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- In This Issue -

Introductory Comment

Coming Events

Recent Cases


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An ePublication of the Los Angeles County Bar Association
Volume 9, Number 1 • January/February 2014
 Archive of Past Issues
Real Property Home Page


Introductory Comment

Hope that your New Year is starting well. Only half the parties in these cases can say that.

Sincerely,

Norm Chernin, Editor, Real Property Section Newsletter
E-mail address
: norman.chernin@fnf.com

Coming Events

Annual Construction Law Update and Flaig Award
(2/25/14 12:30 PM)

Please join us at the Construction Law Subsection’s "Acret/Flaig Award and Annual Update Program.” The Acret and Flaig Awards will be presented posthumously to Matt Steiner, and accepted by Matt's wife, Heidi Steiner.

Negotiating Letters of Intent: Setting the Stage for a Successful Lease Negotiation
(2/27/14 12:30 PM)

Negotiating a detailed letter of intent has numerous benefits and can often save each party time and money.

The Top Ten Real Estate Cases of 2013
(2/28/14 12:30 PM)

This program will cover important cases decided by California courts and the U.S. Supreme Court in 2013 that impact the practice of real estate law in California.


Hear No Evil, See No Evil, Speak No Evil: Disclosure of Environmental Conditions in Real Estate Transactions
(3/12/14 12:30 PM)

Sellers of property with real or potential environmental issues are often concerned about what a buyer may find out in due diligence.

The Notary's Responsibility in Cases of Identity Theft and Fraud
(3/25/14 12:30 PM)

This program will review applicable statutory and case law pertaining to a notary's duty of care and will demonstrate methods by which a notary can detect a fraudulently-created California driver's license.

A Nuts and Bolts Discussion Regarding CASp Inspections
(3/27/14 12:30 PM)

In order to comply with the recently implemented lease disclosure requirement under California Civil Code Section 1938, Landlords and Owners are deciding whether to have a CASp (Certified Access Specialist) inspection of their property done.

 


Recent Cases

-CEQA-
County, in approving commercial real estate project, was not required to prepare and recirculate a revised draft EIR to include an alternative project proposed by the staff of its Planning Commission--because the staff alternative was not "significant new information" within the meaning of the CEQA Guidelines--and was not required to make findings regarding the feasibility of the staff alternative. The alternative was proffered after preparation of the final EIR, and adequate alternatives were discussed in the EIR.
     South County Citizens for Smart Growth v. County of Nevada (KKP Lake of the Pines, LLC) - filed October 8, 2013, publication ordered November 6, 2013, Third District
     Cite as 2013 S.O.S. C067764
     Full text http://www.metnews.com/sos.cgi?1113//C067764

-Anti-Deficiency-
Defendants, sued as guarantors for deficiency following non-judicial foreclosure, failed to present sufficient evidence of a triable issue on their "sham guarantee" defense, by which they claimed that their close relationship with the borrowers made defendants primary obligors on the loans rather than true guarantors, permitting them to claim the benefit of the anti-deficiency laws. Defendants were not the primary obligors on the loans because they did not enter into the loan agreements or execute the promissory notes with the lender, and there was a legal separation between defendants and the borrowers, which were entities formed to protect their owners from corporate liabilities.
     California Bank & Trust v. Lawlor - filed November 25, 2013, publication ordered December 20, 2013, Fourth District, Div. Three
     Cite as 2013 S.O.S. G047899
     Full text http://www.metnews.com/sos.cgi?1213//G0478

-Bankruptcy-
Bankruptcy trustee’s turnover of property power pursuant 11 U.S.C. Section 542(a), granting trustee power to recover property, was not restricted to property of the estate at the time the motion for turnover was filed, entitling the trustee to seek turnover from an entity in possession of property throughout the case.
     Shapiro v. Henson - filed January 9, 2014
     Cite as 2014 S.O.S. 11-16019
     Full text http://www.metnews.com/sos.cgi?0114//11-16019

-CEQA-
Denial of writ of mandate under CEQA was proper where petitioner’s identification of health risks to construction workers and future residents did not constitute substantial evidence to create a fair argument that the disturbance of contaminated soil might have a significant effect on the environment.
     Parker Shattuck Neighbors v. Berkeley City Council (CityCentric Investments, LLC) - filed November 7, 2013, publication ordered December 4, 2013, First District, Div. Four
     Cite as 2013 S.O.S. A136873
     Full text http://www.metnews.com/sos.cgi?1213//A136873

