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August 31, 2009


Entering Our Fourth Year

Posted: 31 Aug 2009 03:02 AM PDT  INVERSE CONDEMNATION

Happy Birthday to us: we uploaded our first posts on this blog three years ago this day. In lawblog years, that's quite a while.

If you can't already tell by the nearly 900 posts during this time, we enjoy doing this. Even even though it's a lot of work, it's rewarding. Mostly because of the readers, subscribers, and contributors which this blog has allowed us to meet and get to know over the years.

Finally, we wouldn't be much without our fellow-travelers -- those other law bloggers who, like us, make the time to share thoughts about the legal issues of the day. Here's a partial list:

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August 29, 2009

New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

Posted: 28 Aug 2009 09:38 PM PDT

In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing and handbilling by union members violated the state constitution's free speech clause, and therefore impermissibly interfered with protected union activity. We summarized the Ninth Circuit's decision here.

The shopping center owner has filed a cert petition asking the Court to review these Questions Presented:

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), this Court held that states may require private shopping malls to grant third parties access to the malls’ common areas for purposes of engaging in certain expressive activity. The third-party activity at issue in PruneYard – solicitation of signatures on a political petition – was in support of a cause that the mall did not oppose and that did not conflict with the mall’s commercial interests. The present case raises the following questions, unanswered by PruneYard:

1. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s property rights under the Fifth Amendment where the activity – here, urging patrons to boycott the mall and its stores – conflicts with the mall’s commercial interests?

2. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s First Amendment free speech rights where the expressive activity is in support of a cause opposed by the mall?

The case is now titled Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009). The case's docket entry is here.
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August 28, 2009

First Circuit: Requiring Hospital To Provide "Free" Medical Services Not A Taking

First Circuit: Requiring Hospital To Provide "Free" Medical Services Not A Taking

Posted: 27 Aug 2009 05:15 PM PDT

In a case that's highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine's requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.

The not-for-profit hospital sought a declaration that Maine's "free care laws" effected a taking because "Maine's free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute." Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient. If a hospital's "economic viability...would be jeopardized by compliance," it may avoid liability if an enforcement action is instituted. The relevant details of the free care laws are:

(1) the laws mandate that a hospital provide free/uncompensated care to persons deemed eligible by the state through a penalty enforcement scheme, (2) the hospital is not reimbursed any amount for the provision of care, [and (3)] the provision of free care is not a license condition or is not linked to the state's certificate of need process.

Slip op. at 4. The hospital spent $890,212 to meet the free care obligations, but this expenditure did not threaten its economic viability.

The District Court granted the state's motion for summary judgment. The Court of Appeals affirmed, holding there was no per se taking and that upon balance, the Penn Central factors cut in the state's favor.

First, the court held the free care laws did not mandate a physical occupation of the hospital's property. The court relied upon Yee v. City of Escondido, 503 U.S. 519, 527-28 (1992), a case rejecting a physical occupation challenge to a mobile home rent control ordinance because the ordinance did not require the mobile home park owner to use her land as a mobile home park. See slip op. at 9 (citing Yee, 503 U.S. at 528). The First Circuit concluded that the free care laws did not require the hospital to allow non-paying patients to occupy its property because the hospital was free to stop using its property as a hospital. The distinction distinction relied upon by the First Circuit is a fine one. Yee noted that a regulation cannot require even a minor physical invasion of property without running afoul of the Takings Clause. Yee, 503 U.S. at 528 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982)). But when a property owner voluntarily opens her property to occupation, the government can regulate occupancy without it being deemed a per se taking.

Second, the court examined the three Penn Central factors: economic impact of the regulation, the interference with distinct investment-backed expectations, and the character of the government action. Slip op. at 10-15. The highlights of the analysis are the court's conclusion that requiring the hospital to donate its services does not adversely impact the hospital's bottom line. Id. at 11. With scant analysis, the court suggested that because the free care laws do not -- in this instance -- threaten the hospital's economic viability, there is no taking.  The court left open the possibility that free care could become so burdensome that compensation would be required:

We do not suggest that there can never be a taking based upon an adverse economic effect short of jeopardizing the economic viability of a plaintiff; we only note that this case is not at that end of the spectrum.

Slip op. at 12. In other words the hospital can afford it, so it loses this Penn Central factor. Also interesting was the court's rejection of the state's argument that the second factor -- investment-backed expectations -- were somehow lessened because the hospital is a not-for-profit organization. A non-profit has property rights, and may acquire property "with the expectation that it may use it for a particular purpose." Slip op. at 13. The court's conclusion on the second Penn Central factor is muddled, however, and seems to indicate (without expressly concluding) that because the hospital operates a highly regulated business, its investment-backed expectations are lower. See id. at 14-15. If there's a conclusion there, we can't find it.

Finally, the third Penn Central factor cut against the hospital because:

Maine's free care laws merely require that hospitals not refuse to treat patients based on their ability to pay and that they provide those services freely to those with incomes at or below 150% of the federal poverty level. [The hospital] may otherwise set the terms on which it provides access to its facilities and services.

Slip op. at 15. The court viewed the regulations as not overly onerous, even though it places nearly the entire burden of treating low income patients on hospitals. While the provision of medical services is undoubtedly a public good, the Takings Clause was designed to keep property owners from being forced to shoulder a disproportionate share of public burdens, if it cannot be shown individually they caused the problem. The Fifth Amendment's protections are "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40 (1960).

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California Debt and Investment Advisory Commission

California Debt and Investment Advisory Commission (CDIAC)




Fall 2009 Seminars





At the start of 2009, California’s economy continued to slow and its municipal finance market functioned poorly. Nor was California alone among the states facing these problems.

In response to federal concerns about the recession and municipal finance market, Congress and the Obama Administration approved a financial package with ambitious goals for spurring economic recovery. The package, entitled the American Recovery and Reinvestment Act (ARRA), created new municipal bond instruments and made temporary changes to tax credit programs.

Congress directed much of the stimulus package to state and local governments, and insisted that they be subject to an unprecedented level of evaluation and assessment for the economic gains associated with the incentives. To what extent are California’s governments using these new tools? Are the new tools making an impact on the state’s economy? What will be the long-term effect?

Speakers discuss the state of the economy, the municipal market and ARRA’s impact on both. Market representatives analyze the programs created by ARRA that make low-cost financing available to state and local governments. Panelists who have issued ARRA-authorized debt talk about their experiences, while identifyinging potential hurdles and advantages of ARRA municipal market programs.

When: September 14, 2009

Where: La Costa Resort & Spa, Carlsbad, California

To review the agenda or to register, visit The Bond Buyer’s website at: The Bond Buyer's 19th Annual California Public Finance Conference

Or visit CDIAC’s website at: CDIAC 2009 Seminars




Considering whether to issue debt? What factors contribute to getting the best price? A panel of experts explains basic concepts of structuring, marketing and pricing the deal, and the relationships between principal, interest, price and final proceeds. Available types of interim and long-term instruments are described and evaluated. The seminar also discusses what to expect from industry professionals and how they can help reduce costs. The seminar concludes with a review of issuer responsibilities for initial and continuing disclosure.

When: October 1-2, 2009

Where: Concord Hilton, Concord, California

Registration Deadline: September 1, 2009. To register, please visit CDIAC’s website at: CDIAC 2009 Seminars



State and local entities are experimenting with ways to finance solar energy projects using private and public funding. Panels present financing options, such as Mello-Roos, public-private partnerships (P3s), provisions of AB 811, and tax credits available through the Clean Renewable Energy Bonds program. The seminar concludes with two panels that address recent developments and assess the advantages of solar energy financing for public agencies.

When: October 8-9, 2009

Where: Oakland Marriott, Oakland, California

Registration Deadline: September 8, 2009. To register, please visit CDIAC’s website at: CDIAC 2009 Seminars


Speakers discuss investment practices, including how agencies may wish to: (a) modify investments in light of recent market conditions, (b) evaluate the portfolio using benchmarking and duration principles, and (c) measure credit risk. The seminar concludes with discussions of hot topics by leading industry advisors.

When: October 22-23, 2009

Where: Wyndham San Jose, San Jose, California

Registration Deadline: September 22, 2009. To register, please visit CDIAC’s website at: CDIAC 2009 Seminars

If you have questions, please email CDIAC Education or contact the commission at (916) 653-3269. If you would like to be added to additional mailing lists, need to update your subscriber information or would like to be removed from this mailing list, please select the appropriate tab in the header above.

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RentBits.com Releases Free Average Rental Rates for Over 4,000 Cities in the U.S.

RentBits.com Releases Free Average Rental Rates for Over 4,000 Cities in the U.S.
Published: August 28, 2009 http://rentbits.com/rb/s/find-rentals

By Erika Schnitzer, Associate Editor

Denver—RentBits.com, a free national rental search engine, recently announced the launch of its free rental rates page for over 4,000 cities in the United States.

RentBits crawls the Web, receiving information from 300 sources, including numerous Internet Listing Services (ILSs) and Craigslist, as well as some property management sites—wherever the bot can crawl. The site was launched just over one year ago, when “we were analyzing data and what we found were apartment hunters were going to multiple sources” to search for apartments, explains Dan Daugherty, president and CEO of Apartment Marketer, the parent company of RentBits.com. “Why not give them one place to search for many properties?”

The new feature that highlights rental rates across the nation was launched when “we then saw that there was a lot of rental data out there but no easy way to receive the information,” Daugherty tells MHN.

Using data from over 500,000 active listings, the service gives renters, property managers and leasing agents key information on average rental rates in their city.

Managers can use the average rental rate data to determine whether apartments in specific locations are priced correctly, Daugherty notes. “If you’re not getting leads or people aren’t closing the deal, you can use this tool to figure out if you are too high or too low. It’s an analytics tool that give managers data to determine whether they should price higher or lower.”

