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VOLUME 16 | NUMBER 5 | MAY 2021
 
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IN THIS ISSUE
 
Introductory Remarks
>
Coming Events
>
CLE Anytime
>
Members Spotlights
>
Recent Cases
>
 

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

Editor:
Rachel M. Sanders
Senior Counsel | Real Estate Litigation
Allen Matkins Leck Gamble Mallory & Natsis LLP
rsanders@allenmatkins.com

 

Real Property Executive Committee:

SECTION OFFICERS

Chair
Kelsey M. Thayer 

Vice Chair (Programming)
Teresa Y. Hillery 

Vice Chair (Communications)
Rachel M. Sanders

Vice Chair (Membership)
Daniel K. Liffmann

Treasurer
Owen P. Gross

Secretary
Trudi J. Lesser

Immediate Past Chair
Eric A. Altoon

 

EXECUTIVE COMMITTEE MEMBERS

Norman A. Chernin
Claire Hervey Collins
Caroline Dreyfus
Brant H. Dveirin
Kimia Ghalambor
Marcia Gordon
Jane L. Hinton
Laurence L. Hummer
Danielle Katzir
Linda E. Spiegel
Ira J. Waldman

Law School Liaison
Misty M. Sanford

Barrister’s Liaison (non-voting)
Vivienne Chen

Section Administrator
Fatima Jones

 

SUBSECTION CHAIRS

Commercial Development and Leasing Subsection, Co-Chairs
Steven Farenbaugh
Dan Villalpando

Construction Law Subsection, Chair
John D. Hanover

General Real Property Subsection, Co-Chairs
Michael Davis
Joe Dzida

Land Use Planning and Environmental Law, Subsection Chair
Julie Hamill

Real Estate Finance Subsection, Co-Chairs
Mark Hikin
Gretta Moy

Title Insurance Subsection, Chair
James H. Treadwell

 

PAST CHAIRS

Roy H. Aaron*
Eric A. Altoon 
Michael J. Bayard
Stephen M. Blitz
Susan J. Booth
Elizabeth Spedding Calciano
Robert E. Carter
Norm Chernin
R. Bradbury Clark*
Claire Hervey Collins 
Professor William Coskran*
Caroline Dreyfus
Anson Dreison*
Brant H. Dveirin
Peter Gelles
Gail Gordon*
Byron Hayes, Jr.
Gordon Hunt
Bryan C. Jackson
Michael S. Klein
Preston Kline*
Bernard Kolbor
Robert Krueger*
Mark L. Lamken*
Marvin Leon
Gregg J. Loubier
Victor I. Marmon
Jerold L. Miles
O’Malley M. Miller
Rodney Moss*
Donald C. Nanney
Gytis L. Nefas
Carl B. Phelps
Laurence G. Preble
James D. Richman
Peter E. Robinson
Floyd Sayer*
Margaret J. Schock
Ronald I. Silverman
Sarah V.J. Spyksma
Theresa C. Tate
Timothy M. Truax
Richard S. Volpert
Ira J. Waldman
Alan Wayte*
Pamela L. Westhoff
John W. Whitaker
George H. Whitney*
Norma J. Williams
John M. Yunker, Jr.
Paula Reddish Zinnemann

*Deceased

 

 

Introductory Remarks

Please join the Diversity Task Force of the Real Property Section on June 8, 2021 at 6 p.m. via Zoom for a discussion with Richard Rothstein, author and distinguished fellow of the Economic Policy Institute. Mr. Rothstein will be discussing his book, “The Color of Law – A Forgotten History of How Our Government Segregated America,” and the historical role played by government and our courts in sanctioning discrimination and the segregation of neighborhoods. The program will be free of charge and 100 registrants will receive a free copy of “The Color of Law” following the presentation. For further information and to register for the program, please visit: https://lacba.zoom.us/webinar/register/WN_v9EF7L1eTASDvlYTEd8X7w

The Real Property Section’s Virtual Officer Installation will take place on June 17, 2021 at 6 p.m. via Zoom. Additional details to follow.

