Real Property Law Section

California Real Property Journal

About the Journal

The California Real Property Journal is the official publication of the Real Property Law Section. The Journal is sent free to members of the Real Property Law Section. To begin receiving your subscription, simply join the Section.

The Journal, written and edited by real property practitioners throughout the State, has been described as "the flagship of State Bar publications." The Journal is an invaluable resource for the real property practitioner. Each issue contains information and announcements on current developments in real property law, in-depth articles on a range of topics, as well as news and information about the Section and its activities.

Editorial Staff

Editor in Chief:
Nicole Kilgore
PO Box 150612
San Rafael, CA 94915

Managing Editor
Eileen Chauvet
The Trust for Public Land
101 Montgomery Street, Suite 900
San Francisco, CA 94104

Issue Editors:

Allison Post Harris 
Stoel Rives LLP
500 Capitol Mall, Suite 1600
Sacramento, CA  95814

Misti M. Schmidt
Coblentz, Patch, Duffy & Bass LLP
One Montgomery Street, Suite 3000
San Francisco, CA 94104

Christina R. Sansone, Esq.
Sansone Law Firm
101 N. Verdugo Road, #9768
Glendale, CA 91226
(818) 216-6664

Submission Guidelines

If you are interested in writing an article for the California Real Property Journal, please see the California Real Property Journal Author Contribution Agreement (new window). In addition, the Article Style Guide (new window) provides a basic description of the editing process and format requirements relating to publishing articles in the Journal

Archived Issues

Section members can request copies of articles from back issues in the Members Only Area.

Tables of Contents 1997 to the Present

Volume 34, Number 3, 2016

This issue is posted in the Members Only Area.

MCLE Self Study Article: Legal and Practical Differences Between Airspace Subdivisions and Condominiums in Vertical Mixed-Use Projects
By Paul N. Dubrasich

This article addresses the basic legal and regulatory distinctions between condominium projects and vertical airspace subdivisions. It also offers practical planning strategies for the use of one or the other approach to subdividing airspace in vertical mixed-use development projects.

2016 Law Student Writing Competition Winning Article: Discussion on Rent Control: Its Role as a Public Benefit and its (In)effectiveness as a Tool to Maintain Affordable Housing
By Joseph Lewis, JD Candidate 2017

This article analyzes a recent rent control decision out of the State of New York, finding that a rent-regulated lease was exempt from creditors in a bankruptcy proceeding as it was classified as a local public assistance benefit. The article then analyzes whether California’s rent control cities may follow this decision given California’s social and economic policy reasons for adopting rent control.

Just Compensation Under California Law for Temporary Severance Damages and Impairment of Access
By Daniel Mansueto

This article assesses if and when temporary severance damage claims are compensable under California law. In the course of doing so, it also delineates when permanent impairment of access resulting from the finished project or a permanent street closure is compensable.

Transfers on Death Deeds: The Good, the Bad, and the Ugly
By John C. Demas, Kathleen A. Cashman-Kramer, Michael E. Busch, and Michael E. Dullea

On January 1, 2016, California added a Revocable Transfer on Death Deed as an additional choice for the real estate owning public with the goal of simplifying transfers. Traps for the unwary and the law of unintended consequences by the public’s use of this device may ultimately prove to outweigh the proffered benefits.

Volume 34, Number 2, 2016

Change in the Aftermath of Disaster: Deck Failure Liability, Local Inspection Regimes, and Lapsed Claims
By Dylan Grimes and Gary Sloboda

This article discusses how owners, property managers, developers, and contractors are affected by the legal issues associated with deck construction following the Berkeley deck collapse in 2015. The article focuses on local inspection requirements, liability, and the timing requirements related to claims for defective work.

MCLE Self Study Article: Property Rights to the Periphery of the Universe or Only to the Rooftop?: The Effects of Drones on Airspace Rights in California and Where to Go From Here
By Scott C. Hall and David B. Anderson

This article discusses the origin and development of property rights in airspace above private property, as well as how those rights may be, or are already being, further modified in response to the increasing use of drones for recreational and commercial purposes. The article also discusses proposals for striking a balance between the need for clear private property rights and the continuing development of beneficial drone technology.

An Economic Interpretation of the Yvanova v. New Century Mortgage Corporation Decision
By Harold Justman, Victoria Wong, Henry Chuang, Julia Wei, and Peter Isola

There has been a discernible economic logic in the creation of California real property rights that is explicable under the economic conditions prevailing at the time. This article attempts to discern a reasonable economic interpretation of the legal principle of standing that emerged from the California Supreme Court’s decision in Yvanova v. New Century Mortgage.

Defending Buyer Nondisclosure and Misrepresentation Claims in Real Property Transactions
By Paul P. DeAngelis

This article discusses defending buyer claims of nondisclosure and misrepresentation arising from the purchase and sale of residential real property with a focused analysis on the element of buyer’s reliance.

Volume 34, Number 1, 2016

The Top Ten Real Property Cases of 2015
By Basil (“Bill”) S. Shiber and Matthew Henderson

This article provides an overview of the ten most significant decisions affecting California real estate in 2015, as well as some “honorable mention” cases currently under review and likely to result in important decisions this year.

2015 Legislative Highlights
By Robert M. McCormick, Michael J. Maurer, and Weston B. Rockers

A review of 2015 legislation that the authors believe are of most significance for real property law practitioners.

Ruling Class: Evaluating Class Allegations for Complex Construction Claims in California
By Michael Parme

This article analyzes class certification issues arising in the context of construction litigation and proposes a multi-step approach for evaluating the risks presented by such claims.

MCLE Self-Study Article: 1031 Exchanges and Real Estate Partnerships—Swaps, Drops, PINs, and Rago
By William F. Webster

Real estate partnerships and partners can employ a variety of techniques in structuring 1031 exchanges, and the disapproval with which these exchanges have been received by the California Franchise Tax Board may be changing with the State Board of Equalization’s opinion in Appeal of Rago Development Corp., et al.

Economic Development Tools in a Post-Redevelopment World
By Kevin Reisch and Brian Fish

This article provides an overview of the dissolution of redevelopment agencies in California and describes a variety of helpful, albeit somewhat limited, economic development tools that local agencies may use in the post-redevelopment era.

Community Revitalization and Investment Authorities: A Step-by-Step Guide to Using AB 2
By Alfred Fraijo, Jr. and Rick Rodriguez

This article provides a general overview of the manner in which a local government can create a Community Revitalization and Investment Authority.

Volume 33, Number 4, 2015

Message from the Chair
By Randall Block

Are You a Good Host? The Shifting Legal Landscape of Airbnb, VRBO, and Other Online Short-Term Rental Hosting Platforms
By Andrew S. Azarmi and C. Danny Wang

This article discusses the rapidly emerging and shifting legal issues surrounding short-term rental online hosting platforms and focuses on recent litigation, insurance, landlord-tenant issues, and proposed local and statewide legislation, including the recent proposition in San Francisco.

Cross Border Chinese Real Estate Joint Ventures and Reverse Mergers
By Michael Puleo

This article discusses U.S. and Chinese regulation of foreign direct investment, joint ventures, and Chinese investment strategies, with a focus on Chinese reverse mergers and recent SEC and Hong Kong Exchange regulations that have made the course of pursuing such a transaction more difficult.

MCLE Self-Study Article: The Lis Pendens: Strategies and Pitfalls
By Jean-Paul Cart and Jamie Lynn Lanphear

This article discusses how plaintiffs can successfully navigate the risks associated with filing a lis pendens and provides defendants with the tools necessary to challenge an improper lis pendens.

State of Faith: Making Sense of California Real Estate Good Faith Negotiation Agreements
By Delmar G. Williams

The California implied covenant of good faith and fair dealing can create liability before a real estate purchase or lease agreement is signed. This article provides guidance in navigating the vagaries of the good faith negotiation obligation in California.

Shared Responsibility Mortgages
By Harold Justman, Henry Chuang, and Julia M. Wei

This article discusses the details necessary to render shared responsibility mortgages (“SRMs”) legally effective, reviews existing California statutory models, and addresses other case law and financial elements that can benefit SRM implementation.