The new rental rates page for each city provides access to current and historical rental rates; a graph of historical rental rates; the current average and median rental rates, rates broken out by houses, apartments, condos, townhomes, etc.; rates broken out by number of bedrooms; the current number of active rental listings in the database. In addition, users can search for rentals in a specific city.

“We are seeing a depression within rental rates on the apartment side of thing,” says Daugherty. “One of the reasons we see this is because of the shadow market, or renters are moving into foreclosed housing or moving back in with family, so the supply is constant or higher and demand is decreasing, with a downward pressure on pricing.”
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More on TALF Extention
FED announced it would extend a program aimed at bolstering consumer-loan and commercial-real-estate markets into 2010, even as it allows other recovery programs to expire. Read more...

Right Tools, Right Now - FREE August Technology Resources
Take advantage of FREE technology resources thanks to NAR's RIGHT TOOLS, RIGHT NOW initiative, including a listing on CommercialSource.com, NAR's website and marketplace designed specifically for commercial brokers and investors. New offers each month so visit www.REALTOR.org/RightTools often! Read more...
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Regulatory Barriers Clearinghouse

Regulatory Barriers Clearinghouse
Strategy-of-the-Month Club
August 2009
Numerous studies have shown that rigid land use and
development regulations can impede affordable housing
production. In response, local governments have adopted a
wide assortment of strategies and mechanisms to overcome
such regulatory barriers. An online toolkit, Vital Communities
 Toolbox, created by Tompkins County, New York, catalogues a
variety of planning tools that are available to assist
communities in the creation and preservation of affordable
housing. The strategies in this toolbox are targeted toward
achieving a set of principles, including "promoting choice and
affordability in housing options," and have been adopted by the
county as part of its Vital Communities Initiative.
Tools listed on the website are categorized according to how
they are applied in practice. For example, strategies such as
cluster development, traditional neighborhood design, and infill
development are listed as applicable to promoting a mix of
housing choices. Other tools, such as inclusionary zoning,
streamlined permitting, adaptive reuse, and cottage housing,
are grouped together based on their capacity to increase
affordable housing options for low- and moderate-income
families. The online toolkit also includes a glossary and short
description of each tool. Although Tompkins County developed
the toolbox to encourage sustainable growth patterns within the
county, these strategies can easily be tailored to meet the
needs of any community.
You can view the Vital Communities Toolbox
at http://www.huduser.org/rbc/search/rbcdetails.asp?DocId=1842.
We hope this information proves useful to you in your efforts to
grow your region's affordable housing stock. If you have
regulatory reform strategies or resources that you'd like to
share, email us at rbcsubmit@huduser.org, call us
at 1-800-245-2691 (option 4), or visit our website
at www.regbarriers.org.

Feel free to forward this message to friends and acquaintances
with an interest in reducing housing costs by creating an
environment that's favorable to affordable housing.
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National News
Investors Facing Fallout from Values, Ratios Knocked 'Out of Whack'
By Mark Heschmeyer
While signs of a tentative recovery in the economy continued to appear, including reports issued this week on the fourth-consecutive month of improving new-home sales in July and a sizable increase in durable goods orders by manufacturers' orders also for July reported by the Commerce Dept., it is also clear that investors will be grappling with the fallout from the near-collapse of the U.S. economy for some time to come. This past week, three separate news items reflect the degree...  
» Click here for full story
» A Not-So-Long Road to Recovery for Retail Real Estate?
» Mixed Signals: Nonresidential Construction Forecasts See Little Improvement Near-Term
» Developing a Yardstick for Measuring Energy
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August 26, 2009

California Industrial Development Financing Advisory

California Industrial Development Financing Advisory Commission

California's Industrial Development Bond (IDB) Program: Finance Opportunities for Banks and Their Business Clients.
August 27, 2009, 10:00 am - 12:00 pm PST
Call-in number 888-808-8526
Passcode 106031

PowerPoint Presentation for the Workshop

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Attorney, Lawyer

  • Lawyer at Law offices of Andrea G. Van Leesten
  • Georgetown University Law Center
  • University of California, Los Angeles

1 person has recommended Andrea


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Judge's Decision Could Chill the Commercial Mortgage Securities Market

By Aleksandrs Rozens

Aleksandrs Rozens

A New York bankruptcy judge's ruling has thrown into question one of the most sacrosanct aspects of securitization - that debt, or more specifically monthly principal and interest payments resold to investors as a bond, is bankruptcy remote and out of the hands of firms that file for court protection.

The subject has cropped up several times in the General Growth Properties' bankruptcy, much to the annoyance of the judge overseeing the case. But how this issue was resolved promises to be a source of debate for participants in the nearly two-decade-old commercial mortgage-backed securities market.

GGP is a Chicago real estate investment trust that specializes in malls such as Boston's Faneuil Hall and New York's South Street Seaport. The company, started in the early 1950s, filed for bankruptcy protection on April 16 in New York's Southern District Court. With 200 malls in 44 states, GGP had just over $29 billion worth of assets and $27 billion in liabilities late last year.

Read more

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Washer and Dryer In Unit is Most Searched Amenity on Apartment

Washer and Dryer In Unit is Most Searched Amenity on Apartment Guide
Published: August 26, 2009

By Anuradha Kher, Online News Editor

Atlanta--Apartment Guide has released a list of the top apartment features and community amenities that consumers searched for on ApartmentGuide.com from February to August 2009.

“As apartment industry experts, we are often asked by advertising clients and key influencers what the most popular renting features and amenities are,” says Arlene Mayfield, president, Apartment Guide. “We’re noticing that now more than ever, renters are searching for added value included in the rent such as some paid utilities and furnished apartments. Searches for short-term lease options have also become more prevalent. This indicates that consumers are still being mindful of their budgets and lease commitments as the overall economy attempts to regain footing.”

The apartment features and community amenities consumers searched most often for on ApartmentGuide.com over the last six months include (in order):

1. Washer and Dryer In Unit
2. Pets (allowed)
3. Air Conditioning
4. Some Paid Utilities
5. Washer and Dryer Connections
6. Dishwasher
7. Balcony
8. Garage
9. Cable Ready
10. Furnished Available
11. Swimming Pool
12. Short Term Lease Available
13. Fitness Center
14. Gated Access
15. Oversized Closets

Distance (of apartment from city center) and price range were also key factors in people’s online searches. Not surprisingly, five miles from city center was preferred, followed by 10 and 20 miles respectively. The majority of people looking for a place to live on ApartmentGuide.com searched for apartments in the $500-$700 price range followed by any-$500 and $700-$900.


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August 25, 2009

Live Webcast on September 10th at 2pm EST - Sponsored by Sitestuff and Presented by MHN

Register Now!

Featured Speakers:

Diana Mosher

Multi-Housing News

Sameer Shah
VP, Business Development

SiteStuff (a Yardi Company)

Moderated by:

Pedro Pereira
Managing Editor, Online Events
Nielsen Business Media

Free Live Webcast

Supply Chain Automation and Payment Processing
Thursday, September 10, 2009 at 2:00 PM EST

Register Now

Multi-family owners and operators today are facing a multitude of challenges. Rents are down, occupancies have been reduced, and construction projects are often on hold.

While these challenges may be hurting the revenue generation side of the business, it is also an opportunity to look at technologies that may help your organization reduce expenses and create efficiencies. Automating your entire purchasing cycle, from purchase order to invoice is one way to save money and streamline your organization while helping you focus on your core competency: Servicing your residents.

Recent industry studies indicate that it costs $15 to process one invoice, and SiteStuff’s internal metrics show that properties often spend 5 to 7 hours per week just on purchasing activities. Multi-housing owners need solutions and tools that can cut out significant invoice processing costs and reduce the time spent on procurement.

Join Multi-Housing News for this interactive Web Seminar, sponsored by SiteStuff, and hear from industry experts regarding how technology combined with the right business processes can help make many accounts payables tasks more efficient. Join this online-only event and learn about industry metrics and trends, review technology options in the marketplace today.


Register Now!


To take your email address off of the list for future messages from Multi-Housing News, please follow this link:

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Breaking News


Moody's/REAL Commercial Property Price Index (CPPI): August Update

August 20, 2009

Update: The latest results of the Moody's/REAL CPPI (published by Moody's on August 19) show a price-change return of negative 1.0% in June for all properties in the national index. This reflects the same-property price change in realized round-trip investment for transaction closings in June compared to the previous month. This puts the Moody's Index 35.5% below its 2007 peak. Index methodology developed at MIT/CRE. Click here for Press Release on MIT-RCA index launch.

Transactions-Based Index (TBI):
2009 Q2 Update

August 3, 2009

Results for the 2nd quarter of 2009 show an 18.1% decline in prices from the previous quarter for properties sold from the NCREIF database, placing this index 39% below its 2007 Q2 peak. The demand-side index fell a record 17.6%, placing this index of potential buyers' reservation prices at 48% below its 2007 Q2 peak. (See links below....)
Click here for the latest Press Release, Commentary & FAQs
Click here to learn more about the TBI

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Op-Ed On Eminent Domain Abuse At NY's Atlantic Yards

Posted: 25 Aug 2009 05:02 AM PDT

In yesterday's New York Daily News, Dana Berliner of the Institute for Justice -- the good folks who brought us Kelo -- published "End eminent domain abuse: N.Y.'s highest court should rule against Bruce Ratner." The latest Atlantic Yards case, Goldstein v. New York State Urban Dev. Corp., which is currently being briefed in the New York Court of Appeals prompts the op-ed:

It has been more than a generation since the state's highest court has interpreted the New York Constitution's provision that property may be taken only for "public use." It's time for the court to take a long, hard look - before more damage is done.

The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent domain for potential job creation, increased taxes or general economic development does not violate the U.S. Constitution. In the firestorm of outrage that followed, 43 states changed their laws to make eminent domain for private development either more difficult or impossible.

New York remains one of only seven that have not.

It is true that, after Kelo, the U.S. Constitution itself gives little or no protection to home or business owners. But that document is a floor for individual rights, not a ceiling. State constitutions can protect rights above that baseline. For instance, when the U.S. Supreme Court refuses to protect people's rights to freedom of speech or freedom from unreasonable searches and seizures, state high courts often step in, finding that state constitutions offer greater protection.

