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Condominiums: Determining Project Acceptance This publication provides lenders and others involved in the Fannie Mae condominium project acceptance process with the information they need to determine condo project eligibility, identify and underwrite condos that qualify for lender-delegated project acceptance, identify and underwrite condos that require Fannie Mae project acceptance, and request project acceptance from Fannie Mae. Download Interactive Publication Order Form (.pdf, 845K, 1 page) 2005 edition: 58 pages; CT164 $15 Fannie Mae seller/servicers/$25 all others
Housing Cooperatives: Determining Project Acceptance This publication provides lenders and others involved in the Fannie Mae housing cooperative (co-op) project acceptance process with the information they need to determine co-op project eligibility, identify and underwrite co- ops that qualify for lender-delegated project acceptance, identify and underwrite co-ops that require Fannie Mae project acceptance, and request project acceptance from Fannie Mae. Download Interactive Publication Order Form (.pdf, 845K, 1 page) 2005 edition: 71 pages; CT165 $15 Fannie Mae seller/servicers/$25 all others
Planned Unit Developments: Determining Project Acceptance This publication provides lenders involved in the Fannie Mae planned unit development (PUD) project acceptance process with the information they need to identify and underwrite PUDs that qualify for lender-delegated project acceptance, identify and underwrite PUDs that require Fannie Mae project acceptance, and request project acceptance from Fannie Mae. Download Interactive Publication Order Form (.pdf, 845K, 1 page) 2005 edition: 41 pages; CT166 $15 Fannie Mae seller/servicers/$25 all others
American Mortgage Specialists, Inc. Mortgage Bank Disapproved Appraiser List American Mortgage Specialists, Inc. has determined, for various reasons of it's own, that it will not currently accept appraisals from the following appraisers. Please draw no conclusions from an individual's name being present or absent from this, real estate appraiser, list.
New Energy Efficiency Tax Incentive Bill Introduced in Congress BOMA International supports extension bill giving building owners and managers more incentives (WASHINGTON, DC—March 9, 2007) The Building Owners and Managers Association (BOMA) International applauded the introduction of a new bill in the House and Senate yesterday (S. 822, House number not available yet) which, if passed, would extend and expand the energy efficient tax incentives for building owners and managers provided in the 2005 Energy Act. The EXTEND the Energy Efficiency Tax Incentives Act (“EXTEND”) was introduced on March 8, 2007 in both the House and the Senate. This legislation extends the Act until the end of 2012 and increases the deduction to $2.25/sf, or $0.75 /sf for partial credit for each of the three subsystems of the building (lighting; HVAC and hot water; and building envelope). The current law allows building owners and managers to receive an accelerated deduction of up to $1.80 /sf for energy efficient upgrades that exceed ASHRAE 90.1 (2001) by 50 percent. Partial credit of up to $0.60/sf is available for energy efficiency upgrades to each of the three main subsystems of the building that exceed ASHRAE 90.1 by 16 2/3 percent (1/3 of 50%). The incentives apply to energy efficient upgrades placed in service between 1/1/06 and 12/31/08.
CONSTRUCTION, ENVIRONMENTAL LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE, WATER LAW Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, No. S132972 (Cal. February 01, 2007) A ruling against plaintiffs in their challenge to a county's approval of a community plan for a large, mixed-use development project, and a specific plan for a portion of the development, is reversed pursuant to their claims arising under the California Environmental Quality Act (CEQA) that: 1) an environmental impact report (EIR) prepared for the plans failed to adequately identify and evaluate future water sources for the development; and 2) potential impacts on migratory salmon in a certain river, disclosed in the Final EIR, should instead have been incorporated in a revised Draft EIR and recirculated for public comment. [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.findlaw. com/data2/californiastatecases/s132972.doc [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw. com/data2/californiastatecases/s132972.pdf
CALIFORNIA ENACTS FIRST US BAN ON DRY-CLEANING CHEMICAL Associated Press California regulators have enacted the United States' first statewide ban on the most common chemical used by dry cleaners, pleasing environmentalists but worrying some small businesses. http://news.lp.findlaw.com/ap/o/51/01-26-2007/51c7000f0d92e461.html Find an Environmental Law Attorney http://legalrecords.findlaw.com/ss/search_results_exp.jsp? ch=LP&legaltopic=1&legalissue=121&search=exp&law=lawyer
ADMINISTRATIVE LAW, GOVERNMENT LAW, MANUFACTURING, PROPERTY LAW & REAL ESTATE Neilson v. City of Cal. City, No F049143 (Cal. 5th App. Dist. January 09, 2007) Judgments finding amendments to defendants' redevelopment plan, resulting in the building of an automobile test track facility on desert land, to be valid, are reversed as defendants interpreted California's Community Redevelopment Law erroneously when it found that the lack of legal and physical access to a right-of-way meant the subject lots were of irregular form and shape and, thus, approval of the redevelopment plan is invalid. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2007/f049143.html [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw. com/data2/californiastatecases/f049143.pdf
BANKING LAW, PROPERTY LAW & REAL ESTATE Wachovia Bank v. Lifetime Indus., Inc., No E037560 (Cal. 4th App. Dist. December 15, 2006) Evidence that an optionee has obtained title to property that is the subject of the option is not sufficient to extinguish an intervening lien when there is no evidence that the optionee's title was obtained pursuant to the option. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/e037560.html [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw. com/data2/californiastatecases/e037560.pdf
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING People v. Brandon, No B186361 (Cal. 2d App. Dist. December 15, 2006) Convictions on several sex-related crimes including pimping, pandering, forcible rape, false imprisonment, and aggravated sexual assault of a child, among others, with finding of personal use of a deadly weapon, are affirmed over claims that: 1) a victim was improperly permitted to testify with her face partially covered; 2) opinion testimony concerning pimping strategies was erroneously admitted; 3) defendant was denied effective assistance of counsel; 4) there was insufficient evidence to support false imprisonment conviction; and 4) various sentences must be stayed. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/b186361.html [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw. com/data2/californiastatecases/b186361.pdf
ATTORNEY'S FEES, CIVIL PROCEDURE, CONSTRUCTION, PROPERTY LAW & REAL ESTATE Wakefield v. Bohlin, No H028310 (Cal. 6th App. Dist. December 15, 2006) In an action arising out of the purchase of a home, post-judgment award of attorney fees and costs to defendants, based on the court's determination that they were prevailing parties, is reversed as: 1) plaintiff categorically qualifies as a prevailing party entitled to recover his litigation costs; 2) one defendant is not a prevailing party unentitled to recover costs; and 3) since the defendants have a unity of interest in this litigation, the other defendant is not categorically a prevailing party, and any cost award in her favor is discretionary and subject to apportionment. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/h028310.html [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw. com/data2/californiastatecases/h028310.pdf
CIVIL PROCEDURE, CONSTRUCTION, CONTRACTS, INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE Kelly v. Haag, No D047231 (Cal. 4th App. Dist. December 15, 2006) In negligence and fraud case involving the demolition and construction of a condominium, judgment in favor of plaintiff with awards of compensatory and punitive damages, is reversed to the extent substantial evidence does not support the trial court's assessment of punitive damages against defendant. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/d047231.html [To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw. com/data2/californiastatecases/d047231.pdf
Neilson v. City of Cal. City, No. F049143 (Cal. 5th App. Dist. January 09, 2007) Judgments finding amendments to defendants' redevelopment plan, resulting in the building of an automobile test track facility on desert land, to be valid, are reversed as defendants interpreted California's Community Redevelopment Law erroneously when it found that the lack of legal and physical access to a right-of-way meant the subject lots were of irregular form and shape and, thus, approval of the redevelopment plan is invalid. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2007/f049143.html [To view the full-text of cases you must sign in to FindLaw.com.]
The Guadalupe-Blanco River Authority ("the Authority") questions whether Marvin Kraft, Sr., demonstrated that his expert witness's real estate appraisal opinion was reliable under Gammill v. Jack Williams Chevrolet, Inc. See Footnote 1 Kraft responds that his expert used the judicially approved comparable sales methodology to arrive at his opinion. But the expert based his opinion on local sales that were not comparable to the condemned land. Therefore his opinion was not reliable, and the trial court abused its discretion by admitting his testimony. Because the court of appeals held otherwise, See Footnote 2 we reverse that court's judgment and remand this case to the trial court.
Big Creek Lumber Co. v. County of Santa Cruz, No S123659 (Cal. June 29, 2006) County zoning ordinances relating to the permissible locations for timber operations are not preempted by state forestry statutes.
