Volume 3, Number 11 Join the Real Property Section Contact Us

October 2008     

 

 

Castle Lyons Expert Real Estate Witness


Special Message

The 38th Annual Crocker Symposium, presented by the Real Property Section of the Association and the Richard S. Ziman Center for Real Estate at UCLA, will be held in the spring of 2009. The symposium will provide important information on developments in real estate law and business, and forward-thinking views on survival and opportunity in troubled times.
Planning is just underway. 
Opportunities for participation and sponsorship are still available.
For more information, please contact Tracy Kwiker, Symposium Executive Producer, at 310.478.0170 or by sending an email. (Click the link or copy & past this email address: crocker2009@pivotalevents.com ).


-Bankruptcy-
Where debtors filed joint chapter 7 petition and--without authorization from trustee, who had not recorded petition in county recorder’s office--retained realtor, whom debtors did not inform of bankruptcy proceedings, and sold homestead, bankruptcy code did not preempt California’s bona fide purchaser statute. Automatic stay triggered by petition does not void transfers of estate property initiated by debtor.

In re Tippett - filed September 4, 2008
    Cite as 06-15411
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-Community Property-
Estate plan’s express agreement that separate property being transferred to trust was to become community property was sufficient to effect transmutation of property under Family Code Sec. 852, notwithstanding language in transmutation agreement and trust purporting to qualify, limit, or condition transfer upon either spouse’s death.

In re Marriage of Holtemann - filed September 15, 2008, Second District, Div. Six
     Cite as 2008 SOS 5509
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-Construction Law-
Property owner and its general contractor were not liable for injuries suffered by demolition subcontractor's employee struck by gushing water from broken pipe, where defendants--although they had the ability to shut off the pipe after the accident occurred--delegated safety measures to plaintiff's employer, which made no request to shut off the water and could have set up an emergency valve on the pipe. State regulation requiring that "[u]tility companies shall be notified and all utility service shut off, capped, or otherwise controlled, at the building or curb line before starting demolition, unless it is necessary to use electricity or water lines during demolition," but not specifying who is to carry out those acts, does not impose non-delegable duties on property owners or general contractors, and a cause of action for negligence per se cannot be maintained against such parties based on the regulation. Liability for failure to disclose hazardous condition could not be imposed where the allegedly hazardous condition was pressurized PVC pipe and the pressurization in the pipe was fully disclosed to plaintiff's employer, which knew of the pipe and failed to take necessary precautions to protect it from harm during demolition process.

Padilla v. Pomona College - filed September 3, 2008, Second District, Div. Seven
     Cite as 2008 SOS 5362
     
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-Construction Law-
Under "completed and accepted" doctrine, when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. Undisputed evidence that machine whose alleged defect caused plaintiff's injuries had been fully installed prior to the accident, and that defendant electrical contractor did no work on the machine thereafter, was sufficient to show that work had been "completed," even though defendant maintained workers in other parts of the project area pursuant to the contract and building inspectors had not yet signed off on the work on the machines.

Jones v. P.S. Development Company, Inc. - filed September 3, 2008, Second District, Div. Four
     Cite as 2008 SOS 5367
     
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-Easements-
View easement was extinguished by merger where owners of the burdened and benefited properties were the same persons, even though one property was owned as joint tenants and the other as tenants in common with one owner holding title as trustee.

Zanelli v. McGrath - filed September 2, 2008, First District, Div. One
      Cite as 2008 SOS 5353
     
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-Eminent Domain-
Where landowners in disputed condemnation action sought to introduce evidence of sales at three nearby subdivisions that took place after taking, district court's per se ruling excluding evidence of all post-taking sales during trial on issue of just compensation was abuse of discretion prejudicing landowners.

United States v. 4.85 Acres of Land - filed September 29, 2008
     Cite as 07-35310
     
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-Homeowners' Associations-
Trial court did not abuse its discretion by granting homeowner’s association petition to reduce percentage of votes necessary to amend CC&Rs where proposed amendment--requiring that any rental of a home be for a minimum of 30 days--was a reasonable response to members’ desire that development not be opened to transient occupancy.

Mission Shores Association v. Pheil - filed September 5, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 5398

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-Homeowners' Associations-
Developer-written requirement that all disputes between homeowners and developer, and between homeowners’ association and developer, be decided by a general judicial reference pursuant to Code of Civil Procedure Sec. 638 was not a "written contract" waiving right to trial by jury because legislature did not mean term to include equitable servitudes created by covenants, conditions, and restrictions of common interest communities.

Treo @ Kettner Homeowners Association v. Superior Court (Intergulf Construction Corporation) - filed September 12, 2008, Fourth District, Div. One
     Cite as 2008 SOS 5477
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-Homesteads-
Where debtors filed joint chapter 7 petition and--without authorization from trustee, who had not recorded petition in county recorder’s office--retained realtor, whom debtors did not inform of bankruptcy proceedings, and sold homestead, bankruptcy code did not preempt California’s bona fide purchaser statute. Automatic stay triggered by petition does not void transfers of estate property initiated by debtor.

In re Tippett - filed September 4, 2008
     Cite as 06-15411
     
Full text

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-Inverse Condemnation-
Where landowner’s storm drain pipe was too small to satisfy city’s storm drain requirements, city requested that landowners install larger pipe in exchange for city’s approval of landowner’s permit application and waiver of certain fees, and landowners subsequently installed larger pipe, landowners voluntarily contracted with city to install larger pipe, and thus installation of larger pipe was not a "taking" by city.

