Volume I, Number 1 Join the Real Property Section Contact Us

November 2005


This is the first edition of a new Los Angeles County Bar Association newsletter which will be e-mailed monthly to members of LACBA’s Real Property Section. 

Our goal is to provide you with quick and easy access to information of particular interest to real estate practitioners.  There are currently many excellent sources of such information available; but, if you are like most people, many of the print newsletters and magazines that you receive in the mail stack up on the corner of your desk.  Even e-mailed material often languishes unread in the Outlook Inbox until you can sort through all the e-mails. 

Our hope is that this publication will allow you to immediately spot those items that you do not want to miss and to read the rest by book marking for future reference.   
To simplify this process, the newsletter itself will be kept very short, utilizing only thumbnail descriptions.
Norman Chernin, Co-Editor.

Recent Cases
ASP Properties Group v. Fard, Inc.
Behniwal v. Mix
Behniwal v. Superior Court (Mix)
Fishback v. County of Ventura
Miller v. Weitzen
In re Marriage of Mathews
County of Alameda v. Superior Court (San Leandro Rock Company, Inc.)
Bohbot v. Santa Monica Rent Control Board
Skranak v. Castenada
McFarland v. Norton
Underwood v. Corsino

Where lease did not contain an express provision requiring tenant to replace roof, trial court properly considered extrinsic evidence in concluding that provision obliging tenant to maintain roof, already in a dilapidated condition at the time tenant assumed occupancy, did not impose an obligation to replace roof.
     ASP Properties Group v. Fard, Inc. - filed October 5, 2005; publication ordered November 3, 2005, Fourth District, Div. One
     Cite as 2005 4991
     Full text - click here

-Purchase and Sale Agreements -
Where defendants retained agent/cross-defendant to sell their residence and received multiple offers that were not accepted but authorized agent to prepare multiple counteroffers, which included provisions requiring that sellers re-sign counteroffer for contract to be formed (to show that sellers were choosing that counteroffer in preference to counteroffer from other buyers), and agent signed defendants’ names to counteroffers and re-signed their names to counteroffer from plaintiffs, agents’ signatures, although forgeries, sufficed to form contract for sale to plaintiffs, subject to statute of frauds. Where defendants subsequently signed various documents referencing an intent to complete sale to plaintiffs, agent’s actions were ratified, and statute of frauds was satisfied, so it was error for trial court to deny plaintiffs specific performance. Where cross-defendant acted as agent for defendants, against whom plaintiffs were entitled to specific performance, recovery by plaintiffs against cross-defendants of attorney fees expended on "tort of another" theory was reversible error. Evidence that plaintiffs’ loan pre-approval had expired while suit was in litigation did not preclude finding that they were "ready, willing and able" to buy and thus entitled to specific performance.
     Behniwal v. Mix - filed September 30, 2005, publication ordered October 28, 2005, Fourth District, Div. Three
     Cite as 2005 SOS 4945
     Full text - click here

-Lis Pendens -
Where court of appeal orders that lis pendens be expunged, but ruling is not based on binding Supreme Court authority, lis pendens will remain in effect pending denial of review or other action by Supreme Court.
     Behniwal v. Superior Court (Mix) - filed September 30, 2005, publication ordered October 28, 2005, Fourth District, Div. Three
     Cite as 2005 SOS 4953
     Full text - click here 

-Subdivision -
Where land was divided at a time that the Subdivision Map Act defined a subdivision as a division of land into five or more parcels in any one-year period, and fifth parcel was created within a one-year period, previous four parcels created during that same one-year period are a subdivision. Lands retained by subdivider are parcels within prior definition of a subdivision as division into five or more parcels within a year. Action challenging on preemption grounds local ordinance requiring payment of fee and filing of additional surveys or maps prior to issuance of conditional certificates of compliance is subject to 90-day statute of limitations governing challenges to decisions of local agencies or legislative bodies under SMA.
     Fishback v. County of Ventura - filed October 26, 2005, Second District, Div. Six
     Cite as 2005 SOS 4880
     Full text - click here 

-Premises Liability -
Homeowners’ rights to the property at the intersection of their driveway and a horse trail constituted an "interest in real property" under Civil Code Sec. 846, which immunizes the owner of such an interest against liability for injuries suffered by a recreational user, subject to specified exceptions. "Consideration" exception to Sec. 846 does not abrogate the immunity where the alleged consideration paid by plaintiff recreational user consisted of payment of a fee that was used to maintain trails but was not paid to defendant homeowners.
     Miller v. Weitzen - filed October 20, 2005, Fourth District, Div. One
     Cite as 2005 SOS 4796
     Full text - click here

-Community Property-
Where husband and wife signed quitclaim deed permitting residence to be acquired in husband's name only and thus as his separate property, presumption of undue influence applied under Family Code Sec. 721.
Application of that section is not limited to situations involving actual fraud, deceit, or coercion. Trial court's failure to apply Sec.
721 did not require reversal of order confirming residence as husband's separate property where substantial evidence--including proof that wife's signing quitclaim deed was necessary for parties to obtain lower mortgage rate, and that wife understood that fact and was not coerced into signing--supported trial court's conclusion that wife's execution of quitclaim deed was not the product of undue influence.
     In re Marriage of Mathews - filed June 30, 2005, publication ordered October 19, 2005, Fourth District, Div. One
     Cite as 2005 SOS 4782
     Full text - click here