-CEQA-
Department of Transportation’s environmental impact report was inadequate under the California Environmental Quality Act, where it failed to properly evaluate the significance of a roadway project’s impact on the root systems of trees. The failure of a report to separately identify the impact to the environment before proposing mitigation measures to avoid impact was not a harmless procedural failing as it prevents the analysis of the sufficiency of protective measures.
     Lotus v. Department of Transportation - filed January 30, 2014, First District, Div. Three
     Cite as 2014 S.O.S. A137315
     Full text http://www.metnews.com/sos.cgi?0214//A137315

-Coastal Commission-
California Coastal Commission, not County, was the proper permitting body for coastal zone in which homeowners’ property was located, where County neither obtained certification of a local coastal program pursuant to Public Resources Code Section 30500 nor obtained certification of a land use program or instituted interim procedures for issuing permits pursuant to Section 30600.5.
     Hagopian v. State of California - filed January 24, 2014, Second District, Div. One
     Cite as 2014 S.O.S. B240688
     Full text http://www.metnews.com/sos.cgi?0114//B240688

-Easements-
Conduct can constitute actionable interference with the use and enjoyment of an easement even when the conduct does not physically obstruct the servitude. Evidence supports a jury’s finding that defendants unreasonably interfered with plaintiff’s use and enjoyment of the easement based on their refusal to sign a covenant for a community driveway, their refusal to sign a retaining wall permit that was a prerequisite to plaintiff’s occupancy certificate, their demands for money in exchange for granting plaintiff’s rights she already possessed in the easement, and their statements suggesting plaintiff lost the easement by creating a grading cut and burdening it.
     Dolnikov v. Ekizian - filed December 19, 2013, Second District, Div. Three
     Cite as 2013 S.O.S. B226675
     Full text http://www.metnews.com/sos.cgi?1213//B226675

-Homeowners Associations-
A homeowner’s association has standing to bring causes of action for declaratory relief on its own behalf where the association is a directly named beneficiary of a license agreement, and under Code of Civil Procedure Section 1060, any party interested under a contract is allowed to pursue a declaration of rights as to that instrument. HOA has standing to assert causes of action for breach of contract solely as the representative of its members under Section 382—-the class action statute—-because it also sanctions representative non-class actions.
     Market Lofts Community Association v. 9th Street Market Lofts, LLC. - filed January 7, 2014, Second District, Div. Two
     Cite as 2014 S.O.S. B245558
     Full text http://www.metnews.com/sos.cgi?0114//B245558

-Homeowners Associations-
Homeowner’s association must, under the Davis-Stirling Common Interest Development Act, accept and apply partial payments that reduce delinquent assessments owed but not any other amounts due, such as late fees, interest, and attorney’s fees and costs.
     Huntington Continental Town House Association, Inc. v. The JM Trust - filed January 13, 2014
     Cite as 2014 S.O.S. 275
     Full text http://www.metnews.com/sos.cgi?0114//JAD14-02

-Inverse Condemnation-
County general plan requirement that property owners provide an aircraft overflight easement as a condition for obtaining a building permit to make minor alterations to their residence did not constitute a taking of their property without payment of just compensation, since there was no evidence it would permit overflights that would invade the plaintiffs’ private airspace, substantially interfere with their use and enjoyment of their property, or cause a measurable reduction in the property’s value.
     Powell v. County of Humboldt - filed January 16, 2014, First District, Div. One
     Cite as 2014 S.O.S. A137238
     Full text http://www.metnews.com/sos.cgi?0114//A137238

-Labor and Material Bonds-
Four-year statute of limitations applied to an action to enforce a labor and material bond issued in connection with a subdivision project to develop a golf course and residences, where the work performed under the contract was a "private work" of improvement, even though the work was subject to a subdivision agreement with a public entity, since the bonds for improvement were less than 100% of the contract amount. The trial court erred in applying the shorter statute of limitations applicable to "public work" projects.
     R&R Pipeline, Inc. v. Bond Safeguard Insurance Company - filed January 27, 2014, Second District, Div. Five
     Cite as 2014 S.O.S. B246974
     Full text http://www.metnews.com/sos.cgi?0114//B246974

