REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

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.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

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.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Speculation Concerning Potential Impacts Insufficient To Defeat Use Of A Categorical Exemption

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.

 

REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

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.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

SAVE THE DATE! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Mark your calendar - registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference 

Date: Wednesday, January 11, 2017

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, January 20, 2017

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

Modesto Conference 

Date: Friday, January 27, 2017

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.

Napa Conference 

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Court Of Appeal Holds That, While The California Constitution Does Not Guarantee A Right of Access To Martin's Beach, The Public May Have An Access Right Under The Theory Of Common Law Public Dedication.

By Glen Hansen

Friends Of Martin's Beach v. Martin's Beach 1, LLC (2016) 246 Cal.App.4th 1312

In a dispute between a plaintiff unincorporated association asserting public rights and defendant property owners over the use of a road, parking area and the inland dry sand of a popular beach that were owned by defendants, the Court of Appeal for the First Appellate District in Friends Of Martin’s Beach v. Martin’s Beach 1, LLC (2016) 246 Cal.App.4th 1312, 2016 Cal.App.LEXIS 341, held: (1) that the trial court properly granted summary adjudication as to plaintiff’s claim that Article X, section 4, of the California Constitution, confers on the public a right of access over private property to tidelands; and (2) that the trial court erred in granting summary adjudication as to plaintiff’s claim that, under the theory of common law dedication, the owner’s predecessors dedicated such access to the public through their words and acts, and that the public accepted that offer by using those parts of defendants’ property.

The Martin’s Beach case involved two parcels of land bounded on the east by Highway 1 and on the west by the Pacific Ocean (“Property”). At the western edge of the Property is a crescent-shaped strip of land known as “Martin’s Beach.” The only land access to Martin’s Beach is via a road that runs across the Property from Highway 1 to the beach. The Property was once part of a larger tract of land that was provisionally granted by the Mexican Governor of California in 1838 (“Rancho”).  The grant was not finalized by the time war broke out between Mexico and the United States in 1848. The Treaty of Guadalupe Hidalgo ended the war, and in 1851, Congress passed legislation to implement the Treaty. The 1851 Act established the process to address pre-war land claims.  Claims that were confirmed in those proceedings resulted in a federal patent, which is the equivalent of a deed from the federal government conveying fee simple ownership.  A patent claim for the Rancho was eventually confirmed in such patent proceedings, and by the United States Supreme Court on appeal.  Over time, the Rancho was divided into smaller parcels, including the Property, and conveyed to various persons. 

The Property was eventually acquired by the Deeney family.  The Complaint in this case alleged that, from the 1930s or earlier, the Deeney family invited the public to use the beach and the road to the beach both by words and conduct, specifically by posting a large billboard on the highway inviting the public to come to the beach by way of the road, by “welcom[ing] all ‘with open arms,’” and by constructing public toilets, a parking area and a convenience store catering to those who visited the beach.  For some of that time they charged a 25ȼ parking fee.  The Complaint also alleged: “Postcards from the ‘50s show hundreds of people enjoying idyllic days at a beach that at times had the feel of a Mediterranean escape.” “In more recent years, surfers, in particular, enjoyed what the website Surfpulse refers to as a ‘mystical and multi-faceted playground’ and what Save the Waves’ program director called ‘a natural theme park with sand.’”  The Deeney family sold the Property to defendants Martin’s Beach 1, LLC and Martin’s Beach 2, LLC (“Owners”) in 2008.  In 2009, the Owners locked a gate barring the entrance to the road, placed “No Trespassing” signs there and otherwise prevented the public from using the road or the beach.

Plaintiff Friends of Martin’s Beach, an unincorporated association (“Plaintiff”), filed a complaint against the Owners “on behalf of the general public,” citing numerous legal theories and causes of action in order to assert “nonexclusive rights and interests acquired by the general public in the beach to high tide at Martin’s Beach, the dry sand inland, an inland area historically used for parking and access along Martin’s Beach Road.”  In response to the parties’ cross-motions for summary adjudication, the trial court ruled in favor of Owners on all of the public access issues.  Plaintiff appealed.  The Court of Appeal affirmed in part, reversed in part, and remanded the case to the trial court on the public dedication claim. 

Plaintiff’s Constitutional Claims For Public Access

Plaintiff argued that Article X, section 4, which was adopted by the People as part of the Constitution of 1879, entitled the public to an easement to use the road across the Property for the purpose of gaining access to the tidelands.  That section 4 provides:

 

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof. 

However, the Court of Appeal affirmed the trial court’s conclusion that, whatever public rights exist under section 4 (that issue was not decided), do not override the federal land patent title in the Owner in light of Summa Corp. ex rel. Lands Commission v. California (1984) 466 U.S. 198.   In Summa, the U.S. Supreme Court held that the State of California acquired no public trust interest in lands to which title was confirmed under the federal Act of 1851 patent process based on a Mexican land grant, unless such interest was asserted by the State in the patent proceedings.  Here, Plaintiff's cause of action based on section 4 was barred under Summa because California did not acquire a public interest in the Property.  That was so because the State did not assert any such interest during the patent proceedings for the Rancho in the 1850s.  In response to Plaintiff’s attempts to distinguish Summa, the Court further held (1) that the provisional nature of the Mexican land grant for the Rancho did not alter the conclusive application of Summa; (2) that section 4 is, at least in part, a codification of the public trust doctrine; and (3) that section 4 is not a mere regulation of an “incident of ownership.”  Thus, Plaintiff’s constitutional claim based on section 4 was barred under Summa.  The Court also explicitly rejected Plaintiff’s alternative argument that section 4 is retroactive and burdens lands held in private ownership before its enactment. Not surprisingly, counsel for the owner called the Court of Appeal’s ruling on the section 4 claim, which ruling rejected the idea of a guaranteed right of beach access under the California Constitution, “a win for our client and for all coastal property owners.”

