dark blue triangle in newsletter heading
Introductory Remarks
Coming Events
Save the Date!
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

There are several events next month and beyond to help you excel in your practice. From live programming to CLE Anytime, the Real Property Section focuses on all aspects of real property law, both transaction and litigation. If you just want to mingle with fellow attorneys, sample complimentary appetizers, wine and beer, we have a happy hour event for you.

If you don’t see anything of interest, email me your ideas!

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

Coming Events


Date of event changed to November 16, 2018

Happy Hour Book Talk
The Real Property Outreach Committee cordially invites you to a happy hour book talk from 6:00 p.m. to 8:00 p.m. on Thursday, November 16, 2017, with Leslie ("Les") Klinger at the Eisner Jaffe offices, 9601 Wilshire Blvd., 7th Floor, Beverly Hills, CA 90210. Mingle with fellow attorneys, sample complimentary appetizers, wine and beer and meet Les Klinger, attorney by day, prolific author by night (or vice versa).

> Click here for more information

October 18

Bankruptcy Drivers of Real Estate Financing Structures
This presentation covers some of the fundamental principles of bankruptcy underlying the evolution of real estate financing structures in today's market, and discusses how varying structures and provisions can affect results in a future workout or bankruptcy.

> Click here for more information

October 24

All the Different Ways to Recover Attorney's Fees
Maze or Labyrinth: All the Different Ways to Recover Attorney's Fees in Construction Litigation

> Click here for more information

November 9

Strategies and Tips on How to Get Ahead as a Junior Transactional Attorney
Join our panel for a lively discussion on how to be proactive, build relationships, and effectively manage your time as a junior associate while navigating the many demands and expectations that you’ll face from partners and clients

> Click here for more information

January 24

Making Cents of Construction Costs and Damages
All roads in construction claims lead to damages. Whether you represent owners or contractors, dollars represent the end game.

> Click here for more information

Save the Date!

January 17

Silly and Sometimes Stupid Opinion Requests in Financing Transactions

March 21

Affordable housing finance, including a discussion on tax credits and related issues

April 18

2017-2018 - Recent Developments in Real Estate Finance

May 16

How is the Capital Stack Stacking up in 2018?


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 question of whether a proposed project is consistent with a county's general plan is not a CEQA issue. An agency's decisions regarding general plan consistency are reviewed by ordinary mandamus. An agency's findings that a project is consistent with its general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion.

The Highway 68 Coalition v. County of Monterey (Omni Resources) - filed July 31, 2017, publication ordered August 24, 2017, Sixth District
Cite as 2017 S.O.S. 4301
Full text click here >

- Condemnation -

A district court abused its discretion by declining to stay federal proceeding seeking condemnation of a property when there was a pre-existing state court proceeding which involving the same property and overlapping issues which are governed by state law, and where the state court is able to resolve all the issues and adequately protect the rights of the litigants.

Montanore Minerals Corporation v. Bakie - filed Aug. 16, 2017
Cite as 2017 S.O.S. 15-35707
Full text click here >


A tree qualifies as a work of public improvement for purposes of inverse condemnation if the tree is deliberately planted by or at the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road.

Mercury Casualty Co. v. City of Pasadena - filed Aug. 24, 2017, Second District, Div. Three
Cite as 2017 S.O.S. 4315
Full text click here >

- EPA -

A consent decree which obligated the Environmental Protection Agency to promulgate designations on whether geographic areas met national ambient air quality standards cannot dispose of the valid claims of nonconsenting intervenors. For that same reason, it also cannot affect or bind the intervenors to any specific action.