Tapps Brewing, Inc. v. City of Sumner - filed September 25, 2008
     Cite as 07-35231
     
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-Land Development-

Where petitioner cited by county for grading without a permit sought writ of mandate after receiving unfavorable administrative decision, trial court’s denial on basis that petitioner should have obtained a grading permit from county in addition to any approvals by other agencies was not error under any standard of review.

Martin v. Riverside County Department of Code Enforcement - filed September 19, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 5410
     
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-Purchase and Sale-

Where neither potential home buyer nor buyer's agent attempted to meet seller's terms, buyer could not be considered a "qualified" purchaser for purposes of establishing a prima facie claim for discrimination against seller's listing agents. Where plaintiff's offered a purchase price 10 percent above list price but also contained a seller carryback provision, plaintiff was not "similarly situated" with person who eventually purchased house for just under list price amount. Absent evidence that seller's listing agents acted with intent to secure purchase of house by a person of a different race than plaintiff, disparaged plaintiff and her agent on account of their race, or treated only African Americans or disabled individuals the way they treated plaintiff and her agent, plaintiff failed to establish evidence of a discriminatory motive by seller's agents.

McDonald v. Coldwell Banker - filed September 10, 2008
     Cite as 06-16563
     
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-Real Estate Brokers-
Where real estate speculator entered into a standard form Buyer Broker Contract, whereby broker agreed to represent speculator in purchasing certain properties, and buyer agreed to pay commissions upon close of escrow or "the Buyer's default" and to "cooperate with Seller and...use best efforts and diligently take any action necessary to timely close escrow," and buyer subsequently refused to close escrow on some of the properties because their value did not significantly appreciate during escrow period, buyer was in "default" of its obligations to broker and liable for commissions. Business and Professions Code Sec. 10176(f)--under which the Real Estate Commissioner may discipline a broker for claiming a commission under an exclusive agreement if it does not contain a "definite, specified date of final and complete termination"--does not automatically void buyer-broker contract providing for termination upon close of escrow for the specified properties, and burden is on broker to show why noncompliance with statute should excuse its obligation to pay earned commissions. Contract entered into prior to close of escrow, whereby broker assigned to its salesperson its right to commissions on certain properties, did not violate Sec. 10138, requiring broker to supervise salespersons through close of escrow, where reason for assignment was to extricate broker from potential litigation based on buyer’s anticipated refusal to close on some of the properties.

Schaffter v. Creative Capital Leasing Group, LLC - filed August 11, 2008, publication ordered September 4, 2008, Fourth District, Div. One
     Cite as 2008 SOS 5378
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-Real Estate Brokers-
Where neither potential home buyer nor buyer's agent attempted to meet seller's terms, buyer could not be considered a "qualified" purchaser for purposes of establishing a prima facie claim for discrimination against seller's listing agents. Where plaintiff's offered a purchase price 10 percent above list price but also contained a seller carryback provision, plaintiff was not "similarly situated" with person who eventually purchased house for just under list price amount. Absent evidence that seller's listing agents acted with intent to secure purchase of house by a person of a different race than plaintiff, disparaged plaintiff and her agent on account of their race, or treated only African Americans or disabled individuals the way they treated plaintiff and her agent, plaintiff failed to establish evidence of a discriminatory motive by seller's agents.

McDonald v. Coldwell Banker - filed September 10, 2008
     Cite as 06-16563
     Full text

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Real Property Scheduled Events -- View All Real Property Events -- Sign Up Now

  • Attorney and CPA: LLC, Corporation or Partnership: Which Entity Should Your Developer, Landlord and Tenant Client Select and Why? (Oct 23) Sign Up Now.
  • Meeting the Challenge of the Construction Defect Claim: A Pro-Active Risk Management Strategy (Oct 28). Sign Up Now.
  • Working the Work Letter: Why Exhibit C Should be Page 1 (Nov 5). Sign Up Now.
  • Nuts & Bolts of Land Use (Nov 12). Sign Up Now.
  • Title Insurance for Working out of Troubled Commercial Loans (Nov 18). Sign Up Now.
  • When borrower defaults, it is lender vs. lender (Nov 19). Sign Up Now.

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Los Angeles County Bar Association
2008 Real Property Section Newsletter
REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair
Donald C. Nanney

First Vice-Chair
Michael S. Klein

Second Vice-Chair
Pamela L. Westhoff

Treasurer
Gregg J. Loubier

Secretary
Theresa C. Tate

Immediate Past-Chair
Timothy M. Truax

Chair Emeritus
Norma J. Williams,

Section Administrator
Terrina Scott

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
James L. Brat
Norman A. Chernin
Brant H. Dveirin
Daniel L. Goodkin
Rebecca H. Lessley

Peter J. Niemiec
D. Eric Remensperger
Devid C. Sampson
Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Valerie Wisot
Andrew J. Yamamoto


SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Brian Ostler
Land Use Planning & Environmental Law, Claire Hervey Collins
Real Estate Finance, Caroline Dreyfus
General Real Estate Law, Nadav Ravid
Title Insurance, David M. Marcus

 

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