Plaintiff’s Common Law Dedication Claim For Public Access

The Court of Appeal held that the trial court erred in granting summary adjudication as to Plaintiff’s common law dedication claim.  A common law dedication is a “grant and a gift” of land or an interest in land to the public for a public use.  A claim for dedication has two elements: “intention to dedicate by the owner, and acceptance by the public.” To constitute a dedication at common law no particular formality of either word or act is required. All that is necessary is sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and that there was an acceptance of the offer by the public. Such intent may be demonstrated in any conceivable way that a person’s intention can be shown.  Similarly, the acceptance element may be formal, as by resolution or ordinance, or by use.  Here, the Court rejected the Owner’s singular focus on the “express” dedication label that was used in Plaintiff’s Complaint. The elements are the same for either an implied or an express dedication; the only difference is in the mode of proof of the intent element. Contrary to the Owners’ argument, the “intent to dedicate” element in an express dedication may be established by words or overt conduct of an owner other than a grant deed to a public agency or similar formal writing.  Also contrary to the Owners’ argument, an express dedication does not need to be accepted in a formal way or by a public entity. Here, the Court of Appeal held that “there can be little doubt that the facts [Plaintiff] alleged are sufficient to establish the elements of common law dedication, if they can be proven at trial. The complaint alleged a number of acts on the part of the owners that could manifest an intent to dedicate to the public, coupled with public use over many decades that could establish acceptance.” 

Furthermore, it was error for the trial court to conclude, as a matter of law, that the fact that the Deeneys “at some point charged a fee” to the public negated any intent to dedicate.  Evidence of such permissive use may tend to show the owner intended to control or qualify other parties’ access to the property and thereby rebut a finding of dedicative intent.  But that was a triable issue of fact.  Also, the Court held that the trial court erred when it inferred that the Deeneys’ commercial purpose for inviting the public to use the road and beach negated the intent to dedicate the road or beach, as a matter of law.  In fact, such commercial purpose may support a finding of intent to dedicate.

Accordingly, the Court held that Plaintiff alleged facts sufficient to state a common law dedication claim, and the Owners failed to show, as a matter of law, that they are entitled to judgment on this cause of action. The Court remanded the case to the trial court to adjudicate Plaintiff’s common law public dedication claim.  After the Court of Appeal opinion was issued, counsel for Plaintiff stated the ruling “gave us a road map to how to win at trial.”  However, that remains to be seen in this very public lawsuit.

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.

 

Homeowners' Association Receives $6,620 Judgment For Fines, Dues and Fees Against Property Owner; Then Association Obtains $101,803 Award Of Attorneys' Fees And Costs Against Owner As The "Prevailing Party."

By Glen C. Hansen

Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761

In an action by a homeowners’ association to enforce $54,000 in dues, fees, fines and interest imposed on property owners under the applicable CC&Rs, the Court of Appeal for the Sixth Appellate District held in Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 2016 Cal.App LEXIS 301 that (1) the trial court properly issued a judgment that concluded that only $6,620 of the fines were valid against the owners; (2) the trial court did not abuse its discretion in determining that the association achieved its main enforcement objectives and was therefore the prevailing party under the Davis-Stirling Common Interest Development Act (“ Act,” Civ. Code §§4000 et. seq.); and (3) the trial court’s award in favor of the association of its full attorneys’ fees and costs in the amount of $101,803.15 was not unreasonable.

In Almanor, the plaintiff was a homeowners association (“Association”) under the Act for the Almanor Lakeside Villa development (“Development”) on Lake Almanor in Plumas County.  Defendants and cross-complainants James and Kimberly Carson owned a lodge and two chalets (the “Properties”) within the Development.  The Properties are among only a few lots in Development that accommodate commercial use, partially due to the preexisting use of the lodge. The Properties were subject to the CC&Rs of the Development.  Among other things, section 4.09 of the CC&Rs prohibited owners from using their lots “for transient or hotel purposes” or renting for “any period less than 30 days.” From 2010 through 2012 the Association’s Board developed rules to enforce the CC&Rs, including enforcement of the section 4.09 restriction on short-term rentals if a copy of any rental agreement is provided to the Association seven days before the rental period.  Other rules were adopted that affected the Properties, such as parking, trash storage, use of common areas, and issuing decals for any boats using the Association’s boat slips. The Carsons did not believe that such rules applied to their Properties because of section 4.01 of the CC&Rs and the long-established commercial status of the Properties.  The Association sought to impose fines and related fees of $19,979.97 on the Carsons for alleged rule violations related to the Carsons’ leasing of their properties in the development as short-term vacation rentals. The Carsons viewed the rules as unlawful and unfair use restrictions on their commercially zoned properties. Also, the Carsons argued that the Association improperly applied $1,160 of the Carson’s payment for dues toward the fines imposed by the Association.