Save Our Neighborhood v. Lishman, No C049525 (Cal. 3d App. Dist. June 28, 2006) In a dispute involving a city's approval of a project for the construction of a hotel, gas station, and convenience store complex, a judgment denying plaintiffs' petition for writ of mandate is reversed where a city's reliance on an addendum to a mitigated negative declaration for the project violated the California Environmental Quality Act (CEQA).
Carson Redevelopment Agency v. Padilla, No B184629 (Cal. 2d App. Dist. June 28, 2006) In the context of Government Code section 1090, disgorgement of benefits received under a void contract is automatic. Summary judgment for plaintiff-agency is affirmed on its complaint to recover amounts paid to defendants through a public contract that was approved and signed only after they paid extortion money to a city's former mayor pro tempore.
Schneider v. California Coastal Comm'n, No B186149 (Cal. 2d App. Dist. June 28, 2006) The Legislature has not recognized an ocean boater's "right to a view" of the coastline as a factor in regulating development.
Peak Invs. v. S. Peak Homeowners Ass'n, Inc., No G035851 (Cal. 4th App. Dist. June 28, 2006) The Davis-Stirling Common Interest Development Act requires that a proposed amendment to a homeowners association's declaration of covenants, conditions, and restrictions (CC&Rs) be approved by at least a simple majority of the total votes in the homeowners association before a trial court can reduce the voting percentage requirement set by the CC&Rs.
City of Santa Monica v. Gonzalez, No B182104, B184549 (Cal. 2d App. Dist. June 27, 2006) Orders appointing a receiver, denying petitioner's motion for reconsideration, and granting the receiver's application to take specified actions are affirmed in an action brought by the city against a property owner for numerous code violations. Further, the owner's petition for a writ of mandate/prohibition is denied, and a stay of the proceedings in the trial court is vacated.
Courts Appraisers blamed in bank losses By Rebecca S. Green The Journal Gazette Hicksville Bank filed another lawsuit against area appraisers, this time alleging appraisal errors on 48 properties that have cost the bank more than $1 million. According to the lawsuit, a number of area appraisers and appraisal companies - Glenn Howard, Howard Group Appraisals, Sterling Realtors & Appraisers LLC, Patrick A. Early, Early Appraisal Services Inc. and Aaron Rollins - appraised a total of 48 properties since July 2002 with a collective value of $2,071,000.
Commercial Real Estate Convention & Trade Show This is the link to information on the June 2006 Commercial Source On-line Convention & Trade Show. Expert Industry Speakers, Networking with Commercial Real Estate professionals, Virtual Trade Show Floor and Exhibitor Prize Drawings! And to top it off it's all virtual and completely paid for by the Sponsors- Check it out! Sign up for your complimentary pass today. Please refer any questions regarding attendance, sponsorship or exhibiting to: info@commercialsource.com Kindest regards, Convention Staff Commercial Source On-Line Convention & Trade Show
California Appellate Districts ADMINISTRATIVE , GOVERNMENT , PROPERTY & REAL ESTATE, TAX People ex rel. Strumpfer v. Westoaks Inv., No B178628 (Cal. 2d App. Dist. May 23, 2006) Revenue and Taxation Code section 4985.2(c) was only intended by the Legislature to authorize tax collectors and auditors to obey court orders directing them to cancel tax delinquency penalties, costs and other charges, and therefore such orders for cancellation must be based on some statutory authority other than section 4985.2(c). Subdivision (c) is not a grant of independent judicial authority to relieve taxpayers of liability for tax delinquency penalties.
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ADMINISTRATIVE , PROPERTY & REAL ESTATE, TAX Silveira v. County of Alameda, No A108702 (Cal. 1st App. Dist. May 23, 2006) Summary judgment in favor of defendant is affirmed where assessor's recommended values were the fair market values of the possessory interests for the tax years at issue, over claims that plaintiff is entitled to refunds as he could not lawfully be taxed based on a term of possession longer than one month.
The “Anderson Initiative” is one of four ballot measures seeking to restrict the use of eminent domain by public agencies that have been cleared for circulation by the Secretary of State. Proponents of the Anderson Initiative are now in the process of gathering signatures. Under the Secretary of State’s guidelines for qualifying ballot measures, proponents have until early May to turn in the requisite number of valid signatures (598,105) to qualify for the November 2006 ballot or until mid-July to qualify for the June 2008 ballot.
COMMUNICATIONS , CONSTRUCTION, GOVERNMENT , PROPERTY & REAL ESTATE Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge, No. 05-55014 (9th Cir. May 23, 2006) Summary judgment in favor of defendant-municipality upholding certain permit denials involving wireless telecommunications facilities based on aesthetic impact is reversed where defendant overstepped its regulatory authority under state law, its wireless ordinance was not viable, and no evidence supported the permit denials. (Amended opinion.)
BANKING , CIVIL PROCEDURE, CONSTITUTIONAL , DEBT COLLECTION, GOVERNMENT , PROPERTY & REAL ESTATE Quicken Loans, Inc. v. Wood, No. 04-16244, 04-16312 (9th Cir. May 22, 2006) The Alternative Mortgage Transaction Parity Act (Parity Act), 12 U.S.C. sections 3801-06, does not preempt California's pre-amendment per diem loan interest statutes as applied to alternative mortgage transactions.
ADMINISTRATIVE , CONSTRUCTION, PROPERTY & REAL ESTATE Mahon v. County of San Mateo, No A110171 (Cal. 1st App. Dist. May 18, 2006) Summary judgment in favor of defendant county, in action seeking declaration that development permit applications were deemed approved under the Permit Streamlining Act, is affirmed over claim that the trial court erred in finding that the notice given by defendant was not the "public notice required by law" necessary for deemed approval under the statute.
CIVIL PROCEDURE, PROPERTY & REAL ESTATE Slintak v. Buckeye Retirement Co., No. B182875 (Cal. 2d App. Dist. May 16, 2006) Summary judgment in favor of cross-complainant for quiet title and cancellation of a deed of trust, based on running of statute of limitations under Marketable Record Title Act, is reversed where the filing of lis pendens in separate but related litigation prevented the running of the statute.
ADMINISTRATIVE , CIVIL PROCEDURE, CONSTITUTIONAL , GOVERNMENT , LANDLORD TENANT , PROPERTY & REAL ESTATE Los Altos El Granada Investors. v. City of Capitola , No H027860 (Cal. 6th App. Dist. May 17, 2006) Sustaining of demurrer without leave to amend and denial of writ petition, in case involving mobile home rent control ordinance, defendant city's rejection of plaintiff's application to increase rent at mobile home park, and claims for inverse condemnation and unconstitutional taking of property, is reversed where the trial court erred in applying a due process test in determining the takings claim, and in precluding plaintiff from amending its as-applied takings, equal protection, and due process claims when they were ripe.
CIVIL PROCEDURE, CIVIL RIGHTS, EVIDENCE, GOVERNMENT , PROPERTY & REAL ESTATE Manta Mgmt. v. City of San Bernardino, No. E036942 (Cal. 4th App. Dist. May 11, 2006) Judgment for plaintiff for damages incurred as a result of a preliminary injunction obtained to enforce a zoning ordinance prohibiting operation of an adult cabaret is affirmed over claims that: 1) damages are available for a wrongfully issued preliminary injunction only if a bond has been posted or if the party wrongfully enjoined prevails in a separate action for malicious prosecution; 2) award of damages is not supported by substantial evidence because there was no factual basis for separating legal profits from profits derived from prostitution; and 3) because a large portion of plaintiff's profits are from activities in violation of a city ordinance, the court erred in excluding any evidence concerning the ordinance.
New York Court of Appeals Bates Advertising USA, Inc. v. 498 Seventh, LLC (05/11/06 - No. 62) Judgment that defendant landlord breached lease with plaintiff by failing to timely provide the required Class E fire alarm and communications and award of rent abatement credits to plaintiff is affirmed over claims that: 1) lease was not breached; and 2) rent abatement clause is illegitimate and unenforceable.
CIVIL PROCEDURE, PROPERTY & REAL ESTATE Conservatorship of Hume, No G035599 (Cal. 4th App. Dist. May 10, 2006) Order approving final accounting by the county public guardian as conservator for appellant's now-deceased father is reversed where the accounting failed to include the father's interests in certain real property in Tennessee.
