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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.”

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

"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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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.

Continue Reading...

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

Continue Reading...

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. 

Continue Reading...

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.      

Continue Reading...