The Association sued to enforce its rules and recover the fines it imposed, estimating that the total owed by the Carsons was $54,000.  The Carsons cross-complained for breach of contract, private nuisance, and intentional interference with prospective economic advantage. The trial court found that the 30-day minimum rental restriction imposed by section 4.09 of the CC&Rs presented an “obvious conflict” with section 4.01, which “expressly allow[ed] the Carsons to use their lots for commercial purposes (presumably including lodging, since the properties are, in fact, lodges).” The trial court concluded only $6,620 in fines pertaining to the nonuse of the Association’s boat decals were reasonable.  The trial court also concluded that, even assuming the Association had breached the CC&Rs, the Carsons had not proven any damages and so they received nothing on their cross-complaint.  On the parties’ competing motions for attorneys’ fees, the trial court determined the Association to be the prevailing party and awarded the Association its full $101,803.15 in attorneys’ fees and costs.  The Carsons appealed. The Court of Appeal affirmed the judgment.

On appeal, the Court addressed three issues.  First, the Carsons challenged the trial court’s determination that they failed to prove damages for their breach of contract cause of action in their cross-complaint. The Court held that, while the trial court’s statement of decision did not specifically reference the Carson’s $1,160 damages claim asserted on appeal, the trial court’s finding that the Carsons failed to establish damages by competent evidence was sound.

Second, the Court addressed the Carsons’ argument that the trial court abused its discretion when it found that the Association was the prevailing party despite having disallowed a majority of the fines the Association sought to have imposed.  The Court explained that Civil Code section 5975 of the Act provides that, in an action to enforce CC&Rs “the prevailing party shall be awarded reasonable attorney's fees and costs.” Thus, “‘“the trial court is therefore obligated to award attorney fees whenever the statutory conditions have been satisfied.”’” The test for prevailing party “is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.” That test involves a comparison of “the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” Thus, the court must compare “‘the extent to which each party ha[s] succeeded and failed to succeed in its contentions’” and “the practical effect of the relief attained by each.”

Here, the trial court did not abuse its discretion in determining that the Association was the prevailing party.  Of the 88 fines that the Association sought to enforce at trial, the trial court upheld only eight. The Carsons’ success at trial substantially lowered their liability for damages and supported their position that the CC&Rs and associated rules could not impose an unreasonable burden on the properties.  However, by upholding a subset of the fines, the trial court “ruled more broadly” that the Association could impose reasonable use restrictions on the Carsons’ properties. That ruling “echoed [the Association’s] stated objective at trial that the Association sought to counter the Carsons’ position that ‘because their lot is zoned “Commercial,” they are not bound by the rules.  “The fractional damages award does not negate the broader, practical effect of the court’s ruling, which on the one hand narrowed the universe of restrictions that [the Association] could impose on the properties, but on the other hand cemented [the Association’s] authority to promulgate and enforce rules pursuant to the CC&Rs so long as they are not unreasonable.” The court also ruled entirely in favor of the Association on the Carsons’ cross-complaint by finding that the Carsons’ alleged damages were unsupported by competent evidence and too speculative. Thus, the trial court did not abuse its discretion in determining the Association to be the prevailing party.

The Carsons made the public policy argument that, by granting attorneys’ fees to the Association, “the Court is stating that the Carsons should have paid the $54,000.00 that Respondent claimed was owed … , even though only $6,620.00 was actually owed, because they would be penalized for defending themselves and, in the end, owe an additional $101,803.15 in attorney's fees for defending themselves.” The Court rejected that argument because the Act mandates the award of attorneys’ fees to the prevailing party, and so the trial court had no discretion to deny attorney's fees once it determined who was the prevailing party.

Third, the Court addressed the Carsons’ argument that the amount of the attorneys’ fees that the trial court awarded was unreasonable (“grossly disproportionate”) in light of the Association’s limited success at trial.   That is an issue committed to the discretion of the trial court. The Carsons argued that Code of Civil Procedure section 1033, subdivision (a), provides that the court has the discretion to disallow attorney's fees if a party obtains less than the statutory minimum to be classified as an unlimited civil matter.  But the Court rejected that argument because the discretionary provisions of section 1033, subdivision (a), are irreconcilable with the mandatory fees award under section 5975 of the Act.  The Court recognized that “degree of success” may be considered in determining reasonable attorney's fees under Civil Code section 5975 of the Act, and to the extent a trial court is concerned that a particular award is excessive, “‘it has broad discretion to adjust the fee downward.’” In this case, however, the record did not show that trial court committed a manifest abuse of discretion by awarding the full attorney’s fees sought.  Also, the Carsons did not request a statement of decision with regard to the fee award, and so all intendments and presumptions are indulged to support the judgment. Furthermore, the trial court’s decision is supported by the fact that the minor subset of the fines that formed the basis for the Association’s monetary award requested was sufficient to satisfy the statutory criteria of an action to enforce the governing documents. “In practical effect, [the Association’s] limited success established a baseline from which it can continue to adopt and enforce reasonable use restrictions under the CC&Rs.” Thus, the Court did not find that the award of attorney's fees, compared to the overall relief obtained by the Association was so disproportionate as to constitute an abuse of discretion.

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

It's All About That Baseline: Factors to Consider When Establishing a CEQA Baseline

By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Court of Appeal Disagrees With Other Courts And Holds That California Civil Code Section 1009 Bars All Use Of Private Real Property From Developing Into An Implied Public Dedication, Not Just Recreational Use.

By Glen C. Hansen

In Scher v. Burke (2015) 240 Cal.App.4th 381, the Court of Appeal for the Second Appellate District held, in the published portion of the decision: (1) that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the March 4, 1972 effective date of that statute; and (2) that evidence about the use of a road on private property after that date cannot support a finding that the road was impliedly dedicated to public use prior to that date. (In the unpublished portion of the decision, the Court of Appeal examined extensive historical evidence and affirmed the trial court’s judgment that Plaintiffs had not established their right to an express, prescriptive, or equitable easement for access across Defendants' properties. A copy of the entire Court of Appeal decision can be found here.)