That is exactly what has happened in many states since Kelo. The high courts of Hawaii, Ohio, Oklahoma, Pennsylvania, Missouri, New Jersey and Rhode Island have all ruled that property owners within their borders have greater protections against eminent domain abuse. None has made Kelo the rule under the state constitution.

The New York Court of Appeals should follow this trend.

. . . .

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August 24, 2009

Thelen Settles Lawsuit With Schiff Hardin Over Sublease
New York Law Journal

The Thelen law firm has agreed to a $1.12 million judgment in favor of Schiff Hardin to settle a suit arising from a sublease contract the firms entered into two years ago for office space. But Schiff Hardin partners aren't likely to see the money anytime soon. Thelen's accounts receivable are getting stale since its partners voted to dissolve in December, and it still owes millions to Citigroup. If Thelen files for bankruptcy, Schiff Hardin will have to compete with other unsecured creditors for what's left.

Lawyer's Mortgage Argument Gets Him a Second Sanction
New York Law Journal

A New York judge has declined to vacate a $14,000 sanction against a lawyer who argued that the judgment would prevent him from obtaining a favorable mortgage modification on his home. Instead, the judge sanctioned him another $1,000 for making the "frivolous" motion. The lawyer was sued for defamation by Galasso, Langione, Catterson & LoFrumento over his representation of Anthony Galasso, who was convicted of stealing more than $2 million from the firm where his brother, Peter Galasso, is a name partner.
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Coming in the September/October 2009 Issue
10-Year Feature: Looking Back Toward the Future
As Real Estate Southern California marks its 10th year of publishing, industry leaders look back at the forces, factors and trends that shaped the commercial real estate markets in Southern California over those 10 years and offer their assessments of how the conditions created by those forces will change the commercial real estate landscape over the next decade.
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August 22, 2009


Senate Committee Approves Significant Expansion of the Clean Water Act


By George Mannina

June 18, 2008


Currently unregulated property owners with wetlands or any bodies of water may now be compelled to adhere to the Clean Water Act. 

Today, the Senate Environment and Public Works Committee, chaired by Senator Barbara Boxer (D. Cal.), approved S.787 to clarify the jurisdictional reach of the Clean Water Act (CWA).  The CWA, as enacted in 1972, applied to "navigable" waters.  Since 1972, the question of what are "navigable" waters subject to the CWA has been debated all the way to the US Supreme Court.  The CWA defines "navigable" waters as "waters of the United States." 

Supporters of S.787 say the bill is necessary to overturn two Supreme Court decisions restricting application of the CWA.  The first of those decisions, Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159 (2001), overturned the so-called migratory bird rule under which any water that is used, or could be used, by migratory birds is deemed a "navigable" water.  The second Supreme Court decision, Rapanos v. United States, 547 U.S. 715 (2006), has generally been interpreted to hold that a water is subject to the CWA if it is, or once was, navigable in the traditional sense of that word or if there is a "significant nexus" between a water and a traditional navigable water. 


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CTC Issues Draft Guidelines for California P3 Program


By Fredric W. Kessler

August 5, 2009 

The California Transportation Commission (CTC) has issued draft policy guidelines for implementation of public-private partnerships (P3s) under Section 143 of the Streets and Highways Code. Section 143, which was amended by Senate Bill 4 in February, authorizes the California Department of Transportation (Caltrans) and regional transportation agencies to develop transportation projects through P3 delivery methods. The draft guidelines, issued July 31, 2009, address the CTC's role in selecting P3 projects from candidate projects nominated by Caltrans or regional transportation agencies.

The CTC will discuss the guidelines as agenda item 33 at its August 12-13 meeting in Sacramento, California.


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Precondemnation is a critical process when acquiring property for a project and often mistakes are made that can escalate costs, delay acquisition, and halt development. 

Join Nossaman for a free webinar to learn what you can do during the precondemnation phase of an acquisition to avoid unnecessary costs and delays.  Participants will learn:  

  • How to avoid potential liability associated with planning activities.
  • Ways to minimize severance damages.
  • Procedures for obtaining access to property for studies, surveys, appraisals, and environmental testing.
  • Strategies and procedures for precondemnation appraisals and offers. 
  • When and how to adopt Resolutions of Necessity.

To register for the event, click here.
One hour of California MCLE will be offered.

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U.S. 8th Circuit Court of Appeals, August 17, 2009
US v. Nothshore Mining Co., No. 08-1423
An order holding that certain parts of a 1975 injunction regulating air emissions from defendant's taconite pellet operation at Silver Bay, Minnesota, were moot is affirmed where: 1) defendant-mining company was not aggrieved by the district court's order such that there was jurisdiction over its appeal; 2) similarly, the government is not an aggrieved party and its cross-appeal is dismissed; 3) the court did not abuse its discretion in vacating sua sponte the injunctions' air-emissions provision of the injunction where state and agency regulations parallel the provisions in the injunction. Read more...

U.S. 8th Circuit Court of Appeals, August 18, 2009
Kennedy Bldg. Assoc. v. CBS Corp. , No. 07-3622
In an environmental case involving the clean-up of a contaminated site, a modified injunction stating that defendant-CBS has "substantially complied" with a Minnesota Decision Document and imposing no additional requirements on it is affirmed in part and vacated in part where: 1) the district court's decision was consistent with the prior mandate from the circuit court; 2) there was substantial evidence in the record that CBS completed the remediation required by the Decision Document, and thus there was no error in finding that no further relief was necessary under Paragraph 1 of the injunction; 3) denial of plaintiff's requests to increase the amount of a performance bond posted by CBS was proper; but 4) a denial of post-judgment response costs is vacated and remanded for further proceedings. Read more...

California Appellate Districts, August 17, 2009
Long Beach v. L.A. Unifired Sch. Dist., No. B207721
In a petition by a city seeking to overturn a school district's final environmental impact report (FEIR) evaluating a plan to construct a high school, the denial of the petition is affirmed where respondent-district proceeded in the manner required by law where the FEIR adequately analyzes the challenged impacts of the project and is sufficient as an informational document. Read more...

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NJ Appeals Ct: Eminent Domain Pretext Determined Objectively, By Context

Posted: 21 Aug 2009 02:16 PM PDT

In an expansive opinion in Township of Readington v. Solberg Aviation Co., No. A-3083-07T3 (Aug. 19, 2009), the Appellate Division of the New Jersey Superior Court determined that a municipality abused its condemnation power when it attempted to take property to thwart the expansion of a nearby airport. 

The facts are set forth in detail in the opinion and will not be repeated here, but the most interesting portion of the opinion deals with the property owner's claim of pretext. It argued that the condemnation was "at least substantially motivated, by the desire of Township officials to limit airport expansion and to prevent [Solberg-Hunterdon Airport] from becoming a jetport." Slip op. at 35.

The Township did not dispute the contention, but argued the motivations of individual officials are not relevant in determining the public use or purpose of a taking. Under New Jersey law, a court will not overturn a decision to use eminent domain "in the absence of an affirmative showing of fraud, bad faith or manifest abuse." Township of West Orange v. 769 Assocs.,LLC, 800 A.2d 86, 90 (N.J. 2002). A condemnation may be set aside when the "real purpose" is other than the "stated purpose." See Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102 (N.J. Super. 1998).

The court examined the objective factors surrounding the adoption of the condemnation ordinance, and concluded they "impugned its validity." Slip op. at 38. First, it was unlikely to achieve its stated purpose. The taking was purportedly for

open space and farmland preservation[,] land for recreational uses, conservation of natural resources, wetlands protection, water quality protection, preservation of critical wildlife habitat, historic preservation, airport preservation, and preservation of community character.

Slip op. at 39. However, "[r]eports prepared by the Township's experts indicate that the airport is in poor physical condition and has limited prospects for future economic success." Id. The court compared expert reports which questioned the viability of the airport. See id. at 40-42. The court also looked at the context of the condemnation to conclude the real purpose of the taking was to control airport operations, and that much of the area was already open space. See slip op. at 43-45.

The fact that the condemnation of development rights to the airport will not achieve its stated purposes indicates that the true purpose of the condemnation was to secure a greater measure of land use authority over the airport than the Township currently enjoys. Further, objective evidence suggests that the condemnation was initiated to secure Township control over airport operations. These are improper purposes in that they subvert the Commissioner's ultimate authority over aeronautical facilities.

Slip op. at 44. The court concluded the Township abused its power of eminent domain "to avoid the limitations on municipal zoning power imposed by State airport statutes and regulations," and "is not within the police powers delegated to the municipalities by the Legislature." Id. at 48. The full opinion is worth a read.


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August 21, 2009

Program Description

Navigate the Zoning Process with an In-Depth Understanding of Zoning Regulations

Are you current on your knowledge of zoning laws? Can you confidently solve potential problems and ensure smooth zoning processes? Join us at this seminar where you'll learn to facilitate positive outcomes by understanding key components of the approval process, procedures for challenging a zoning decision as well as requirements for administrative approach. Recognize constitutional limitations on zoning actions to ensure your actions are within the bounds of the law. Enroll today!

  • Know the necessary steps - on a local, regional and state level - for obtaining a permit.
  • Review the limits on governmental power so you know how takings and exactions must be handled.
  • Fulfill your role in the process when a zoning case is litigated or when a decision is appealed.
  • Stay in the loop in your community with a knowledge of local zoning issues including economic development and smart growth.
  • Represent your clients with confidence with an in-depth understanding of key zoning concepts.
  • Understand the constitutional limitations on zoning so you can handle questions of eminent domain with ease.
  • Learn how to effectively challenge and litigate rezoning decisions.
  • Know the steps you need to take to fight for your client during an appeal of an administrative zoning decision.
  • Take your zoning knowledge to the next level with an in-depth understanding of the process for adopting and amending the zoning ordinances and map.