Suggested Tenant Revisions to the “AIR” Standard Industrial/Commercial Multi-Tenant Lease — Net. 56
By Clint Wilson and Kent Burton

This article discusses tenant-oriented revisions to the AIR Standard Industrial/Commercial Multi-Tenant Lease—Net.

Volume 33, Number 3, 2015

Message from the Journal Committee Chair
Bu Susan K. Chelsea

2015 Update: Transfer Taxes in California
By Dena M. Cruz

This article outlines the transfer tax system in California, provides a summary of the major exemptions to the tax, and discusses certain common practices relating to the California Documentary Transfer Tax Act.

2015 Law Student Writing Competition Winning Article: Mitigating the Ongoing Impact of the Subprime Mortgage and Foreclosure Crisis: Lessons from Oakland and Richmond, California
By Victoria Wong

In 2007, the United States housing bubble burst and triggered a nationwide banking emergency that was a major contributing factor to the Great Recession. This article focuses narrowly on the impact of the crisis on Oakland and Richmond, and advocates for legislative reform at the state level.

California Licensing Requirements for Unregulated Lenders and Intermediaries
By Michael J. Zerman

Unregulated lenders, such as private loan funds and crowdfunding enterprises, may violate California law by engaging in lending or broker activities within the state without proper licenses. Non-compliance may result in fines, imprisonment, and/or the inability to collect origination fees.

MCLE Self-Study Article: Beware the “Security Side Deal” in Multi-Debtor Real Estate Secured Obligations: First California Bank v. McDonald
By Charles Hansen and Kevin Brodehl

Real estate secured loans involving multiple borrowers create special risks under California Code of Civil Procedure section 726 for any lender seeking a deficiency judgment. The California Supreme Court recently granted review in First California Bank v. McDonald, a case where the Court of Appeal held that a lender waived its right to a deficiency judgment by making a “security side deal” with one borrower without the co-borrower’s consent.

Volume 33, No. 2, 2015

No More Kids! How Overcrowded Schools May Lead to Violations of Fair Housing Laws
By Barbara Kautz

The State's refusal to support additional bonds for school construction has led to increasing public concern over overcrowded schools and to demands that local governments adopt land use requirements designed to keep school-age children out of the community. This article describes how development standards that exclude children violate fair housing laws.

The "Widows & Orphans" Problem: The Improper Exclusion of Successors-in-Interest from the Loss Mitigation Process
By Brittany McCormick

The "widows and orphans" issue is becoming increasingly problematic for homeowners who either inherit property or receive it as part of a divorce settlement. Problems arise when mortgage servicers refuse to work with these titled homeowners on loan modifications or other foreclosure alternatives because they are not the "borrowers" on the note. This article traces the history of mortgage assumptions and acceleration clauses and reviews industry guidance governing how servicers should treat successors-in-interest.

Reconsidering Wrongful Eviction After Anti-SLAPP
By Kavita Sharma

This article discusses the tension courts face in deciding whether wrongful eviction claims should be subject to a special motion to strike (California Code of Civil Procedure section 425.16—the anti-SLAPP statute) when there has been an unlawful detainer action filed or a termination notice served. This article provides practical tips for attorneys representing tenants in alleging wrongful eviction claims to avoid a special motion to strike.

MCLE Self-Study Article: Co-Tenancy Breaches and Remedies: Drafting Guidance For Landlords and Tenants After Grand Prospect Partners
By Courtney K. Krause and Danielle S. Gensch

A review of the court's decision in Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc., concerning the enforceability of co-tenancy provisions in retail leases, along with practical suggestions on drafting co-tenancy triggers, cure rights, and remedies.

READER ALERT: New FCC Rules Affect New and Existing Cell Site Leases
By Christina R. Sansone and Natalia Shparber

Important new Federal Communications Commission regulations have both positive and negative effects on property owners. As in all aspects of leasing property to telecommunications providers, these new regulations should be carefully considered. This Reader Alert provides guidance to landlords of both new and existing leases for wireless communications facilities.

Volume 33, No. 1, 2015

The Top Ten Real Property Cases of 2014
By Basil ("Bill") S. Shiber

This article is an overview of the ten most significant decisions affecting California real estate in 2014, as well as some "honorable mention" cases currently under review and likely to result in important decisions this year.

2014 Legislative Highlights
By Robert M. McCormick and Michael J. Maurer

A review of 2014 legislation that the authors believe are of most significance for real property law practitioners.

MCLE Self-Study Article: Recognition of Hostile Housing Environment Claims Under the Federal Fair Housing Act and the California Fair Employment and Housing Act
By Jethro S. Busch, Robert Salinas, and Anna Liu

Federal courts have extended the long-recognized concept of hostile work environment by recognizing FHA discrimination claims for a hostile housing environment, including in the context of a landlord's tolerance of tenant-on-tenant harassment. California already recognizes hostile housing claims (under the FEHA) arising out of a landlord's active misconduct, and it would be logical to follow the lead of federal courts by allowing hostile housing environment claims under the FEHA when a landlord tolerates tenant-on-tenant harassment.

The Co-Evolution of the Mortgage Market and Mortgage Law
By Harold Justman, Henry Chuang, and Julia M. Wei

The Great Recession has ignited a change in tort law applicable to foreclosure law and loan modification law. This article explores the evolving tort of negligent supervision of foreclosures and loan modifications.

Volume 32, No. 4, 2014

Message from the Chair
By Robert S. Miller

California Mandates Groundwater Regulation Through Local "Sustainability Plans" Starting in 2020
By Eric Robinson

The State's new Sustainable Groundwater Management Act takes effect on January 1, 2015 and requires the State to designate, by January 31, 2015, the groundwater basins where pumping must be regulated. Based on a preliminary State list of high- and mediumpriority groundwater basins, new groundwater regulations are anticipated in more than 120 basins throughout California. This article discusses the manner in which California landowners will be affected by new groundwater pumping regulations mandated by the Act and suggests strategies for protecting their rights to use groundwater.

Title Quandaries Created by Foreclosures During the Great Recession
By Heather C. Johnston

Following an unprecedented number of foreclosures during the Great Recession, title issues caused by the failure to adequately address existing deeds of trust or to consider their effect on easements and other subordinate rights when foreclosing on real property are becoming increasingly prevalent in real estate transactions. Easements and other rights that adjacent property owners thought were well-established may have been terminated by a foreclosure, resulting in the loss of valuable property rights and uncertainty in title.

MCLE Self-Study Article: Which Remedy: Partition by Division or Partition by Sale?
By Michael Pecherer

Partition litigation typically results in either a sale or a physical division of real property. The traditional preference for division is largely a misnomer, for land use legislation compels the court to order a sale in virtually all instances.

Real Estate Fraud Claims and Criminal Prosecution
By W. Dean Cloud

This article discusses real estate schemes that involve the use of identity theft and the recording of fraudulent documents. The article then examines the various Penal Code sections that can be used by prosecutors pursuing criminal prosecution against the fraudsters.

LEGISLATIVE UPDATE: The California Energy Commission Postpones Implementation of the Final Phase of the Energy Disclosure Requirements (AB 1103) for Buildings of 5,000 to 10,000 Square Feet
By Dennis Wu and Dan Villalpando

The A.B. 1103 deadline to disclose energy data has been extended to July 1, 2016 for owners of nonresidential buildings with total gross floor area between 5,000 and 10,000 square feet.

Volume 32, No. 3, 2014

MCLE Self-Study Article: Bankruptcy Hijackings: Improper Use of the Automatic Stay in Consumer Bankruptcy Proceedings
By Joshua Scheer and Spencer Scheer
The automatic stay in bankruptcy can be a powerful tool. However, there is a growing tension between legitimate use of the
bankruptcy process and fraudulent use by debtors or third parties seeking to obtain serial automatic stays in order to delay a
foreclosure. This article explores (i) the limitations on the automatic stay that have been imposed by legislatures to curtail abuse by
debtors and third parties, (ii) strategies employed by debtors to thwart such limitations, (iii) creditor responses to such strategies,
and (iv) the current state of the law.

Assistive Animals in Housing Accommodations
By Phyllis W. Cheng and Mallory Sepler-King
The article provides an overview of fair housing laws as they apply to assistive animals and accommodations, and guidance on how to apply these laws most effectively in cases regarding requests for accommodation of a support animal.