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Local Zoning Laws Prevent an Eldercare Facility from Proceeding with Plans for Development

By Brian Russell

Walnut Acres Neighborhood Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303

The owners of the property and the developer Community MultiHousing, Inc. sought a permit under Los Angeles City code section 14.3.1 to build an eldercare facility at 6221 North Fallbrook Avenue in Woodland Hills. Section 14.3.1’s purpose is to “provide development standards for Alzheimer’s/Dementia Care Housing, Assisted Living Care Housing, Senior Independent Housing and Skilled Nursing Care Housing, create a single process for approvals and facilitate the processing of application of Eldercare Facilities. These facilities provide much needed services and housing for the growing senior population of the City of Los Angeles.” (§ 14.3.1, subd. A.) The proposed eldercare facility exceeded the maximum allowable density and floor area of the residential zone. Zoning regulations limited a structure to 12,600 square feet, and the proposed facility would contain 50,289 square feet, including over 20,000 square feet devoted to common areas. The proposed facility would have 60 guest rooms and 76 guest beds. Application of the zoning regulations would have limited the site to 16 guest rooms. Pursuant to section 14.3.1, subdivision E, to approve an eldercare facility, the zoning administrator is required to make several findings. “The Zoning Administrator shall not grant the approval unless he or she finds that the strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations.”

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Did the California Alcoholic Beverage Control Cede its Authority?

By Brian Russell

Nick v. Department of Alcoholic Beverage Control (2014) 233 Cal.App.4th 194.

This is a case of one convenience store owner attempting to prevent another convenience store, 7-Eleven, from selling beer and wine by using the powers of the Department of Alcoholic Beverage Control (ABC). The petitioners, Adam and Sherry Nick (Nick) claimed in its complaint that under the Alcoholic Beverage Control Act (Bus. and Prof Code, Section 23000 et seq. or the “Act”) it prohibits the ABC from issuing a license that would result in or add to an undue concentration of licenses unless the local governing body of the area where the applicant’s premises is located determines that issuing the license would serve a “public convenience or necessity.”

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Nonjudicial Sale Is Not Void Merely Because The Trustee Had Not Yet Been Substituted As The Trustee At The Time It Recorded The Notice Of Default

By Glen Hansen

Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1.

In Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, the Court of Appeal for the First Appellate District held that a nonjudicial sale of a residence was not void due to irregularities in the foreclosure proceedings, where the party executing and recording the notice of default as the “trustee” had not yet been substituted as the trustee by the lender’s assignee.

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The Doctrine of Irrevocable Licenses is Alive and Flourishing - So Maybe You Can Maintain Your Plants on Your Neighbor's Property

By Glen C. Hansen

Richardson v. Franc (January 27, 2015, A137815) ___ Cal.App.4th ___.

In Richardson v. Franc, the Court of Appeal for the First Appellate District affirmed a trial court’s granting of an irrevocable license in perpetuity to maintain and improve landscaping, irrigation, and lighting within the area of an express easement for access and public utility purposes where, over a 20-year period, the current easement holders and their predecessors-in-interest installed and maintained those improvements at significant cost without any objection from the servient landowners or their predecessors‑in‑interest.

In 1989, Karen and Tom Poksay began building their home on the undeveloped property at 2513 Laguna Vista Drive in Novato, California. The project included constructing and landscaping a 150-foot long driveway within the 30-foot wide easement running down to the site of their new home, which was hidden from the street. The driveway was constructed pursuant to an easement over 2515 Laguna Vista Drive, which was then owned by Dan and Jeanne Schaefer. The easement was for access and utility purposes only. The landscaping was designed to be “natural and beautiful on both sides to be a nice entrance to the home.” Plants and trees were planted along both sides of the driveway in the easement area, along with a complex drip irrigation system. Water fixtures were also installed along the driveway for fire safety, along with electrical lighting along the driveway (later replaced by solar lighting). Through their own and hired labor, the Poksays maintained the landscaping, irrigation and electrical systems, and incurred costs in doing so.

James Scott Richardson and Lisa Donetti (“Respondents”) purchased the Poksay property in late 2000. Over the years, Respondents added new vegetation in the easement area, hired landscapers to maintain it, and incurred costs to irrigate it.

Appellants purchased 2515 Laguna Vista Drive in 2004, knowing that Respondents were improving the landscaping in the easement area, including employing landscapers. For six years, Appellants and Respondents lived in relative harmony, with no indication by Appellants that they wished Respondents to stop maintaining and improving the easement landscaping. In 2010 Appellants raised the first-ever objections about the landscaping and other improvements. In September 2010, one of the Appellants cut the irrigation and electrical lines on both sides of the driveway and disassembled the water valve pumps. Appellants also sent a letter through counsel demanding that Respondents remove all the landscaping and supporting systems from the easement area within five days. In response, Respondents filed an action that alleged claims for an irrevocable parol license, an equitable easement, and declaratory and injunctive relief. The trial court denied relief on the equitable easement cause of action, and granted an irrevocable license for Respondents “and their successors-in-interest to maintain and improve landscaping, irrigation, and lighting within the 30’ wide and 150’ long easement.” Appellants appealed. Under an abuse of discretion standard, the Court of Appeal for the First Appellate District affirmed the trial court’s equitable judgment.

