Legal News: Real Estate
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Scheherezade v. Karp (February 5, 2010)
Where prospective sellers of real property intended to sell
property and buy other property as part of an Internal Revenue
Code Sec. 1031 exchange, but sale failed and sellers were
eventually awarded damages based on rescission, damage
obtained had the rescinded contract been performed, such as
difference in rental income as a result of their purchasing a
less-profitable building than the one they intended to buy if the
sale and the intended Sec. 1031 exchange had gone through.
Where prospective sellers of real property intended to sell
property and buy other property as part of an Internal Revenue
Code Sec. 1031 exchange, but sale failed and sellers were
eventually awarded damages based on rescission, damage
obtained had the rescinded contract been performed, such as
difference in rental income as a result of their purchasing a
less-profitable building than the one they intended to buy if the
sale and the intended Sec. 1031 exchange had gone through.
Kuish v. Smith (February 10, 2010)
In a rising market, a seller may not retain buyer's deposit after
buyer breached sales agreement if seller cannot establish any
damages caused by buyer's breach, even if sales agreement
specifies that deposit was nonrefundable.
In a rising market, a seller may not retain buyer's deposit after
buyer breached sales agreement if seller cannot establish any
damages caused by buyer's breach, even if sales agreement
specifies that deposit was nonrefundable.
Gravillis v. Coldwell Banker Residential Brokerage Company
(February 26, 2010)
Arbitration agreement’s requirement that an award be rendered
in accordance with California substantive law did not
unambiguously expand the scope of judicial review, so trial
court correctly ruled that it could not review arbitrator’s decision
for legal error.
(February 26, 2010)
Arbitration agreement’s requirement that an award be rendered
in accordance with California substantive law did not
unambiguously expand the scope of judicial review, so trial
court correctly ruled that it could not review arbitrator’s decision
for legal error.
Martinez v. Wells Fargo Home Mortgage, Inc. (March 9, 2010)
Clear and unambiguous language of Real Estate Settlement
Procedures Act’s prohibition against unearned fees does not
reach the practice of overcharging. Provision cannot be read to
prohibit charging fees, excessive or otherwise, when those fees
are for services that were actually performed. National Bank Act
pre-empted plaintiff’s claim that bank violated California’s Unfair
Competition Law; bank did not engage in unlawful conduct by
failing to disclose the costs it incurs for services.
Clear and unambiguous language of Real Estate Settlement
Procedures Act’s prohibition against unearned fees does not
reach the practice of overcharging. Provision cannot be read to
prohibit charging fees, excessive or otherwise, when those fees
are for services that were actually performed. National Bank Act
pre-empted plaintiff’s claim that bank violated California’s Unfair
Competition Law; bank did not engage in unlawful conduct by
failing to disclose the costs it incurs for services.
Steiner v. Thexton (March 18, 2010)
Contract obliging seller to hold open an offer to sell parcel at a
fixed price for three years and granting buyer "absolute and
sole discretion" to terminate transaction for any reason during
period was an option agreement. Sufficient consideration
existed to render option irrevocable where buyer undertook
substantial steps toward obtaining split of parcel and incurred
significant expenses doing so, which was a plainly
bargained-for benefit for seller that had induced him to grant
the option.
Contract obliging seller to hold open an offer to sell parcel at a
fixed price for three years and granting buyer "absolute and
sole discretion" to terminate transaction for any reason during
period was an option agreement. Sufficient consideration
existed to render option irrevocable where buyer undertook
substantial steps toward obtaining split of parcel and incurred
significant expenses doing so, which was a plainly
bargained-for benefit for seller that had induced him to grant
the option.
LEG Investments v. Boxler (April 1, 2010)
Right of first refusal in a tenancy in common agreement
modified statutory right to partition and required a selling
cotenant to first comply with the terms of agreement giving
cotenant first offer to sell on terms as favorable as those sale
fell though; trial court erred in finding the right of first refusal
was a permanent waiver of the statutory right of partition for the
term of the tenancy in common.
Right of first refusal in a tenancy in common agreement
modified statutory right to partition and required a selling
cotenant to first comply with the terms of agreement giving
cotenant first offer to sell on terms as favorable as those sale
fell though; trial court erred in finding the right of first refusal
was a permanent waiver of the statutory right of partition for the
term of the tenancy in common.
