Abbott & Kindermann Land Use Law Blog : California Land Use, Environmental & Real Estate Lawyer & Attorney : Abbott & Kindermann Law Firm : Sacramento, CA

By Glen Hansen

In Pinnacle Museum TowerAssn. v. Pinnacle Market Development (UC), LLC (D055422, July 30, 2010), 2010 Cal.App. LEXIS 1261, the California Court of Appeal for the Fourth Appellate District held that an arbitration provision in a declaration of covenants, conditions and restrictions (CC&R's) recorded by a condominium project developer did not constitute an “agreement” sufficient to waive the constitutional right to jury trial for construction defect claims brought by the homeowners association against the developer.

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Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

• Global Warming: CEQA Guidelines, Mandatory Reporting
• Water Supply Legislation
• CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
• Subdivision Map Extension
• Interpreting Development Agreements
• Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

• Date: Thursday, January 21, 2010
• Location: Double Tree Hotel Modesto, 1150 Ninth Street
• Registration: 12:30 p.m. – 1:00 p.m.
• Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

• Date: Thursday, January 28, 2010
• Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
• Registration: 12:30 p.m. – 1:00 p.m.
• Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

• Date: Friday, February 12, 2010
• Location: Sacramento Hilton Arden West, 2200 Harvard Street
• Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
• Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

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Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

• Global Warming: CEQA Guidelines, Mandatory Reporting
• Water Supply Legislation
• CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
• Subdivision Map Extension
• Interpreting Development Agreements
• Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

• Date: Thursday, January 21, 2010
• Location: Double Tree Hotel Modesto, 1150 Ninth Street
• Registration: 12:30 p.m. – 1:00 p.m.
• Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

• Date: Thursday, January 28, 2010
• Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
• Registration: 12:30 p.m. – 1:00 p.m.
• Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

• Date: Friday, February 12, 2010
• Location: Sacramento Hilton Arden West, 2200 Harvard Street
• Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
• Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

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By Glen C. Hansen

In White v. Cridlebaugh (October 20, 2009) 178 Cal.App.4th 506, the Court of Appeal for the Fifth Appellate District held that homeowners were entitled to recover all compensation paid to a contractor because the responsible managing officer had earlier abandoned the contractor without a replacement, thereby causing the license to be suspended by operation of law. Making matters worse, the unlicensed contractor cannot reduce the homeowners’ recovery by asserting claims of offset arising out of the value of the reasonable materials and services provided by the contractor to the homeowners.

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By Glen Hansen

In Nielsen v. Gibson (October 13, 2009) 178 Cal.App.4th 318, the Court of Appeal for the Third Appellate District held that a couple who bought property from the record owner’s parents while the owner was permanently out of the country was entitled to a judgment for quiet title because the couple improved, maintained, fenced and irrigated the property, and paid the property taxes for almost 10 years.

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By Glen Hansen

The ongoing mortgage crisis in California’s residential real estate market reinforces the current importance of California’s Home Equity Sales Contract Act law (“HESCA”), which is codified in Civil Code section 1695 et seq. Several cases in 2009 applying HESCA demonstrate how courts will enforce the strict requirements of that statute.

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By Glen C. Hansen

Civil Code section 895 et seq. (i.e., the “Fix-it Law”) establishes procedures and requirements with respect to construction defect cases involving homes and homeowners.  Section 910 sets out “prelitigation procedures” to be followed by plaintiffs before a suit can be filed, procedures that can be summarized as “notice and opportunity to repair.”  Section 912 in turn sets out certain requirements for builders with respect to documentation and information to be provided to homeowners.  As a sanction, or incentive to comply, section 912 also provides, in subdivision (i), that “any builder who fails to comply with any of these requirements within the specified time is not entitled to the protection of this chapter, and the homeowner is released from the requirements of this chapter and may proceed with the filing of an action, in which case the remaining chapters of this part shall continue to apply to the action.”  In Standard Pacific Corp. v. Superior Court of San Bernardino County (August 14, 2009) 176 Cal.App.4th 828, the Court of Appeal of California, Fourth Appellate District, addressed the issues of whether a plaintiff homeowner who does not follow the procedures set out in section 910 must first establish the builder's noncompliance with section 912, or whether the plaintiff is free to file suit and need not step back to perform the “notice and opportunity to repair” position until the builder affirmatively establishes that it has complied with its own obligations. The Court of Appeal held that the burden was upon the plaintiff homeowner to either comply with section 910 or to establish that the plaintiff did not have to follow those procedures.

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William W. Abbott, partner of Abbott & Kindermann, LLP will be speaking on the following topic on Monday September 14, 2009 at 11:45 a.m.