Who Should Attend

This basic-to-intermediate level course will assist the following in understanding and working with zoning and land use regulations:

  • Attorneys
  • City and urban planners
  • Developers
  • Engineers
  • Architects
  • Local zoning and land use officials
  • Appraisers
  • Surveyors

Course Content
  1. Current Case Law and Legislative Update
  2. Key Components of the Approval Process
  3. Constitutional Limitations on Zoning Actions
  4. Challenging a Rezoning Decision
  5. Appealing an Administrative Zoning Decision
  6. Adoption and Amendment of Zoning Ordinance and Map
  7. Special Zoning Issues


American Institute of Architects – AIA: 6.00
American Institute of Certified Planners – AICP: 6.00
California MCLE for Paralegals – California MCLE for Paralegals
Continuing Legal Education – CLE: 6.00
International Association for Continuing Education Training – IACET: 0.60

* denotes specialty credits

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Market Value or Salvage Value
Doe's Your Appraiser Know the Difference?

Market Value or Salvage Value
Doe's Your Appraiser Know the Difference?
Market Value or Salvage Value
Doe's Your Appraiser Know the Difference?

A definition of market value as stated in the glossary of the most recent edition of the Uniform Standards of Professional Appraisal Practice is “The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby:

1. buyer and seller are typically motivated;

2. both parties are well informed or well advised, and acting in what they consider their best interests;

3. a reasonable time is allowed for exposure in the open market;

4. payment is made in terms of cash in United States dollars* or in terms of financial arrangements comparable thereto; and

5. the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.”

We will be discussing this topic, Online this Monday, August 24 @ 5:00 PM PST. Just go to our website and click on the ONLINE NOW Button

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Cato Institute And Pacific Legal Foundation Amicus Brief In Beach Takings Case

Posted: 20 Aug 2009 07:36 PM PDT

The Cato Institute, the National Federation of Independent Business Legal Center, and the Pacific Legal Foundation have filed this amicus brief supporting the property owners in t Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The brief argues:

In the opinion below, the Florida Supreme Court departed from long-established state law protecting the property rights of beachfront landowners. Stop the Beach Renourishment, Inc., 998 So. 2d 1102. As Justice Lewis noted in his dissent, the decision summarily altered the definition of littoral property that had governed in Florida: "In this State, the legal essence of littoral or riparian land is contact with the water. Thus, the majority is entirely incorrect when it states that such contact has no protection under Florida law and is merely some 'ancillary' concept that is subsumed by the right of access." Id. at 1122 (Lewis, J., dissenting). So drastic was the court’s departure from settled precedent that it functionally eliminated fundamental constitutional protections that owners of beach property had relied on for almost 100 years.

This Court never has formally addressed the question of whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner's due process rights, under the United States Constitution. This Court has sanctioned, and  applied, an analytical framework similar to the judicial takings doctrine in a variety of other contexts, holding that state court decisions, just like actions of the executive and legislative branches, can violate constitutional rights.

There is no textual or theoretical reason for this Court to deny property owners just compensation for a taking solely because the acting branch of government is judicial instead of executive or legislative. In fact, the realities of modern property law, including the authority of state courts to define  background principles of property law as recognized in this Court’s opinion in Lucas v. South Carolina Coastal Council, 505 U.S. at 1029-30, necessitate that property owners be protected, via the judicial takings doctrine, against state court decisions that abrogate constitutional rights.

More about the case on our resource page.

This posting includes an audio/video/photo media file: Download Now

Follow Hawaii Supreme Court Oral Argument Live By Twitter On Voter Registration Case

Posted: 20 Aug 2009 11:33 AM PDT

My colleague Mark Murakami who blogs at hawaiioceanlaw.com will be covering today's oral argument in the Hawaii Supreme Court case Dupree v. Hiraga, No 29464, the appeal regarding whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui.

Follow along at twitter.com/Hawaiioceanlaw

Information about the case, including the briefs and the court's summary of issues, is available in this post.

Disclosures: our firm represents the challenger (Dupree); I wrote the brief, and our partner Ken Kupchak is arguing today.

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FED and Treasury Announce TALF Extension
Analysts said the move to extend to mid-2010 the emergency program, aimed at boosting lending in the ailing commercial real estate market, is most important to the commercial real estate sector, which is being buffeted by a lack of credit and as the recession curbs revenue from office, retail and apartment buildings. Read more...

The commercial elective for NAR's Green Designation takes a look at sustainable strategies, practices, and considerations in commercial real estate! . The co urse helps students understand brokers' specific roles in guiding clients and customers in the sale or acquisition of sustainable property or property with sustainable features. Click here to be notified when the online course launches! Read more...

Commission Awarded in Failed Short Sale
Iowa court determines that secured lender interfered with broker's listing agreement by demanding a larger share of the proceeds prior to closing. Please note: The following link is to a member-only area of the site. Read more...
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seminar, Proposed ENERGY STARĀ® Specifications for

    You Are Invited...                                                       
    to attend a FREE seminar, Proposed ENERGY STAR® Specifications for       
    Residential New Construction, at SCE's Customer Technology Application   
    Center, in Irwindale on Friday, September 11.                           
                          ENERGY STAR® Qualified Homes                       
                                    in 2011                                 
    The demand of increased building codes and standards in California calls
    for new specifications for ENERGY STAR® qualifications for 2011 home     
    builders. The Environmental Protection Agency (EPA) has just launched a 
    new label called “Climate Choice” – intended for leading edge builders   
    willing to demonstrate an aggressive package of energy efficiency       
    Attend this California New Homes Program (CANHP) seminar to hear about   
    available program incentives and learn about the latest proposed changes
    to ENERGY STAR® and how they relate to:                                 
    • Title 24 codes and standards                                           
    • The Climate Choice Label                                               
    • ENERGY STAR qualified specifications in 2011 for new homes             
    Event Details                                                           
    Event Name: Proposed ENERGY STAR® Specifications for Residential New     
    Event Number: 23558                                                     
    Event Date: Friday, September 11, 2009                                   
    Event Time: 8:30 a.m. - 3:00 p.m.                                       
    Registration & Continental Breakfast: 8:00 a.m.                         
    Event Location: SCE's Customer Technology Application Center, Irwindale 
                                6090 N. Irwindale Avenue                     
                                Irwindale, CA 91702                         
    Reservations can be made by calling (626) 812-7537 or (800) 336- 2822-   
    ext 42537 or by registering online at www.sce.com/ctac.                 
                FOR OVER 100 YEARS...LIFE. POWERED BY EDISON.                

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Move-In/Move-Out Inspections

Move-In/Move-Out Inspections 

Before your new tenant moves in the owner or manager should inspect the unit for damages. There should be a detailed report of any damages not there prior to this tenants move out. Your report should be consistent with the kind of detail you would need to make your case in court.

A successful move out procedure begins with an understanding of the meaning of "normal wear and tear". This simple definition will save you unnecessary arguments with tenants and possible court time.


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August 20, 2009

Top Commercial Real Estate News
August 13, 2009 - August 19, 2009
Provided by Commercial Real Estate Direct

RevPAR Suffers At High-End Hotels
Excessive rate-cutting to attract guests during the recession is forcing the hotel industry's highest-end properties to suffer the industry's biggest drops in revenues. The two highest-end hotel property types - luxury and upper/upscale - recorded the two steepest drops in room rates and in revenue per available room, or Rev PAR, in the second quarter, when compared to last year.
Read Full Story

Excessive rate-cutting to attract guests during the recession is forcing the hotel industry's highest-end properties to suffer the industry's biggest drops in revenues. The two highest-end hotel property types - luxury and upper/upscale - recorded the two steepest drops in room rates and in revenue per available room, or Rev PAR, in the second quarter, when compared to last year.
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August 19, 2009

Hi Curtis,

In Q2, overall sales in Los Angeles decreased 77% compared to the prior year. Over the last 12 months, the price per square foot for office property was down 17%, multifamily was up 3%, industrial was down 14% and retail was down 8%.

LoopNet's Q2 2009 Investment Market Reports provide a complete snap-shot of market trends and key details for up to twenty closed transactions in Los Angeles, Orange County & Inland Empire during last quarter. These reports provide an important visual tool that can both help you analyze market trends, as well as help you explain market conditions and pricing decisions to your clients and colleagues.

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RCA Education Connection


If you are looking for affordable commercial education then register today for one of the RCA's upcoming webinars. On August 20 and 21, the RCA in partnership with Top Dogs is offering two webinars at a deeply discounted rate of $49 per session. The two hour sessions are regularly priced at $89, but if you use one of the following discount codes fhosuddnkr or rihequpimu, you will receive an immediate $40 discount. The RCA/Top Dogs webinars will give you the opportunity to learn from Peter Droubay and Bob McComb, the co-creators of the Top Dogs commercial real estate training programs.  

The August 20 webinar "Commercial Property Financing: How to Get a Deal Done" reviews how lenders look at commercial property, how to package commercial property for financing, and where to get the loans. The August 21 webinar "Impressive Presentations – How to Win Every Assignment" is designed to help improve presentation skills. Whether you are doing a presentation to secure a listing, showing property or space, working to get a tenant rep assignment, etc., this class will increase your ability to succeed at it.  

On September 9, the RCA is offering a FREE one hour webinar featuring Rick Hood, a 2009 RCA Signature Series speaker. The September 9 webinar "Practical GPS and Mapping Software for Commercial Land Development" will review what a handheld or car GPS can and can’t do for you in the commercial market today and what is likely to be able to do by 2013.

Webinar Session Description and Registration:

August 20: "Commercial Property Financing: How to Get a Deal Done" (beginner level)

Webinar Session Description and Registration:

August 21: "Impressive Presentations - How to Win Every Assignment" (experienced level)

Webinar Session Description and Registration:

September 9: "Practical GPS and Mapping Software for Commercial Land Development" (all levels)

All sessions are first come, first-served and limited to 200 attendees. Visit the RCA Education web page to learn more about the education resources available to you from the RCA and commercial affiliates. For Top Dogs webinar registration questions, contact Top Dogs at 888-894-5772. For general questions, contact the RCA at 800-874-6500.