-Land Use-
Inverse condemnation action challenging voter-approved land use regulation was not ripe where plaintiff had not submitted a single development proposal for the affected property. While measure was very restrictive, plaintiff did not bear heavy burden of showing that all economically viable uses of the property were prohibited, and "futility" exception to ripeness doctrine did not apply.
     County of Alameda v. Superior Court (San Leandro Rock Company, Inc.) - filed October 18, 2005, First District, Div. Five
     Cite as 2005 SOS 4748
     Full text - click here 

-Rent Control-
City rent control provision prohibiting owner-occupancy evictions in conversions unless a removal permit has been obtained does not apply to unit that was legally converted to condominium ownership pursuant to charter amendment. City rent control regulation prohibiting all attempts at owner-occupancy evictions for four years after landlord voluntarily dismisses an attempt at owner-occupancy eviction is invalid as contrary to statutory law.
     Bohbot v. Santa Monica Rent Control Board - filed October 13, 2005, Second District, Div. Three
     Cite as 2005 SOS 4694
     Full text - click here

Miners’ action alleging that federal government interfered with or took their easements by placing restrictions on their construction of access road across federal land was barred by Quiet Title Act’s statute of limitations where government, with the knowledge of plaintiffs and their predecessors-in-interest, had barred all vehicular access across that route for more than 12 years. Evidence that previous restrictions on plaintiff’s access across federal land were consensually negotiated was sufficient to establish triable issue as to whether Quiet Title Act limitations period had been triggered. Forest Service’s denial of unrestricted permits to build access roads pursuant to Alaska National Interest Land Conservation Act was error where service failed to first determine whether applicants previously owned common law easements and thus violated its own regulation.
     Skranak v. Castenada - filed October 12, 2005
     Cite as No. 0435053
     Full text - click here

General ban on snowmobile use within the boundaries of national park did not constitute notice to owner of adjacent land that Park Service claimed exclusive ownership over road allowing access from owner's property onto park property and thus did not trigger statute of limitations of Quiet Title Act, which would have barred property owner's action to quiet title to an easement over the road, brought more than 12 years after ban was imposed, nor did installation of barriers, cables with locks, and later gates with locks, give notice to adjacent property owner that Park Service claimed exclusive ownership over the road.
     McFarland v. Norton - filed October 11, 2005
     Cite as No. 0335831
     Full text - click here

Abatement of rent is not an available remedy in a commercial unlawful detainer proceeding.
     Underwood v. Corsino - filed October 6, 2005, Second District, Div. Four
     Cite as 2005 SOS 4621
     Full text - click here

Upcoming Events

Bankruptcy Update — the Impact of the New Bankruptcy Law on Title Insurance
Presented by: Real Property Section
Subsection/Committee: Title Insurance
Alan Frank Broidy
Hon. Kathleen P. March, The Bankruptcy Law Firm PC
More Information / Register Online 

What Happens if I Don't Get This SNDA?
Presented by: Real Property Section
Subsection/Committee: Real Estate Finance & General Real Property
Program Information:
Both lenders and tenants often ask why they should care about getting a subordination, nondisturbance and attornment agreement. Issues will be discussed from both a lender's and a tenant's perspective, including the consequences of priority as between a lender and tenant, nondisturbance, the extent to which lenders are liable post-foreclosure for the acts of their predecessor landlords, lenders' liability for the return of security deposits and lenders' attempts to limit their liability.
Robert M. Johnson , Sonnenschein, Nath & Rosenthal
Carlisle G. Packard , Nevers Palazzo Maddux & Packard
More Information / Register Online

Fundamentals of Insurance for Construction
Presented by: Real Property Section
Subsection/Committee: Construction Law
Program Information:
In the event of construction defect litigation, few factors are more important than insurance. Thus, at the outset of any project, all parties should ensure they have appropriate coverage in adequate amounts. Although brokers and risk managers are important partners in the process, attorneys (especially those drafting contracts) should thoroughly understand the role of insurance and basic insurance concepts. This program will offer an overview of such concepts, including types of coverage, important exclusions and endorsements, additional insured coverage, and how to handle the inherent conflict between the insurer and insured.
Kenneth H. Coronel , Negele & Associates
More Information / Register Online

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Los Angeles County Bar Association
2005 Real Property Section Review

Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

Paula K. Reddish Zinnemann

First Vice-Chair 
Norma J. Williams

Second Vice-Chair 
Timothy M. Truax 

Donald C. Nanney

Michael S. Klein

Immediate Past-Chair
Bryan C. Jackson

Hugo Vital,
Section Administrator

Norman A. Chernin
Daniel L. Goodkin
John E. Hatherley
Trudi J. Lesser
Rebecca H. Lessley
Gregg J. Loubier
Thomas F. Quilling
D. Eric Remensperger
Alexander Shipman

Alice Chen,
Barristers Liaison     

Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Theresa C. Tate
Pamela L. Westhoff
John W. Whitaker
Valerie Wisot
Andrew J. Yamamoto
Sharon Yarber

David Fu,
State Bar Liaison

Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Candace Matson
Land Use Planning & Environmental Law, Peter J. Niemiec
Real Estate Finance, Bruce Fischer & Diane Hvolka
General Real Estate Law, Eric A. Altoon
Title Insurance, Michael S. Robinson