Rachel M. Sanders
Editor, Real Property Section Newsletter
E-mail address: rsanders@allenmatkins.com


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Coming Events
 

June 8, 6:00 p.m. -7:00 p.m.
Reflections on "The Color of Law: A Forgotten History of How Our Government Segregated America"

The Diversity Task Force of the Real Property Section is proud to present Richard Rothstein, author and distinguished fellow at the Economic Policy Institute, who will be discussing his book, “The Color of Law – A Forgotten History of How Our Government Segregated America”, and the historical role played by government and our courts in not only declining to end discriminatory state sanctioned actions, but in many cases sanctioning discrimination and segregating neighborhoods, leading to the generational wealth gap that persists today due in large part to the inability of African American families to build wealth through real property ownership. The program will commence with a viewing of the short film “Segregated by Design” directed by Mark Lopez and written and narrated by Mr. Rothstein illuminating historical roots and governmental policies that fostered what may be considered unlawful segregation. The discussion by Mr. Rothstein will follow.

Click here for more information and to register.


June 10, 12:00 p.m. -1:00 p.m.
A Primer on Rent Control, Housing/Land Use, and Affordable Housing Issues in California

This timely program will generally focus on rent control, broader housing and land use issues, and affordable housing. It will also include a lively discussion of the Rental Affordability Act and AB 1482. This is an excellent program for local government lawyers, real estate attorneys, planning professionals, and developers alike.

Click here for more information and to register.

 

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 Primer on How Title Companies Underwrite Construction Loans Since the Last Great Recession
Real Estate Applied Bankruptcy Basics and Evolving Developments in a Post-Pandemic Era
Commercial CC&R's and Reciprocal Easement Agreements
2021 Flaig Award & Annual Construction Law Update
Ground Lease Practice: Beyond the Basics
Nuts and Bolts of E-Recording

 
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Members Spotlights
 

The Real Property Section is excited to feature monthly member spotlights. If you are a member of the Real Property Section and would like to be spotlighted in an upcoming post and newsletter, please contact our social media manager, Vivienne Chen, at viviennechc@gmail.com.

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Recent Cases
 
- Development -

An initiative measure amending a county’s general plan to require traffic-mitigating improvements for new developments was unconstitutional where measure required developers to complete or construct road improvements to address impacts beyond those created by its own projects.

Alliance for Responsible Planning v. Taylor (County of El Dorado) - filed April 19, 2021, publication ordered May 4, 2021, Third District
Cite as 2021 S.O.S. 1980
Full text click here

- Environmental Law -

A petitioner challenging a California Environmental Quality Act determination has the burden of proof to show exhaustion occurred; a list of string-cites to the administrative record without explanation as to how each citation supports the assertion the public agency was fairly apprised of the asserted noncompliance with CEQA, is not sufficient.

Stop Syar Expansion v. County of Napa (Syar Industries) - filed March 25, 2021, modified and certified for partial publication April 23, 2021, First District, Div. One
Cite as 2021 S.O.S. 1700
Full text click here

Although the U.S. Supreme Court has retained original jurisdiction over water rights claims to the Colorado River, an Indian tribe’s motion to amend its breach of trust claim against federal agencies for an alleged failure to consider the tribe’s as-yet undetermined water rights in managing the Colorado River was not futile since the tribe does not seek a judicial quantification of rights to the river, and a lower court has jurisdiction to address the claim. The tribe’s claim was not barred by res judicata, despite the federal government’s representation of the tribe in prior proceedings, since the tribe asser ted a different claim than the water rights claim the federal government could have asserted on the tribe’s behalf in the prior proceedings.

Navajo Nation v. U.S. Department of the Interior - filed April 28, 2021
Cite as 2021 S.O.S. 19-17088
Full text click here

The Environmental Protection Agency abdicated its statutory duty under the Federal Food, Drug and Cosmetic Act by spending more than a decade assembling a record of chlorpyrifos’s ill effects and repeatedly determining it could not conclude the present tolerances caused no harm. Once the EPA became aware, through a petition or otherwise, of genuine questions about the safety of an existing tolerance, the EPA had its own continuing duty under the FFDCA to determine whether a tolerance that was once thought to be safe, still is. When the EPA publishes a petition seeking revocation of a tolerance and later takes final action denying that petition, the EPA leaves that tolerance in effect.

League of United Latin American Citizens v. Regan - filed April 29, 2021 Cite as 2021 S.O.S. 19-71979
Full text click here

A city’s ban on the operation of short-term vacation rentals in the coastal zone constituted a development under the California Coastal Act since it affected the availability of low-cost housing and tourist facilities in the coastal zone.