Trial by Jury in Real Property Cases
By Randall Block and Victoria Paal
Litigators may be surprised to learn which real estate actions implicate the right to trial by jury, and which are triable to judicial determination. This article discusses the right to a jury trial, examines what is legal and what is equitable in the real property context, and offers some (surprising) examples.

Exclusive Use Provisions
By Karla Kraft, David Keithly, and Kenneth Hsu
Exclusive use provisions can protect a commercial tenant by restricting the landlord’s ability to rent to competitors, but they can also cause disputes and uncertainty between landlords and tenants if they are not drafted carefully. As exclusive use provisions become more actively negotiated and hotly contested, both landlords and tenants need to understand the potential issues with these provisions in order to draft them effectively. This piece provides an overview of recent California case law related to exclusive use provisions and provides drafting recommendations to help avoid uncertainty.

Volume 32, No. 2, 2014

The Land of Aas, or, Dorothy, We’re Not in Kansas Anymore
By John Paul Hanna and David Van Atta
A review and discussion of the landmark decision, Aas v. Superior Court, in which the California Supreme Court ruled that construction defects in residential housing were actionable only if the defect caused actual personal injury or property damage, the legislative response, and recent court cases.

Mortgage Shotgunning and the Priority of Trust Deeds
By Scott Talkov
This article reviews recent California case law concerning the priority of trust deeds among lenders targeted by the real estate fraud known as mortgage shotgunning. The cases reveal a district split among the California Courts of Appeal when evaluating identical facts. In these cases, the county recorder’s delay in indexing recorded documents gives rise to a claim from the holder of the second duly recorded interest that it did not receive constructive notice of the first duly recorded interest. The author recommends that the California Supreme Court resolve this circuit split by establishing that the first duly recorded interest by a bona fide purchaser or encumbrancer be declared first in priority pursuant to California’s statutory race-notice recording system.

MCLE Self-Study Article: Real Estate Broker Exculpatory Clauses: Their Use and Misuse
By Edward W. Newman
Real estate brokers have an obvious interest in limiting their own professional liability arising out of transactions they handle. This article examines the legal validity and the propriety of provisions included in real estate contracts purporting to restrict the ability of clients or parties to a transaction to seek legal recourse against the real estate brokers involved in the transaction.

Loan Modification Law in California
By Harold Justman, Scott D. Rogers, and Henry Chuang
This article will provide a brief summary of recent case decisions that have provided judicial precedents forming a foundation for meaningful contract rights entitling California homeowners to permanent modifications of their home loans.

Practice Tip: Using a Prevailing Party's Pre-Trial Conduct to Reduce Attorneys’ Fees
By Jody Burgess
This article examines a litigant’s ability to reduce a prevailing party’s award of attorneys’ fees in a real estate contract dispute by focusing on the prevailing party’s pre-trial conduct and its potential to have unnecessarily increased litigation, thereby warranting an equitable reduction in the fees award otherwise due.

Vol. 32, No. 1, 2014

Message from the Chair
By Julie Baird

The Top Ten Real Property Cases of 2013
By Basil ( "Bill") S. Shiber
This article is an overview of the 10 most significant decisions affecting California real estate in 2013, as well as some "honorable mentions."

2013 Legislative Highlights
By Robert M. McCormick
This article reviews important new real property related legislation enacted by the California Legislature in 2013.

MCLE Self-Study Article: Ready or Not, the Revised Uniform Limited Liability Company Act Is Now the Law in California
By Dina B. Segal and Robert G. Copeland
This article addresses and examines the numerous uncertainties and potential challenges faced by limited liability companies organized or registered to do business in California as a result of the Revised Uniform Limited Liability Company Act (known as RULLCA) which became effective as of January 1, 2014.

Why MERS Litigation Is Not Working in California
By Kristy Hernandez and Kelly Resnick
This article explains how recent litigation against MERS has not been productive, and suggests some alternative litigation strategies for representing homeowners in real estate distress. The article also offers practice pointers for litigating cases under the California Homeowners Bill of Rights.

Reader Alert: The Gatto Act (AB 440) – The Newest Tool in the Brownfields Toolbox
By Leah Goldberg
The Gatto Act, AB 440, gives cities, counties and successor housing authorities authority to compel cleanup of contaminated properties within their jurisdictions. Although the law was modeled after the Polanco Redevelopment Act, several subtle differences can trap the unwary practitioner.

Vol. 31, No. 4, 2013

READER ALERT: Waivers of the Delayed Discovery Rule are Enforceable
By Dena Cruz
In a case of first impression, the Fourth Appellate District Court in Brisbane Lodging, L.P. v. Webcor Builders upholds the right of sophisticated parties to waive the delayed discovery doctrine in pursuing claims for latent defects.

Demystifying Paradise: A Survey of Unusual Hawaii Laws Applicable to Real Estate Transactions
By Deborah Macer Chun
Real estate law in Hawaii is substantially influenced by its history and culture, as well as the state's desire to protect native Hawaiian
rights and the state's natural resources and revenues. This article discusses some of the unusual laws that may be encountered by out-of-state
counsel involved in a Hawaii real estate transaction.

Does Fair Housing Law Apply to "Shared Living Situations"? Or, the Trouble with Roommates
By Tim Iglesias
In 2012, the Ninth Circuit held that to avoid a constitutional conflict with the right to freedom of association, neither the federal Fair Housing Act nor California's Fair Employment and Housing Act apply to persons seeking roommates or to other shared living situations. This article criticizes the opinion as poorly reasoned and overly broad and then offers a more targeted legislative solution to the problem.

MCLE Self-Study Article: Why Holding Title as Joint Tenants May Increase Your Tax Liability
By Alan Daneshrad
This article provides an analysis of the most common methods for couples to hold title to their property while minimizing tax liability, protecting spouses' rights with respect to transferring property as well as protecting assets from creditors.

Foreclosure Law in California--A Review of Recent Foreclosure Cases and the Impact of the New Homeowner's Bill of Rights
By Harold Justman, Julia M. Wei, and Rachel Ragni Larrenaga
In response to the foreclosure crisis, the California legislature has passed statutes to implement a policy of delaying or preventing non-judicial foreclosures. On the other hand many recent court decisions have been decided based on long standing precedents implementing a policy of quick and efficient non-judicial foreclosures. Only time will tell whether or not the legislature's new policy will conflict with the court's precedential policy.

Vol. 31, No. 3, 2013  -- A Special Joint Issue from the Real Property Law and Environmental Law Sections

MCLE Self-Study Article: Fracking: Expected Lawsuits
By Jean L. Bertrand and Lindsey N. Berg
The controversy over fracking is rapidly making its way to California as the oil and gas industry seeks to frack the Monterey Shale, which purportedly contains as much as 15.4 billion barrels of oil. This article provides an overview of the legal challenges previously raised by opponents to fracking in states where fracking is more prevalent, and analyzes how those same challenges will likely be resolved under California law.

Low Impact Development's Supersized Stamp on California Storm Water Regulation
By David M. Metres
California and federal regulators have increasingly integrated low impact development concepts into storm water permitting requirements. This article analyzes the growing use of low impact development in California water quality regulation.

The Tidal Shifts of the QSA
By Mark J. Hattam and Kathryn D. Horning
The ten-year course of litigation over the Quantification Settlement Agreement (QSA) and its historic transfers of Colorado River water from Imperial County to coastal Southern California is now moving towards conclusion. Critical new rulings from the Sacramento Superior Court have upheld the environmental compliance for these water transfers that are vital to the State.

Conservation Easements
By Alicia Guerra and David Ivester
The article explores the role of turnkey habitat mitigation sites to satisfy state and federal resource agency permit requirements as an alternative to purchase of habitat credits from a mitigation bank, and highlights the complexities of granting such easements in perpetuity. The article discusses the mechanics of drafting and negotiating conservation easements for mitigation sites in order to satisfy state and federal resource agency requirements. The article also explores the need for property assessments, endowments, conflicts with underlying easements and rights-of-way, and other real property issues that can affect the status of the conservation easement.