Alatriste v. Cesar's Exterior Designs, Inc. (April 6, 2010)
Where plaintiff paid defendant for landscaping work at his
home, his knowledge that defendant was not licensed when
work commenced did not bar an action for full reimbursement
under Business and Professions Code Sec. 7031(b) and
plaintiff was entitled to recover the total amount paid even
though defendant was licensed during a portion of the work;
plaintiff was also entitled to recover payments for materials
retained by him, in addition to payments for labor.
Where plaintiff paid defendant for landscaping work at his
home, his knowledge that defendant was not licensed when
work commenced did not bar an action for full reimbursement
under Business and Professions Code Sec. 7031(b) and
plaintiff was entitled to recover the total amount paid even
though defendant was licensed during a portion of the work;
plaintiff was also entitled to recover payments for materials
retained by him, in addition to payments for labor.
Sabi v. Sterling (April 8, 2010)
Section 8 housing vouchers are not paid to the public housing
authority, but to a landlord; such assistance payments are not
included in a tenant's income for purposes of calculating the
aggregate amount of cash available to tenant. Legislature did
not intend to compel landlords to participate in the Section 8
program.
Section 8 housing vouchers are not paid to the public housing
authority, but to a landlord; such assistance payments are not
included in a tenant's income for purposes of calculating the
aggregate amount of cash available to tenant. Legislature did
not intend to compel landlords to participate in the Section 8
program.
Garcia v. World Savings Bank FSB (April 9, 2010)
Plaintiffs' actions in procuring a high cost, high interest loan to
avoid foreclosure by using other property they owned as
security was sufficient to support detrimental reliance, although
their actions provided no particular benefit to defendant. Bank
agent’s alleged statement that he would postpone foreclosure
sale to allow plaintiffs additional time to close on a loan if
plaintiffs needed the time was sufficiently definite to support
promissory estoppel. Where plaintiffs dismissed the third-party
foreclosure sale purchaser from suit, they could not obtain
remedy of setting aside the sale and recovering the property.
Plaintiffs' actions in procuring a high cost, high interest loan to
avoid foreclosure by using other property they owned as
security was sufficient to support detrimental reliance, although
their actions provided no particular benefit to defendant. Bank
agent’s alleged statement that he would postpone foreclosure
sale to allow plaintiffs additional time to close on a loan if
plaintiffs needed the time was sufficiently definite to support
promissory estoppel. Where plaintiffs dismissed the third-party
foreclosure sale purchaser from suit, they could not obtain
remedy of setting aside the sale and recovering the property.
Plaza Home Mortgage, Inc. v. North American Title Co., Inc.
(April 27, 2010)
Settleing agent's duting under closing instruction contract do
not end at close of escrow, but rather, when loans are closed.
(April 27, 2010)
Settleing agent's duting under closing instruction contract do
not end at close of escrow, but rather, when loans are closed.
MKB Management, Inc. v. Melikian (May 13, 2010)
Although an unlicensed real estate broker may not maintain an
action to recover compensation for the performance of acts for
which a license is required, he may still seek compensation for
acts for which no real estate license was required. Similarly,
plaintiff’s lack of a contractor’s license would preclude recovery
of compensation for acts that require licensure but not for those
actions for which such a license was not required. Trial court
erred in finding that a property management agreement that
called on plaintiff to perform multiple services, some of which
required a broker’s license and some of which did not, could
not be severed as a matter of law. Even if entire contract was
illegal and unenforceable, plaintiff could still recover the
reasonable value of services rendered provided that those
particular services were not legally prohibited.
Although an unlicensed real estate broker may not maintain an
action to recover compensation for the performance of acts for
which a license is required, he may still seek compensation for
acts for which no real estate license was required. Similarly,
plaintiff’s lack of a contractor’s license would preclude recovery
of compensation for acts that require licensure but not for those
actions for which such a license was not required. Trial court
erred in finding that a property management agreement that
called on plaintiff to perform multiple services, some of which
required a broker’s license and some of which did not, could
not be severed as a matter of law. Even if entire contract was
illegal and unenforceable, plaintiff could still recover the
reasonable value of services rendered provided that those
particular services were not legally prohibited.