CIVIL PROCEDURE, DEBT COLLECTION, PROBATE, TRUSTS & ESTATES Estate of Myers, No. G035355 (Cal. 4th App. Dist. May 10, 2006) Summary judgment disposing of creditor's petition to recover profits from sale of real property is reversed where probate court erred in finding: 1) creditor lacked standing to pursue an order under Probate Code section 850; 2) creditor failed to exhaust his right to require the executrix of the estate to pursue the claim under Probate Code section 9653; and 3) his claim was barred by the applicable statutes of limitations.
CONSTRUCTION, ENVIRONMENTAL , GOVERNMENT , PROPERTY & REAL ESTATE Banker's Hill, Hillcrest, Park West Cmty. Pres. Group v. City of San Diego , No D046360A (Cal. 4th App. Dist. May 09, 2006) Defendant city properly determined that the proposed development of a 14-story residential building is exempt from CEQA under a categorical exemption for urban in-fill development projects set forth in the Guidelines for Implementation of CEQA.
ADMINISTRATIVE , CIVIL PROCEDURE, CONSTITUTIONAL , ENVIRONMENTAL , GOVERNMENT , PROPERTY & REAL ESTATE Benson v. Cal. Coastal Comm'n, No B186125 (Cal. 2d App. Dist. May 09, 2006) Plaintiff was not denied due process where written notice of hearing to be held by defendant was adequate and plaintiff could not reasonably rely on defendant's staff's recommendations and comments about whether to appear at the hearing.
PROPERTY & REAL ESTATE Preciado v. Wilde, No B182257 (Cal. 2d App. Dist. May 09, 2006) Judgment in favor of defendant on quiet title action is affirmed where plaintiff did not establish title by adverse possession.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON, DC 20410-8000 ASSISTANT SECRETARY FOR HOUSING-FEDERAL HOUSING COMMISSIONER May 4, 2006 MORTGAGEE LETTER 2006- 9 TO: ALL APPROVED MORTGAGEES, & ALL APPROVED APPRAISERS SUBJECT: Revisions to Appendices A and C to Handbook 4150.2 Change 1, Valuation Analysis for Home Mortgage Insurance for Single Family One- to Four- Unit Dwellings
Cordry v. Vanderbilt Mortgage & Fin., Inc. (04/28/06 - No. 05-2778) In a dispute between an operator of mobile home retail sales lots and a financing company, summary judgment for defendant-financing company on all of plaintiff's claims and its counterclaim is affirmed over claims of error relating to: 1) breach of an addendum; 2) fraudulent or negligent misrepresentation; 3) breach of the implied covenant of good faith and fair dealing; and 4) the counterclaim for breach of contract.
California Appellate Districts Pacific Shore Funding v. Lozo (04/27/06 - No. B178694) Summary judgment in favor of plaintiff mortgage lender is reversed as defendant borrowers are not precluded from rescinding a consumer credit transaction that is secured by their residence and subject to the Truth In Lending Act merely because they have already refinanced that loan.
RISMEDIA, May 2, 2006—(KRT)—The Pennsylvania attorney general's office has moved to shut down a statewide operation that it says preys on the elderly by tricking them into buying estate planning products they don't need, including living trusts and deferred annuities.
COMMERCIAL , CONTRACTS, OIL & GAS , PROPERTY & REAL ESTATE BP W. Coast Prods. LLC v. May, No. 05-15076 (9th Cir. May 01, 2006) Summary judgment for plaintiff finding that it did not violate the Petroleum Marketing Practices Act when it sold its interests in gas facilities operated defendants' and non-renewed its franchise relationships with them is affirmed where plaintiff acted in good faith and in the normal course of business when it determined to sell the facilities.
BANKING , CONSUMER PROTECTION , CONTRACTS, PROPERTY & REAL ESTATE Pacific Shore Funding v. Lozo, No. B178694 (Cal. 2d App. Dist. April 27, 2006) Summary judgment in favor of plaintiff mortgage lender is reversed as defendant borrowers are not precluded from rescinding a consumer credit transaction that is secured by their residence and subject to the Truth In Lending Act merely because they have already refinanced that loan.
BANKING , CONSUMER PROTECTION , CONTRACTS, PROPERTY & REAL ESTATE Pacific Shore Funding v. Lozo, No B178694 (Cal. 2d App. Dist. April 27, 2006) Summary judgment in favor of plaintiff mortgage lender is reversed as defendant borrowers are not precluded from rescinding a consumer credit transaction that is secured by their residence and subject to the Truth In Lending Act merely because they have already refinanced that loan.
CIVIL PROCEDURE, ETHICS & PROFESSIONAL RESPONSIBILITY, PROPERTY LAW & REAL ESTATE Stevenson Real Estate Servs., Inc. v. CB Richard Elllis Real Estate Servs., Inc., No B179798 (Cal. 2d App. Dist. April 26, 2006) Judgment on the pleadings in favor of defendant is affirmed to the extent the first amended complaint failed to state a claim, however, plaintiff should be granted leave to amend to attempt to plead a claim based on defendants' alleged violation of the rules of an association of realtors.
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U.S. 6th Circuit Court of Appeals Albert M. Higley Co. v. N/S Corp. (04/17/06 - No. 05-3393) Denial of defendant's motion to stay litigation and compel arbitration is affirmed in a contract dispute between a primary contractor and a subcontractor where an arbitration clause in the parties' contract allowed plaintiff to retain discretion over when to decide a dispute through arbitration. http://caselaw.lp.findlaw.com/data2/circs/6th/053393p.pdf
Barrett v. JP Chase Morgan Bank, N.A. (04/18/06 - No. 05-5035, 05-5146) Summary judgment for defendant-lender on rescission claims under the Truth in Lending Act involving alleged failures of disclosure regarding plaintiffs' loan refinancing is reversed where the district court erred in finding that plaintiffs' act of refinancing extinguished their unexpired right to rescind the loan transaction and recover related fees. http://caselaw.lp.findlaw.com/data2/circs/6th/055035p.pdf
LEGISLATIVE COUNSEL'S DIGEST AB 2416, as introduced, Torrico Consumer loans: appraisal fees. Existing law, the California Finance Lenders Law, provides for the licensure and regulation by the Commissioner of Corporations of those engaged in making consumer loans and makes a willful violation of the law a crime. Under existing law, an appraisal fee may be charged by a licensee on any loan made that is secured by real property if specified requirements are satisfied. Existing law provides that only one fee for appraising the same real property may be collected unless the borrower has obtained a new or additional loan and more than one year has elapsed since the prior appraisal.
California Appellate Districts Kelton v. Stravinski (04/20/06 - No. F047031) Judgment for cross-defendant in action involving covenant not to compete is affirmed as such covenant violates Business and Professions Code section 16600 and is unenforceable as a matter of law.
16600. Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.
U.S. 6th Circuit Court of Appeals Albert M. Higley Co. v. N/S Corp. (04/17/06 - No. 05-3393) Denial of defendant's motion to stay litigation and compel arbitration is affirmed in a contract dispute between a primary contractor and a subcontractor where an arbitration clause in the parties' contract allowed plaintiff to retain discretion over when to decide a dispute through arbitration.
Barrett v. JP Chase Morgan Bank, N.A. (04/18/06 - No. 05-5035, 05-5146) Summary judgment for defendant-lender on rescission claims under the Truth in Lending Act involving alleged failures of disclosure regarding plaintiffs' loan refinancing is reversed where the district court erred in finding that plaintiffs' act of refinancing extinguished their unexpired right to rescind the loan transaction and recover related fees.
AN IMPORTANT E-NEWS ANNOUNCEMENT FROM CalHFA: The California Housing Finance Agency has announced updated income limits in high housing cost areas effective April 20, 2006. For detailed information see Program Bulletin #2006-08 at CalHFA’s web site.
California Appellate Districts CIVIL PROCEDURE, CONSTRUCTION, GOVERNMENT , PROPERTY & REAL ESTATE Branciforte Heights v. City of Santa Cruz, No H028864 (Cal. 6th App. Dist. April 19, 2006) Writ compelling defendant city to allow a private open space credit against the park fees exacted from plaintiff developer is reversed in the absence of a local ordinance providing for such a credit. Moreover, Government Code section 66477 does not create the direct right to receive a private open space credit that is enforceable by a traditional writ of mandate.
Palmieri v. Allstate Ins. Co. (04/13/06 - No. 05-1920) In contract dispute over flood insurance policy, 42 U.S.C. section 4072 provides jurisdiction. Prejudgment interest may not be awarded against private insurers acting as fiscal agents of the federal government under the National Flood Insurance Act.