Piercing Armor: Using Legal Theories to Prevent Harm from Seawalls to the Coastal Environment
By Angela T. Howe
With rising sea levels and encroaching coastal development, the California coast is under the threat of becoming increasingly armored with seawalls, and unfortunately, these hardened coastal structures narrow and destroy beaches, coastal wildlife habitat, and beach access. This article examines the current legal framework surrounding seawall regulation and how the law can be used to implement policies to promote sustainable coastlines, even in the face of climate change.

Vol. 31, No. 2, 2013

MCLE Self-Study Article: What Landlords Should Know About Cell Site Leasing
By Christina R. Sansone and Jonathan L. Kramer
The rapid deployment of more advanced wireless data network services and new antenna site facilities drive the need for property owners to exercise care and prudence before signing wireless antenna facility leases containing highly-technical provisions that will run for decades.

In Defense of Equitable Access Easements
By Marcus S. Bird
The ability of a trial court to balance equitable considerations and award an equitable access easement fits readily into a long history of equitable jurisprudence that is an integral part of the Anglo-American judicial system.

Careful When You Trim That Tree
By Thomas R. Gill and Patrick L. Hurley
A discussion of the evolution of California law relating to tree trimming -- from strict protection of the right of a landowner to combat encroachment by a neighbor’s trees to a modern approach that balances the competing rights of neighboring landowners.

When "First In Time" Isn’t Early Enough: California Court of Appeal Reaffirms the Doctrine of Equitable Subrogation
By Adam M. Starr
In publishing its first opinion on equitable subrogation in 16 years, the Court of Appeal re-affirms that when it comes to lien priority, sometimes first in time does not mean first in right.

Redefining the Scope of the Fraud Exception to the Parol Evidence Rule: RiverIsland Cold Storage v. Fresno-Madera Credit Association
By Susan Barilich
The article represents an analysis of the case of RiverIsland Cold Storage v. Fresno-Madera Production Credit Association and considers the historical evolution of California case law dealing with the fraud exception to the parol evidence rule. The article also considers the practical impact the case may have for lawyers when drafting loan agreements and other contracts, as well as the potential impact on litigation undertaken to enforce contracts.

Winter - Volume 31, Number 1, 2013

Message from the Chairs

Message from the Editor

The Top Ten Real Property Cases of 2012
By Basil S. Shiber and Karen R. Turk
This article is an overview of the 10 most significant decisions affecting real estate in 2012, as well as some "runners up."

2012 Legislative Highlights
By Robert M. McCormick
This article reviews important new real property related legislation enacted by the California Legislature in 2012.

Public-Private Partnerships: A New Tool For California's Infrastructure Needs
By William T. Eliopoulos, Kaveh Badiei and Allison G. Marrazzo
California faces an unprecedented gap between the need for infrastructure construction and lack of publicly available funding. This article explores a creative new project delivery method public entities and private developers are implementing to help bridge that gap: publicprivate partnerships.

MCLE Self-Study Article: 1031 Exchange Update
By Mary Kay Kennedy
This article summarizes some recent developments in the 1031 tax deferred exchange area, including new rulings on reverse exchanges, related parties and what it means to be like kind.

MCLE Self-Study Article: What Landlords Should Know About Cell Site Leasing
By Christina R. Sansone and Jonathan L. Kramer
The rapid deployment of more advanced wireless data network services and new antenna site facilities drive the need for property owners to exercise care and prudence before signing wireless antenna facility leases containing highly-technical provisions that will run for decades.

In Defense of Equitable Access Easements
By Marcus S. Bird
The ability of a trial court to balance equitable considerations and award an equitable access easement fits readily into a long history of equitable jurisprudence that is an integral part of the Anglo-American judicial system.

Careful When You Trim That Tree
By Thomas R. Gill and Patrick L. Hurley
A discussion of the evolution of California law relating to tree trimming -- from strict protection of the right of a landowner to combat encroachment by a neighbor's trees to a modern approach that balances the competing rights of neighboring landowners.

When "First In Time" Isn't Early Enough: California Court of Appeal Reaffirms the Doctrine of Equitable Subrogation
By Adam M. Starr
In publishing its first opinion on equitable subrogation in 16 years, the Court of Appeal re-affirms that when it comes to lien priority, sometimes first in time does not mean first in right.

Redefining the Scope of the Fraud Exception to the Parol Evidence Rule: RiverIsland Cold Storage v. Fresno-Madera Credit Association
By Susan Barilich
The article represents an analysis of the case of RiverIsland Cold Storage v. Fresno Madera Production Credit Association and considers the historical evolution of California case law dealing with the fraud exception to the parol evidence rule. The article also considers the practical impact the case may have for lawyers when drafting loan agreements and other contracts, as well as the potential impact on litigation undertaken to enforce contracts.

Fall 2012 - Volume 30, Number 4

MCLE Self-Study Article: The Ten Year Anniversary of SB 800: "Mission
Accomplished or Missed Opportunity"
By Robert Miller, Jan A. Gruen, Lance B. Smith, Conor A. Meyers, and Matthew R. Schoech
The ten year anniversary of the passage of the SB 800, the Builder Right to Repair Act set forth in Civil Code section 895 et seq., is an appropriate time to examine this legislation's impact on the homebuilding industry and homebuyers. Not exactly a "cure-all," this article explores how the Act has been interpreted by California courts, how the statutory scheme is performing in the real world, its overall success in achieving its goals, and how it can be improved.

The Dubious Rise of the Equitable Access Easement
By Edward W. Newman
Can a trial court award a landowner an access easement over a neighbor's land based on a balancing of the hardships? This article discusses concerns raised by two recent court of appeal decisions in which that question has been answered affirmatively

Interpreting the Anti-SLAPP Statute to Protect Landlords and Tenants: Avoiding the Harsh Results of Wallace v. McCubbin
By Kavita Sharma
This article discusses the seminal landlord/tenant case Wallace v. McCubbin where the Court of Appeal applied the anti-SLAPP statute to causes of action that alleged protected and unprotected conduct. The Wallace court also struck wrongful eviction and retaliatory eviction from the plaintiff tenants' complaint even though there was some conduct pled that should not have been subject to an anti-SLAPP motion. The article analyzes whether an alternative approach, using the primary rights approach to define cause of action under the anti-SLAPP statute, achieves the desired intent of the statute--preventing defendants from burdensome litigation for the exercise of their constitutional rights of free speech and petition.

The Full Credit Bid "Rule" and Occam's Razor
By Chuck Hansen
The full credit bid "rule" has, for decades, been a source of great controversy and inconsistency in published opinions of the California Courts of Appeal and the Supreme Court. This article suggests that the "rule" is not really a rule at all, but an accounting effect of credit bidding at foreclosure auctions; that the issues can benefit from being reexamined and simplified; and, that much of the controversy can be avoided if the process of foreclosure sale credit biding is correctly understood and approached.

Summer 2012 - Volume 30, Number 3

Note from the Editor
By Randall Block

The Rise and Fall of Redevelopment in California
By T. Brent Hawkins
This article traces the history, accomplishments and demise of California cities' efforts to redevelop blighted properties and produce affordable housing.

Reforming CEQA to Avoid Duplicative Environmental Review
By Matthew Francois
When CEQA began, there were few other environmental laws. Now, such laws abound. CEQA review can and should be streamlined by taking these other laws into account.

Fair Housing at 30 | Where We Are, Where We Are Going
By Tim Iglesias and Susan Saylor
A brief history of fair housing and a critical analysis of the strategies needed to realize true housing opportunity and community integration.

MCLE Self-Study Article: ADR: Wave of the Future, or Splash of the Past?
By Victoria Paal, Randall Block, and Steven Roland
The rise of ADR in the commercial and real estate arena began around the same time as the California Real Property Journal. Over the past 30 years, it has revolutionized the way in which disputes are resolved, creating an entirely new industry along the way.

Diversity in the Practice of Real Estate Law: A Thirty Year Retrospective
By Elaine Andersson
Almost everyone agrees that diversity in the workplace is a good thing. This article reviews what we know about diversity in the legal profession in general, and for real property practitioners in particular.

Spring 2012 - Volume 30, Number 2

Trigger Happy: Enhanced Recourse Liability in the New World of CMBS Financing
By Adriana A. Vesci
The first years of CMBS lending resulted in serious losses to many who held such loans during the recent financial crisis. Lenders have learned some hard lessons, but borrowers must be vigilant to ensure that their interests are protected.