-Land Use-
Government Code Section 56103 is a part of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 that requires challenges to a Local Agency Formation Commission’s (“LAFCO”) approval of an annexation and a change in a sphere of influence be brought as a "reverse validation action." It applies to any lawsuit seeking to set aside a LAFCO approval of an annexation or a change in a sphere of influence, whether brought under CEQA, the Reorganization Act, or both. Inadequacy of petitioner counsel’s legal research was not good cause for failure to comply with Code of Civil Procedure Section 863, which requires that proof of publication of the summons in a reverse validation action be filed within 60 days of the filing of the petition.
     Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (City of Ceres) - filed January 28, 2014, Fifth District
     Cite as 2014 S.O.S. F066544
     Full text http://www.metnews.com/sos.cgi?0114//F066544

-Land Use-
Property owner could not obtain declaratory relief from an administrative decision where the owner challenged a fire hydrant requirement for a building permit after receiving an estimate from the Department of Water and Power of the cost to extend water to the lot--since the proper method to challenge building permit conditions is administrative mandamus under Code of Civil Procedure Section 1094.5. Owner’s action was unripe where the owner had failed to exhaust administrative remedies or obtain a final administrative determination after owner had only received preliminary opinions and estimates from city personnel regarding water and safety issues.
     Tejon Real Estate, LLC v. City of Los Angeles - filed January 22, 2014, Second District, Div. Four
     Cite as 2014 S.O.S. B247255
     Full text http://www.metnews.com/sos.cgi?0114//B247255

-Property Tax Reassessment Following Change of Ownership of Mobile Home Park-
Revenue and Taxation Code Section 62.1(b), which provides that a transfer of a membership interest in a mobile home park is a "change of ownership of a pro rata portion of the real property of the park," simply defines the property to be appraised and not the formula to be used for appraising. The statute does not foreclose any particular means for appraisal. The county Assessment Appeals Board’s establishment of one particular formula for assessment, namely, that fractional interests in mobile home parks are to be the estimated value of the entire park multiplied by the fractional interest obtained in the transfer, was an abuse of discretion.
     Holland v. Assessment Appeals Board No.1 - filed January 23, 2014
     Cite as 2014 S.O.S. S205876
     Full text http://www.metnews.com/sos.cgi?0114//S205876

-Purchase and Sale Agreements-
Buyer should have been granted leave to amend complaint where a claim for breach of contract could be stated if, as argued on appeal, buyer contended that the nonrefundable deposit provision of the contract gave independent meaning to the terms "material breach" and "failure to close," such that seller would have to return the deposit not only if in material breach but also if seller failed to close. Court erred in sustaining a demurrer as to buyer’s "money had and received" claim, since buyer argued that the deposit was in consideration for seller’s promise to transfer the deed at closing, and the failure to transfer the deed resulted in a total failure of consideration by seller.
     Rutherford Holdings, LLC v. Plaza del Rey - filed January 23, 2014, Sixth District
     Cite as 2014 S.O.S. H038303
     Full text http://www.metnews.com/sos.cgi?0114//H038303

-Receivership-
Court did not abuse its discretion in awarding fees to a receiver after City filed a nuisance abatement action and sought the appointment of a receiver pursuant to Health and Safety Code Section 17980, and receiver sold the property. The fees were reasonable where homeowner abused the bankruptcy courts to thwart City’s efforts to repair property and was deemed a vexatious litigant. Court cannot grant relief after a receiver sells property when the homeowner’s "failure to post an undertaking" on appeal left the trial court free to grant the receiver’s application for an order to sell the property. The order of appointment becomes moot after a receiver has settled accounts and has been discharged because the receiver and court no longer have control of the receivership. Homeowner failed to make a proper challenge to the court’s in personam jurisdiction due to defective service, where homeowner did not make a timely motion to quash service prior to making a general appearance.
     City of Riverside v. Horspool - filed January 16, 2014, publication ordered January 30, 2014, Fourth District, Div. Two
     Cite as 2014 S.O.S. E051500
     Full text http://www.metnews.com/sos.cgi?0214//E051500