Travelers Prop. Cas. Co. of Am. v. Liberty Mutual Ins. Co. (04/12/06 - No. 05-1226) Grant of summary judgment in favor of defendant in contribution action between insurers is reversed, and district court's argument, that the contract between the property manager and the property owner somehow abrogated defendant insurer's independent contractual obligation to provide coverage to the property manager, is rejected.
Terra Venture, Inc. v. JDN Real Estate (04/10/06 - No. 04-3492) Summary judgment for defendants on all claims arising from a contract to develop certain property is affirmed over claims of error regarding findings that: 1) defendants had no duty to develop the property; 2) they had no duty to develop the project within a specific time under the implied covenant of good faith and fair dealing; and 3) there was no fiduciary relationship between the parties.
CIVIL PROCEDURE, INSURANCE , PROPERTY & REAL ESTATE Mid-Century Ins. Co. v. Superior Ct. (Bandek), No B186140 (Cal. 2d App. Dist. April 14, 2006) Order denying motion for judgment on the pleadings is upheld and plaintiff's case may proceed where a demurrer was sustained without leave to amend solely by virtue of the statute of limitations, and the time for direct attack on the judgment has passed, but the case is not litigated to finality under Code of Civil Procedure section 340.9(d)(1).
CIVIL PROCEDURE, INSURANCE , PROPERTY & REAL ESTATE Ashou v. Liberty Mutual Fire Ins. Co., No B179641 (Cal. 2d App. Dist. April 14, 2006) Judgment of dismissal in favor of defendant insurer is reversed as defendant's reopening and reconsideration of an earthquake claim tolls the revived one-year period to bring earthquake claims set forth in Code of Civil Procedure section 340.9.
ADMINISTRATIVE , BANKRUPTCY , CIVIL PROCEDURE, INDIAN , PROPERTY & REAL ESTATE Harrison v. Emerald Outdoor Adver., LLC, No. 04-35647 (9th Cir. April 13, 2006) A determination that a bankruptcy debtor's lease in certain tribal land had priority over a deed of trust, since it was recorded in the BIA Title Plant before the deed, is reversed where federal law points to state law to determine priority. Under a state's race-notice statute, priority was obtained by recording in the county in which the land was located.
ADMINISTRATIVE , ENVIRONMENTAL , GOVERNMENT , PROPERTY & REAL ESTATE Mineral Ass'ns Coalition v. State Mining & Geology Bd, No C049201 (Cal. 3d App. Dist. April 12, 2006) A regulation, requiring the Director of the Dep't of Conservation to concur in any lead agency determination that a mine operator has fulfilled the terms of his reclamation plan and that the financial assurance instruments securing his obligation to reclaim lands shall be released, was within defendant's authority and consistent with the Surface Mining and Reclamation Act of 1975.
BANKRUPTCY , PROPERTY & REAL ESTATE, TRANSPORTATION Norfolk S. Ry. Co. v. Consol. Freightways Corp., No. 04-55717 (9th Cir. April 10, 2006) Dismissal of a complaint claiming that bankruptcy debtor, an interstate motor carrier, held certain funds in trust for plaintiff, an interline freight railroad, under the "interline trust doctrine" is affirmed since the creation of a new federal common law rule imposing a constructive trust for the payment of interline balances in bankruptcy was not justified.
EVIDENCE, GOVERNMENT , INSURANCE , PROPERTY & REAL ESTATE California State Auto. Ass'n Inter-Ins. Bureau v. City of Palo Alto, No H027980 (Cal. 6th App. Dist. April 10, 2006) Decision finding defendant City not liable for property damage resulting from a sewage backup into a private home under the theory of inverse condemnation is reversed where the trial court erred in requiring the plaintiff to prove fault.
California Appellate Districts CONSTITUTIONAL , GOVERNMENT , LANDLORD TENANT , PROPERTY & REAL ESTATE Hillsboro Props. v. City of Rohnert Park , No A110441 (Cal. 1st App. Dist. April 06, 2006) A property owner prevented from charging increased rent by a rent control ordinance eventually ruled unconstitutional is not entitled to recover the lost rental income, either from its tenants or from the city that imposed the limit, if the ordinance did not deny the owner a fair return on its investment.
U.S. 6th Circuit Court of Appeals Minges Creek, L.L.C. v. Royal Ins. Co. of Am. (04/06/06 - No. 05-1313) Summary judgment for plaintiff, the owner of a shopping center, in a suit against an insurer for indemnification of an underlying slip-and-fall lawsuit is reversed where: 1) the policy at issue covered premises inside a store, and not the common areas where the accident occurred; and 2) defendant had no duty to defend against the injured's claims. http://caselaw.lp.findlaw.com/data2/circs/6th/051313p.pdf
Supreme Court of Texas Minnesota Life Ins. Co. v. Vasquez (04/07/06 - No. 04-0477) An award of extra-contractual damages on top of payments made by a mortgage insurer after a bad-faith suit was filed against it is reversed where there was no evidence that the insurer knew its actions were false, deceptive, or unfair.
County Concrete Corp. v. Township of Roxbury (03/31/06 - No. 05-1680, 05-1865) Dismissal and summary judgment in favor of defendants, a township and officials, in a dispute over a zoning ordinance which effectively prevented plaintiffs' sand and gravel removal operations is reversed in part as to: 1) substantive due process challenges to the ordinance and defendants' obstructive course of conduct; 2) a Fifth Amendment challenge; 3) a breach of the implied covenant of good faith and fair dealing claim; and 4) tortious interference and civil conspiracy claims.
Trancas Prop. Owners Ass'n v. Malibu (03/30/06 - No. B174674A) Denial of petition for writ of mandate to set aside an agreement between plaintiff and defendant is reversed where the agreement impermissibly attempted to abrogate the city's zoning authority and provisions, and its adoption in a closed city council session violated Government Code section 54950 et seq. (Brown Act), even though the agreement included a settlement of litigation.
CONSTRUCTION, CONTRACTS, GOVERNMENT , PROPERTY & REAL ESTATE Trancas Prop. Owners Ass'n v. Malibu , No B174674A (Cal. 1st App. Dist. March 30, 2006) Denial of petition for writ of mandate to set aside an agreement between plaintiff and defendant is reversed where the agreement impermissibly attempted to abrogate the city's zoning authority and provisions, and its adoption in a closed city council session violated Government Code section 54950 et seq. (Brown Act), even though the agreement included a settlement of litigation.
GOVERNMENT , PROPERTY & REAL ESTATE, TAX Dahms v. Downtown Pomona Prop. & Bus. Improvement Dist., No B183545 (Cal. 2d App. Dist. March 30, 2006) Trial court's rejection of plaintiff's challenge to the creation of a special assessment district in downtown Pomona, California is affirmed over claims that the city council's hearing on the assessment was premature, the amounts were not proportional to the benefits conferred, the city did not adequately distinguish between special and general benefits, and certain findings by the city are not supported by substantial evidence.
Searching for Edina Realty on Google returns a top-of-the-page sponsored link run by TheMLSonline.com, and Edina Realty has sued the advertiser over use of its trademark. Even though the lawsuit involved Google and keywords, for once no one has shown up at the Googleplex bearing warm greetings and a stone-cold subpoena. In Edina Realty, Inc. v. TheMLSonline.com, Marquette law professor Eric Goldman has blogged that the case equates keyword purchases to trademark infringement.
"That's what makes this case significant. I think this is the first case substantively analyzing a purchaser's liability for buying a competitor's keyword," he wrote in his post. TheMLSonline.com purchased keywords like "Edina Realty" and several variations, including misspellings, on both Google and Yahoo. Yahoo recently changed its policy for trademark purchases, restricting them to being eligible for purchase only by the trademark holder. Google does not do this.
Along with the keyword purchases, TheMLSonline.com also indulged in placing hidden text on its site, Goldman noted. Phrases like "Edina Realty information presented at TheMLSonline.com" were hidden as white text on a white background. The impact of the court's initial ruling that the purchase of keywords, though not conventional, is a use in commerce, could have implications down the road. Goldman believes a couple of key points arose from the ruling. Read the Full Article
EPA PUBLISHES FINAL RULE ON ALL APPROPRIATE INQUIRIES The Environmental Protection Agency published a final rule setting federal standards for the conduct of all appropriate inquiries. The rule was published in the Federal Register on November 1, 2005. The final rule and preamble is available below.
