dark blue triangle in newsletter heading
Introductory Remarks
Coming Events
CLE Anytime
Recent Cases

The Real Property Section Newsletter is published monthly by the Real Property Law Section.

Teresa Y. Hillery
Vice President and Trial Counsel
Fidelity National Law Group


Real Property Executive Committee:


Caroline Dreyfus

First Vice Chair
Claire Hervey-Collins

Second Vice Chair
Eric Altoon

Misty Sanford

Nedra E. Austin

Immediate Past Chair
Susan J. Booth

Barristers Liaison
Christopher Bordenave

Section Administrator
Fatima Jones



Janna Boelke
James Earle
George Fatheree
Daniel L. Goodkin
Owen P. Gross
Marybeth Heydt
Teresa Y. Hillery
Ben Howell
Laurence L. Hummer
Donna E. Kirkner
Trudi Lesser
Daniel K. Liffmann
Linda E. Spiegel
Kelsey M. Thayer
Loretta Thompson
Seth Weissman



Michael Bayard
Elizabeth Spedding Calciano
Norm Chernin
Brant H. Dveirin
Peter Gelles
Byron Hayes
Gordon Hunt
Bryan Jackson
Michael Klein
Mark Lamken
Gregg Loubier
Victor Marmon
Jerold L. Miles
O'Malley Miller
Donald Nanney
Gytis Nefas
Sarah Spyksma
Theresa Tate
Timothy Truax
Richard Volpert
Ira Waldman
Pamela Westhoff
Norma Williams


Commercial Development and Leasing
Marcia Gordon

L. Adam Winegard
Jane Hinton
General Real Property
Rachel Sanders
Land Use Planning & Environmental Law
Beth Hummer
Title Co-Chairs
Brendan B. Penney
Vanessa A. Widener



Introductory Remarks

The Los Angeles County Bar Association Real Property Section would like your input on how the Real Property Section can be more useful to your practice. We are seeking to enhance the experience of the Real Property Section for junior real estate attorneys and greatly value your insight and any suggestions for improvements. Please click the following link to access the survey:

We appreciate your response to the survey by no later than Friday, March 16th. Thank you for your time. If you have any questions about the survey or membership, please contact Kelsey Thayer, the Real Property Section Membership Chair, at

Teresa Y. Hillery
Editor, Real Property Section Newsletter
E-mail address:

Coming Events

March 7

The Top Ten Real Estate Cases of 2017
This program will cover important cases decided by California courts and the U.S. Supreme Court in 2017 that impact the practice of real estate law in California.

> Click here for more information

February 27

Murky Marketability of Title in California-Encroachments
This presentation will briefly examine the history and meaning of marketability of title in California.

> Click here for more information

March 20

Silly and Sometimes Stupid Opinion Requests
Our panelists will discuss legal opinions for real estate finance transactions. While touching on the opinions required—including authority, enforceability, and property-related opinions and the assumptions, limitations, and qualifications that counsel should include to limit exposure, the panel will focus on the sublime and absurd opinion requests from which we can all derive some good substantive lessons.

> Click here for more information

March 27

Compliance 101
Are you confused about understanding and meeting the requirements of Prevailing Wage Compliance and Project Labor Agreements? Not sure how to interpret and apply the new public works regulations? Join us as we dive into each topic and learn what you need to know to help your clients succeed on their projects.

> Click here for more information

March 29

Drafting CC&Rs and REAs: The Basics and More
Marcia Z. Gordon, Esq. and Kevin M. Kemper, Esq., partners of Gordon Kemper LLP and seasoned real estate attorneys, will discuss the basics of drafting CC&Rs and REAs, when to use one form versus another, and important considerations when formulating the initial drafts of these documents.  Also, there will be a brief review of some recent California cases concerning these documents.

> Click here for more information

April 24

The Art of the Archive
Document retention is a critical legal and administrative issue for construction and design firms. The basic question is simple: How long do I keep this paper/email/report/roll of plans, and what is the best method to store it? To answer this question requires knowledge of both the law and best practices in the industry. We’ll examine how to advise your construction client regarding document retention from a practical and legal perspective, and explore workable principles that you can use to help construction and design professionals manage documents with confidence.

> Click here for more information


LACBA Real Property CLE Anytime

Even if you can't attend our Real Property Section events, you can earn CLE credit by viewing our streaming videos. Here are a few options. Click any link below.

A Practical Guide to the Subdivision Map Act
Annual Construction Law Update and Flaig Award
Arbitration Provisions in Leases and Purchase and Sale Agreements: Considerations and Insights

Recent Cases
- CEQA -

The California Environmental Quality Act is concerned with significant effects on the environment, not with purely economic impacts. An environmental impact report's failure to analyze the potential for urban decay did not render it fatally flawed.

