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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.”
Continue Reading...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.
Continue Reading...Cori Badgley, associate at Abbott & Kindermann, LLP will be speaking at the following seminar on April 29, 2009.
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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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
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.4th 359.
Continue Reading...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.
Continue Reading...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
Continue Reading...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.
Continue Reading...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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