All sessions are first come, first-served and limited to 200 attendees. Visit the RCA Education web page to learn more about the education resources available to you from the RCA and commercial affiliates. For Top Dogs webinar registration questions, contact Top Dogs at 888-894-5772. For general questions, contact the RCA at 800-874-6500.
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August 18, 2009

Grubb & Ellis Faces Possible Delisting

Grubb & Ellis Faces Possible Delisting

SANTA ANA, CA-Grubb & Ellis Co. has been notified by the New York Stock Exchange that it is not in compliance with the NYSE's continued listing standards because its total market capitalization has been less than $50 million over a consecutive 30-trading-day period and its last reported stockholders' equity was less than $50 million, according to a statement Monday by the Santa Ana-based real estate services firm. The company said that its business operations, SEC reporting requirements and credit agreements are unaffected by the notification.

New York Stock Exchange procedures give Grubb & Ellis 45 days from the receipt of the notice to submit a plan to the NYSE demonstrating how it intends to bring the company in compliance with the listing standards. The company "intends to cure the deficiencies and to return to compliance with the NYSE continued listing requirements," it said.

The notice regarding the company's market capitalization followed an earlier notice, in February, that Grubb & ELlis was not in compliance with the NYSE's listing standard related to maintaining a minimum average closing price of $1 per share over 30 consecutive trading days. The company, whose stock closed at 62 cents per share on Monday, said that it has until Jan. 23, 2010 to come back into compliance with the requirement regarding minimum average closing price per share.

The decline in the Grubb & Ellis market capitalization marks a steep fall from its value at the time the company merged with NNN Realty Advisors in December 2007. GlobeSt.com reports at the time said that the newly merged company would have a capitalization of $725 million.

Grubb & Ellis lost $32.8 million for the second quarter, the company reported last week. Interim CEO Gary Hunt said in the company's quarterly conference call that the loss reflected "a continued slowdown in leasing throughout all sectors and a stalled investment sales market" and that "The economy in general and the operating environment for commercial real estate services continue to be extremely challenging."


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August 17, 2009

In Tough Times, Demand for Outcome Measurement is Growing
Community development organizations and their funders invest significant resources to prepare low- to moderate-income families for sustainable homeownership and to build stronger communities. But how do these organizations know that they are meeting their ultimate goals? How can their funders be assured that their investments are generating long-term impact? In these tough economic times it is more important than ever to answer these questions. Learn how NeighborWorks' Success Measures is meeting nonprofits' need for outcome measurement.


New Community Stabilization and Asset Management Courses Available
NeighborWorks is pleased to announce the release of two new e-learning courses! AH295el, Community Stabilization: An Introduction to REO Acquisition, Rehab, Disposition and Management and AM121el Fundamentals of Asset Management are both now available online through NeighborWorks' e-learning modules. Both of these courses bring the materials from the NeighborWorks Training Institute courses to your computer so you can learn and work toward certification from the convenience of your office or home. Learn more about these and the many other e-learning opportunities from NeighborWorks at our e-learning Web site

NeighborWorks Webinar on Planning and Implementing an REO Program
The current economic climate has drawn attention to the issue of Real Estate Owned (REO) properties, with tens of thousands of foreclosed properties appearing in our communities. In addition to a growing number of courses focused on the acquisition, management and sale of REO properties, as well as classes on stabilizing neighborhoods and helping prospective homeowners purchase foreclosed properties, NeighborWorks America is pleased to offer a free, half-hour webinar that guides boards, executive directors and other key decision-makers in planning and implementing a REO program. Please note that there is a link at the end for a printed copy with speaker's notes.
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Revised Home Affordable Modification Trial Period Plan, Modification Agreement, and Home Affordable Modification Program (HAMP) Hardship Affidavit Available

On Monday, August 17, Fannie Mae posted on eFannieMae.com revised versions of the Home Affordable Modification Trial Period Plan and Home Affordable Modification Agreement special purpose legal documents (Forms 3156 and 3157 respectively). Additionally, an updated HAMP Hardship Affidavit (Selling and Servicing Guide Form 1021) was posted to eFannieMae.com on Friday, August 14.  Servicers have the option of using these revised documents immediately; however, they must use them by September 30, 2009. 

Highlights of each revised document include:

Home Affordable Modification Trial Period Plan (Form 3156)

  • The addition of a borrower acknowledgement that the trial period payments and the post-modification payments may be different;
  • The addition of a borrower acknowledgment that the first trial period payment and executed Trial Period Plan must be received by the servicer not later than the first trial period payment due date; 
  • The addition of a borrower acknowledgement that no interest is payable by the servicer on funds in suspense;
  • The addition of a borrower acknowledgement that no modification will take place until a title endorsement or subordination agreement is finalized, if such requirement(s) are necessary. With this provision, servicers do not need to review documents to identify the need for such language assessment prior to issuance of the Trial Period Plan (previously an authorized change);
  • The addition of a provision that renders prepayment penalties null and void in the event that such a provision exists in the underlying loan documents. With this change, servicers no longer need to review documents to identify the need for such language prior to issuance of the Trial Period Plan (previously an authorized change);
  • The addition of a provision that prohibits assumption in the event that the underlying loan documents contain a provision that allows the note and mortgage to be assumed by a transferee of an interest in the property. Due to this change, servicers do not need to review documents to identify the need for such language prior to issuance of the Trial Period Plan (previously an authorized change);
  • Clarification on which parties need to sign the Trial Period Plan document;
  • Clarification that an Escrow Account need not be established if prohibited by applicable state law;
  • A statement incorporating standard escrow terms if the base loan documents did not require an escrow; and,
  • Borrower consent to disclosure of personal information.  This language now is identical to the consent contained in the Hardship Affidavit and the Modification Agreement.  Importantly, it allows sharing of first lien modification data with the second lien servicer (if applicable).

Home Affordable Modification Agreement (Form 3157)

  • A borrower acknowledgement that after modification, interest will be accruing on interest;
  • Clarification that after modification, pay option ARMs will no longer be offered and that there will be no negative amortization; and,
  • Borrower consent to disclosure of personal information that is identical to the consent contained in the Hardship Affidavit and the Trial Period Plan.  

HAMP Hardship Affidavit (Form 1021)

  • A provision that incorporates the terms of the Trial Period Plan by reference;
  • The addition of certain provisions from the Trial Period Plan; and,
  • Borrower consent to disclosure of personal information that is identical to the consent contained in the Modification Agreement and the Trial Period Plan.  
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Judge Tosses Fraud Suit After Witness Is Texted by Boss During Trial

Judge Tosses Fraud Suit After Witness Is Texted by Boss During Trial
Daily Business Review

Florida Judge Scott Silverman has dismissed a fraud suit punctuated by a trial during which a witness got text messages while on the stand. Silverman ordered a mistrial in May after learning of the messages sent between Sky Development's CEO and CFO while the judge was in a sidebar conference, and last week the judge dismissed Sky's suit over the sale of a condo tower. "Nothing this judge has seen holds a candle to plaintiff's egregious and deliberate attempts to subvert our justice system," he wrote in his dismissal order.
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Property Sales Plummet in First Half of Year

As with other commercial property types, industrial sales activity plummeted in the first half of 2009. The dearth of sales and price distortions caused by a growing inventory of distressed properties that sometimes sell for pennies on the dollar leave little grounding for establishing true value in the market. Reluctant to overpay, the majority of buyers are waiting on the sidelines, trying to figure out how to figure out which deals make sense.

According to Grubb & Ellis, a mere $2.2 billion of industrial properties valued at greater than $5 million sold in the first five months of the year. The figure was down 81% percent from the same period last year and substantially below the average for the three years before that. Moreover, according to Marcus & Millichap, in Q1 the inventory of distressed industrial properties increased more rapidly than the other primary commercial property segments.


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August 15, 2009

Petitioner's Merits Brief In SCOTUS Beachfront Takings Case

Posted: 14 Aug 2009 08:13 AM PDT

The property owners have filed their merits brief in the beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The case presents three questions:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

In the decision under review (Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean.

More about the case on our resource page.

This posting includes an audio/video/photo media file: Download Now

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August 14, 2009

Housing Bust Ruled No Cause to Upset Child Support Pact
New York Law Journal

A woman who accepted title to the family home as prepayment for 15 years of child support cannot seek arrears simply because the house sold for only two-thirds of the value estimated at the time of their 2007 divorce, a New York judge has held, ruling that any shortfall in the sale of the house should be taken from the wife's share of the marital assets, not from the husband's prepayment. The house sold for $1.2 million in 2008, netting the wife $734,000 rather than the $1.45 million she had predicted.
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August 13, 2009

In The Loop

Q2 Los Angeles Market Reports
LoopNet's Q2 2009 Investment Market Reports for Los Angeles and 60 other markets are now available. These reports cover office, industrial, retail and multifamily sales above $2.5 million.

In Q2, overall sales in Los Angeles decreased 77% compared to the prior year. Over the last 12 months, the price per square foot for office property was down 17%, multifamily was up 3%, industrial was down 14% and retail was down 8%.

Get the complete reports at www.LoopNet.com/MarketReports today

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Banking Law

UBS Agrees to Reveal Names of Suspected US Tax Evaders

Posted Aug 12, 2009, 10:26 am CDT
By Debra Cassens Weiss

Lawyers who defend those accused of tax fraud may be seeing an increase in workload soon.

Swiss bank UBS has agreed to disclose the names of U.S. clients suspected of tax evasion in a deal reached with the U.S. Justice Department, the New York Times reports.

Justice Department lawyer Stuart Gibson told of the deal in a conference call with a judge overseeing a civil suit against UBS. It seeks to force the bank to reveal the names of 52,000 Americans suspected of trying to evade taxes by moving their money to offshore accounts. UBS had fought the suit, claiming disclosure of the names would be a violation of Swiss banking laws.