“Preservation of Local Government Approvals”

Location:

• The Firehouse Restaurant – Golden Eagle Room
• 112 Second Street
• Old Sacramento, California
• Telephone: (916) 442-4772

Date/Time:    

• Monday, September 14, 2009 at 11:45 a.m.

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By Katherine J. Hart

The City of Los Angeles (“City”) adopted a Specific Plan containing a provision which imposes affordable housing requirements on residential and mixed use projects of more than 10 dwelling units (“DUs”) per lot.  At issue in this case was whether the Costa-Hawkins Act preempts the City’s affordable housing requirements. The superior court held that the Costa-Hawkins Act does preempt the affordable housing requirements in the City’s Plan.

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By Katherine Hart

In the recent case of City of Irvine v. Southern California Association of Governments, the City of Irvine (“City”) sued the Southern California Association of Governments (“SCAG”) for allocating almost 43 percent of Orange County’s regional housing needs to the City. SCAG is charged with developing a regional housing need assessment (“RHNA”) for cities within its jurisdiction. SCAG delegated to the Orange County Council of Governments the responsibility for providing the data to be used by SCAG in applying the methodology used to determine the allocation of housing units to jurisdictions within Orange County.

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By Leslie Z Walker

In Ste. Marie v. Riverside County Regional Park and Open Space District (2009) 46 Cal.4th 282, the Supreme Court resolved an apparent conflict between Public Resources Code sections 5540 and 5565 in favor of a park district’s ability to hold real property without dedicating it to park or open space purposes.

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By Glen Hansen

In Venturi & Company LLC v. Pacific Malibu Development Corporation (April 10, 2009) 172 Cal.App.4th 1417, the California Court of Appeal for the Second Appellate District held that a trial court erred in granting summary judgment and entirely dismissing a plaintiff’s claim for payment for services rendered to a development company because the plaintiff was not licensed as a real estate broker. Plaintiff may be able to recover some payment since a portion of the services provided by plaintiff were not exclusively those of a real estate broker. But the dispute could have been avoided if plaintiff had properly been licensed as a real estate broker.

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By Cori Badgley

In 2008, the California Supreme Court held that the proper standard of review in deciding whether assessments imposed by local agencies violate Article XIII D of the California Constitution is de novo. (Silicon Valley Taxpayers’ Association, Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 (“SVTA”); see California Supreme Court Rules Open Space Assessment is Invalid Special Tax Under Proposition 218.)  The Court also held that the local agency has the burden of proof.  (Id.)  In light of the holding in SVTA, the Court of Appeal, Second Appellate District reevaluated its decision to uphold the creation of a special assessment district by the City of Pomona.  Although the court applied the de novo standard of review instead of substantial evidence, the court still found that the assessments imposed by the City of Pomona through the creation of the Downtown Pomona Property and Business Improvement District (“PBID”) did not violate Article XIII D of the California Constitution.

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By Cori Badgley

In Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, the court reminded the defendant, Michael Bollag, that the term “consent” in a contract does not give the party unbridled freedom to refuse consent.  Instead, the implied requirement of good faith and fair dealing requires that the refusal of consent be reasonable and not merely based on “personal taste, convenience or sensibility.”

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By Glen C. Hansen

In Linthicum v. Butterfield (April 2, 2009) 2009 Cal.App. LEXIS 473 (as modified on April 9, 2009, 2009 Cal.App.LEXIS 496), the California Court of Appeal, Second Appellate District, affirmed a trial court’s creation of an equitable easement. In that case, Plaintiffs bought a parcel of land in a mountainous area near Los Padres National Forest in Santa Barbara County. A 60-year old roadway existed over that parcel. Defendant owners of neighboring parcels used that roadway as the only access to their land.  Plaintiffs sought an injunction to prevent Defendants from using the roadway.  Defendants cross-complained to quiet title to an easement for the roadway.  The primary issue in that case was whether the trial court abused its discretion in creating an “equitable easement” over the roadway in favor of the Defendants.

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Cori Badgley, associate at Abbott & Kindermann, LLP will be speaking at the following seminar on April 29, 2009.

Smart Ways to Stay ON TRACK and not get DE-RAILED

• Current Real Estate statistics & how to survive the Market
• 1031 Exchange and Structured Sales
• Short Sales, late house payments, danger of Foreclosure
• Refinancing to a safer and better loan
• Legal advice about Short Sales and tax breaks for homeowners
• Loan Modifications
• Rescuing your 401K

Learn how to help your personal situation and get solid advice from leading professionals in 6 different fields.