Private Mortgage Insurance (PMI) New Law Requires Lenders to Cancel PMI If you are a homeowner, you will want to be aware of a new law that establishes rights for homeowners and rules for lenders regarding private mortgage insurance (PMI) cancellation. With this knowledge, you may eliminate premiums you may be paying unnecessarily.
CONSTRUCTION, ENVIRONMENTAL , EVIDENCE, INJURY AND TORT , LANDLORD TENANT , PROPERTY & REAL ESTATE Geffcken v. D'Andrea , No. B176232 (Cal. 2d App. Dist. March 28, 2006) Evidentiary rulings and dismissal of causes of action for nuisance and constructive eviction of plaintiffs claiming exposure to mold mycotoxins are affirmed over claims that the trial court erroneously granted defendants' motions in limine: 1) to exclude the testimony of one of appellants' two designated experts; 2) to exclude the environmental sampling data of appellants' other designated expert; 3) to exclude the results of a mycotoxin antibody test and a blood serology test; and 4) to preclude them from alleging exposure to mycotoxins at the properties in question.
California Appellate Districts GOVERNMENT , PROPERTY & REAL ESTATE, TAX City of Dinuba v. Tulare Co., No F046252 (Cal. 5th App. Dist. March 28, 2006) Dismissal of action against county based on immunity under Government Code section 860.2 is reversed because claim against county, for failing to retroactively distribute overdue property tax revenues to city redevelopment agency, is not encompassed by the state Tort Claims Act.
CONSTITUTIONAL , PROPERTY & REAL ESTATE, RETAIL Hernandez v. City of Hanford, No F047536 (Cal. 5th App. Dist. March 28, 2006) Judgment upholding zoning ordinance to allow department stores with 50,000 or more square feet of floor space to sell furniture on a limited basis while denying that right to smaller retailer is reversed where disparate treatment of similarly situated retailers based on square footage is not rationally related to the purpose behind the ordinance and is unconstitutional as a violation of equal protection.
Announcing the 2006 Western Brownfields Workshop for EPA Brownfields grantees, potential or interested grantees, grantees' consultants, and federal and state partners. This interactive workshop provides a forum for participants to learn about working in EPA's Brownfields Program. This year, the open grantee workshop will be held in Tucson, Arizona on June 6 and 7. Additionally, there will be a half-day orientation session devoted to new grantees in EPA's Brownfields Program on Monday, June 5th. The workshop is free, but registration is required.
E-mail your registration form and any questions to: WBWregistration@sra.com
California Appellate Districts PROPERTY & REAL ESTATE, REMEDIES Aaron v. Dunham, No A109488 (Cal. 1st App. Dist. March 27, 2006) Continuous use of a private road by previous owner of plaintiffs' property since 1982 with express permission, and from at least 1990 to 1995 without permission, constituted adverse, open, and uninterrupted use sufficient to support a prescriptive easement, despite claims that original builder of the road, an oil company, posted signs which precluded the acquisition of prescriptive rights, and use of the road was not adverse.
CIVIL PROCEDURE, FAMILY , PROPERTY & REAL ESTATE Kohlrautz v. Oilmen Participation Corp., No. 03-16340 (9th Cir. March 27, 2006) Denial of summary judgment for defendant, receiver for a marital estate, on a third party complaint alleging abuse of process is affirmed where: 1) state official immunity law applied to the case, 2) Nevada law was applicable, and 3) under Nevada's law of official immunity for court-appointed receivers, denial of summary judgment was proper.
U.S. 4th Circuit Court of Appeals Q Int'l Courier, Inc. v. Smoak (03/20/06 - No. 05-1150) Dismissal of a contract and tort action involving an alleged conspiracy to conceal certain stock appraisals on grounds of res judicata is reversed and remanded where the district court erred by applying federal law of res judicata rather than Virginia law of res judicata.
Anaheim Gardens v. US (03/24/06 - No. 01-5011, 01-5012) Dismissal of two regulatory takings cases pursuant to a finding that the claims were unripe for suit because the parties had not obtained a "final decision" from the U.S. Department of Housing and Urban Development is reversed and remanded for further findings as to evidence of "administrative futility" that would exempt plaintiffs from exhausting their administrative remedies. http://caselaw.lp.findlaw.com/data2/circs/fed/015011p.pdf [PDF File]
California Appellate Districts CONSTRUCTION, GOVERNMENT , LANDLORD TENANT , PROPERTY & REAL ESTATE Blue v. City of Los Angeles, No B180319 (Cal. 2d App. Dist. March 24, 2006) A judgment validating an amendment to the Redevelopment Plan for the Hollywood Redevelopment Project is affirmed where was no procedural defect in the adoption of the first amendment. Substantial evidence supports the finding the project area remains blighted.
GOVERNMENT , HEALTH , LANDLORD TENANT , PROPERTY & REAL ESTATE Consumer Defense Group v. Rental Housing Indus. Members , No G035101, G035154 (Cal. 1st App. Dist. March 24, 2006) In an action alleging Proposition 65 violations on the part of property owners and managers for failure to warn tenants about potential health hazards, approval of a settlement between the parties is reversed where affirmance would nullify the regulations requiring meaningful notice to prosecutorial authorities which differentiate the target business in Prop. 65 warning litigation from nontarget businesses, so the AG has a genuine opportunity to decide on behalf of the public whether Prop. 65 litigation is warranted.
CONSTRUCTION, CONTRACTS, ENVIRONMENTAL LAW, INJURY AND TORT LAW Michael v. Denbeste Trans., No B173832 (Cal. 2d App. Dist. March 24, 2006) The Privette doctrine, from Privette v. Superior Court (1993) 5 Cal.4th 689, applies in a case where the injured plaintiff is not an employee, but an independent contractor, hired by another independent contractor.
ATTORNEY'S FEES, PROPERTY LAW & REAL ESTATE Newmyer v. Parklands Ranch, LLC, No B180461 (Cal. 2d App. Dist. March 24, 2006) The owner of the dominant tenement possessing over the servient tenement an access easement that includes the right to grant other easements for "like purposes" may convey to an owner of property adjoining the dominant tenement an enforceable easement for access over the servient tenement. When a party records a late notice to preserve easement under Civil Code section 887.070, the attorney fees that can be assessed as a condition to dismissal of an action to establish the abandonment of an easement may include only those fees incurred in connection with that action for statutory abandonment, and not the fees incurred otherwise in the proceeding to contest the validity of the easement.
GEORGIA V. RANDOLPH March 22, 2006 In a 5-3 decision (with Justice Alito abstaining), the U.S. Supreme Court rules that even if a co- occupant of a residence gives police permission to conduct a warrantless entry, a different co-occupant's physical presence and stated refusal to permit entry "prevails, rendering the warrantless search unreasonable and invalid as to him."
Kuperman v. Assessment Appeals Bd. No. 1, No D045751 (Cal. 4th App. Dist. March 20, 2006) Denial of a petition for a writ of administrative mandamus to set aside a decision finding that a county tax assessor lacked jurisdiction to consider petitioner's application for a reduction in the base year value of property is affirmed where petitioner's application was not timely filed under applicable law, and the limitations period at issue does not violate constitutional due process or equal protection.
California Appellate Districts CIVIL PROCEDURE, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE Gill Petrolium, Inc. v. Hayer, No C047075 (Cal. 3d App. Dist. March 15, 2006) Grant of a motion for relief from for relief from the forfeiture of a lease is affirmed over a claim that the trial court had no jurisdiction to reconsider and modify an award of per diem damages, because Code of Civil Procedure section 1179 gives a court the authority to relieve a defendant of burdens of a judgment in an unlawful detainer action.
California Appellate Districts GOVERNMENT , LANDLORD TENANT , PROPERTY & REAL ESTATE Pieri v. City & County of San Francisco, No A110571 (Cal. 1st App. Dist. March 16, 2006) A requirement of reasonable relocation assistance compensation for displaced tenants does not violate the Ellis Act. Grant of a petition for writ of mandate in a challenge to a municipality's relocation assistance ordinance is reversed where the trial court erred in concluding that the ordinance facially violated the Ellis Act.
HUD has released the final quarterly report of "U.S. Housing Market Conditions" for 2005, which contains an analysis of both the fourth quarter and the entire year.
Business Plan, CalARP & Spill/Release Reporting Basic Training OES is once again providing basic program training. This training is open to government and industry staff that are interested in learning the basics about the following: ~ Business Plan Program ~ California Accidental Release Prevention (CalARP) Program. Also called the Risk Management Program ~Hazardous Material Release/Spill Reporting Requirements This free training will be held at the South Coast AQMD facility in Diamond Bar, California on March 29, 2006. The class is scheduled from 8:45 AM to 3:00 PM. To register, please email Michael Warren at Michael_Warren@oes.ca.gov or call 916-845-8772 before March 22, 2006.