The court of appeal initially held that Respondents’ claim for an equitable easement to maintain the improvements in the easement area was properly rejected. The doctrine of equitable easements is frequently invoked in order to maintain structures on neighboring property in circumstances where prescriptive easements and adverse possession claims would not apply. A claim for an equitable easement includes the requirement that the easement was created without knowledge or means of knowledge of the facts. Here, the trial court found that Respondents

knew or should have known at the time of their purchase that the Grant Deed, on its face, describes the easement for ‘access and utility purposes.’ The plants and irrigation system that [Respondents] seek to maintain for the landscaping do not fall under the easement description. Nor is this a case where [Respondents] believed that these items were on their property and did not realize they were, in fact, on [Appellants’] property.

Thus, an equitable easement could not be granted under the circumstances in this case.

However, the court of appeal held that the trial court did not abuse its discretion in granting Respondents’ request for an irrevocable license. “[A] license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge.”

In this case, the trial court concluded that the following evidence at trial was sufficient under law and equity to support a finding of an irrevocable license: The Respondents’ “substantial expenditures in the easement area for landscaping, maintenance, care, and physical labor”; the Poksays’ expenditure of “substantial sums in the easement area for landscaping, maintenance, care, and physical labor”; and “no objection … to any of this” by either Appellants or Mr. Schaefer over the course of more than 20 years. The court of appeal not only affirmed that ruling, but also rejected Appellants’ five other arguments against that ruling.

First, the court held that permission sufficient to establish a license can be implied from the acts of the parties.

Second, the court held that the Respondents’ failure to submit a specific dollar amount as to the cost of these improvements is irrelevant, because there was sufficient evidence to infer that the costs incurred in both money and time in maintaining the landscaping and other improvements were substantial.

Third, the appellate court held that the trial court did not abuse its discretion in concluding it would be inequitable to require respondents to remove these improvements when the property is transferred, given the substantial investment in time and money and the permanent nature of these improvements.

Fourth, the court recognized that providing a level of certainty to the parties by defining the scope of the irrevocable license with the precise arithmetic measurements of the easement area will prevent the parties from returning to court for further clarification as to the scope of the irrevocable license.

Fifth, Respondents’ knowledge that the landscaping and other improvements were not covered by the express terms of the easement was irrelevant to the granting of an irrevocable license.

Comment: The Richardson case reminds parties who have constructed and/or maintained structures on a neighbor’s property for a long time that they may have another legal theory by which to avoid the removal of those structures, along with the potential doctrines of equitable easements, prescriptive easements and adverse possession.

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.

 

 

 

 

First Amendment Activities Are Not Permitted On The Sidewalk Or Apron Areas Directly Adjacent To Individual Stores In Shopping Center - Those Are Not "Public Forums"

By Glen C. Hansen

In Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, the Court of Appeal for the Fifth Appellate District affirmed a trial court’s order granting a preliminary injunction that enjoined defendants from soliciting charitable donations or engaging in other expressive activities on sidewalks adjacent to store entrances in plaintiff's shopping center, because such store entrances and aprons are not a public forum. 

Plaintiff Donahue Schriber Realty Group, Inc. (“Plaintiff”) controls the Fig Garden Village shopping center, an outdoor shopping center with approximately 60 retailers in Fresno, California. Plaintiff has a policy of prohibiting solicitation of donations on the shopping center property. However, Plaintiff allows other forms of expressive activity, such as gathering petition signatures, in a designated public forum area only.

On July 28, 2013, two solicitors for Defendant Nu Creation Outreach went on the shopping center property and solicited donations on sidewalk areas adjacent to the entrances of stores within the shopping center. The next day, six to eight solicitors for Nu Creation Outreach solicited donations adjacent to multiple retailers in the shopping center.  The solicitors refused to leave when asked to do so, and the police would not arrest the solicitors without a court order. Plaintiff then filed a complaint against Nu Creation Outreach and one of its members (collectively, “Defendants”) for declaratory relief and trespass. At Plaintiff’s request, the trial court eventually issued a preliminary injunction that did not prohibit all solicitation at the shopping center, but restricted it to a designated public forum area. Defendants appealed. The Court of Appeal affirmed.

The appellate court held that the trial court did not abuse its discretion in finding that Plaintiff demonstrated a likelihood of prevailing on the merits. Plaintiff submitted evidence sufficient to satisfy its trespass cause of action because the solicitors’ activities on the shopping center property exceeded the scope of consent given for entry, because Plaintiff believed the solicitors' activities were interfering with the flow of traffic around the entrances to stores in the shopping center, discouraging customers from returning to shop in the shopping center, and eroding the goodwill of both customers and tenants, and because the police declined to remove the solicitors.

Also, and most importantly in the case, the Court of Appeal rejected the Defendants’ argument that the portion of the shopping center where the solicitors were soliciting donations was a public forum. A public forum is where speech could be limited only by reasonable time, place, and manner restrictions, that are content neutral, narrowly tailored, and leave ample alternative means of communication of the information.  As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; however, the right to exclude persons exercising First Amendment rights is not absolute. Here, the court relied on Ralphs Grocery Co v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083, 1092, 1104, which held that “within a shopping center or mall, the areas outside individual stores’ customer entrances and exits, at least as typically configured and furnished, are not public forums,” and “[o]n the private property of a shopping center, the public forum portion is limited to those areas that have been designed and furnished to permit and encourage the public to congregate and socialize at leisure.”

The Court of Appeal found that substantial evidence supported the trial court’s conclusion that the sidewalk areas where Defendants pursued their solicitation of donations are not public forums. Plaintiff submitted a declaration stating that the sidewalk and apron areas in the shopping center are not designed or furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation; they are designed only to facilitate customers’ entrance to and exit from the stores.  Also, the shopping center had a policy of permitting expressive activities only in certain areas; no solicitation of donations or gathering of signatures on petitions was permitted on the sidewalk or apron areas directly adjacent to the individual stores.