MCLE Self-Study Article: A Practical Guide to Securing Surface Rights for Solar Energy Projects
By Julie Baird and Basil S. Shiber
This article identifies practical steps which can be taken to secure necessary surface rights for development of solar energy projects.
See this supplemental chart for more information.

California Buyer’s Remorse Litigation: The Latest Round of ILSA Litigation is Further Complicated by California’s Subdivided Lands Act
By M.Theresa Tolentino Meehan, Thomas A. Woods, and Carissa M. Beecham
The authors examine and offer “best practices” concerning the recent trend of litigation in California related to the Interstate Land Sales Full Disclosure Act (ILSA) and the California Subdivided Lands Act (SLA) in condominium and hotel-condominium sales. ILSA and the SLA are corollary, but not identical, land buyer consumer protection statutes that may afford broad equitable relief to buyers in certain cases.

Demolition of Historic Structures; CEQA Compliance and Tactics
By Douglas B. Aikins
Sometimes a historic structure simply has to go. This article outlines the CEQA compliance issues and practical steps essential to demolition of historic structures while minimizing the risk of a litigation challenge.

Winter 2012 - Volume 30, Number 1

Message From The Chair
By Peter Aitelli

Thirty Years and Counting
By Burton H. Fohrman
An introduction and retrospective by the founder of the Real Property Journal.

The Top Ten Real Property Cases of 2011
By Basil S. Shiber and Karen R. Turk
This article is an overview of the 10 most significant decisions affecting real estate in 2011, as well as some "runners up."

2011 Legislative Highlights
By Robert McCormick
This article reviews important new real property related legislation enacted by the California Legislature in 2011.

“What’s in a name?” Restoring Urban Infill Can Still Be Sweet
By Richard G. Opper
This article examines how the titles used by environmental consultants can impact both the substance of their work and how it is viewed by regulators. The article illuminates one of the paths used to migrate from the world of Superfund to the world of brownfields for more efficiency and economy.

Penalties for Failure to Report Changes in Ownership for Property Tax Purposes
By Bradley R. Marsh and Dina B. Segal
Recent changes to California laws that impose reporting duties on transferees of locally assessed real property and legal entities that experience changes in control or ownership have significantly increased penalties for those that fail to properly report these transfers. This article provides an overview of the reporting requirements, penalties associated with failing to comply with reporting requirements, and procedures and standards for penalty abatement.

California Commercial Landlord's Liability in the Legal Landscape of Medical Marijuana Law
By Kirk Carson
This article discusses the potential state and federal legal liability facing a California commercial landlord who is considering whether to lease to a medical marijuana tenant. For the landlord that chooses to proceed despite that liability, the author suggests lease drafting and negotiating strategies to achieve maximum compliance with state law and to minimize the landlord’s exposure.

Fall 2011 - Volume 29, Number 4

Brownfields and the Bona Fide Prospective Purchaser Defense: Navigating CERCLA’s Web of Liability
By Andew Skanchy
The acquisition of contaminated property can lead purchasers into a web of CERCLA liability. This article discusses two recent federal court decisions regarding the Bona Fide Prospective Purchaser defense, and offers suggestions as to how Brownfield purchasers can protect themselves from liability.

The Density Bonus Law: Has Its Time Finally Arrived?
By David H. Blackwell
The Density Bonus Law is a potentially powerful tool for developers of multifamily housing, which has become increasingly active in the current housing market. This article examines key areas of disagreement regarding the statute’s intent and implementation, and explains why the law should be interpreted to maximize the development of affordable housing.

DFEH Comparison of Federal and State Fair Housing Laws
By Phyllis W. Cheng
This article discusses recent amendments to strengthen California’s Fair Employment and Housing Act and Unruh Civil Rights Act to bring them into substantial equivalency with federal law.

Revisions to California Mechanic’s Lien Law and Developments in the Treatment of Mechanic’s Liens in Bankruptcy: An Update
By Michael E. Busch, Kathleen A. Cashman-Kramer, John C. Demas, and Michael E. Dullea
California Mechanic’s Lien Law is undergoing significant change. This article discusses changes in the Mechanic’s Lien Law, and updates our prior article on developments in maintaining and perfecting Mechanic’s Lien rights in bankruptcy cases.

Summer 2011 - Volume 29, Number 3

How to Make Your Law Firm Accessible to People with Disabilities
By Andrew Mudryk, David Raizman, and Susan Saylor
What every lawyer needs to know about providing legal services without discrimination.

Equitable Indemnity in California Construction Lawsuits: Don’t Give Up Hope
By Carol K. Watson
The time is now to clarify the law of equitable indemnity in California to allow fair apportionment of damages among those legally responsible for those damages, especially in construction cases. This article explains why and how.

Statues of Limitations in Fair Lending Cases Under the Fair Housing Act
By Paul E. Smith
While some fair lending violations under the Fair Housing Act happen only at origination, there are other violations that happen after origination. A few recent cases holding limitations periods can only begin at origination ignore the great weight of long-established precedent or are the result of errors in pleading.

The Impact of Expanded Disclosure Duties upon California Brokers: Understanding Negligent Nondisclosure, Constructive Fraud, and Fiduciary Relationships under California Law
By Jody Burgess
The article focuses on the fiduciary duty imposed upon California brokers and how that duty, if breached, can lead to liability under theories of negligent nondisclosure and constructive fraud. The article also explores the potential for liability based on the expandedprinciples of fiduciary loyalty and disclosure following Michel v. Palos Verdes Network Group, Inc.

Receivership Sales of Troubled Projects: A Better Alternative to Foreclosure in California
By Alfred M. Clark, III
The article provides the legal basis underlying receivership sales of troubled projects, as a potential alternative to the foreclosure process
benefitting lenders, borrowers, and their principals.

Spring 2011 - Volume 29, Number 2

Message from the Editor
By Randall Block

The Role of Redevelopment Agencies in Infill Development
By Ethan Walsh
The role that redevelopment agencies play in infill development, the tools at their disposal, and how to work with redevelopment agencies.

Inclusionary Zoning in California: Legal Questions and Issues
By David P. Lanferman
This article summarizes the history of “inclusionary zoning,” and the relatively scarce case law addressing the validity of local requirements that new residential developments provide price-restricted housing affordable to low- and moderate-income households, and examines the legal issues raised by such policies in light of recent California appellate court decisions.

Affordable Housing & Infill Development
By Michael Rawson, Deborah Collins, and Craig Castellanet
An overview of California and federal laws that promote the inclusion and preservation of affordable housing in infill development, focusing on laws affecting land use, redevelopment, relocation, fair housing, and inclusionary housing.

Reforming CEQA to Encourage Infill Development
By Anna C. Shimko and Matthew D. Francois
This article provides a critical and thought-provoking examination of the limitations imposed on infill development by the current California Environmental Quality Act (CEQA). In light of these challenges, the authors propose practical and straight-forward revisions to CEQA to encourage infill growth. Adoption of even some of these measures could greatly enhance the prospect of economic recovery in our State, while continuing to provide the requisite level of protection for our environment.

Sacramento Railyards: How the City of Sacramento is Facilitating Development of the Largest Brownfield Infill Site in America
By Tim Taylor and Allison Smith
Lessons from the Largest Brownfield Infill Redevelopment Project in the U.S.

Winter 2011 - Volume 29, Number 1

Message from the Chair
By Gillian van Muyden

Judicial Takings: A Decision Without A Decision
By Bradley D. Pierce and Mona M. Nemat
The US Supreme Court Justices could not agree on what a “judicial taking” is under the 5th Amendment or even whether such a thing exists, but they agreed that it did not happen when Florida restored beach property between private homes and the ocean. The case described the factors to be considered when deciding whether court action can amount to the taking of private property.

“The Court Let me Keep My Fence on Your Land”: Neighborhood Boundary Encroachments and Exclusive Easements
By Glen C. Hansen
This article explores how the doctrines of adverse possession, prescriptive easements, and exclusive equitable easements apply to disputes that arise when a property owner enroaches on an adjacent neighbor's property for driveway, landscaping, or other purposes.

What’s a Landlord to Do? Choosing Between Security Deposits and Letters of Credit Based on Tenant Insolvency Concerns
By Michael St. James
If a tenant insolvency is potentially on the horizon, should a landlord demand a letter of credit or a cash security deposit? Why prefer one over the other, and how strong should the preference be?