Tax lawyers told Bloomberg News they expect UBS to disclose thousands of accounts. Several people have already revealed they had offshore accounts under a voluntary disclosure program offering reduced penalties.

New York tax lawyer Bryan Skarlatos told Bloomberg he expects the settlement to include an agreement between the United States and the Swiss government that could affect all U.S. taxpayers who kept money in Swiss banks.

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August 11, 2009

Fha Appraiser-Appraisal

This is the HUD national homeownership center reference guide mailing list for real estate industry professionals that are interested in updates to HUD Mortgagee letters, notices and guidebooks, & FHA Housing Industry Training. Please visit our homepage at: http://www.hud.gov/offices/hsg/sfh/hsgsingle.cfm Servicing lenders can visit HUD's National Servicing Center at: http://www.hud.gov/offices/hsg/sfh/nsc/nschome.cfm This list does not provide HudHome property listings.
All-Fha Appraiser-Appraisal




On August 4, 2009, The Federal Housing Administration (FHA) suspended Taylor, Bean and Whitaker Mortgage Corporation (TBW) of Ocala, Florida, thereby preventing the Company from originating and underwriting new FHA-insured mortgages. The Government National Mortgage Association (Ginnie Mae) is also defaulting and terminating TBW as an issuer in its Mortgage-Backed Securities (MBS) program and is ending TBW's ability to continue to service Ginnie Mae securities. This means that, effective immediately, TBW will not be able to issue Ginnie Mae securities, and Ginnie Mae will take control of TBW's nearly $25 billion Ginnie Mae portfolio…


To read this press release in its entirety, please visit: http://www.hud.gov/news/release.cfm?content=pr09-145.cfm&CFID=341752&CFTOKEN=3be7678-0009780b-078f-1636-b54a-80e8c12e0000


FHA-insured Loans Associated with Taylor, Bean and Whitaker (TBW) Questions and Answers for Consumers can be found at: http://www.hud.gov/news/consumer-guidance.pdf


FHA-insured Loans Associated with Taylor, Bean and Whitaker (TBW) Questions and Answers for Lenders and Brokers can be found at: http://www.hud.gov/news/industry-guidance.pdf


If you have any questions, please contact: info@fhaoutreach.com  or visit: http://www.fhaoutreach.gov/FHAFAQ




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From: American Housing Survey (AHS) ListServ <ahs@huduser.org>

A new report, “Streamlining the American Housing Survey,” is available for download on the HUD USER web site, http://www.huduser.org/datasets/ahs/ahsprev.html#supplements .
Since 1973, the HUD and the Census Bureau have teamed to produce the American Housing Survey (AHS).  The recently released 2007 AHS is the 22nd report on the characteristics and condition of the national housing stock; on the costs of housing, including the financing of owner-occupied housing; and on the households who occupy the stock.  Data from the AHS allow researchers and policy analysts, both inside and outside the government, to document housing problems and to evaluate the operation of the housing market and of policies designed to improve housing.
The national AHS collects information from over 50,000 households every two years using an instrument that often takes over an hour to administer.  The public data files contain thousands of fields.  The size of the sample and the length of the questionnaire make the AHS an expensive survey.  The length of the questionnaire and the AHS’s longitudinal design—the same housing units are surveyed every two years—impose significant burdens on respondents.  As the AHS’s sponsor, HUD feels obligated to ensure that the information produced justifies the costs and burdens.  
For this reason, HUD requested Econometrica, Inc., to assess the analytical usefulness of the AHS’s content.  Specifically, HUD asked the authors to:
Examine the AHS instrument and data set to identify data elements that have some or all of these characteristics:
·        They have very little variation in value, either cross-sectionally or longitudinally.
·        They exhibit unreasonable year-to-year changes for the same household or housing unit.
·        They are used by few researchers, and those uses are not of notable scientific or policy importance.
The goal is to streamline the AHS “by eliminating or modifying content that is currently of marginal usefulness.”  Streamlining would reduce the cost to the government and, more important, would lessen the burden imposed on the public.  Streamlining also could create opportunities to add new and more policy-important content to the AHS.


The contractor’s recommendations fall into three classes.  First, they identify a number of variables that HUD and the Census Bureau should consider eliminating from the AHS.  Second, they identify two groups of variables—those associated with the financing of owner-occupied housing and with the identification of assisted housing—that definitely merit the cost and burden of collecting the information, but that also have well-recognized problems that HUD and the Census Bureau need to solve. Third, they discuss variables related to the use and costs of utilities, a group that may need further improvement and perhaps some trimming.
Dav Vandenbroucke
Senior Economist
U.S. Dept. HUD
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LIHTC Appraiser

INSIDE THE DEAL: Marcus & Millichap Participates in Active LIHTC Property Sales Market
Published: August 11, 2009

By Keat Foong, Executive Editor LIHTC Appraiser

Frederick, Md.—The secondary market in Low Income Housing Tax Credit (LIHTC) properties is still attracting buyers despite the economic downturn.

Marcus & Millichap Real Estate Investment Services Co. recently completed the $6.65 million sale of the 120-unit Creekside at Tasker’s Chance. The LIHTC property for seniors is located in a newer development of single-family homes off the Golden Mile.

Confidential marketing of the property was conducted to local, regional and national investors for about 30 days, and received high demand, said Marcus & Millichap.

Jeff Kunitz, director of the The Tax Credit Group of Marcus & Millichap, says that the benefits to investors of purchasing LIHTC properties is reduced competition from other buyers and possibly higher returns, compared to market-rate properties.

“Chances are, buyers would not pay as much as they would for market-rate properties so yields may tend to be higher,” he said.

The property received five offers, including ones from experienced LIHTC players, says Kunitz. The new buyer will hold and maintain the property for its cash flow and management contract.

Creekside at Tasker’s Chance sold at a 7.63 percent cap rate. Conventional apartment cap rates in the market may be about 7 to 7.25 percent, says Kunitz. He said LIHTC apartment properties in the market may fetch a 50-70 basis point spread over comparable market-rate ones.

“Frederick is a very desirable, low velocity and high barrier to entry sub-market of Washington, D.C. and Baltimore,” stated local Washington, D.C. Marcus & Millichap agent David Weber. “Therefore, demand from investors that understand the value and limited opportunities in this market were aggressively pursuing this acquisition.”

The purchaser has to sign a guarantee with the original tax credit investors to protect the investors from potential recapture of tax credits that would occur if the property falls out of LIHTC compliance.

In some states, purchasers of LIHTC property have to be approved by the state housing finance authority, but not in Maryland. Kunitz said that being an experienced LIHTC developer/manager is not necessarily a prerequisite to purchasing the LIHTC properties. Companies can be prepared for the task. Marcus & Millichap, he says, converts about five buyers per year to becoming LIHTC buyers.

The Tax Credit Group of Marcus & Millichap of Kunitz, Robert Sheppard, Armand Tiberio and Spencer Hurst based out of the firm’s Seattle office, along with local agent David Weber in the Washington, D.C., office represented the seller in the transaction.

The purchase was financed through an agency loan, says Kunitz. The property’s occupancy was close to 94 percent, he said. The property has to remain afforable through Dec. 31, 2025.

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August 07, 2009

Commercial Real Estate

Vandema Gold Award


 Vandema Residential Real Estate


Our Evaluation Criteria Commercial Real Estate

- Is the website real estate related?
- How informative is the website?
- Is the information up-to-date?
- Is the design layout and presentation appealing?
- How fast does the site load?
- Is the site subject of Spam submission?
- Do we like the website?


You may use the following form to submit your website for the Vandema Gold Award.



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August 06, 2009

Cost Segregation - Case Law, History and Methodologies

Case Law, History and Methodologies
2 CE Hours (CPA/EA)
Friday August 14, 2009 8am - 10am PDT

Cost Segregation - Case Law, History and Methodologies
Theoretical overview and understanding of some of the most important cost segregation fundamentals including: relevant legal history, engineering steps, and the IRS's treatment of the acceptable techniques. You will receive critical in-depth information on the IRS's Audit Techniques Guide (ATG) while addressing the different methodologies recognized by the IRS. Additionally, we will be reviewing several qualifying tests used to determine 1245 property. You will become familiar with the process utilized during the completion of a cost segregation study and review the appropriate deliverables, their formats and the feasibility study process.

Our program is designed for both CPAs and EAs seeking CE hours; as well as Financial and Real Estate professionals who are new to cost segregation and EPAct - and those seeking to refresh and update their working knowledge of a growing tax planning strategy.

Register Below
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commercial appraiser, commercial appraisal

Top Commercial Real Estate News
July 30, 2009 - August 05, 2009
Provided by Commercial Real Estate Direct

Sales Volume Plunges As Cap Rates Rise
Investment-sales activity in the first half declined to $17.6 billion, down 78 percent from the same period a year ago, as capitalization rates continued their two-year rise, according to Real Capital Analytics. The office sector led the decline, with an 82 percent drop to $5.7 billion of completed sales, while multifamily fell 79 percent to $4.8 billion. Industrial dropped 74 percent to $3.6 billion and retail registered a 72 percent decline to $3.5 billion.
Read Full Story

commercial appraiser, commercial appraisal
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August 05, 2009

Real Estate & Property Law

Condo Hotel Buyers File Suits Claiming Securities Law Violations

Posted 12 hours, 24 minutes ago
By Debra Cassens Weiss

Buyers of condo hotels are going to court in an effort to get their money back, arguing that the sellers violated securities laws.

The units have turned out to be bad investments for many buyers, the Wall Street Journal (sub. req.) reports. The condos have lost much of their value at the same time that travelers are renting the units less frequently, and for less money.

Securities and Exchange Commission guidelines issued in 1973 say condo hotel purchases could be subject to securities laws if sellers make claims about rental income, market a rental program or limit occupation of the units.

