to laches.

While a federal agency may not assume that a state agency's scientific analysis is sound, federal policy encourages U.S. agencies to consider conclusions of state agencies in doing their own analyses.
The Save the Peaks Coalition v. U.S. Forest Service
filed February 9, 2012
Cite as 10-17896
Full text click here

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Environmental Law
Environmental Protection Agency has an affirmative duty to evaluate the adequacy of an existing State Implementation Plan ("SIP") as a whole when approving SIP revisions. If Agency approves a Plan revision, it must ensure that the whole Plan as revised satisfies Clean Air Act's requirements. If Agency has knowledge that a previously approved SIP likely no longer meets Act's attainment requirements, Agency also has an affirmative obligation to request a new attainment demonstration. Agency acted arbitrarily and capriciously in not requiring transportation control measures to offset growth in emissions from increased vehicle miles traveled.
Association of Irritated Residents v. U.S. Environmental Protection Agency
filed February 2, 2011, amended January 27, 2012, amended February 13,
   2012
Cite as 09-71383
Full text click here

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Environmental Law
Department of Energy's "hard look" at impacts of a potential terrorist attack on proposed "bio-safety level 3" facility at national laboratory satisfied National Environmental Policy Act. When reasonable scientists disagree on appropriate models for analysis, courts must defer to agency experts. In assessing the impact of a terrorist threat by the theft and release by a terrorist outsider, DOE's use of a comparative nationwide analysis rather than a site-specific analysis to determine that the BSL-3 facility would not be an attractive terrorist target was not an abuse of discretion.

In discussing impact of the potential theft and release of a pathogen by a terrorist insider, DOE was not required by NEPA to use an empirical model. DOE adequately assessed the threat by using a thorough two-step probabilistic analysis of the probability that an insider with access to BSL-3 pathogens would have the motive to commit such an attack and the public threat that would result, assuming that an insider did have the access and motive to release a pathogen.
Tri-Valley CAREs v. U.S. Department of Energy
filed February 7, 2012
Cite as 10-17636
Full text click here

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Homeowners Associations
Civil Code Section 1368.3 confers standing on common interest development association to sue for damages to common areas. Such standing is not limited to actions against developers, so it was error for trial court to rule that Association could not sue realtors who allegedly withheld material information that would have caused Association members not to buy their homes and not to incur costs of litigation and repair.
Glen Oaks Estates Homeowners Association v. Re/Max Premier Properties, Inc.
filed February 23, 2012, Second District, Div. Eight
Cite as 2012 S.O.S. 889
Full text click here

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Land Use
Property owner who owned real property subject to charges imposed by local ordinance had standing to challenge the constitutionality of the ordinance even though he was also a member of the board that enacted it. Judgment in validation proceeding upholding charges imposed pursuant to local water agency ordinance precluded subsequent constitutional challenges to those charges.
Eiskamp v. Pajaro Valley Water Management Agency
filed January 4, 2012, publication ordered February 2, 2012, Sixth District
Cite as H036624
Full text click here

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Landlord and Tenant - Eminent Domain
Where government leased housing units from private landowner to house service members, and lease provided for a 20-year term plus annual renewal options and established a method by which rent was to be calculated for each renewal term if parties did not agree, the renewal options were enforceable as a matter of law.

Where government sought to enforce its leasehold interest both by renewing lease and bringing an eminent domain action, and district court found that lease renewal was valid, there was nothing left to condemn, and therefore no taking, and no requirement that the district court determine the amount of rent due under the lease, a matter the landowner might pursue in the Court of Federal Claims.
United States v. Polar Star Alaska Housing Corporation
filed February 14, 2012
Cite as 09-35990
Full text click here

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Landlord and Tenant
District court correctly ruled that plaintiff landlord could not enforce lease obligations incurred by failed bank against its successor. Under federal common law, plaintiff--which was not a party to the purchase and assumption ("P&A") agreement by which defendant acquired substantially all assets of failed bank from FDIC, as receiver--could not enforce third-party rights because the P&A agreement was not intended to benefit plaintiff.
GECCMC 2005-C1 Plummer Street Office Limited Partnership v. JPMorgan Chase Bank
filed February 2, 2012
Cite as 10-56219
Full text click here

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Partition Actions
Trial court, in apportioning costs of partition action, did not abuse its discretion by holding plaintiffs responsible for all attorney fees they incurred where one plaintiff used her experience in real estate to prevent defendants--her siblings--from obtaining their interests, and plaintiff was well aware that she was not entitled to the share that she claimed.
Lin v. Jeng
filed February 23, 2012, Second District, Div. Four
Cite as B232899
Full text click here

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Real Estate Brokers
Where listing agreement provided for a commission if broker produced an offer of "$17,000,000 cash or such other price and terms acceptable to" sellers, broker produced an offer of $17 million, and sellers rejected the offer and countered at $19.5 million, which potential buyers rejected, broker was, as a matter of law, not entitled to a commission.
RealPro v. Smith Residual Company LLC
filed February 28, 2012, Fourth District, Div. Two
Cite as E052369
Full text click here

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Real Property Litigation
Pendency of appeals did not preclude order to show cause proceeding--in which husband sought no more than the payment of money and conveyance of an interest in real property due him under prior judgment and attorney fee order--where wife did not file an undertaking to stay enforcement of the judgment and attorney fee order.
In re Marriage of Falcone and Fyke
filed February 23, 2012, Sixth District
Cite as 2012 S.O.S. 875
Full text click here

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Rent Control
Santa Monica Rent Control Board erred in decreasing rents based on landlord's decrease in services--timing and temperature changes to the hot tub and sauna--where there was no evidence elicited at the hearing on the rent decrease petitions showing the tenants' rent became excessive or there was any impact on landlord's return. Rent Control Law does not impose a mandatory duty on the board to adopt regulations establishing administrative remedies when the board fails to take final action on a tenant's petition for a rent decrease within 120 days as the law requires. Nothing in the text or history of the law shows an intent that the 120-day period be mandatory rather than directory.
Santa Monica Properties v. Santa Monica Rent Control Board
filed February 16, 2012, Second District, Div. Eight
Cite as 2012 S.O.S. 805
Full text click here

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Water Law
Where rivers flowed through state and then beyond its borders, discrete, identifiable segments of these rivers on which no commerce was occurring at time of statehood were nonnavigable within meaning of federal law, so state did not acquire title to the riverbeds underlying those segments.
PPL Montana, LLC v. Montana
filed February 22, 2012
Cite as 10-218
Full text click here

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Zoning
Code of Civil Procedure Section 1094.6--which provides that if a petitioner for writ of mandate makes a timely request to the local agency for an administrative record, the limitations period is extended to the 30th day following delivery of the record--does not extend the 90-day period for filing and serving a writ petition challenging a zoning variance under Government Code Section 65009.
Okasaki v. City of Elk Grove
filed February 24, 2012, Third District
Cite as C066203
Full text click here

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Los Angeles County Bar Association
2012 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
Gregg J. Loubier

First Vice Chair
Theresa C. Tate

Second Vice Chair/Crocker Chair
Sarah V. J. Spyksma

Treasurer
Norman A. Chernin

Secretary
Brant Dveirin

Immediate Past Chair
Pamela L. Westhoff

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
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, Shaaron Bangs
Land Use Planning and Environmental Law, Laurence L. Hummer
Real Estate Finance, Owen P. Gross
General Real Estate Law, Marybeth Heydt
Title Insurance, Vicki Perkowitz

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