Whose Money is it Anyway? The Fight Over Post-Default Real Property Rents Held in Landlord Operating Accounts
By Michael F. Donner
This article examines one of the key flashpoints for dispute between landlord-borrowers and secured creditors -- competing claims to rents generated by secured real property following default, but before the appointment of a rents and profits receiver. The article discusses why, contrary to popular belief, such rents likely belong to the landlord-borrower and what creditors can do to better protect themselves.

2010 Legislative Highlights
By Robert McCormick
This article highlights some of the real property related legislation enacted by the California Legislature in 2010.

The Top Ten Real Property Cases of 2010
By Christopher J. Callegari, Susannah S. Cupp, and Michelle L. Moore
The authors select ten important cases in their annual review of the top cases for California real property practitioners.

Fall -- Volume 28, Number 4
(Joint issue with the Business Law Section)

Message from the Editors
By Randall Block and Efrat M. Cogan

Business Law Section: Message from the Editor
By Efrat M. Cogan

Real Property Section: Message from the Editor
By Randall Block

Business Law Section: Message from the Chair
By Mark E. Porter

MCLE Self-Study Article: Loan Modification 101 – Everything You Always Wanted to Know About Loan Modification but Were Afraid to Ask
By Suzan Anderson

Game Change in Business Real Estate: It's Not Just the Economy
By Elaine Andersson

Impact of Real Estate Downturn on Private Investment Funds and Their Investors
By David A. Riley

The Acquisition of Distressed Real Estate Debt: Lifecycle of a Transaction
By Patrick Valentino

Loan Workout Negotiations and Creditor Rights Issues in Today's Commercial Lending Environment
By Gregg D. Josephson

Lenders Beware of the True Test for Enforcing Personal Guaranties of Commercial Loans: What Would a Jury Think?
By William H. G. Norman

Lender Perils and Pitfalls: How to Use Receivers Effectively to Manage Foreclosed Upon Properties in the Current Market
By Matthew L. Seror

Law of Intended Consequences?
By Seth Weissman

George Coombe Receives Business Law Section's Lifetime Achievement Award
By Steven O. Weise

Summer 2010 - Volume 28, Number 3

Secured Guaranties and Third Party Deeds of Trust
By Michael T. Andrew
This article examines issues raised when a third party encumbers its real property to support credit extended to a borrower, in the form of either a deed of trust directly securing the borrower's obligation or a guaranty secured by a deed of trust. The article focuses on suretyship law and the one-action and antideficiency rules.

California Law on Contract Zoning, Conditional Zoning, and Spot Zoning: An Analysis of Recent Case Law and Contours of Permitting Agencies' Powers to Settle Land Use Disputes Without Contracting Away Their Police Powers
By Mark A. Rothenberg
An explanation of unlawful contract zoning and its impact on the ability of developers and local governments to settle land use disputes.

MCLE Self-Study Article: When Real Property Can Mean Real (Prison) Time: A Brief Overview of the Federal Prosecution of Real Estate-Related White Collar Crimes
By Jeffrey Rabkin
This article provides a broad overview of the basic statutory framework for the federal prosecution of white collar cases, briefly describes emerging trends in fraudulent real estate schemes and finally reviews several federal cases involving real estate-related crimes recently charged in the Northern District of California.

Arbitration: Determining the Collateral Estoppel Effect of a Private Arbitration Award On Non-Parties In Subsequent Litigation
By Zachary D. Schorr
California is one of the few jurisdictions that does not recognize the collateral estoppel effect of a private arbitration award on non-parties to the arbitration in subsequent litigation. This article discusses the nuances of the res judicata and collateral estoppel effect of private arbitration awards on subsequent litigation.

Black Hills Revisited: Repercussions and Defenses
By Robert Miller
The 2007 decision in Black Hills Investments, Inc., v. Albertson's , Inc. established that a purchase contract was void if it permitted either party to waive a condition requiring that any portion of the subject parcel be made into a separate legal parcel prior to closing. This article explores the impact of that case in the wake of the dramatic decline in real estate prices since it was decided and how contracts can be structured in the future to comply with the requirements of the Black Hills decision.

Spring 2010 - Volume 28, Number 2

Inside this Special Issue Focusing on real estate finance... Residential Mortgage Relief for Homeowners and Tenants: State and Federal Legislative Responses to the Foreclosure Crisis
By Karl E. Geier
Federal and state lawmakers have responded to the foreclosure crisis with a number of new laws and regulations governing the loan
modification and foreclosure process. This article summarizes the principal new developments of interest to lenders, borrowers, servicers andothers involved in the administration and enforcement of existing residential mortgage loans in California, as well as to their attorneys andother would-be advisors and consultants.

One Deed of Trust and Several Obligations: The Case for Layered Foreclosure
By J. Dean Heller
A long-ignored statute and some centenarian California Supreme Court decisions suggest a modern remedy for enforcing
only a portion of a real estate secured debt through foreclosure on only a fraction of the real property security interest.

MCLE Test No. 20
Why Insurance Regulators Should Ban Creditors’ Rights Coverage By Title Insurance Companies

By Roger Howard & Steve Freeman
This article explains why creditors' rights coverage may present a threat to the stability of title insurers and argues that such coverage is not a proper subject of title insurance.

The Purchase Money Dilemma
By Thomas N. Jacobson
As many real property owners are learning the hard way, not all loans made and secured by real property are purchase money transactions
protected by California’s “One Action Rule”. This article examines the circumstances for creating and maintaining purchase money status
of loans secured by real property. 

Winter 2010 - Volume 28, Number 1

Message from the Chair
By Mia Weber Tindle

2009 Legislative Review
By Robert M. McCormick, Matthew W. Ellis, and Danielle R. Moyer
This article reviews the real property related legislation enacted by the California Legislature in the 2009 legislative year.

The Top Ten Real Property Cases of 2009
By Rada Blumkin, Christopher J. Callegari and Susannah S. Cupp
This article is the California Real Property Journal’s annual review of the top real property cases for California real property practitioners.

MCLE Test No.19

Fact or Fiction – Addressing the Legal Risks of Waving the Green Building Flag
By Pippin C. Brehler
Increasing concern for environmental issues and sustainable development is creating a market for “green” buildings and developments, which boasts environmental benefits as well as reduced environmental impacts. This article discusses ways to manage the legal risks of making such claims when many of the benefits of green buildings are theoretical, difficult or even impossible to verify.

Constructive Trusts: Can Income in the Hands of Third Parties Be Recovered?
By Randall Block and Amber Rye Brumfiel
Constructive trust law in California is surprisingly undeveloped. In particular, it is unclear whether a constructive trust reaches incomefrom "trust" property already paid to a third party before judgment

Dateline 2010: EPA Updates and Expands Regulations Addressing Lead-Based Paint Hazards in Residential Dwellings and in Child-Occupied Facilities
By Jon K. Wactor and Annette Stella
The United States Environmental Protection Agency’s new rules governing abatement of lead based paint just became effective as described in this detailed update.

Fall 2009 - Volume 27, Number 4

Through Struggle to the Stars: A History of California’s Fair Housing Law
By Ann M. Noel and Phyllis W. Cheng
The Fair Employment and Housing Act and the Unruh Civil Rights Act bar housing and public accommodations discrimination in California. On the fiftieth anniversary of both statutes, this article presents a comprehensive review of their past, present and future developments.

Alcoholism, Drug Addiction, and the Right to Fair Housing: How the Fair Housing Act Applies to Sober Living Homes
By Matthew M. Gorman, Anthony Marinaccio, and Christopher Cardinale
This article explores the legal basis for sober living operations, and the role of the Fair Housing Act in the entitlement, development, and operation of sober living facilities.

Legislature Grapples with Unlawful Restrictive Covenants
By Lawrence Green & Philip Person
The California Legislature has spent years trying to find a suitable method to remove unlawful restrictive covenants from the public records. This article discusses those attempts and whether the responsibility to affirmatively address unlawful restrictions should reside with members of the public or government officials.

