Real Property Law Section
News From the Section
Here are the features in this month's E-Bulletin:
Webinar: Consumer Product Regulation - What You Need to Know about Proposition 65, CPSIA and “Green” Labeling Requirements
Tuesday, January 24, 2012, 12 p.m. - 1 p.m. Pacific Time.
1 Total Participatory MCLE Credits (No Ethics)
Join the Environmental Law subsection for a presentation by S. Wayne Rosenbaum and Elizabeth Cason regarding Proposition 65, the Consumer Product Safety Improvement Act of 2008 and “green” labeling requirements. Participants will be given an overview of the prohibitions and requirements of Prop 65 and the CPSIA, as well as recent developments in the enforcement and implementation of those regulatory schemes. In addition, participants will be given a discussion of “dos” and “don’ts” for making environmentally friendly and green claims for their products and services.
To attend the webinar, see Consumer Product Regulation - What You Need to Know about Proposition 65, CPSIA and “Green” Labeling Requirements.
Webinar: Recent Developments in Fair Housing: Criminal Background Checks, Domestic Violence and Medical Marijuana
Wednesday, January 25, 2012, 12 p.m. - 1:30 p.m. Pacific Time.
1.5 Total Participatory MCLE Credits (No Ethics)
- New state laws and federal guidance offer special housing protections for domestic violence victims. The panel will discuss how domestic violence intersects with fair housing laws; and address how domestic violence affects evictions, lock changes, and tenants' rights to end their leases early.
- Although criminal history is not generally a legally protected class under fair housing laws, the use of criminal background checks can create fair housing issues and potential liability. The panel will review the fair housing implications of using criminal history in resident screening, including the possibility of application of HUD's new proposed rules on the disparate impact theory of discrimination.
- What are the landlord’s and tenant’s rights when a tenant claims that the use and/or cultivation of marijuana is necessary as a reasonable accommodation for his or her disability or illness? The review will include a discussion of the conflict between state and federal law, recent cases, HUD opinions and practical considerations.
With speakers Meliah Schultzman, Sanjay Wagle and Theresa Kitay. Heidi Palutke of California Apartment Association, Sacramento will moderate.
To attend the webinar, see Recent Developments in Fair Housing: Criminal Background Checks, Domestic Violence and Medical Marijuana.
Register Now: Real Estate Lawyer Boot Camp - February 17-19, 2012
Registration is open for the Real Estate Lawyer Boot Camp February 17-19, 2012 at the beautiful Hyatt Regency Mission Bay & Marina in San Diego! Space is limited, so do not wait to sign up. This intensive 48+ hour Boot Camp includes a primer on the business and vocabulary of real estate, key considerations for lawyers in buying, financing, developing, leasing and selling real estate, negotiating deals and much more. The weekend is designed to give recent practitioners insight and education on the real estate business. As an added benefit, the Continuing Education of the Bar (CEB) will provide Boot Camp cadets free access for one year to all of its Real Property Publications online (a $1,195 value). Registration for cadets is only $1,275 which is all inclusive - room, board, materials, and more - for the weekend. Online registration is now open at http://realpropertylaw.calbar.ca.gov/Education/RealPropertyBootCamp.aspx.
Case Alert: Lang v. Roché, 2011 WL 5295125 (Cal.App.2d Dist).
Equitable Redemption Rides Again.
The parties in Lang were former neighbors; the plaintiff had purchased property from the defendant in 1977 and they lived next door to each other. Apparently they did not get along very well, and in 1995 Roché sued Lang for defamation. Roché did not serve the complaint properly but went on to obtain a default judgment against Lang. Eight years later Roché also obtained a writ of execution on the judgment, which Lang learned of only as Roché was preparing to execute. In spite of Lang’s lawsuit to void the judgment and halt the execution, a sheriff’s sale was held and Roché purchased Lang’s property for $100.
Following further procedural developments including the vacation of the default judgment, re-service of the original complaint, Lang’s successful anti-SLAPP motion, and various appeals, Lang finally sued Roché in 2009 to quiet title to the property sold to satisfy the judgment. Roché demurred successfully to the complaint based on the expiration of the 90 day period to set aside a judgment under the Enforcement of Judgments Law or “EJL” (Code of Civil Procedure section 680.010 et seq.), and Lang appealed.
The court of appeal for the Second District reversed and remanded with an instruction to the trial court to enter judgment for Lang. The court ruled that while the EJL abolished the right of statutory redemption from execution sales, it did not eliminate equitable redemption. Equitable redemption applies in cases where the property is sold for a “grossly inadequate” price and the purchaser has acted unfairly or taken “undue advantage.” Both aspects of the doctrine were met in this case. Because the judgment in question was void ab initio for lack of personal jurisdiction, and was obtained due to the misconduct of Roché, Lang was entitled to redeem his property irrespective of the EJL.