Kracke v. City of Santa Barbara - filed May 4, 2021, Second District, Div. Six
Cite as 2021 S.O.S. 1964
Full text click here

California Environmental Quality Act Guidelines §15163 applies when an environmental impact report can be made adequate by additions or changes that respond to a limited set of issues, whereas a subsequent EIR is necessary when the previous EIR must be rewritten from the ground up to make its environmental analysis adequate; where a prior EIR undisputedly retained substantial informational value, the State Lands Commission properly proceeded to decide under CEQA’s subsequent review provisions whether project changes will require major revisions to the original environmental document because of the involvement of new, previously unconsidered significant environmental effects; §15163’s may choose language provides discretion to choose between proceeding by way of supplemental EIR instead of subsequent EIR, and that choice is to be evaluated under a reasonableness standard. Where an agency could properly elect to proceed via supplemental EIR and forego preparing a subsequent EIR, one of the requirements of CEQA Guidelines §15052, was not satisfied, and because this requirement was not satisfied, the obligation imposed by §15052(a)(2), that a former responsible agency step in as lead agency, was inapplicable.

California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside)) - filed April 8, 2021, publication ordered May 7, 2021, Third District
Cite as 2021 S.O.S. 2010
Full text click here

There was a Congressional mandate to establish lead-based paint standards and the Environmental Protection Agency was charged with setting and updating three separate hazard standards: the dust-lead hazard standards, paint-lead hazard standards, and the soil-lead hazard standards. The EPA’s 2019 rule for dust-lead hazard standards lowered the lead hazard level but not to a level sufficient to protect health as Congress directed, because the EPA looked to factors in addition to health risks. The EPA failed to meet its ongoing duty to account for new information and modify initial standards to further Congress’ intent to eliminate lead-based paint hazard. The EPA’s existing soil-lead hazard standards did not identify all levels of lead in soil that are dangerous to human health, and thus was contrary to Title IV of the Toxic Substances Control Act.

A Community Voice v. U.S. Environmental Protection Agency - filed May 14, 2021
Cite as 2021 S.O.S. 19-71930
Full text click here >

- Fair Housing Amendments Act -

The Fair Housing Amendments Act of 1988 does not require landlords to accommodate the disability of an individual who neither entered into a lease nor paid rent in exchange for the right to occupy the premises.

Salisbury v. City of Santa Monica - filed April 16, 2021
Cite as 2021 S.O.S. 20-55039
Full text click here >

- Foreclosure -

While Nevada law generally gives delinquent homeowners association dues superpriority over other lienholders, it does not take priority over federal law; the Federal Foreclosure Bar, prohibits the foreclosure of Federal Housing Finance Agency property without FHFA’s consent. When an HOA exercises its right under the Nevada HOA Law to foreclose on a property that is subject to a first deed of trust owned by an FHFA conservatee, the deed is now FHFA property and subject to the Federal Foreclosure Bar.

Nationstar Mortgage v. Saticoy Bay - filed May 5, 2021
Cite as 2021 S.O.S. 19-17043
Full text click here >

- Homeowner Bill of Rights -

The Homeowner Bill of Rights creates liability only for material violations that have not been remedied before the foreclosure sale is recorded; a material violation is one that affected the borrower’s loan obligations, disrupted the borrower’s loan-modification process, or otherwise harmed the borrower. Where a mortgage servicer’s violations stem from its failure to communicate with the borrower before recording a notice of default, the servicer may cure these violations by postponing the foreclosure sale, communicating with the borrower about potential foreclosure alternatives, and fully considering any application by the borrower for a loan modification; following these corrective measures, any remaining violation relating to the recording of the notice of default is immaterial, and a new notice of default is therefore not required to avoid liability.

Billesbach v. Specialized Loan Servicing - filed April 29, 2021, Second District, Div. Four
Cite as 2021 S.O.S. 1845
Full text click here

- Landowner’s Duty of Care -

A landowner does not owe a duty of care to invitees to provide adequate onsite parking under common law principles, or under a municipal ordinance that rezoned the complex’s specific parcel for multifamily dwellings and conditioned that rezoning on providing a specific number of guest parking spaces.

Issakhani v. Shadow Glen - filed April 30, 2021, Second District, Div. Two Cite as 2021 S.O.S. 1891
Full text click here

- Unlawful Detainer -

A 60-Day Notice of Termination of Tenancy was fatally defective and cannot support an unlawful detainer judgment where the notice listed nonpayment of rent as the reason for termination, but it did not include the amount of rent due or any information to permit the tenant to cure the default for nonpayment of rent.

ESA Management v. Jacob - filed March 10, 2021, San Diego Superior Court
Cite as 2021 S.O.S. 1967
Full text click here

 
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