CONTRACTS, CORP. GOVERNANCE, CORPORATION & ENTERPRISE , INSURANCE , PROPERTY & REAL ESTATE, SECURITIES TIG Ins. Co. of Michigan v. Homestore, Inc., No B176533 (Cal. 2d App. Dist. March 13, 2006) Summary judgment for an insurer in an action seeking rescission of defendant-company's directors and officers liability insurance policy is affirmed over claims regarding: 1) whether the insurer could rescind the policy as to defendants, directors and officers, who did not sign the application and were unaware of certain misrepresentations; and 2) whether the elements of rescission under the policy were met.
ATTORNEY'S FEES, CONTRACTS, PROPERTY & REAL ESTATE, WATER Baugh v. Garl, No B176714 (Cal. 2d App. Dist. March 13, 2006) A judgment permanently enjoining defendant from tapping into plaintiffs' pipeline that carries water to plaintiffs' property is affirmed over his claims regarding: 1) denial of a jury trial; 2) an award of attorney's fees; 3) a failure to disqualify plaintiffs' counsel; 4) a referee's conflict of interest; and 5) denial of a motion for nonsuit and directed verdict.
ASSET FORFEITURE, CLASS ACTIONS, CONSTITUTIONAL , GOVERNMENT , PROPERTY & REAL ESTATE Suever v. Connell, No. 04-15555 (9th Cir. March 14, 2006) Dismissal of a class action alleging that defendants-state officials improperly seized and retained class property under state law is vacated where the Eleventh Amendment did not bar the class from suing to obtain its property back since the complaint alleged that defendants seized and retained class property through ultra vires and unconstitutional acts.
Oak Park Calabasas Condo. Ass'n v. State Farm Fire & Cas. Co. (03/09/06 - No. B180743) A judgment following a court trial for an insurer on claims of breach of its duty to defend and indemnify is affirmed where the trial court properly found that defendant's policy of insurance with plaintiff, condominium association, offered no potential for coverage in an underlying contract action.
New MIT index measures huge returns in commercial real estate February 22, 2006 Annual investment returns for U.S. holdings in commercial real estate — a sector favored by big pension funds — hit an unprecedented high of 34 percent in 2005, the MIT Center for Real Estate announced today.
County of Los Angeles v. Constr. Laborers Trust Fund for S. California Admin. Co., No B179090 (Cal. 2d App. Dist. March 06, 2006) A judgment establishing lien priorities between claimants to certain interpleaded funds is affirmed where respondent, an attorney to a party in underlying litigation, was entitled to the imposition of an equitable lien.
GOVERNMENT BENEFITS, GOVERNMENT , HEALTH , PROBATE, TRUSTS & ESTATES Conservatorship of the Estate of Kane, No A110631 (Cal. 1st App. Dist. March 06, 2006) An order denying a petition for a substituted judgment to establish a special needs trust under the authority of Probate Code section 2580 is reversed and remanded for reconsideration where the probate court had jurisdiction and authority to create the special needs trust at issue.
Circular 26-06-04 - Manufactured Home Appraisal Report Source: VA Date: 3/3/2006 PURPOSE. The purpose of this circular is to provide information to program participants on the use of the new Manufactured Home Appraisal Report (Freddie Mac Form 70B/Fannie Mae Form 1004C, dated March 2005) for Department of Veterans Affair’s (VA) manufactured home appraisals.
Insurance Appraiser, Insurance Appraisal,
CONSTRUCTION, CONTRACTS, INSURANCE , & REAL ESTATE Amwest Surety Ins. Co. v. Patriot Homes, Inc., No B175822 (Cal. 2d App. Dist. December 22, 2005) Judgment for defendants, real estate developers, in an action for breach of an indemnity contract and statutory indemnity regarding plaintiff-insurer's provision of an appeal bond to defendants is reversed since the parties' indemnity agreements covered all bonds, including appeal bonds.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON, DC 20410-8000 ASSISTANT SECRETARY FOR HOUSING-FEDERAL HOUSING COMMISSIONER December 19, 2005 MORTGAGEE APPROVED APPRAISERS LETTER 2005-48 TO: ALL APPROVED MORTGAGEES, ALL APPROVED APPRAISERS SUBJECT: FHA Repair and Inspection Requirements for existing properties and revisions to FHA Appraisal Protocol In a continuing effort to reform and standardize its appraisal requirements, FHA has shifted from its historical emphasis on the repair of minor property deficiencies and now only requires repairs for those property conditions that rise above the level of cosmetic defects, minor defects or normal wear and tear. FHA Roster Appraisers are reminded to report all readily observable property deficiencies, as well as any adverse conditions discovered performing the research involved in completing the appraisal, within the appraisal reporting form. Lenders should use professional judgment and rely upon prudent underwriting practices in determining when a property condition poses a threat to the safety of an occupant and/or jeopardizes the soundness and structural integrity of the property, such that additional inspections and/or repairs are necessary...
The California Housing Finance Agency is pleased to announce its new 40-Year Fixed Mortgage, effective March 7, 2006. For detailed information see Program Bulletin #2006-03 at CalHFA’s web site.
A bill strengthening property rights in the wake of the Supreme Court's June 2005 ruling on eminent domain has been introduced in Wisconsin and is awaiting finalization in the state legislature.
Purchase mortgage or refi: Which is best? Readers weigh in with interesting tips Monday, March 06, 2006 Inman News In a recent article, I suggested that a home buyer with enough money to pay all cash, but who needed to recover some of the cash for other purposes, might do better to pay all cash and refinance later.
CIVIL PROCEDURE, INJURY AND TORT , PROPERTY & REAL ESTATE Hoskins v. Hogstad, No C049379 (Cal. 3d App. Dist. February 21, 2006) In a dispute between neighbors, an order denying defendants' motion to strike a complaint under the anti-SLAPP statute for failure to set a hearing date on the motion within 30 days of service is affirmed where the trial court did not abuse its discretion because defendants failed to demonstrate that the docket conditions of the court precluded an early calendar date.
ADMINISTRATIVE , ENVIRONMENTAL , GOVERNMENT , TAX Unfair Fire Tax Comm. v. City of Oakland, No A109510 (Cal. 1st App. Dist. February 27, 2006) The language of section 19 of Ordinance No. 12556 allowing an aggrieved person to "appeal" to the city council a resolution to establish a fire suppression district does not provide an adequate administrative remedy because it lacks any procedural mechanism for submission, evaluation and resolution of the appeal.
CONSTRUCTION, DEBT COLLECTION, PROPERTY & REAL ESTATE, Marion Drive, LLC v. Saladino, No B182727 (Cal. 2d App. Dist. February 27, 2006) Judgment in favor of defendant, a lender, in a dispute over certain excess proceeds from the tax sale of certain property is reversed since plaintiff, a bond owner, was a "lienholder of record prior to the recordation of the tax deed" with priority over defendant's subsequently recorded deed of trust.
PROPERTY & REAL ESTATE Finkbeiner v. Gavid, No B180104 (Cal. 2d App. Dist. February 27, 2006) An order denying a successor trustee's in propria persona petition to modify and terminate a trust is reversed where the court erred in ruling that: 1) the trustee had to be represented by counsel when she appeared in court to terminate the trust; 2) the trust was irrevocable; 3) an accounting was not required; and 4) denying trustee's fees.
Adell v. John Richards Homes Bldg. Co., L.L.C. (03/01/06 - No. 04-2154) In a case involving a residential construction contract, an award of costs, attorneys' fees, compensatory damages and punitive damages following a determination that an involuntary bankruptcy petition filed by plaintiff against defendant- contractor was filed in bad faith is affirmed where there was no error in the bankruptcy court's award.
California Appellate Districts CLASS ACTIONS, GOVERNMENT , HEALTH , INJURY AND TORT , MANUFACTURING, PRODUCT LIABILITY, PROPERTY & REAL ESTATE County of Santa Clara v. Atl. Richfield Co., No H026651 (Cal. 6th App. Dist. March 03, 2006) Judgment for defendants, lead manufacturers, in a class action brought by governmental entities alleging claims for damages caused by lead paint is reversed where the superior court's rulings were erroneous as to plaintiffs' public nuisance, strict liability, negligence, and fraud causes of action.