The Court of Appeal further held that, in this kind of free speech rights versus private property rights cases, a showing that Plaintiff is likely to prevail on the merits “establishes that it will be irreparably harmed if the injunction is not granted.” The evidence presented to the trial court further demonstrated that the disruptive solicitation activity of Defendants’ solicitors harms the shopping center’s relationship with its tenants and customers and erodes customer goodwill.

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.

 

California Courts of Appeal Issue Several Decisions Clarifying Disclosure Duties Of Real Estate Sellers And Their Brokers/Agents

By Glen C. Hansen

A trio of cases were reported by the California Court of Appeal in the first half of 2014 that clarified the disclosure and fiduciary duties of real estate brokers and their agents.

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So Your Neighbor Wants To Build An Ornate Wall Between Your Adjoining Properties - In The Absence Of An Agreement, Who Pays?

By Glen Hansen

Your neighbor builds (or wants to build) an ornate wall between your two properties. Then your neighbor emails to you the invoice, and asks you to contribute one-half the cost of the edifice. Do you have to pay if the cost of the wall is excessive in your opinion? What if you can barely afford half the cost of a chain link fence, let alone THAT wall? Prior to January 1, 2014, the law was not too helpful in answering those questions.

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Court Strongly Reaffirms That No Prescriptive Easement Exists Where The Facts Demonstrate That The Use Of The Property Was By Permission

By Glen C. Hansen

In Windsor Pacific LLC v. Samwood Co. (January 30,2013, B233514) ___ Cal.App.4th ____, the Court of Appeal for the Second Appellate District held (1) that a prescriptive easement could not be established over two roads, where the facts in the case demonstrate that the party alleging the prescriptive use was equitably estopped from denying that its use of the roads was by permission; and (2) that a proceeding to interpret a written easement agreement in order to determine whether a party to the agreement is equitably estopped from claiming that its use of the subject property was permissive is an action to ‘enforce or interpret’ the agreement, for which an attorneys’ fees provision in the agreement applies, regardless of whether that interpretation was sought by the allegations of the complaint or by affirmative defenses in the answer.

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When Neighbors Fight Over Whether A Fence Is On The Property Line, The Doctrine Of Boundary By Agreement Requires ... An Actual Agreement.

By Glen Hansen

In Martin v. Van Bergen (September 6, 2012, B232570) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held that a property owner who unknowingly had raised almond trees up to a common fence located on a neighboring parcel could not raise the doctrine of boundary by agreement as a defense to the neighbor’s quiet title action, because there was no evidence of an actual agreement to locate the fence as the boundary between the parcels.

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Arbitration Provision In A CC&Rs Applies To Condominium Association Construction Defects Claims Against Developer.

By Glen Hansen

In Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, the California Supreme Court held that a defendant developer who recorded a declaration of covenants, conditions, and restrictions (“CC&Rs”) could enforce an arbitration provision in those CC&Rs in a construction defect action filed against the developer by a condominium association governed by those CC&Rs, even though the association did not exist as a separate entity when the CC&Rs was drafted and recorded. The Court resolved a split of opinion in the appellate courts

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Trial Court Did Not Abuse Its Discretion In Granting Verified Petition To Remove Supermajority Voting Restriction In CC&Rs.

By Glen C. Hansen

In Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a verified petition by a homeowners’ association for an order under Civil Code section 1356 to modify the association’s governing laws to reduce a supermajority voting restriction.

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Homeowners' Association Has Standing To Sue Realtors Involved In Sale Of Properties To Association Members Where Alleged Injury Is To Common Area.

By Glen C. Hansen

In Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, the trial court sustained demurrers to a homeowners association’s (“HOA”) complaint against real estate brokers who acted as dual agents in the developers’ sale of properties in the development to HOA members. The HOA alleged in the complaint that the realtors had obtained inaccurate soil reports and had misled the members, resulting in defects of a common roadway and common area slopes. The Court of Appeal for the Second Appellate District reversed the trial court’s determination that the association did not have standing to assert claims on behalf of its members against the brokers under Civil Code section 1368.3.

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What Is The Meaning Of The Word "Or": A Real Estate Broker Commission Is Not Owed Even Though An All-Cash Offer Meets The Full Price In The Listing Agreement

By Glen C. Hansen

In RealPro, Inc. v. Smith Residual Company, LLC(2012) 203 Cal.App.4th 1215, the Court of Appeal for the Fourth Appellate District upheld a trial court judgment sustaining a seller’s and their agent’s demurrer to a cooperating broker’s complaint to recover a real estate commission, where the cooperating broker presented a written offer of a buyer that was “ready, willing, and able to purchase the Property … on all material terms” contained in the listing, including an all cash purchase at the full listing price of $17 million, but where the seller did not accept the offer and a sale was never completed.

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Supreme Court To Decide If A Developer Can Compel Arbitration Of A Condominium Homeowners Association's Construction Defect Claim Under The CC&R's

By Glen C. Hansen

The California Supreme Court is currently reviewing the issue of whether, in response to a construction defect action brought by a condominium homeowners association, the developer can compel binding arbitration of the litigation pursuant to an arbitration provision in the CC&R’s. A split of opinion exists in the court of appeals on that issue. That issue is raised in several cases pending before the court.