• On Track Workshop
• Wednesday, April 29, 2009 - 6:30 PM – 9:00 PM
• Holiday Inn Express Grand Ballroom
• 121 Bank Street, Grass Valley, California
• Refreshments will be served

The Workshop is FREE and Seating is Limited

Please RSVP to reserve your spot in the workshop. Call (530) 268-2488 or register on the website: www.ontrackworkshop.com

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By Glen Hansen

California's eminent domain law permits acquisition of property only for a “proposed project” that is intended for public use. In City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, ("Marina") the Court of Appeal, Third Appellate District held that the City of Stockton ("City") was unable to satisfy its burden of proving that it had the right to condemn property on its waterfront because the City’s resolution of necessity did not contain a sufficient project description.

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By Glen Hansen

When governmental agencies force owners of real property to remediate contaminated soil and groundwater, the owners will invariably attempt to recover the remediation costs from those persons or entities responsible for the contamination. That may include former owners of the property or former operators of facilities on the property. If the contamination has been present in the soil and groundwater for many years, a lawsuit to recover remediation costs from the responsible parties may be barred by the 3-year statute of limitations in Code of Civil Procedure section 338, subdivision (b). However, if the contamination is still migrating through the soil or groundwater, the plaintiff may be able to avoid the bar of the 3-year statute of limitations by alleging a continuing nuisance or trespass.

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By William W. Abbott and Nathan Jones

According to leading lifestyle magazines, the status question is no longer: who is your architect, but: who is your land use attorney? And if you want to build your dream house along the coast, your attorney’s telephone number needs to be on your cell phone’s speed dial.

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By Glen Hansen

Real estate buyers and sellers often draft very simple contracts to express their mutual intentions. Courts will enforce such contracts if the terms are certain enough for the court to know what to enforce. But what if important terms and conditions are missing in the written contract? What standard or customary conditions will a court read into such agreements? The Supreme Court addressed that issue in the recent case of Patel v. Liebermensch (2008) 45 Cal.4th 344, where the parties’ signed purchase contract was silent as to the length of the escrow period.

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By Nathan Jones and Leslie Z. Walker

In May of 2006, the San Francisco Board of Supervisors approved an ordinance “Adopting the redevelopment plan for the Bayview Hunters Point Redevelopment Project” (“Ordinance”). The ordinance increased the size of redevelopment activity in Bayview-Hunter’s Point from 147 acres to 1,500 acres. Many in the community viewed the redevelopment project as an attempt to gentrify the area aimed at dispossessing working-class residents in the area.  The case of Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, illustrates a pitfall for organizers who fail to attach reference materials of substance to a petition challenging a local redevelopment ordinance.

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By Cori Badgley and Nathan Jones

Estoppel is a pervasive legal concept dating back to the common law of England. Though it takes many forms, its application revolves around a party’s action or inaction to the prejudice of the other side or to a decision maker. Estoppel is a legal doctrine that may be used in certain situations to prevent a person from relying upon certain rights, or upon a set of facts (e.g. words said or actions performed) which differs from an earlier set of facts.  Inquasi-judicial tribunals like the Coastal Commission, the agency may both oppose you and act in a judicial capacity. The case of Mt. Holyoke Homes, LP v. California Coastal Commission (2008) 167 Cal.App.4th illustrates that estoppel applies when a party continues to negotiate with the California Coastal Commission (“Commission”) even though the Coastal Commission has already lost jurisdiction over the disputed matter.

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By Glen Hansen

In Robert Ekstrom v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111, the Court of Appeal, Fourth Appellate District, emphasized that boards of directors of homeowners associations do not have the discretion to ignore the express requirements of the conditions, covenants and restrictions (“CC&Rs”) for the development, despite the “judicial deference rule” adopted by the California Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowner’s Assn. (1999) 21 Cal.4th 249.

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By Glen Hansen

In Zanelli v. McGrath (2008) 166 Cal.App.4th 615, the Court of Appeal, First Appellate District clarified the circumstances under which easements may be extinguished under the doctrine of merger where the dominant and servient tenements are jointly owned by more than one person. As with most easement cases, the specific facts in Zanelli were critical to both the establishment and extinguishment of the easement in question.

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By Glen Hansen

In T.O. IX, LLC v. Superior Court (2008) 165 Cal.App.4th 140, a contractor built a street through a nine-home subdivision developed by the property owners. The contractor alleged that he had not been paid. The contractor then recorded nine individual mechanic’s liens against each home; or, as the court summarized: “nine separate liens, at the full amount each, to secure the contractor’s right to be paid once.” The property owners applied ex parte for an order permitting them to release the parcels from the nine mechanic’s liens by posting a single surety bond in an amount equal to one and one-half times the total amount of the contractor’s claim, as provided under Civil Code section 3143. The trial court denied the owners’ application. The Court of Appeal, Second Appellate District, reversed.