Tarleson v. Broadway Foreclosure Investments, LLC (May 17,
2010)
Resident qualifies for homestead exemption to satisfy judgment
debt because home was principal residence prior to attachment
of judgment lien.
2010)
Resident qualifies for homestead exemption to satisfy judgment
debt because home was principal residence prior to attachment
of judgment lien.
Adam Bros. Farming, Inc. v. County of Santa Barbara (May 14,
2010)
Landowners' federal claim alleging county had taken land
without just compensation via false wetland delineation is
barred by res judicata.
2010)
Landowners' federal claim alleging county had taken land
without just compensation via false wetland delineation is
barred by res judicata.
612 South LLC v. Laconic LP (May 25, 2010)
Purchaser has constructive notice of property bond where
notice of assessment is recorded in the county recorder's office
and contained in title report.
Purchaser has constructive notice of property bond where
notice of assessment is recorded in the county recorder's office
and contained in title report.
Villa Vicensa Homeowners Association v. Nobel Court
Development, LLC (May 27, 2010)
Arbitration provision contained in developer's recorded
declaration of covenants, conditions, and restrictions is not
binding contract term.
Development, LLC (May 27, 2010)
Arbitration provision contained in developer's recorded
declaration of covenants, conditions, and restrictions is not
binding contract term.
Valencia v. Smyth (June 1, 2010)
Standard form residential purchase agreement expressly
incorporates California Arbitration Act, rather than procedural
provisions of Federal Arbitration Act.
Standard form residential purchase agreement expressly
incorporates California Arbitration Act, rather than procedural
provisions of Federal Arbitration Act.
Village, Inc. (June 14, 2010)
Where lease authorized electronic service of notices, as well as
service by personal delivery and certified mail, but did not
identify an individual to whom notice should be directed or
provide an e-mail address at which tenant agreed to accept
service, service by e-mail of notice to pay rent or quit was
inadequate where tenant actually received the notice but
landlord failed to present any evidence the e-mail had been
delivered to the street address specified in the lease.
Where lease authorized electronic service of notices, as well as
service by personal delivery and certified mail, but did not
identify an individual to whom notice should be directed or
provide an e-mail address at which tenant agreed to accept
service, service by e-mail of notice to pay rent or quit was
inadequate where tenant actually received the notice but
landlord failed to present any evidence the e-mail had been
delivered to the street address specified in the lease.
DFEH v. Mayr (February 9, 2011)
Government Code Sec. 12989.2, which provides that attorney
fees and costs shall not be awarded against the state in an
action to abate housing discrimination, takes precedence over
statutes allowing such fees and costs to be awarded as
sanctions, including Code of Civil Procedure Sec. 1028.5
Government Code Sec. 12989.2, which provides that attorney
fees and costs shall not be awarded against the state in an
action to abate housing discrimination, takes precedence over
statutes allowing such fees and costs to be awarded as
sanctions, including Code of Civil Procedure Sec. 1028.5
Gomes v. Countrywide Home Loans, Inc. (February 18, 2011)
California’s comprehensive nonjudicial foreclosure scheme
does not permit a homeowner to sue for a presale
determination that the party initiating foreclosure did not have
authorization to do so. By executing deed of trust, homeowner
authorized lender’s nominee to initiate nonjudicial foreclosure
proceeding in nominee’s own name.
California’s comprehensive nonjudicial foreclosure scheme
does not permit a homeowner to sue for a presale
determination that the party initiating foreclosure did not have
authorization to do so. By executing deed of trust, homeowner
authorized lender’s nominee to initiate nonjudicial foreclosure
proceeding in nominee’s own name.
Capon v. Monopoly Game, LLC (March 4, 2011)
For personal residence exemption to the Home Equity Sales
Contract Act to apply to a person who acquires title to a
residence in foreclosure, the person who acquires title must be
the same person who intends to use the property as a
residence; trial court erred in concluding that the alter ego
doctrine rendered this exception applicable to a corporation
which acquired title to property which its owner intended to use
as his personal residence.
For personal residence exemption to the Home Equity Sales
Contract Act to apply to a person who acquires title to a
residence in foreclosure, the person who acquires title must be
the same person who intends to use the property as a
residence; trial court erred in concluding that the alter ego
doctrine rendered this exception applicable to a corporation
which acquired title to property which its owner intended to use
as his personal residence.