EVIDENCE, GOVERNMENT , PROPERTY & REAL ESTATE, REMEDIES City of Santa Clarita v. NTS Technical Sys., No B169596 (Cal. 2d App. Dist. March 03, 2006) A judgment entered in an eminent domain action in favor of a municipality is affirmed over defendants' contentions that the trial court erred in finding they failed to show any qualifying goodwill loss, in excluding expert valuation testimony, and in computing the value of a "part take."
CIVIL PROCEDURE, CONTRACTS, PROPERTY & REAL ESTATE Healy v. Tuscany Hills Landscape & Recreation Corp., No E036896 (Cal. 4th App. Dist. February 28, 2006) An order denying a special motion to strike a cause of action for defamation asserted by defendant-homeowner in a dispute with a homeowners association is reversed where the allegedly defamatory publication came within the scope of the litigation privilege, and thus, there was no possibility that defendant could prevail in her cause of action.
ADMINISTRATIVE , GOVERNMENT , LANDLORD TENANT , PROPERTY & REAL ESTATE Johnson v. City & County of San Francisco, No A111355 (Cal. 1st App. Dist. February 28, 2006)The Ellis Act, involving landlords' power to remove residential rental units from the market, preempts a belief requirement relating to the amount due for tenants' relocation costs contained in the San Francisco Administrative Code.
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U.S. 2nd Circuit Court of Appeals Wells Fargo Bank v. Brooksamerica Mortgage Corp. (08/15/05 - No. 04-5306) Under New York Law, a "hell or high water" clause, which makes a leasee's obligation to make monthly payments absolute and unconditional, are enforceable by good faith assignees against sophisticated parties. http://caselaw.lp.findlaw.com/data2/circs/2nd/045306p.pdf [PDF File] CIVIL PROCEDURE, GOVERNMENT , PROPERTY & REAL ESTATE Empress v. City of San Francisco, No. 03-16706 (9th Cir. August 18, 2005) Plaintiffs' contention that defendant-City unlawfully delegated zoning decisions to the Executive Director of the Tenderloin Housing Clinic, is precluded by the Noerr-Pennington doctrine, under notice pleading standards. To read the full text of this opinion, go to: http://caselaw. lp.findlaw.com/data2/circs/9th/0316706p.pdf
CIVIL PROCEDURE, PROPERTY & REAL ESTATE M&A Gabaee v. Community Redevelopment, No. 04-56134, 04-56740 (9th Cir. August 17, 2005) The doctrine of Younger abstention applies when a parallel state-court proceeding has formally begun, even if the proceedings have not yet reached the merits of the claim. To read the full text of this opinion, go to: [PDF File] http://caselaw.lp.findlaw.com/data2/circs/9th/0456134p.pdf
Man Accused Of Inflating Home Appraisals To Dupe Banks 32-Year-Old To Plead Guilty In Mortgage Fraud Cases. POSTED: 12:24 pm EST August 5, 2005 INDIANAPOLIS -- An Indianapolis man was charged this week in connection with a scheme in which people allegedly conspired to trick banks into lending them millions of dollars in mortgage loans. http://www.theindychannel.com/news/4814854/detail.html.
CIVIL PROCEDURE, CONSTRUCTION Inco Dev. Corp. v. Super. Ct. of San Bernardino County, No E036800 (Cal. 4th App. Dist. August 04, 2005) The tolling provision contained in Code of Civil Procedure section 356 does not apply to extend the 10-year period set forth in section 337.15, which covers actions based on latent construction defects. http://caselaw.lp.findlaw.com/data2/californiastatecases/e036800.pdf
GOVERNMENT , TAX Silicon Valley Taxpayers v. Santa Clara County, No H026759 (Cal. 6th App. Dist. July 06, 2005) The trial court's validation of an assessment, which is intended to fund the acquisition and maintenance of open space land, is affirmed over plaintiff's claim that the assessment runs afoul of Proposition 218, the Right to Vote on Taxes Act. To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/h026759.pdf
GOVERNMENT LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE Bisno v. Santa Monica Rent Control Bd., No B176350 (Cal. 1st App. Dist. June 28, 2005) Defendant-Board did not exceed its authority when it adopted Regulation 3304, which permits landlords to petition for a rent increase on the ground that a rental unit's tenant is not occupying it as his or her principal residence. To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/b176350.pdf
PROPERTY LAW & REAL ESTATE Woodridge Escondido v. Nielsen, No. D044294 (Cal. 4th App. Dist. June 16, 2005) The district court was correct in ordering defendant to remove a wooden deck that encroached upon a side yard easement. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/d044294.pdf
Berg v. Davi, No C046809 (Cal. 3d App. Dist. June 15, 2005) The Department of Real Estate properly rejected plaintiff's application for a real estate salesperson's license where the rejection met the requirements of Business & Professions Code section 10177(f). To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/c046809.pdf
Two national mortgage servicing companies accused of charging illegal fees and intimidating homeowners agreed to forgive nearly $11 million in debt to 267 West Virginians who lost their homes in questionable foreclosures. Fairbanks Capital Corp. of Salt Lake City, now called Select Portfolio Servicing, and Homecomings Financial Network Inc. of Dallas settled complaints against them, officials announced Thursday. http://news.findlaw.com/ap/o/632/06-10-2005/c53b000c235d7006.html
CIVIL PROCEDURE, LANDLORD TENANT , PROPERTY & REAL ESTATE Wasatch Prop. Mgmt., No S112386 (Cal. June 13, 2005) Landlords must comply with the 90-day notice provision of Civil Code section 1954.535 in order to terminate a tenancy agreement with a Section 8 low-income tenant. To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/s112386.pdf
PROPERTY & REAL ESTATE Escondido Union Sch. Dist. v. Casa Suenos De Oro, Inc., No D04310 (Cal. 4th App. Dist. May 26, 2005) In a condemnation action, compensation awarded to defendant for manufactured homes on the property is affirmed where the manufactured homes are improvements pertaining the realty and were properly taken into account in determining the award. To read the full text of this opinion, go to: http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2005/d043104.html To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/d043104.pdf
GOVERNMENT , PROPERTY & REAL ESTATE Autopsy/Post Services, Inc. v. City of Los Angeles, No. B179349 (Cal. 2d App. Dist. May 17, 2005) Defendant-City properly revoked plaintiff's permit to operate a medical laboratory in a commercially zoned building where the proposed facility is equivalent to a morgue or a mortuary, a use which is restricted to industrial zones. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/b179349.doc [PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/b179349.pdf
PROPERTY & REAL ESTATE, TAX Auerbach v. Assessment Appeals Bd., No B173649 (Cal. 2d App. Dist. May 11, 2005) In a dispute concerning the transfer of commercial real property subject to a lease, pursuant to Revenue and Taxation Code section 61(c), the change in ownership transfers both the land and the improvements since both are subject to the lease. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/b173649.doc To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/b173649.pdf
Feds looking at real estate practices in Tulsa TULSA, Okla. (AP) - A real estate official says federal agents are investigating real estate brokerage practices in Oklahoma.
Greater Tulsa Association of Realtors executive director Al Unser says the real estate group has responded to a civil investigative demand from the U-S Department of Justice. According a story on Money Magazine's Web site, the order stems from a probe of the real estate brokerage business and how commission levels are maintained.
A six percent commission is the industry standard. Discount brokers lose business when full-commission brokers refuse to show their clients properties listed with the discount firms. According to the article, the Justice Department's Antitrust Division is gathering information on whether full-commission brokers in Tulsa are using tactics against discount firms to discourage commission-cutting. Attempts by The Associated Press to contact two discount realtors quoted in Money's story weren't successful.
AO OPINION NUMBER 04-1201 A partner in a law firm who holds a California real estate broker's license may represent the seller of real property in a transaction in which the seller agrees to pay the law firm a real estate brokerage commission in lieu of an hourly fee for legal services rendered in connection with the sales transaction, provided that no one in the firm who does not hold a real estate broker's license performs any act for which a license is required.
CONSTITUTIONAL , PROPERTY & REAL ESTATE City of San Diego v. Barratt Am. Inc., No. D044079.PDF (Cal. 4th App. Dist. April 25, 2005) In an eminent domain action concerning the valuation of property, the jury verdict is affirmed where the trial court correctly precluded plaintiff-City from using the abandoned Project construct to value the taken property. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/d044079.pdf
AO03-104 A community may establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community's goal of achieving its share of the regional housing needs established pursuant to the Planning and Zoning Law if the community finds that its available resources in the aggregate, including but not limited to federal and state funds for its housing programs, its own local funds, tax or density credits, and other affordable housing programs, are insufficient to meet those needs.