Rob Webb, a partner at Baker & Hostetler in Orlando, Fla., told the Wall Street Journal that marketing materials are often cited as evidence that the units are securities. "Quite frankly, the main exhibit to the complaint and the single piece of evidence that's most damaging is the developer's own sales brochures," he said. In other cases, buyers claim oral promises about rental income brought the units under securities laws.

So far the cases aren’t succeeding, the story says. Lower courts have not only turned down buyers’ claims, but also blasted them for failing to read their purchase contracts.

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Commercial Appraiser, Commercial Appraisal

Renovate and build for the future. Commercial Appraiser, Commercial Appraisal
Join us for our webcast series about Building Information Modeling (BIM) for renovation and building performance.
Autodesk BIM solutions provide commercial and public sector building owners with powerful analysis tools so you can build a model to determine alternatives for sustainability and efficiency.
Gain valuable insight into how BIM software solutions from Autodesk can help save you time and money. Register now.
Understanding the State of Your Building's Energy Performance
Date: Wednesday, Aug 19, 2009
Time: 10:00 - 11:00 a.m. PDT
See a demonstration on how Autodesk BIM software can:
Integrate real world data into your model for an accurate look at the current state of your building's energy performance.
Help you understand deficiencies in your building's energy performance.
Teach you the key questions to ask designers and Energy Services Companies seeking your business.
Register Now                    
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Forensic Appraiser, Forensic Appraisal

Nossaman Authored Articles

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"Discoverability of Pre-Litigation Expert Appraisal Reports: The Consistent and the Dead "

Forensic Appraiser, Forensic Appraisal Authored by: Rick E. Rayl, John C. Murphy

Aldous Huxley once observed that “the only completely consistent people are dead.” Huxley, once an inarguably great novelist (and now inarguably consistent) had a point. Opinions - - even well researched, thoughtful opinions - - can change over time. Once a condemnation case is filed, depositions and other discovery occur. New facts may emerge. Even a good pre-litigation appraisal report may become obsolete.

Most business and real estate appraisal experts understand this fact. Many, however, express extreme reluctance about ever changing any pre-litigation opinion. Most appraisal experts - - particularly those who testify in court - - strongly prefer to remain consistent.

The pertinent California jury instruction gives such expert witnesses good reason for this attitude. One instruction, BAJI 2.20 (“Believability of Witnesses”), permits jurors, in evaluating a witness, to consider “a statement previously made by the witness that is consistent or inconsistent with the testimony of the witness.” In others words, trial testimony inconsistent with a pre-litigation report can sink an expert. On a fundamental level, most appraisal experts, like most people, hate to be caught in an inconsistency; this is a situation, they claim, in which they wouldn’t be caught . . . well, dead.

For this reason, attorneys for condemnees often search for inconsistencies between an expert’s pre-litigation opinions, and the opinions to which the same expert testifies at trial. Public agency attorneys, in turn, try to keep their experts’ pre-litigation appraisals confidential. They argue that a pre-litigation appraisal report is privileged even when they later designate the report’s author as a trial witnesses. The arguments:

Arguments for Keeping Pre-Litigation Appraisal Reports Private:

Most public agency lawyers focus on Code of Civil Procedure section 1255.060, subdivision (b). That code section provides:

In the trial of the issue of compensation, a witness may not be impeached by reference to any appraisal report, written statement and summary of an appraisal, or other statements made in connection with the deposit or withdrawal pursuant to this chapter, nor shall such a report or statement and summary be considered to be an admission of any party.


Public agency lawyers also point to the Tentative Report of the Law Revision Commission (September 27, 1967), the group which proposed section 1255.060, subdivision (b). The Tentative Report states that the statute “precludes impeachment of a witness at trial by reference to appraisal reports, statements of valuation data other statements made by him in connection with (1) a deposit and notice thereof . . . .” (California Law Revision Commission, Tentative Recommendation and a Study (September 1967), p. 1151.) The Law Revision Commission, in its 1967 Tentative Report, reasoned that “if such evidence could be used, it is likely that the plaintiff would make an inadequate deposit in order to protect itself from the use at trial of evidence submitted in connection with the deposit.” (Id. at p. 1785.)

A national treatise on condemnation tends to support this position. Nichols on Eminent Domain states that those statements of the condemning authority which “may become admissions” only include appraisals “of the property prepared and adopted for purposes other than acquisitions, negotiations or condemnation.” (5 Nichols on Eminent Domain (3d ed. rev. 1977), § 18.12[2], emphasis added.) Nichols is quite explicit. It states:

In the context of an eminent domain case, the concept of being compelled to produce drafts of an appraiser’s report is a sobering thought. In most cases, the appraiser will work closely with the attorney in an attempt to refine (not sanitize) the report so that it accurately reflects current market data as well as acceptable methods of appraisal in a particular jurisdiction . . . . [If produced] it is likely that those reports would be used to impeach the appraiser at trial. This author believes that the production of preliminary reports clearly encroaches on the work-product doctrine and should be discouraged. (7 Nichols, § 7A.02[1].)


Other arguments are available to public agencies. They may also argue that preliminary appraisal work is inadmissible under Evidence Code section 1152 - - a statute which protects materials generated for purposes of settlement discussions. Some agency attorneys also argue that pre-litigation reports should admissible only if they are truly inconsistent. (See El Monte Union High School District v. Consumer Holding Co. (1966) 247 Cal.App.2d 173 [155 Cal.Rptr. 467].)

No question exists, of course, that pre-litigation reports are usually inadmissible when prepared by a different appraiser than the one who will testify at trial. An expert cannot usually be impeached with a report he or she did not write, and has never seen or relied upon. But when an agency designates as its expert witness the same person who prepared the pre-litigation report, problems can arise.


Most landowner or business owner attorneys begin and end their arguments with a citation to County of Contra Costa v. Pinole Point Properties, Inc. (1984) 27 Cal.App.4th 1105 [33 Cal.Rptr.2d 38]. The Pinole Point court held squarely that the condemnor can impeach the condemning agency’s trial expert through an earlier appraisal report by that same expert. (Pinole Point, supra, 27 Cal.App.4th at pp. 1112-1113.)

Moreover, the official Law Revision Commission Comment, 1975 addition, contains some significant differences from the earlier Tentative Report. Unlike the Tentative Report, the official Comment does not explicitly address earlier reports by the witness him or herself. (Cal. Law Revision Comment, 1975 addition, West’s Ann. Code Civ. Proc., § 1255.060 (1982) pp. 691-692.)

Also, the leading California treatises contradict Nichols, the national treatise quoted above. (See 14 Dankert, Cal. Real Estate Law & Practice (1997) Prejudgment Possession, 505.06, p. 505-10; 1 Matteoni & Veit, Condemnation Practice in California (1997), Trial Preparation in Trial, § 9.62, p. 448.) Both cite Pinole Point as the applicable California rule.

Most important, the general law of expert discovery, both in California and federal courts, contradicts Nichols. One federal district court observed, “Discovery of the reports of experts, including reports embodying preliminary conclusions, can guard against the possibility of a sanitized presentation at trial, purged of less favorable opinions expressed at an earlier date.” (Hewlett-Packard Co. v. Bausch & Lomb, Inc. (N.D. Cal. 1987) 116 F.R.D. 533, 537, affd. (Fed. Cir. 1990) 909 F.2d 1464, quoting Quadrini v. Sikorsky Aircraft (D. Conn. 1977) 74 F.R.D. 594, 595; but see Taylor v. Anderson-Tully Company (W.D. Tenn. 1993) 151 F.R.D. 295, 297 [disagreeing in part with Quadrini: “On balance, the court concludes that where there is no showing of any particularized need for such reports, such as might be the case in a particularly complex expert dispute, parties should not be required to produce their expert witness’ reports which have been prepared in anticipation of litigation.”].) Forensic Appraiser, Forensic Appraisal


California trial courts are likely to compel production of preliminary reports of those experts designated to testify at trial. Public agencies should (1) insist that an appraiser complete his pre-litigation work carefully enough to withstand cross-examination in court; or (2) consider hiring different experts to testify at trial - - and avoid contaminating those trial experts with earlier, inconsistent reports from others.

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August 04, 2009

appraiser, appraisal

Ohio AG Sues Carrington For Unfair Practices
in News > Mortgage Servicing

Ohio Attorney General Richard Cordray and the Ohio Department of Commerce have filed a lawsuit against Santa Ana, Calif.-based Carrington Mortgage Services LLC alleging that the company breached its agreement with the state to offer reasonable loan modifications to eligible borrowers.

The lawsuit also alleges that Carrington violated Ohio's Consumer Sales Practices Act by providing incompetent, inadequate and inefficient customer service in connection with its servicing of Ohio mortgage loans.

Cordray is the first attorney general in the nation to file suit against a mortgage servicer in the wake of the foreclosure crisis.

"This lawsuit makes it clear that we have reached zero tolerance for this kind of behavior from loan servicers," says Cordray. "We've tried to work with them, but now we must take action. I am determined to see that mortgage servicers step up, take responsibility and start making it right with Ohioans. No more excuses."
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commercial appraiser,commercial appraisal

August 2009
commercial appraiser,commercial appraisal

  • NAR Presents Monthly Commercial Updates
  • Retrofitting Older Buildings - A Niche
  • S & P Reverses CMBS Downgrades
  • Connect With NAR Commercial in San Diego


  • Key Issues Addressed in August Webinars
  • LinkedIn - Where Professionals Connect on Business Issues
  • Commercial Real Estate Investing: 12 Easy Steps to Getting Started


  • Ken Riggs, CCIM Gives Views on Economy
  • Save 40% on Commercial Education


To keep you aware of a number of commercial initiatives that NAR is working on, Jim Helsel, is producing a podcast each month. Listen to this month’s edition: here.

Obtain a sneak peek at an upcoming RCA Report (the GREEN issue!) article on retrofitting buildings for energy efficiency: here.

In a highly unusual response to investor ire, Standard & Poor reversed some downgrades of widely watched commercial mortgage-backed securities. Read Reuter’s article. here.

