IN THIS ISSUE

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Editor:

Teresa Y. Hillery

Vice President and Trial Counsel
Fidelity National Law Group
Teresa.Hillery@fnf.com

Real Property Executive Committee:

SECTION OFFICERS

Chair
Brant Dveirin

First Vice Chair
Susan J. Booth

Second Vice Chair
Caroline Dreyfus

Treasurer
Claire Hervey Collins

Secretary
Eric Altoon 

Barristers Liaison
Kelsey Thayer

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Nedra E. Austin
Michael J. Bayard
Martha C. Bringas
Elizabeth Spedding Calciano
William G. Coskran
Robert T. Flick
Peter A. Gelles
Daniel L. Goodkin
Marcia Z. Gordon
Owen P. Gross
Byron Hayes, Jr
Marybeth Heydt
Lore A. Hilburg, Esq
Teresa Y. Hillery
Laurence L. Hummer
Gordon Hunt
Bryan C. Jackson
Robert D. Jaffe
Donna E. Kirkner
Michael S. Klein
Mark L. Lamken
Trudi J. Lesser
Gregg J. Loubier
Victor I. Marmon
Jerold L. Miles
O'Malley M. Miller
Donald C. Nanney
Gytis L. Nefas
Beth Peterson
Nadav Ravid
D. Eric Remensperger
James D. Richman
Misty Marie Sanford
Floyd Sayer
Margaret J. Schock
Ronald I. Silverman
Linda E. Spiegel
Sarah V J Spyksma
Theresa C. Tate
Kelsey M. Thayer
Timothy M. Truax
Richard S. Volpert
Ira J. Waldman
Brandon Dominic Ward
Alan Wayte
Pamela L. Westhoff
Norma J. Williams
Grace Winters
Andrew (Andy) J. Yamamoto
Paula Reddish K. Zinnemann

SUBSECTION CHAIRS

Construction Law
Donna Kirkner
Finance Committee
Owen Gross
General Property
Beth Peterson
Land Use Planning & Environmental Law
Brandon Ward
Title Insurance
Lore A. Hilburg

 

Introductory Remarks

Our Real Property section is off to a great start. On January 19, 2016, approximately 50 attendees participated in our Title Insurance subsection's seminar, Death Is Not the End: What Happens to Real Estate When Mortality Interferes ... or Everything You Wanted to Know About Probate Practice but Did Not Want to Ask. This relevant seminar focused on the intersection of probate and real estate law, and it covered underwriting and litigation strategies to avoid pitfalls and future problems. It also identified and discussed common issues and provided helpful tips when litigating in Probate Court. The distinguished speakers were Hon. Joseph S. Biderman (Ret.), Marshal Oldman, Esq. and Marc Sallus, Esq. Many thanks to all who made this seminar a success!

Sincerely,
Teresa Y. Hillery
Editor, Real Property Section Newsletter
E-mail address: Teresa.Hillery@fnf.com

Coming Event

Annual Construction Law Update and Flaig Award

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Recent Cases

-Bankruptcy-

Owner of rental property did not violate the bankruptcy's automatic stay by evicting a chapter 13 debtor/tenant because the debtor/tenant had no legal or equitable interest remaining in the property at the time of his eviction. The unlawful detainer judgment and writ of possession entered pursuant to California Code of Civil Procedure §415.46 bestowed legal title and all rights of possession upon the owner/landlord.

In re Perl - filed January 8, 2016
Cite as 2016 S.O.S. 14-60039
Full text click here

-Damages-

In calculating damages due general contractor as a result of subcontractor's nonperformance, trial court did not err in utilizing the Eichleay method to calculate extended home office overhead damages or in using the modified total cost method of calculating disruption and delay damages. Court did not err in finding surety liable under performance bonds, because formal notice of default was not a condition precedent to plaintiff's recovery under the bonds.

JMR Construction Corp. v. Environmental Assessment and Remediation Management, Inc. - filed December 30, 2015, Sixth District
Cite as 2016 S.O.S. 19
Full text click here

-Rescission-

A two-year delay in bringing suit to rescind real estate purchase deprived purchaser of the equitable remedy of rescission under California law. Instead of investigating and pursuing its claims once it discovered the lack of electricity, Plaintiff took actions that were inconsistent with unwinding the contract, including encumbering the property, building improvements, and attempting to sell it.

DM Residential Fund II, LLC v. First Tennessee Bank National Association - filed December 30, 2015
Cite as 2015 S.O.S. 13-56309
Full text click here

-Unlawful Detainer-

Tenant in rent-controlled unit was subject to eviction for failure to comply with 10-day notice requiring her to stop unauthorized subletting of premises. Purported consent of landlord's predecessor for tenant to make premises available for transient occupancy via Airbnb website was unlawful where inconsistent with zoning regulations.

Chen v. Kraft - filed January 13, 2016
Cite as 2016 S.O.S. 269
Full text click here

-Wrongful Foreclosure-

Plaintiff, who alleged that his home was foreclosed upon while the loan servicer was reviewing his loan for a modification under the Home Affordable Modification Program, stated a cause of action against the loan servicer for violation of the Unfair Competition Law. Plaintiff, who attempted to plead a wrongful foreclosure claim against the trustee, was entitled to leave to amend his complaint to allege that the trustee was an agent of the loan servicer. Foreclosing beneficiary, who allegedly purchased the property at foreclosure sale, was an indispensable party to cause of action for cancellation of instruments. Where plaintiff otherwise stated a cause of action for cancellation but failed to join the beneficiary, he was entitled to do so by amendment, provided the property was still owned of record by the foreclosing beneficiary and not by a bona fide purchaser for value.

Majd v. Bank of America, N.A. - filed December 21, 2015, publication ordered January 14, 2016, Fourth District, Div. Three Cite as 2016 S.O.S. 313
Full text click here