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Homeowners' Association Complies With Solar Rights Act When It Reasonably Denies The Installation Of Solar Panels At Residence In the Development

By Glen C. Hansen

In Tesoro del Valle Master Homeowners Assn. v. Griffin (October 3, 2011, B222531) ___ Cal.App.___, the Court of Appeal for the Second Appellate District affirmed a judgment following a jury verdict that found that a homeowners’ association (“HOA”) complied with the California Solar Rights Act (Civ. Code, § 714) when it denied the application of property owners to install solar panels on a slope adjacent to their residence; where the conditions, covenants and restrictions (“CC&Rs”) and Design Guidelines for the HOA expressly incorporated the requirements of section 714; where the homeowners failed to satisfy their burden to submit an application to the HOA that was complete and that addressed the HOA’s concerns about location, safety and aesthetics; and where expert testimony at trial demonstrated that an alternative solar energy system of comparable costs and efficiency could be installed that did not significantly increase the cost or decrease the efficiency of the system sought by Defendants.

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Vested Rights Class at UC Davis Extension August 18, 2011

Please join William W. Abbott and Steven Rudolph on August 18, 2011 from 9:00 AM to 4:30 PM for an in depth look at the art of crafting development agreements in their UC Davis Extension course, Vested Rights, Vesting Maps and Development Agreements.

Development agreements are an effective avenue for a community and a developer to work together to process projects. Both sides need to carefully consider the terms of these contracts and look at questions of content and performance before completing such agreements. Review the legislative and judicial aspects of development agreements. Examine the legal basis for development agreements and the overlap between agreements and vesting subdivision maps.

Gain an understanding of the negotiating process, identify and discuss the range of options available when negotiating a development agreement, and review the "theoretically" possible agreement. Review the key points to an agreement and learn ways to assist in understanding the needs of the "other side." Learn how to strategically pick the players to conduct the negotiation. An in-depth discussion will look at techniques and concepts that are likely to work, those that do not, and why most attempts at development agreements are doomed to failure.

Topics include:

  • Common Law Vested Rights
  • Legal Review
  • Development Agreements vs. Vested Maps
  • The Development Agreement Statute
  • Key Terms and Alternative Approaches
  • Considerations in Negotiating the Agreement
  • Contents of an Agreement
  • Testing the Waters
  • Paper Control—Who Drafts the Document?
  • Enforceability
  • How to Implement Agreements
  • What Happens After the Life of an Agreement?

Register at:

http://extension.ucdavis.edu/unit/land_use_and_natural_resources/course/description/?type=A&unit=LUNR&SectionID=157252&course_title=Vested%20Rights,%20Vesting%20Maps%20and%20Development%20Agreements&prgList=LUP&AreaName=Land+Use

 

"Payment of Taxes May Be Required For A Prescriptive Easement, But Only If Defendant Can Prove The Easement Has Been Separately Assessed"

By Glen C. Hansen

In Main Street Plaza v. Cartwright & Main, LLC (2011) ___ Cal.App.4th ___, 2011 Cal.App. LEXIS 499, the Fourth Appellate District held that a defendant property owner was not entitled to a summary judgment on the plaintiffs’ claim of a prescriptive easement over an alleyway on defendant’s property, where the plaintiffs did not pay taxes on a separately assessed railway easement that ran along the same land as the alleyway, and where the railway easement and the prescriptive easement were not coextensive in use.

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Bad Deeds Make Bad Law

By Cori Badgley and Emilio Camacho

In Monterey/Santa Cruz County Bldg. & Constr. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, the California Court of Appeal, Sixth District, held that deeds acquiring property from a redevelopment agency required the purchaser/developer to pay prevailing wages to the construction workers. In addition, the appellate court also held that plaintiffs were entitled to $73,167.50 in attorney’s fees pursuant to Code of Civil Procedure section 1021.5.

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Borrowers May Sue to Postpone a Foreclosure if the Lender Does Not First Discuss Options with the Borrower to Prevent Foreclosure

By Glen C. Hansen

In 2008, the California Legislature enacted Civil Code section 2923.5. That statute requires, before a notice of default may be filed, that a lender contact the borrower in person or by telephone to “assess” the borrower’s financial situation and to “explore” options for the borrower to prevent foreclosure.  In Mabry v. Superior Court (June 2, 2010) 185 Cal.App.4th 208, the Court of Appeal for the Fourth Appellate District addressed a case where plaintiff borrowers brought an action that requested a restraining order to prevent a foreclosure sale based on the lender’s alleged failure to comply with section 2923.5. The trial court denied plaintiffs’ request on the grounds of no private right of enforcement and federal preemption. The Court of Appeal reversed, and disagreeing with the trial court on both grounds.

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To be Exempt from Landmark Designation, a Property Must be Related to the Owner's Religious Mission Before Application for the Exemption

By Glen Hansen

In Hashalom v. City of Santa Monica (No. B212733, November 22, 2010) 2010 Cal.App. LEXIS 1990, the Court of Appeal for the Second Appellate District held that an apartment complex did not fall within a statutory exemption from historic preservation provided by Government Code section 37361, subdivision (c), because the property had always been a commercial enterprise, both when the current owner purchased it and when the same owner later sought the exemption.