-Residential Landlord and Tenant Following Foreclosure-
Protecting Tenants Against Foreclosure Act of 2009, which protects residential property tenants at foreclosure through the end of the lease term, allows purchasers of property a limited authority to terminate the lease with proper notice if the purchaser intends to occupy the property as a primary residence. Act impliedly imposes a duty on immediate successors to make reasonable efforts to identify all bona fide tenants and determine whether they are entitled to continue their tenancy for the remainder of the lease. As a result, a triable issue of fact existed as to whether a bank, which purchased the property at a foreclosure sale, acted in good faith or whether its conduct amounted to constructive eviction in violation of the covenant of quiet enjoyment after the tenants, holding a year-long lease, were turned away from the property. Act impliedly overrides state laws that provide less protection and permits State to enact greater protections.
     Nativi v. Deutsche Bank National Trust Company - filed January 23, 2014, Sixth District
     Cite as 2014 S.O.S. H037715
     Full text http://www.metnews.com/sos.cgi?0114//H037715

-Spot Zoning-
Court is required to conduct a two-part analysis to determine whether impermissible spot zoning has occurred--determine whether a spot zoning has occurred and determine whether the record shows the spot zoning was in the public interest. Spot zoning, which usually restricts the rights of a small parcel of land, also occurs when the parcel would be given greater rights. A spot zone results when land is subject to more or less restrictive zoning than surrounding properties.
     Foothill Communities Coalition v. County of Orange (Roman Catholic Diocese of Orange) - filed January 13, 2014, Fourth District, Div. Three
     Cite as 2014 S.O.S. G047326
     Full text http://www.metnews.com/sos.cgi?0114//G047326

-Taxation-
Taxpayers-—certain shareholders in corporation-—established a series of tiered partnerships for purposes of minimizing liability for taxes upon sale of the corporation. IRS investigated to determine whether partnerships constituted an abusive tax shelter, and taxpayers and IRS entered into extension agreements stating "[t]he amount of any deficiency assessment is to be limited to that resulting from any adjustment directly...attributable to partnership flow-through items of" a specified partnership. The term "adjustment" referred to partnership-level adjustments conducted through a notice of final partnership administrative adjustment  (“FPAA”), by IRS. The agreements permitted IRS to make an adjustment directly attributable to a partnership flow-through item that was technically an adjustment to a partnership item of a lower-tier, but related, partnership. Extension agreements encompassed only adjustments made in FPAA that were directly attributable to partnership flow-through items of the named partnership. They did not encompass adjustments to items of the lower-tier partnership which only flowed up through minority partners and as a result had no connection to the named partnership--nor did they apply to any adjustments made in the lower-tier partnership’s FPAA to partnership items of which the upper-tier partnership named in the extension agreements only claimed a share.
     Martin 1999 Irrevocable Trust v. United States - filed January 13, 2014
     Cite as 2014 S.O.S. 11-17879
     Full text http://www.metnews.com/sos.cgi?0114//11-17879

-Unlawful Detainer-
Trial court must consider a tenant’s motion for relief under Code of Civil Procedure Section 1179, which provides that a court may relieve a tenant against a forfeiture of a lease or rental agreement whether or not the tenancy has terminated, even if the relief sought was from a judgment obtained by default.
     SRO Housing v. Dyce - filed January 22, 2014
     Cite as 2014 S.O.S. JAD14-03
     Full text http://www.metnews.com/sos.cgi?0114//JAD14-03

 

Los Angeles County Bar Association
2013 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

Sarah V.J. Spyksma

First Vice Chair

Norman A. Chernin

Second Vice Chair
Brant Dveirin

Treasurer
Susan J. Booth


Secretary
Caroline Dreyfus

Crocker Chair
Eric Remensperger

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Claire Hervey Collins
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Marybeth Heydt
Laurence L. Hummer
Ryan Iwasaka

Marcia Kamine
Trudi J. Lesser
Peter J. Niemiec
Robert C. Pearman
D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto


SUBSECTION CHAIRS
Commercial Development and Leasing, Nadav Ravid
Construction Law, James Earle
Finance, Owen Gross
General Real Estate Law, Beth Peterson
Land Use Planning and Environmental Law, Glenn Block
Title Insurance, Susan Vignale

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