Commercial Connect at NAR’s annual Conference and Expo, November 14-6, 2009 in San Diego will feature commercial specific networking events and sessions like, “Foreclosures: The Impact on Housing Opportunity and Property Management”. Create your own personal Event Planner now! Read more, here



August 20: “Commercial Property Financing – How to Get the Deal Done” on August 20, 2009. $49 with REALTOR discount code: fhosuddnkr

August 21: “Impressive Presentations – How to Win Every Assignment” on $49 with REALTOR discount code: rihequpimu

Both webinars will be presented by Bob McComb and Peter Droubay of Top Dogs. To register and see time and details click here

LinkedIn is an online networking tool for professionals. Joining is simple; complete your professional profile and start connecting with clients and colleagues. Already LinkedIn? Join the REALTOR Commercial Group, over 300 members and growing, for the latest news, discussion and connections. Click to join here

This straight forward guide by Jack Cummings with essential tips and an insider’s knowledge of commercial property investing is available now in the REALTOR store. Purchase - here.
commercial appraiser,commercial appraisal

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forensic appraiser,forensic appraisal

Property Owner's Brief In Atlantic Yards Appeal

Posted: 03 Aug 2009 10:21 AM PDT forensic appraiser,forensic appraisal

A press release from Develop Don't Destroy Brooklyn links to the opening brief filed recently by the property owners who object to the taking of their property for the Atlantic Yards "redevelopment" project in Brooklyn in Goldstein v. New York State Urban Dev. Corp.

Here's the summary of the issues presented in the brief:

1. Whether the public use requirement of the NY Constitution imposes a more stringent standard for takings than does the Fifth Amendment—a question expressly preserved by the Court of Appeals in Aspen Creek Estates, Ltd. v. Brookhaven (2009), and never before considered by any court in New York;

2. Whether the public use requirement of the NY Constitution "is satisfied when a condemning authority determines that he public benefit to be gained by forcibly appropriating citizens' homes and businesses is 'not incidental or pretextual in comparison with benefits to particular, favored private entities,"' without ever examining the nature and magnitude of the private benefit and thus failing to create any record that would allow a reviewing court to make such a determination—a question never before considered by any court in this State (and ignored by the Appellate Division in this action)";

3. Whether, according to Article XVIII, Section 6 of the Constitution, subsidized "blight clearance" projects must be restricted to "persons of low income."

The New York Court of Appeals is scheduled to hear arguments in the appeal on October 14, 2009 at 2 pm in Albany.

forensic appraiser,forensic appraisal

This posting includes an audio/video/photo media file: Download Now

ABA Section Of State & Local Gov't Law - Condemnation Law Committee

Posted: 03 Aug 2009 09:49 AM PDT

These past few days, I've been attending the annual meeting of the ABA in Chicago. It was a chance to meet new colleagues, associate faces with those whom I've only had e-contact, and reacquaint myself with old friends.

I'm also the new Chair of the Condemnation Law Committee of the State & Local Government Law Section. I'm honored to have been delegated the task of leading a group which includes some of the most experienced and learned condemnation lawyers in the country among its members, from both condemnor and condemnee perspective.

One of the jobs of the Chair is to encourage those who are not section and committee members to join us. In that vein, here are some of the benefits of participating:

  • We'll be continuing our program of regular teleconferences on new cases and hot developments in eminent domain and regulatory takings law. The last call, for example, discussed the Sotomayor nomination and the beachfront judicial takings case. These calls are informal round-table type discussions and often feature well-known expert participants. And best of all, the calls are included as part of section membership.
  • CLE programs, both in-person at the meetings, as well as without-leaving-home programs at virtual meetings. Latest examples: at the ABA meeting, Professor Steven Eagle led a session on The Appropriate Role of Government in Urban Revitalization: BIDS, TIFS and Other IFS, and in April, the section sponsored low-cost virtual CLE programs on Hot Topics in Land Use Law (RLUIPA, cell tower siting, pretext and public use, impact fees and exactions) and Condemnation Hot Topics (issues of particular interest to condemnation lawyers). These programs feature national experts in their subject areas.
  • The opportunity to participate in e-mail listservs on a variety of topics, and a subscription to Government Law News, an email "60-second update on what's happening."

Please consider joining us. To learn more, drop me an email.

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August 03, 2009

hospitality appraiser, hospitality appraisal

Where Design, Dynamism and Diversity Come Together

See New Products While Building New Relationships
Hospitality Design Boutique Exposition & Conference (HD Boutique) is less than 2 months away. There is no other tradeshow like HD Boutique, with its unique use of bright cabanas spread throughout the show floor providing you with the opportunity to relax while meeting the industry's leaders and discovering the latest design trends. Register for the show today and learn how you can renovate, restore, and reenergize your designs. See an up-to-date list of exhibitors here.

Register Here to receive complimentary show floor admission (2-day admittance) – a $40 value. hospitality appraiser, hospitality appraisal

HD Boutique Conference:
Pulling Out All the Stops

At a time when many conference and tradeshows are pulling back, HD Boutique is drawing top global talent together to speak at this year’s conference. You can purchase our Full Conference for only $99 and attend as many Single Conference Sessions that you can fit into your schedule, such as: Using Color in Hospitality to Stimulate Your Brand, What Does it Mean to be Green?, and Affordable Hotels 2.0: Hybrids, New Brands, and Fresh Ideas...just to name a few. All Conference Sessions at HD Boutique 2009 are LU/CEU accredited.

Register Here to receive complimentary show floor admission (2-day admittance) – a $40 value.
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enviornmental appraiser, enviornmental appraisal

Five Companies Agree to $21 Million Settlement for Environmental Damages in Pennsylvania
Mon, 03 Aug 2009 12:48:20 -0500

Five companies have agreed to compensate the United States and the Commonwealth of Pennsylvania nearly $21.4 million in cash and valuable property to address natural resource damages resulting from decades of zinc smelting operations at the Palmerton Zinc Pile Superfund site in northeast Pennsylvania. enviornmental appraiser, enviornmental appraisal

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commercial appraiser, commercial appraisal


NAR Seeks Your Expertise and Experience

Dear Commercial Practitioner:
commercial appraiser, commercial appraisal

Commercial real estate is struggling with low sales and leasing activity.  In addition, $108 billion of commercial loans are in some form of distress.  In the current economic situation, NAR seeks your expertise and experience to gain a sharper insight into market activity.  Your responses help inform members and markets about the direction of commercial markets, sales, pricing, and leasing activity.  With better information about your market, we can better serve your research needs and provide faster, more accurate data to members, lawmakers, and NAR stakeholders.

Please take a few moments to respond to the brief August Commercial Real Estate Market Survey.  The survey should take less than 2 minutes.  Your individual responses on these important issues will remain completely confidential. 

Go to http://www.zoomerang.com/Survey/?p=WEB229GCXP9LA7 by August 14, 2009.  Your participation is appreciated and will contribute to your association’s research effectiveness.  The results of this survey will be emailed to respondents in an advanced report before its official release.

If you have any questions, please contact NAR Research at (202) 383-1081.

commercial appraiser, commercial appraisal

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August 01, 2009

Forensic Appraiser, Forensic Appraisal

California's Electronic Discovery Act Takes Effect; Parties Must Preserve Electronic Information


Stephen L. Marsh
P: 619.699.2418
F: 619.645.5363
Attorney Bio

Joshua M. Heinlein
P: 619.699.2575
F: 619.235.1334
Attorney Bio

Saeid Ahmadian

Litigation Support Manager
P: 619.699.2435
F: 619.446.8259

On June 29, 2009, Governor Schwarzenegger signed into law California’s Electronic Discovery Act (AB 5). The bill contained an urgency clause, meaning that the Act took effect immediately. The Act largely mirrors the Federal Rules of Civil Procedure governing electronic discovery and imposes substantial new requirements for discovery in California state courts.

Until now, specific rules on electronic discovery in California were confined to the Federal Courts. California’s Electronic Discovery Act (the “Act”) amends California’s discovery rules and expressly permits discovery of electronically stored information (“ESI”). The Act provides that parties may demand copying, testing, sampling or inspection of such information. In doing so, the legislation recognizes that almost all cases now involve some form of electronic discovery.

Unlike the Federal Rules, the Act permits parties to seek discovery of ESI that is from a source that is not reasonably accessible because of undue burden or expense. The burden is on the responding party in the first instance to bring a motion for a protective order or to make written objections to such a request.

Under the Act, a party must take steps to preserve ESI when they are put on notice of litigation. This means that even if you have a company policy for the destruction of electronic documents, you must cease destroying documents that could be relevant to the case once you become aware of the litigation. Failure to do so may lead to severe monetary and legal penalties.

Recently, a California court of appeal reversed a jury verdict in the defendant’s favor and entered judgment in favor of the plaintiff because of the defendant’s failure to properly preserve and produce electronic documents. The court also awarded the plaintiff attorneys’ fees. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967.) Similarly, in an unpublished decision the same appeals court granted judgment to a plaintiff in the amount of over $17 million when the plaintiff proved the defendant destroyed electronic information. (Elec. Funds Solutions, LLC v. Murphy (2009) 2009 Cal.App.Unpub. LEXIS 4956.)

Call your counsel immediately if you are notified of possible litigation to discuss the steps you should take to preserve ESI. Attorneys and clients must work closely together to discuss the ramifications of ESI discovery, both in responding to discovery and requesting ESI from other parties. Luce Forward has expertise in handling electronic discovery for clients of all sizes and can recommend the best strategy for the collection, review, analysis, and production of ESI in a cost-effective manner.

Is your document retention policy updated to address the changes in California’s Electronic Discovery Act? It is important to review company policies to ensure they do not run afoul of the new rules. Luce Forward has attorneys who are experts in helping clients draft, review, and update their document retention policies to fit their needs.

Please contact one of the individuals listed at right should you have any questions regarding California’s Electronic Discovery Act or the production of electronic information.

Forensic Appraiser, Forensic Appraisal
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