State of North Dakota v. McCarthy - filed Aug. 28, 2017
Cite as 2017 S.O.S. 15-15894
Full text click here >

- Equitable Estoppel -

While the issuance of a permit may insulate a party against subsequent changes in the law, it cannot create a vested right to construct or use property in violation of laws in effect at the time of issuance of the permit. The doctrine of equitable estoppel did not prohibit revocation of a permit absent a showing of great injustice and extraordinary circumstances. The Department of Transportation's act of leasing of its sewer line to a private party does not serve its governmental function of managing public transportation systems, so a property owner's use of that line for sewage treatment and disposal is not protected from local regulation by the doctrine of sovereign immunity. When a litigant suspects bias on the part of a member of an administrative hearing body, the issue must be raised in the first instance at the hearing or the claim is waived.

Attard v. Board of Supervisors of Contra Costa County - filed Aug. 29, 2017, First District, Div. Four
Cite as 2017 S.O.S. 4378
Full text click here >

- Foreclosure -

The Federal Foreclosure Bar applies to private association foreclosures generally, and it does not protect the property only from state and local tax liens. The Federal Foreclosure Bar implicitly demonstrated a clear intent to preempt Nevada's super priority lien law by expressly prohibiting foreclosures on the Federal Housing Finance Agency's property without consent. In an agency relationship, a note owner remains a secured creditor with a property interest in the collateral even if the recorded deed of trust names only the owner's agent.

Berezovsky v. Bank of America - filed Aug. 25, 2017
Cite as 2017 S.O.S. 16-15066
Full text click here >

- Leasehold Estate -

An express assumption of a real property lease requires specific affirmation by the assignee to bind itself to the lease obligations. The purchase of the leasehold estate--identified in the deed of trust by reference to the lease--did not constitute an express agreement to assume the obligations of the lease.

BRE DDR BR Whittwood CA, LLC v. Farmers & Merchants Bank of Long Beach - filed Aug. 29, 2017, Second District, Div. Five
Cite as 2017 S.O.S. 4427
Full text click here >

- NEPA -

A National Environmental Policy Act dispute was not rendered moot by the completion of the challenged action when other remedies remain available. A Land and Resource Management Plan that outlined steps to be taken in the event of user conflicts did not mandate the closure of any area if the conflicts persisted. The Forest Service did not violate the National Forest Management Act by issuing a draft environmental impact statement and then issuing a finding of no significant impact without providing an explanation for its change in position.

Wild Wilderness v. Allen - filed Sept. 8, 2017
Cite as 2017 S.O.S. 14-35505
Full text click here >

- NHPA -

A plaintiff has standing to sue the government under the National Historic Preservation Act and the Administrative Procedure Act for its alleged failure to consider the cultural, aesthetic, economic, and environmental interests affected by a proposed overseas development project. The question of whether a plaintiff establishes causation for an injury under the NHPA turns on whether there has been a violation of the required NHPA process, not the result of the violation. A plaintiff establishes redressability for an NHPA violation by evidence that an agency's adherence to correct procedure may influence the agency's ultimate decision of whether to take or refrain from taking a certain action. The evaluation of a plaintiff's claims for declaratory and injunctive relief under the NHPA and APA do not involve a non-justiciable political question.

Center for Biological Diversity v. Carter - filed Aug. 21, 2017
Cite as 2017 S.O.S. 15-15695
Full text click here >

- Redevelopment -

A city that once had a redevelopment agency made a loan to a successor that gave rise to an enforceable obligation for repayment when the city, acting as the agency's successor, contracted with a construction company to made improvements that the agency had been legally obligated to provide for a redevelopment project. Even if a loan agreement between a successor agency and the municipality that created the redevelopment agency the successor agency succeeded is not approved in advance, the oversight board is still able to exercise its supervisory power over the successor agency with regard to the loan agreement. The failure of the city as successor to obtain prior approval from the oversight board before entering into the loan agreement thus does not provide a valid reason to deny the city as successor's request for money to repay the loan. The dissolution law cannot be constitutionally enforced to deny a city as successor the right to obtain money from the Redevelopment Property Tax Trust Fund to pay an agency that had a contractual obligation to pay a private company for its work on a revitalization project.

City of Anaheim v. Cohen - filed Aug. 30, 2017, Third District
Cite as 2017 S.O.S. 4415
Full text click here >


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