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Mortgagors May Not Privately Enforce The Requirement Imposed On Lenders To Have A Comprehensive Loan Modification Program

By Glen C. Hansen

In Vuki v. Superior Court (October 29, 2010) 189 Cal.App.4th 791, Lucy and Manatu Vuki filed an action against their mortgagee, HSBC Bank USA, initially seeking a temporary restraining order that would stay HSBC’s eviction of the Vukis after the Vukis lost their home to foreclosure. The Vukis alleged, among other things, that HSBC violated the requirements for a “comprehensive loan modification program” that are provided in Civil Code sections 2923.52 and 2923.53 (enacted in 2009). The trial court denied the application for a temporary restraining order and the Vukis filed a writ proceeding with the Court of Appeal for the Fourth Appellate District. The Court denied that writ petition on the grounds that neither section 2923.52 nor section 2923.53 provides any private right of action.

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REMINDER! Save the Date!

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

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 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 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water 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 20, 2011
  • 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: Tuesday, February 8, 2011
  • 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 11, 2011
  • 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.

Save the Date!

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

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 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 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water 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 20, 2011
  • 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: Tuesday, February 8, 2011
  • 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 11, 2011
  • 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.

A Lenders' Loan Approval Is Not An Implied Promise That The Borrower Can Afford The Loan

By Glen C. Hansen

In Perlas v. GMAC Mortgage, LLC (August 11, 2010) 187 Cal.App.4th 429, the California Court of Appeal for the First Appellate District held that home loan borrowers could not state a cause of action for fraudulent misrepresentation or concealment against a lender, because a borrower is not entitled to rely upon a lender’s knowingly false determination that the borrower is qualified for a loan in order to decide if the borrower could afford the loan.

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Seller's Broker Has Duty to Inform Buyer That Property is so Over-Encumbered That Escrow Will Likely Not Close

By Glen C. Hansen

In Holmes v. Summer (2010) 188 Cal.App.4th 1510, the Court of Appeal for the Fourth Appellate District held that when a real estate agent or broker for a seller is aware that the amount of existing monetary liens and encumbrances exceeds the sales price of a residential property, so as to require either the cooperation of the lender in a short sale or the ability of the seller to put a substantial amount of cash into the escrow in order to obtain the release of the monetary liens and encumbrances affecting title, the agent or broker has a duty to disclose this state of affairs to the buyer, so that the buyer can inquire further and evaluate whether to risk entering into a transaction with a substantial risk of failure.

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Exclusive Prescriptive Easements "No"; Equitable Easements: "Maybe"

By Glen C. Hansen

Civil litigation involving boundary disputes often includes legal questions about whether one neighbor has the right to use the property of another neighbor for driveway, parking, landscaping or other purposes. While California courts may grant a prescriptive easement to a neighbor to use his or her neighbor’s property for a limited use, a prescriptive easement will not be granted for “exclusive” use of neighboring property. This article outlines the factors that courts consider when determining whether an intended use of neighboring property is “exclusive,” and therefore prohibited as a prescriptive easement.

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Arbitration Clause in Condominium Project CC&Rs Unenforceable in Construction Defects Action by Homeowners' Association against Developer

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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Reminder! Save the Date

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.

 

Save the Date!

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.

If the Responsible Managing Officer Abandons the Licensed Contractor, the Contractor will be Working for Free

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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Leaving the Country? You're Still on Notice of the Adverse Possessors on Your Property

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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Case Law in 2009 Underscores the Strict Requirements of California's Home Equity Sales Contract Act

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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Homeowners have the Burden of Proving Builder Failed to Comply with "Fix-it Law" Before Filing Construction Defects Action

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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Sacramento County Bar Association Real Property Law Section

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.

Another Developer Win on Affordable Housing Regs: A Local Agency can be Preempted from Implementing Affordable Housing Requirements as a Condition of a Project Approval

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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California Appeals Court Says No Judicial Review of COG RHNA Allocations

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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Land Held by Park District Not Automatically Dedicated

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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If You Want to Act Like a Real Estate Broker, and Want to be Paid Like One, Then You Better be One

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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The Golden Rule of Assessments: The Levy Cannot Exceed Reasonable Cost of Proportional Special Benefit

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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Consent Unreasonably Withheld Amounts to Breach of Purchase and Sale Agreement

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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Through Equity, A Court Can Create a Roadway Easement

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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Short Sale Workshop

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

Don't "Condemn First, Decide What to do With the Property Later"

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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CLAIMS TO RECOVER REMEDIATION COSTS MAY BE BARRED AFTER 10 YEARS

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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Dream Home Checklist: Architect, Contractor, Land Use Attorney

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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What Standard Escrow Terms Will A Court Imply In A Real Estate Purchase Contract?

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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Full Disclosure- Reference Documents Must be Attached to Referendum Petition to be Legally Sufficient Under State Elections Code

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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Peril for the Unwary: Use It or Lose It Against The Coastal Commission

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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Court to Homeowner Association Board: No Judicial Deference Just Because You Like Palm Trees

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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Extinguishing Easements Through Merging Properties Under Common Ownership

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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"Unlike A Cat, The Mechanic's Lien Here Has One Life, Not Nine," Says Court of Appeal

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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Appellate Court Grants Request to Reduce Super Majority Vote Requirement Codified in Subdivision CC&Rs

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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Abbott & Kindermann Mid-Summer Real Estate Review

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.

Unsupported Option or Purchase Agreements: A Cautionary Tale

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.

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Contractor Subject to Prejudgment Attachment and Not Entitled to Any Compensation When Project Commenced Before Licensure

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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BOILERPLATE LANGUAGE BITES AGAIN - Subcontractor Must Pay Developer's Defense Costs Despite Jury Finding Subcontractor Not Negligent

 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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Wronged Real Property Buyer Pays Dearly For Not Complying With Standard Purchase Agreement Pre-Litigation Mediation Provision

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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SELLER BEWARE!! - What You See Isn't Necessarily What You Get!

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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