Based on the facts as recited by the court, Lang was not a particularly close case, and the result is hard to argue with. But it presents two lessons worth remembering. The first lesson is one that all real estate litigators should be familiar with -- neighbor litigation can occasionally take on a nightmarish life of its own. Both sides in Lang appeared in pro per, which brings to mind the old line about parties who represent themselves. But the more salient one is that an execution sale can be set aside by mechanisms outside those set forth in the EJL and that courts can and will apply equitable principles even in the face of a comprehensive statutory scheme. Lang also opens up the possibility for collateral attacks on title to property derived from execution sales, so if you're representing a judgment creditor, this may be something to watch out for. Caveat emptor.
Case alert prepared by Matt Henderson (matthew.henderson@msrlegal.com) with Miller Starr Regalia’s Walnut Creek office.
Case Alert: LA County MTA v. Alameda Produce Market, LLC, et. al., S188128 (2011).
Public agencies should not assume that because their deposit is withdrawn for the benefit of the owner that they are safe from the right to take challenges in connection with condemnation proceedings.
In Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC, et. al., (S188128) the California Supreme Court held that the withdrawal of any portion of the deposit of probable compensation by a lender or deed of trust holder, even if it is for the benefit of the owner (i.e., paying down the deed of trust against the property being condemned), does not waive the owner's right to take challenges.
The deposit of probable compensation is the money that a condemning agency deposits with either the state or the county treasurer based on the agency’s assessment of what the fair market value of the property interest being acquired is. This is a prerequisite to taking possession prior to judgment and final order. Often, owners raise “right to take challenges” arguing that the condemning agency does not have a right to condemn the property desired. These challenges can be based on various reasons, but most commonly, they are based on some statutory deficiency in adopting the resolution of necessity, another prerequisite to bringing a condemnation action. The Code of Civil Procedure provides, however, that withdrawal of the deposit by the owner is an automatic waiver of any right to take challenges.
The court in Alameda Produce drew a distinction between this case and Redevelopment Agency of San Diego v. Masdaq (2007) 154 Cal.App.4th 111, which held that because the owner had stipulated to the lender withdrawing funds (to its own benefit), the owner had affirmatively waived its right to take challenges. In Alameda Produce, the owner did not stipulate. In fact, it did not even file an objection. After a thorough statutory language analysis comparing the waiver statute to others in the eminent domain statutory scheme, the court found that withdrawing funds for the benefit of the owner, without more, was insufficient to waive the owner's right to challenge the condemning agency’s right to take the property by eminent domain.
This case concerned the old “quick take” statutes, which allowed agencies to take immediate possession on an ex-parte basis and allowed the owner to challenge possession after the fact. In 2007, the legislature changed this procedure and to require agencies to file a noticed motion and wait a statutory period before taking possession. The rationale of this case remains unaffected by the change in the statutes scheme however. Regardless of how an agency goes about attempting to get pre-judgment possession, if the owner does not act affirmatively to allow the deposit of probable compensation to be withdrawn, the owner retains the right to challenge the agency’s right to take the property.
Case Alert prepared by Mona Nemat, Esq. (Mona.Nemat@bbklaw.com) of Best Best & Krieger, LLP in Riverside.
Update to November’s Case Alert: Professional Engineers in California Government v. Department of Transportation, 198 Cal. App. 4th 17 (2011).
On November 16, 2011, the California Supreme Court denied a request to review the California Court of Appeal, First Appellate District Court’s ruling in Professional Engineers in California Government v. Department of Transportation (198 Cal. App. 4th 17 (2011). In affirming the lower court ruling, the California Supreme Court confirmed Caltrans’ right to enter into a long term concession agreement, clearing the way for more public-private partnerships in California. Accordingly, Caltrans is free to move forward with this project under an innovative concession agreement by which the private sector will assume key risks and responsibilities for the design, construction, and operation of the upgraded road link between San Francisco and the Golden Gate Bridge. More broadly, the greater legal certainty over Caltrans' statutory authority that this case confirms should create more opportunities for the State to attract private capital and innovative risk sharing for new transportation infrastructure projects.
Allan T. Marks is a partner with Milbank, Tweed, Hadley & McCloy LLP in Los Angeles. Mr. Marks is the founding co-chair of the Public Private Infrastructure Subsection of the Real Estate Section of the State Bar of California and represents the developers of the Presidio Parkway Project. He is also an adjunct professor at the University of California, Berkeley Law School and Haas School of Business.
Legal Update: New Legislation pertaining to Real Estate Brokers Effective Jan 2012
Strengthening DRE Enforcement. Effective January 1, 2012, the Department of Real Estate (DRE) will have greater disciplinary authority to achieve its highest priority of protecting the public. A licensee will be required to report to the DRE within 30 days of any of the following: (1) disciplinary action taken by another licensing entity in California or another state, or by a federal governmental agency; (2) an indictment or information charging a felony against the licensee; or (3) a conviction of a felony or misdemeanor, including a plea of guilty or no contest. Failure to comply with this reporting requirement will be cause for discipline. The DRE’s broader disciplinary authority will also include, among other things, the ability to automatically suspend the license of anyone incarcerated after a felony conviction. Senate Bill 706.