Anatomy of A Fair Housing Case: A Primer on Litigating a Housing
Discrimination Claim
By Annmarie Billotti, Susan Saylor, and R. Sybil Villanueva
For practitioners who would like to try their hand or improve their game, a short course on the basic anatomy of a housing discrimination case.

MCLE Test No.18

Water Witching:The New Reality--Creative Solutions to Serve Development in Times of Water Scarcity
By Amy M. Steinfeld and Michael T. Fife
This article addresses California’s water supplies and regulatory framework and the basics of urban water supply development.

The Pitfalls of Purchasing Pre-Foreclosure Property
By Richard A. Goodman
How the Home Equity Sales Contract Act impacts the purchase of pre-foreclosure property and how buyers can mitigate its effects.

READER ALERT: Guggenheim v. City of Goleta - The Ninth Circuit Holds that Mobile Home Rent Control Causes a Compensable Taking
By Rob Coldren and Mark Alpert
The Ninth Circuit in Guggenheim v. City of Goleta breaks new ground in finding the adoption of rent control by the City of Goleta was a Penn Central “taking” that must be compensated by the City of Goleta.

Summer 2009 - Volume 27, Number 3

Reconsidering the Creditors’ Rights Exclusion: A Practical Guide for Real Estate Attorneys
By Michael T. Kovaleski
This article reviews current trial court decisions concerning the breadth of title insurance coverage for creditors' rights claims. In addition, this article provides practical advice for lawyers to minimize creditors' rights issues in acquisition and financing transactions.

Broken” Condominium Projects: How to Manage Their Acquisition and Develop a Viable Investment or Exit Strategy
By Nancy T. Scull, Marjorie J. Burchett, and Cathy L. Croshaw
The acquisition and disposition of a "broken" residential condominium project can create pitfalls for the unwary lender or bulk purchaser. This article discusses what the acquiring entity should know about the property, the owners association, governance structure of the project and the regulatory implications of any transaction, before acquiring the property.

AB 2738: More Restrictions on Residential Construction Subcontracts (The Legislature Again Jumps in the Middle of Private Contract Negotiations)
By Jay W. Deverich
This article explores the complex and tangled web of legislation impacting residential construction subcontracting initiated by AB 758 in 2006, enhanced by SB 138 in 2008 and greatly expanded by AB 2738 in 2009. The article concludes with suggested action for different types of projects.

MCLE Test No.17 . . 26 Equitable Indemnity in California Construction Lawsuits: Just An Illusion?
By Robert B. Mullen
Defendants seeking equitable indemnity have met resistance from courts of appeal that focus on written contracts. This article reviews the history and limitations of equitable indemnity, and questions whether the claim is still viable in the contract-heavy world of commercial construction.

The Return of Public Private Partnerships to California
By Allan T. Marks
Severe fiscal constraints for the state and for local governments may encourage the adoption of innovative arrangements to meet the challenge of building and operating new transportation facilities and other basic infrastructure. With these challenges in mind, a new California state law enacted in February 2009 may accelerate the use of public private partnerships (“P3s”) to meet the state's infrastructure needs.

Spring 2009 - Volume 27, Number 2

Special "Green Issue" Introductory Letter
By Scott D. Rogers and Julie Baird

CEQA and Climate Change--Where Are We Today and Where Are We Going?
By Michael H. Zischke and Sarah E. Owsowitz
This article reviews current laws, regulations and trial court decisions which address the treatment of climate change in CEQA documents and discusses practical strategies for practitioners to pursue when evaluating climate change in CEQA documents.

Who Pays The Costs of Green Building Laws?
By Byron F. Mellberg
This article takes a green building perspective on two opposing California Supreme Court opinions that dealt squarely with the issue of who pays for government mandated building costs under identical compliance with laws provisions.

Turning Brown into Green: Practical Considerations for Lenders and Buyers of Contaminated Property in a Red Economy
By Deborah K. Tellier, John J. Gregory, and Mathew J. Swain
This article discusses potential environmental cleanup liabilities facing lenders and prospective purchasers of Brownfields sites and the legal protections available to them, as well as provides practical tips for successfully redeveloping Brownfields sites.

MCLE Test No.16

Renewable Energy Development on Williamson Act Property: Reconciling California’s Competing Policy Goals
By Dirk R. Mueller and Takako Morita
This article explores the feasibility of developing wind and solar energy projects on agricultural and open space land subject to Williamson Act land use restrictions.

Adapting Planning and Environmental Approaches to Meet the Challenges of an Urban Residential Mixed-Use Strategy for Smart Growth
By Jessica A. Johnson and Daniel P. Bane
Smart growth planning approaches can achieve the greenhouse reduction goals of AB 32 and SB 375. Mixed-use plans are risky; however, the risk can be reduced by undertaking programmatic environmental review of the mixed-use plan.

Revised Solar Shade Control Act: Trees versus Solar Energy
By Teresa Buchheit Klinkner
This article examines the 2008 amendments to the Solar Shade Control Act, a previously obscure solar access law that gained notoriety after a neighbor dispute resulted in a criminal judgment in northern California.

Enforcement of Local Green Building Ordinances Integrating Third-Party Rating Systems
By Stephen R. Miller
This article reviews local governments’ implementation and enforcement mechanisms for ensuring compliance with third party green building rating systems--such as LEED or GreenPoint Rated -- when integrating such rating systems into local codes.

Winter 2008 - Volume 27, Number 1

The Top Ten Real Property Cases of 2008
By Angele C. Solano and Helen H. Kang
This article is the California Real Property Journal’s annual review of the top real property cases for California real property practitioners.

2008 Legislative Review
By Robert M. McCormick, Matthew W. Ellis, James P. Lucas, Danielle R. Moyer and Brandon M.G. Williams
This article reviews the real property related legislation enacted by the California Legislature in the 2008 legislative year.

Enforcement Issues for a Creditor Holding Multiple Deeds of Trust on the Same Property
By Michael T. Andrew
This article discusses the many unresolved enforcement issues faced by a creditor who holds more than one deed of trust on the same property.

Unlawful Detainer Actions: The Technical “Nuts and Bolts”
By Jaime C. Uziel and Robert J. Sheppard
Unlawful detainer actions are unique processes, fraught with potential traps and pitfalls. This primer gives the basics of unlawful detainer litigation and provides helpful guidance to assist the landlord-tenant practitioner handling an unlawful detainer action.

MCLE Test No.15--Unlawful Detainer Actions: The Technical “Nuts and Bolts”

READER ALERT: Secondhand Smoke: A Public Nuisance in Common Areas?
By Scott Rogers and Kenneth R. Whiting, Jr.
In a recent California appellate case, a resident of an apartment successfully pled a cause of action for public nuisance based upon the failure of the owner of the apartment complex to limit secondhand smoke in outdoor common areas.

Fall 2008 - Volume 26, Number 4

Integrated Project Delivery: The Good, the Bad, and the Ugly
By Kirk Retz
Integrated Project Delivery is a new inclusive approach to construction. This article provides an introduction to IPD and examines some of the liability and insurance issues raised by this process.

Investing in Mexican Real Estate: Outlook, Legal Framework and Special Considerations
By Mauricio Leon de la Barra
This article discusses the current trend of the Mexican real estate market, the applicable legal framework and the procedural aspects for the acquisition of coastal properties by non-Mexicans.

Continuous Operation Covenants in California: A Useful Tool for Keeping Retail Tenants Open in a Struggling Marketplace?
By Carolyn Nelson Rowan
This article addresses the different judicial approches and factors taken into consideration when determining whether to enforce continuous operation covenants.

MCLE Test No.14--Continuous Operation Covenants in California

Governing California’s Water Supplies--An Ever-Changing Legal Environment
By Mark J. Dillon, Rachel C. Cook
With California's growing population and the need for housing, this article evaluates recent legislative and judicial developments concerning the adequacy of California's water supplies.

SB 375: California’s First Step to Manage Greenhouse Gas Effects of Land Use & Development
By Joel Ellinwood
SB 375 is a groundbreaking effort to bridge the gap between local control of land use and the state’s commitment to reduce greenhouse gas emissions to help curb global warming, calling for an unprecedented level of collaboration between local governments and state agencies.

