Volume I, Number 9  Join the Real Property Section Contact Us

July, 2006

Recent Cases

Building and Safety
Foreclosure
Homeowners Associations
Land Use

Water Law

-  Building and Safety-
Where property owner appeared without counsel at hearing on petition to appoint receiver but never filed motion for continuance or provided good cause for continuance, trial court’s failure to grant continuance was not abuse of discretion rendering appointment of receiver void. Where city personally served owner with Notice and Order to Comply, and owner had two years to correct violations, and thus city’s failure to follow notice requirements of Health and Safety Code did not prejudice owner’s due process rights, court had jurisdiction to appoint receiver. Where owner allowed property to violate local codes for 15 years, and receiver’s calculations showed demolition was more economical than rehabilitation, court’s approval of demolition was not abuse of discretion.
     City of Santa Monica v. Gonzalez - filed May 31, 2006; publication ordered June 27, 2006, Second District, Div. Two
     Cite as 2006 SOS 3349
     
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  Foreclosure-
An identity theft victim whose name and personal information a perpetrator used without authorization to obtain a purchase money loan for real property is entitled to the undistributed surplus funds from the foreclosure sale of the property where she is the sole claimant to those funds.
     CTC Real Estate Estate Services v. Lepe - filed June 21, 2006, Second District, Div. Five
     Cite as 2006 SOS 3184
     
Full text

  - Homeowners Associations-
Under Civil Code Sec. 1356, which provides that a homeowners association member may petition superior court for reduction in percentage of affirmative votes required to amend CC&Rs if they require approval by "owners having more than 50 percent of the votes in the association," a proposed amendment to CC&Rs must be approved by at least a simple majority of total votes in homeowners association before trial court can reduce percentage of votes set by CC&Rs. Trial court erred in finding that affirmative votes of 21 out of 63 owners, where 32 ballots were cast, met statutory prerequisite of approval by more than 50 percent of owners.
     Peak Investments v. South Peak Homeowners Association, Inc. - filed June 28, 2006, Fourth District, Div. Three
     Cite as 2006 SOS 3385
     
Full text

-  Land Use-
Section of Coastal Act that provides permitted developments shall be designed to "protect views to and along the ocean and scenic coastal areas" does not allow Coastal Commission to consider whether proposed development impacts views of the coast from offshore, ocean-based vantage points.
     Schneider v. California Coastal Commission - filed June 28, 2006, Second District, Div. Six
     Cite as 2006 SOS 3333
     
Full text

Where hotel development project on city land had characteristics similar to those of an earlier unexecuted project on same site for which environmental impact report was prepared and approved, but later project had different proponent and did not use any drawings or other materials connected with earlier project, later project was not a modification of earlier project but an entirely new project requiring an independent environmental impact report. City in approving new project violated California Environmental Quality Act by relying only on addendum to earlier project’s report rather than requiring independent report.
     Save Our Neighborhood v. Lishman (Edward Mackay) - filed June 28, 2006, Third District
     Cite as 2006 SOS 3328
     
Full text

City resolution reducing building permit and plan check fees may be challenged under the Mitigation Fee Act, which requires that fees "may not exceed the estimated reasonable cost of providing the service for which the fee is charged, unless…approved by a popular vote of two-thirds of [voters]," and provides for judicial actions challenging the "modifying or amending [of] an existing fee or service charge." City’s method of determining fees by averaging 9 years of historical data and a 10th year of current estimated data was reasonable. Evidence of fees charged by other localities was not relevant to whether fees charge by city exceeded the city’s estimated reasonable costs of providing the service for which the fee is charged.
     Jenkins v. City of Corona - filed May 10, 2006; publication ordered June 9, 2006, Fourth District, Div. Two
     Cite as 2006 SOS 2956
     
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  Water Law-
Water or wetland constitutes navigable waters under the Clean Water Act if it possesses a "significant nexus" to waters that are navigable in fact or that could reasonably be so made. In determining whether a particular water or wetland possesses a sufficient nexus to waters that are or could be made navigable to warrant navigable waters protection, an assessment must be made in terms of the stated goals of the Clean Water Act, including maintenance of the "chemical, physical, and biological integrity of the Nation’s waters." Relationship between wetlands and navigable waters satisfies nexus requirement if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense. When effects on water quality are speculative or insubstantial, wetlands fall outside act’s definition of navigable waters. Army Corps of Engineers’ interpretation of act, under which wetlands adjacent to tributaries are deemed navigable waters in all cases, is overbroad. While corps may regulate wetlands adjacent to navigable tributaries as "waters of the United States," it must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.
     Rapanos v. United States - filed June 19, 2006
     Cite as No. 04-1034
     
Full text 

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Los Angeles County Bar Association
2006 Real Property Section Newsletter

REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair
Norma J. Williams

First Vice-Chair
Timothy M. Truax

Second Vice-Chair
Donald C. Nanney

Treasurer
Michael S. Klein

Secretary
Pamela L. Westhoff

Immediate Past-Chair
Paula K. Reddish Zinnemann

Hugo Vital,
Section Administrator

EXECUTIVE COMMITTEE MEMBERS

Nedra Austin
Norman A. Chernin
Brant Dveirin
David Fu
Daniel L. Goodkin
John E. Hatherley
Trudi J. Lesser
Rebecca H. Lessley
Gregg J. Loubier
Thomas F. Quilling



Patricia Higuera,
Barristers Liaison   

D. Eric Remensperger
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 and
   Donald C. Nanney
State Bar Liaisons

SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Candace Matson
Land Use Planning & Environmental Law, Peter J. Niemiec
Real Estate Finance, Susan Booth
General Real Estate Law, Eric A. Altoon
Title Insurance, William H. Lynes (Chair) and
   William R. Larr (Co-Chair)