Visalia Retail, LP v. City of Visalia - filed Jan. 4, 2018, publication ordered Jan. 31, 2018, Fifth District
Cite as 2018 S.O.S. 553
Full text click here >

An agency's issuance of a public regulatory advisory stating that fleet operators could take advantage of the proposed regulatory modifications before they were enacted, and would not be subject to enforcement actions or penalties if those modifications were not enacted, is sufficient conduct to constitute approval of those regulations under the California Environmental Quality Act. Approvals under CEQA are not dependent on final action by the lead agency, but by conduct detrimental to further fair environmental analysis. The State Air Resources Board cannot ignore evidence of impacts to specific segments of businesses already doing business in California from benefits to other instate businesses when proceeding under the Administrative Procedures Act.

John R. Lawson Rock & Oil, Inc. v. State Air Resources Board - filed Jan. 31, 2018, Fifth District
Cite as 2018 S.O.S. 627
Full text click here >

- Davis-Stirling Act -

A homeowner was not entitled to declaratory relief to prevent a homeowners' association from violating the Davis-Stirling Common Interest Development Act in the future when the only evidence provided by the homeowner to support her claim that a future violation was likely was evidence that the HOA had violated the act in the past. Nothing in the language in the act or the legislative history of Civil Code Sec. 5145 demonstrated a legislative intent to depart from well-established principles that fees and costs are ordinarily not granted for interim success, and that the prevailing party is determined, and fees and costs awarded, at the conclusion of the litigation.

Artus v. Gramercy Towers Condominium Association - filed Jan. 24, 2018, First District, Div. One
Cite as 2018 S.O.S. 439
Full text click here >

Civil Code Sec. 5980's grant of standing to homeowners associations to sue for property damage to common areas is not limited to property damage claims asserted against private entities. An association may have standing under Sec. 5980 against a public entity for inverse condemnation for damage to a common boundary wall.

Sierra Palms Homeowners Association v. Metro Gold Line Foothill Extension Construction Authority - filed Jan. 29, 2018, Second District, Div. Seven
Cite as 2018 S.O.S. 516
Full text click here >

- Deeds of Trust -

When two deeds of trust are submitted at the same time for recording, the trial court reasonably relied on the apparent intent of the parties to determine the priority of the liens. When both liens involved the sane lender, the reasonable expectation is that it would secure the much larger loan in the primary position.

MTC Financial, Inc. v. Nationstar Mortgage - filed Jan. 23, 2018, First District, Div. Three
Cite as 2018 S.O.S. 368
Full text click here >

The assignee of a deed of trust has a right to prove damages under Civil Code Sec. 2941 against a title company that had improperly released the obligation on the deed of trust before the assignment was made.

SMS Financial XXIII v. Cornerstone Title Company - filed Jan. 26, 2018, First District, Div. Two
Cite as 2018 S.O.S. 513
Full text click here >

- EIR -

The exhaustion requirement that generally apply to parties contesting the adequacy of an environmental impact report do not apply to the Attorney General. An increase in a rail yard's capacity does not necessarily create growth in demand. A final environmental impact report was inadequate since it did not disclose or estimate, how frequently and for what length of time the level of particulate air pollution in the area surrounding the proposed rail yard will exceed the standard of significance.

City of Long Beach v City of Los Angeles (BNSF Railway Co.) - filed Jan. 12, 2018, First District, Div. Three
Cite as 2018 S.O.S. 266
Full text click here >

- Railroad Right-of-Way Act

Congressional acts conferring a right-of-way to railroads prior to 1871 conferred a fee simple defeasible in everything except the mineral estate. After the enactment of the General Railroad Right-of-Way Act of 1875, railroad rights of way confer all rights incident to a use for railroad purpose. This interest allows a railroad to lease the subsurface as well as the surface of its right of way as long as it continues to use the right of way to operate a railroad.

Wells v. Union Pacific Railroad Company - filed Feb. 6, 2018
Cite as 2018 S.O.S. 16-56562
Full text click here >

-- Unlawful Detainer --

Because the scope of an unlawful detainer proceeding is limited, the preclusive effect of an unlawful detainer judgment is likewise limited. An unlawful detainer judgment awarding back-due rent does not preclude a lessor from seeking additional back-due rent in an ordinary civil action, although the lessor is precluded from recovering back-due rent associated with a particular time period in the subsequent civil action if such a claim was actually determined on the merits in the unlawful detainer action.

Hong Sang Market v. Peng - filed Feb. 13, 2018, First District, Div. Three
Cite as 2018 S.O.S. 771
Full text click here >

-- Water Use --

The diversion and pumping activities of competing water users must be considered in determining the reasonableness of a party's water use, so the party's cross-complaint against the competing water users should not have been stricken from the litigation.

Santa Barbara Channelkeeper v. City of San Buenaventura - filed Jan. 30, 2018, First District, Div. Two
Cite as 2018 S.O.S. 547
Full text click here >

The Clean Water Act is violated when pollutants are discharged from a point source, the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water, and the pollutant levels reaching navigable water were more than de minimis.

Hawaii Wildlife Fund v. County of Maui - filed Feb. 1, 2018
Cite as 2018 S.O.S. 15-17447
Full text click here >


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