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By William W. Abbott

A byproduct of modern planning is the proliferation of property owner associations, mostly centered on residential developments. At the time of formation however, associations are subject to minimal oversight by the State of California, and then only for residential development projects subject to review by the Department of Real Estate. One of the challenges facing associations is continued active participation by the owners in association matters. For associations facing apathetic owners, it may be difficult to obtain the necessary level of votes to take actions on behalf of the association, and in situations in which association documents require a super-majority vote to pass resolutions for certain actions, a stalemate may readily occur.   In 1985, the legislature, recognizing the important role that associations play, enacted statutory provisions which allowed interested parties to file a court action to reduce the required voting percentage in compelling circumstances (Civ. Code § 1356). The recent case of Mission Shores Association v. Pheil (September 5, 2008) 2008 Cal.App.Lexis 1395 illustrates how this works in real life.

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By Rob Hofmann

This mid-summer review of real estate cases covers three interesting matters of potentially broad application. The first case Goldstein v. Barak Construction, deals with the precarious position of unlicensed contractors. The second, Lange v. Schilling, reinforces the significance of the mandatory medication provision of the standard CAR purchase agreement. Finally, Steiner v. Thexton, wrestles with the penultimate flexible purchase agreement, and how a buyer may lose the deal absent adequate consideration.

Rob Hofmann is an associate with Abbott & Kindermann, LLP, and is a member of the City of Davis Planning Commission, and a member of the San Joaquin Valley Air Pollution Control District Hearing Board.  For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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By Rob Hofmann

On May 28, 2008, the Third Appellate District for the Court of Appeal hammered home that technical form over substance rules in real property purchase transactions, irrespective of the parties’ original intent. At issue was a run of the mill purchase and sale transaction, overseen by attorneys on both sides, which granted the buyer a due diligence period to inspect the property and the ability to cancel the transaction if the buyer concluded the property ultimately did not meet its specifications. In this instance, however, the seller chose to cancel the deal during the due diligence period despite the jilted buyer having already spent some $60,000 obtaining a parcel split and related entitlements. The court not only rejected the buyer’s request to enforce the contract but also required the out-of-luck buyer to pay the seller’s $80,000-plus in attorneys’ fees incurred in defense of the buyer’s challenge of the deal cancelation. Steiner v. Thexton (2008) 163 Cal. App.4^th 359.

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By Rob Hofmann

Plaintiffs Amanda Goldstein and Eric Mizrahi contracted with Ami Weisz and ‘his company’ Barak Construction (“Defendants”) to build a new garage and related remodeling at the projected cost of $363,000. Neither Defendant was a licensed contractor at the time the parties entered into the contract nor when work on the project commenced. Although it is unclear whether Plaintiffs were initially aware of Defendants’ licensure status, Defendants concede they were not licensed until some three months into the project. Plaintiffs contend that Defendants subsequently abandoned the project prior to completion and with material defects despite having allegedly already been paid $362,660.50.

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 By Rob Hofmann

On July 21, 2008, the California Supreme Court again pointed out the potential for devastating consequences when the terms in a boilerplate contract provision are triggered. Specifically, the Court upheld a fairly typical construction contract indemnification provision that required a subcontractor to defend the general contractor for claims and arising out of the subcontractor’s work, even though a jury absolved the contractor was subsequently absolved of any liability. This even included the general contractor’s costs of suit against the subcontractor to resolve the dispute over the scope of the indemnification provision. Crawford v Weather Shield Mfg, Inc. (2008) 44 Cal.4th 541

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By Rob Hofmann

The Court of Appeal (Third Appellate District) has reaffirmed the judicial trend to give great deference to the terms of an executed real property purchase agreement as written, emphatically stating that the pre-litigation mediation provision at issue in Lange v. Schilling (2008) 163 Cal.App.4th 1412 “means what it says and will be enforced.” Substantial conformity with the provision requirements is not enough to qualify to recover attorney’s fees. 

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By Rob Hofmann

Each Sale Transaction is Unique

Real property purchase and sale transactions are so common place that it may be hard to justify paying a lawyer to review, let alone prepare, the applicable documentation. This is especially true when the transaction appears straightforward and the broker is taking a healthy cut off the top. Why pay an attorney when boilerplate agreements are readily available for little or no cost from the broker/agent, online, or even the local stationary store? Given that the broker or agent is precluded from giving legal advice, there are any numbers of reasons.      

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