DRE Issuing Citations and Fines. Starting January 1, 2012, the DRE can issue a citation and fine up to $2,500 if, upon investigation, it has cause to believe that a licensee has violated the DRE rules, or an unlicensed person has engaged in licensed activities. The citation and fine will be in lieu of DRE disciplinary action for the offense cited, and the citation will not be reported as discipline. All administrative fines collected will be deposited into the Real Estate Recovery Fund, which has, under Senate Bill 706, been renamed the Consumer Recovery Account. Senate Bill 53.
Legal update provided by the California Association of Realtors.
Legal Update: ADA Accessibility Standards Transcend Bricks & Mortar
We all know that the Americans with Disabilities Act (“ADA”), a comprehensive civil rights law prohibiting discrimination on the basis of disability, requires certain public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities. What many don’t know is that the Department of Justice has expanded application of the ADA accessibility requirements to the world wide web. Click here to learn more about how the ADA is being applied to transcend the brick & mortar of traditional real estate.
Legal update prepared by Elizabeth Erhardt, Esq. (eerhardt@rutan.com) of Rutan & Tucker, LLP.
Section News
Recap of Second Annual RPLS Holiday Mixer
The Second Annual RPLS Holiday Mixer was held on December 8 with simultaneous Northern California and Southern California locations, and of course, a video simulcast of the festivities. A great time was had by all, and lucky winners received RPLS tchotchkes, or more affectionately, "State Bar Swag." Pictured with video simulcast is Bill Bernfeld.
RPLS thanks our hosts, Ken Whiting and Holme Roberts & Owen LLP's San Francisco office, and Bill Bernfeld and K&L Gates LLP's Century City office, for their generosity and good cheer.
RPLS anticipates more fellowship and outreach meetings in the coming year. If you're interested in learning more, please contact Peter Aitelli, RPLS Chair, at Morrison & Foerster LLP's SF office, 415-268-7085, or David Fu, Membership and Outreach Chair, 626-309-9601.
Coming Soon: New Look for the e-Bulletin in the New Year
The Real Property Law Section has been hard at work on a new and updated look for the e-Bulletin. Our goal is to provide you with informative content in a modern and sleek design. If you have any suggestions on how we can improve the format or content of the e-Bulletin, please email the editor Helen Kang Shin at hshin@mofo.com.
Coming Soon: Lexology, A New Benefit Offered by the Real Property Law Section
The Real Property Law Section is pleased to announce that it will be providing to its members a bi-weekly electronic round-up of California real property developments. Look for the first edition in your mailbox in late December or early January. The bi-weekly newsletter, created by Lexology, will be customizable to allow its readers to review not only California real property developments, but news in other areas of the law and from other jurisdictions (to customize, click the “My Account” link on the toolbar). As with any email from the Real Property Law Section, members may choose not to receive the bi-weekly newsletter by selecting the unsubscribe option at the bottom of the newsletter.
Join the Executive Committee of the Real Property Law Section
The Executive Committee for the Real Property Law Section of the State Bar of California is accepting applications for new members. The committee seeks hard-working, experienced real property lawyers, who are particularly interested in using their legal and leadership skills in developing programs designed to further the knowledge of its members in all aspects of real property law, foster and enhance the professional expertise of the section’s members, encourage new members to get involved in section activities, and promote collegiality among all section members and other sections of the State Bar. Additional qualities for applicants include the ability to work as a team member and a demonstrated commitment to, and involvement in, activities to enhance the Real Property Law Section, such as authoring articles for the section’s highly regarded California Real Property Journal, contributing case law briefs and practice tips and other articles to the section’s e-Bulletin, participating and taking leadership roles in our subsections, presenting programs at section events, and participating in activities with other professional bars. The committee is particularly interested in applicants with diverse personal and real property law backgrounds, and applicants from underrepresented geographic markets.
The deadline for 2012 applications is February 1, 2012.
For more information about section activities or questions, please see the Real Property Law Section website at http://realpropertylaw.calbar.ca.gov. For information about the application process and to apply for the Executive Committee, see Appointments.
Set up your Facebook and Twitter Accounts. The State Bar Sections (including the Real Property Law Section and CYLA) are now on Facebook and Twitter!
Social media, anyone? The State Bar Sections (which include the Real Property Law Section) and the California Young Lawyers Association (CYLA) now have a page on Facebook and a new Twitter account, where we can keep you up-to-date on our latest news and events. Do not delay! Set up your accounts now.
We're also looking forward to interacting with a wider community and reaching out to people who are not currently members.
We invite you to "Like" us and follow our "Tweets."
And by the way, the CYLA definition of "young" is any California attorney under the age of 36 or in their first five years of practice. |
 |
Save Money with CEB
Continuing Education of the Bar, California (CEB) is extending some special discount offers to our section. As a member of the Real Property Law Section, you're eligible for:
A complete list of the products eligible for a discount is available on a CEB web page accessible through our Members Only Area. Information about the section dues rebate program can be found on the CEB Web site.
Contact Us
Real Property Law Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
415-538-2564
FAX 415-538-2368
The Real Property Law Section is a State Bar of California-approved MCLE provider.