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CIVIL PROCEDURE, CONSTITUTIONAL , EVIDENCE, PROPERTY & REAL ESTATE Redevelopment Agency of San Diego v. Attisha, No D043044 (Cal. 4th App.Dist. April 11, 2005) In an eminent domain case, the district court erred in its valuation of goodwill since it improperly excluded testimony of an expert goodwill valuation witness. To read the full text of this opinion, go to: To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/D043044.pdf
CONSTITUTIONAL , PROPERTY & REAL ESTATE San Diego Metro. Transit Dev. Bd. v. RV Cmty., No D042545 (Cal. 4th App. Dist. March 29, 2005) A judgment in condemnation, awarding defendant compensation for property taken by eminent domain and inverse condemnation, is affirmed. To read the full text of this opinion, go to: To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/d042545.pdf
PROPERTY & REAL ESTATE Melendrez v. D & I Inv. Inc., No H027098 (Cal. 6th App. Dist. March 29, 2005) An experienced foreclosure buyer who acquires property at significantly less than its fair market value can still be a bona fide purchaser for value. To read the full text of this opinion, go to: To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/h027098.pdf
INSURANCE , PROPERTY & REAL ESTATE Radian Guar. Inc. v. Garamendi, No A105789 (Cal. 1st App. Dist. March 29, 2005) A cease and desist order that prohibits plaintiff from selling a lien protection policy is affirmed where plaintiff is not authorized to transact title insurance, and the lien protection policy constitutes title insurance pursuant to Ins. Code, section 12340.1. To read the full text of this opinion, go to: To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/a105789.pdf
ATTORNEY'S FEES, DEBT COLLECTION, GOVERNMENT , & REAL ESTATE, WATER LAW Souza v. Wetlands Water Dist., No F045293 (Cal. 5th App. Dist. January 17, 2006) Judgments and award of attorney's fees in favor of plaintiffs, farmland owners, against defendants, a water district and finance company, is reversed in a dispute over certain assessed water charges where the district court's conclusions were in error.
lCOMMUNICATIONS , CONSTRUCTION, GOVERNMENT , PROPERTY & REAL ESTATE Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge, No. 05-55014 (9th Cir. January 17, 2006) Summary judgment in favor of defendant-municipality upholding certain permit denials involving wireless telecommunications facilities based on aesthetic impact is reversed where defendant overstepped its regulatory authority under state law, its wireless ordinance is invalid, and no evidence supported the permit denial.
Metro. Water Dist. of S. California v. Campus Crusade for Christ, Inc., No E034248 (Cal. 4th App. Dist. January 09, 2006) Judgment of damages in an eminent domain action to condemn land owned by defendants to construct a water pipeline is reversed where the trial judge erred in overruling a prior judge's earlier evidentiary rulings in the case, in allocating the burden of proof as to severance damages, and defendants offered substantial evidence that should have been presented to a jury in determining the amount of just compensation.
(Property Tax and Domestic Partners - eff. 2006-7 fiscal year) Beginning the lien date for the 2006-07 fiscal year, SB 565 permits registered domestic partners to transfer property to each other without triggering a reassessment and taxation at the current market value. As a result, registered domestic partners will be treated the same as spouses under California property tax laws.
Mortgagee Letter 2005-19 (ML 05-19) announced the Streamlined (k) Limited Repair Program to augment FHA's existing Section 203(k) rehabilitation program for less extensive repairs and improvement. This Mortgagee Letter replaces in its entirety ML 05-19 and is designed to make the program more reflective of the desire of many homebuyers and existing homeowners to improve their homes including making them more energy efficient...
FEATURE: 2005 COST vs. VALUE REPORT Remodeling's Payoff Residential Appraisal Minor Kitchen Remodel Project Description: In a functional but dated 200-square-foot kitchen with 30 linear feet of cabinetry and countertops, leave cabinet boxes in place but replace fronts with new raised-panel wood doors and drawers. Replace wall oven and cooktop with new energy-efficient models. Replace laminate countertops. Install midpriced sink and faucet. Repaint trim, add wall covering, and replace existing flooring with resilient flooring. Commercial Appraiser
CIVIL PROCEDURE, DEBT COLLECTION, PROPERTY & REAL ESTATE Ung v. Koehler, No. A109532 (Cal. 1st App. Dist. December 28, 2005) Civil Code section 882.030, a provision of the Marketable Record Title Act, does not override the 10 or 60 year time limits for the exercise of a power of sale in a deed of trust from the "final maturity date" of the underlying debt. Further, once the beneficiary of a deed of trust has become entitled to claim the 60-year time limit, the beneficiary does not lose that entitlement merely by filing a notice of default that specifies the "final maturity date" of the underlying debt.
COMMERCIAL PROPERTY , CONTRACTS, INJURY AND TORT , LANDLORD TENANT , PROPERTY & REAL ESTATE, RETAIL Hinesley v. Oakshade Town Ctr., No C045865 (Cal. 3d App. Dist. December 29, 2005) Summary judgment for defendant on plaintiff's complaint for fraud and rescission of his commercial lease with defendant is affirmed where defendant successfully demonstrated no triable issue of fact existed as to whether plaintiff justifiably relied on any material misrepresentation or concealment.
ADMINISTRATIVE , GOVERNMENT , INJURY AND TORT , & REAL ESTATE, WATER Brady v. Abbott Labs., No. 04-15257 (9th Cir. December 29, 2005) Judgment for plaintiffs on negligence and nuisance claims regarding defendant's illegal removal of groundwater from their property and subsequent resulting damages to plaintiffs' adjacent property is reversed where defendant owed plaintiff's no duty under the common law doctrine of reasonable use. Commercial Appraiser
ENVIRONMENTAL , GOVERNMENT , PROPERTY & REAL ESTATE, REMEDIES Butler v. City of Palos Verdes, No B177260 (Cal. 2d App. Dist. December 28, 2005) Judgment for plaintiffs in an action to enjoin a municipality's peafowl management program is reversed since the peafowl management program does not violate certain deed restrictions under which title to the parklands and canyons was taken by defendant-municipality.
Crooked REAL ESTATE appraisers fuel scams. Stolen identities used in mortgage swindles. By David Jackson Tribune staff reporter Published December 14, 2005 This story contains corrected material, published Dec. 16, 2005. A loose network of crooked real estate appraisers is stealing the identities of legitimate colleagues to file false reports and fuel the surge of mortgage fraud in Chicago and across the nation.
2006 Real Estate Capital Markets Industry Outlook Top Ten Issues The U.S. economy is expanding, now at a slower rate, and investments are on the increase again. The economy appears poised for continued positive growth in 2006. Interest rates remain relatively low and, contrary to conventional wisdom, are not increasing as quickly as expected, creating the famous “conundrum” in the economy. Yet a number of concerns remain on the horizon, especially with the budget and trade deficits; selected residential “bubbles;” post hurricane Katrina, Rita and Wilma impacts; along with the Iraqi war.
The California Housing Finance Agency has announced changes in servicing release requirements of first mortgage loans made in conjunction with a HiCAP subordinate loan.
Supreme Court of California ADMINISTRATIVE , CONSTRUCTION, GOVERNMENT , PROPERTY & REAL ESTATE Barratt Am., Inc. v. City of Rancho Cucamonga, No S117590 (Cal. December 22, 2005) Grant of a demurrer for municipal defendant in an action regarding plaintiff's challenge, under the Mitigation Fee Act, to fees imposed relating to development projects is reversed to the extent that the court erred in determining that plaintiff could not challenge the validity of a resolution reenacting a fee previously set forth in an earlier resolution.
ATTORNEY'S FEES, CONTRACTS, PROPERTY & REAL ESTATE Paul v. Schoellkopf, No B170379.PDF (Cal. 2d App. Dist. April 05, 2005) A provision for attorney fees in escrow instructions, limited to fees incurred by the escrow company in collecting for escrow services, does not apply to other disputes between the buyer and seller over their land sale contract. To read the full text of this opinion, go to: To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/b170379.pdf
GOVERNMENT , PROPERTY & REAL ESTATE Hafen v. County of Orange, No G033970A (Cal. 4th App. Dist. April 05, 2005) The Superior Court improperly compelled defendant-County to issue a grading permit, which allowed plaintiffs to grade four parcels of real property, since the applicable zoning and grading regulations require a site plan to be obtained before a grading permit can be issued. To read the full text of this opinion, go to: To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/g033970A.pdf
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