READER ALERT: Typical Purchase Contract May Be An Unenforceable Option
By Scott Rogers
This Reader Alert briefly discusses a recent appellate court decision highlighting the differences between an enforceable purchase contract and an avoidable option. The Alert raises certain questions for practitioners to consider in drafting purchase agreements.

READER ALERT: Claudino v. Pereira--Reshaping the Boundaries of Property Descriptions
By Dawniell A. Zavala
The California Court of Appeal recently held that the full legal description of property boundaries surveyed under California's 1868 Townsite Acts includes both the plat and the surveyor's field notes.

Summer 2008 - Volume 26, Number 3

The Carve-out Guaranty in Non-recourse Commercial Real Estate Loans-- Cases that Adjudicate Guarantor Liability and Damages
By Frank Cardinale
This article discusses a special kind of personal guaranty used in commercial financing, known as an “exception to non-recourse” or a “carve-out” guaranty, and examines recent cases that interpret and enforce liability of the guarantor when the loan defaults.

Pending Revisions to California Mechanics Lien Law and Developments in the Treatment of Mechanics Liens in Bankruptcy
By Michael E. Busch, Kathleen A. Cashman-Kramer, and Michael E. Dullea
The 21st century began with a real estate decline not unlike the one California experienced in the late 1980. This article discusses the differences and similarities in how mechanics liens are treated now compared to the late 1980s. It includes a discussion of California's mechanics lien law in its present form, the efforts of the California Law Revision Commission and pending legislation to revise those laws, and what to expect in the event of the "bankruptcy alternative" and the treatment of such claims in bankruptcy cases.

MCLE Test No.13--Mechanics Lien Law

Green Leasing in a Red Economy
By Alexander E. Hamilton, Mick Misra, and William Worthen
This article focuses on the elements that make up a "green" office building and how those elements impact and affect the drafting of a "green" commercial lease. In addition, it looks at current issues in the area of sustainable development and how those issues may impact the development of "green" leases.

Private Shopping Malls--The "Not-So-Private" Private Property
By Sean W. Southard and Kecia R. Felton
In Fashion Valley Mall, LLC v. National Labor Relations Board, 42 Cal. 4th 850 (2007), the Court held that the Constitutional right to free speech includes the right of protestors to encourage patrons inside a private shopping center to boycott specific businesses located within the shopping center. No-boycott" rules are now prohibited from a shopping center's time, place and manner restrictions.This article discusses how shopping centers can still minimize interference with the normal operations by implementing guidelines and policies for non-commercial activities tailored to not unduly or unreasonably restrict free speech or violate the "content-neutral" limitation.

Legal Leverage: The Uses and Abuses of the Lis Pendens
By Rick Gibson
The lis pendens is a powerful tool for protecting legitimate rights and coercing settlement in flimsy cases. This article comprehensively reviews lis pendens law, with a focus upon determining when a lis pendens is proper and how to react when an improper lis pendens is filed.

READER ALERT: New Wetlands Rules Favor Mitigation Banks
By Marc R. Bruner
The Army Corps of Engineers and the EPA have jointly adopted new wetlands regulations that establish a preference for mitigation banks over other types of mitigation. The new rules are designed to improve the effectiveness of wetlands mitigation, make mitigation decisions more consistent and predictable, and encourage innovative mitigation practices.

Spring 2008 - Volume 26, Number 2

Special Landlord-Tenant Issue

Recent Changes and Developments in California Landlord-Tenant Law
By Jaime C. Uziel and Robert J. Sheppard
California landlord-tenant law has once again been modified and developed. This article addresses the most prominent changes and developments in state law which recently took effect. Ground Lease Financing Essentials: 11 Tips for Drafting a Financeable

Ground Lease and Suggestions for Mitigating the Qualitech Quagmire
By Adam B. Weissburg and Adriana A. Vesci
Successful development of commercial property under a ground lease structure often depends in large part on whether the ground lease is financeable, including whether the ground lease is drafted to reduce the risks to leasehold lenders raised by the controversial 2003 7th Circuit decision, Precision Indus., Inc. v. Qualitech SBQ, LLC. Obtaining lender-friendly concessions from the ground lessor to make a ground lease financeable may help to convert a fragile set of possessory rights into a solid and reliable asset for a real estate developer.

Commercial Office Leases--Lessons Learned as a Landlord’s Lawyer
By Susan Theresa Taylor
This article explores a few of the more interesting issues encountered in negotiating commercial office leases in California, from the perspective of the landlord’s lawyer.

Landlord Liability Insurance: Why an Old Lease May Need to Learn New Tricks
By Timothy R. Sullivan
When it is time to renew a lease, too many attorneys simply repeat the old lease provisions regarding insurance coverages. This article discusses why changes in available insurance coverages and potentially desirable new insurance provisions make it unwise to rely on old forms.

MCLE Test No.12--Landlord Liability Insurance

Commercial Lease Termination Damages--Calculation and Application of the Bankruptcy Cap
By Phillip Wang and Olivia J. Bradbury
This article discusses the limitations on a commercial landlord’s lease termination damages asserted in a tenant’s bankruptcy proceeding.

Winter 2008 - Volume 26, Number 1

The Top Ten Real Property Cases of 2007
By Steven N. Holland, Katherine F. Wisinski, and Theodore K. Klaassen
This article is the California Real Property Journal’s annual review of the top real property cases for California real property practitioners.

2007 Legislative Review
By Robert M. McCormick, James P. Lucas, Danielle R. Stephens, and Brandon M.G. Williams
This article reviews the real property related legislation enacted by the California Legislature in the 2007 legislative year.

Negotiation of Environmental Insurance: Policy Clarifications that Insurers May Give
By Donald C. Nanney and Chris Falbo
Environmental insurance has become a component of many real estate transactions, and negotiation may be needed to obtain suitable coverage. In this article the authors discuss three leading policy forms and the provisions that may be negotiated to close coverage gaps, clarify ambiguities and improve coverage. Their discussion provides useful practical insight into environmental policy negotiations from their years in the trenches.

Arbitration in Real Property Transactions: Efficient, Cost Effective, Fair or None of the Above?
By Randall G. Block
This article discusses the Supreme Court’s assumptions about the speed, reduced expense and propriety of arbitration and explores the practicalities of arbitration in real estate disputes. In real estate disputes, litigants have a host of remedies which are not available in an arbitration, or which might be more time consuming or expensive in an arbitration to obtain or defend. Arbitration is not a panacea, and an arbitration agreement must be carefully crafted to be effective.

MCLE Test No.11--Arbitration in Real Property Transactions

Subrogation Rights of a Title Insurer Upon Payment of a Claim or Cloud on Title
By Dean Cloud
This article details the various subrogation rights which can arise under either an owner’s or a lender’s policy of title insurance upon the payment of a title claim.

READER ALERT: Changes to California Notary Acknowledgment and Jurat Forms and Requirements
By Dena M. Cruz & Scott D. Rogers
Effective January 2008, the California laws affecting notaries public were changed. Most notably, the form of acknowledgments and jurats were modified and now notaries are required to establish from satisfactory evidence the identify of the signer. This reader alert briefly discusses these changes and provides a copy of the “approved” forms for transactions notarized in California.

Fall 2007 - Volume 25, Number 4

What the (Real Estate) World Needs to Know: A Message from the Outgoing Chair
By Jeff Schneider

Containing Big-box Retailers: Land Use and Planning Challenges Confronting the Large-scale Retail Industry
By Karen ZoBell and Kevin Reisch
Big-box retail development has spurred intense public debate and regulatory scrutiny over the past several years. This article discusses numerous examples of California’s evolving regulations and judicial opinions affecting big-box retail development and explains the important environmental and land use planning considerations at the center of the debate.

The Mitigation Fee Act--Controversy, Confusion, & Resulting Caution
By Michael Patrick Durkee, David H. Blackwell, Thomas P. Tunny, Derek S. van Hoften
This article takes the practitioner through the scope and application of the Mitigation Fee Act and the hazards it can pose when grappling with whether, when, and how to challenge certain conditions of approval imposed on subdivision map and zoning approvals.

Securities Aspects of LLC Membership Interests
By John W. Carr
Are membership interests in limited liability companies “securities"? This article reviews significant cases that discuss whether securities offered and sold are subject to registration under federal and California securities laws, and suggests that, in most cases, using an exemption from registration is a practical way to deal with the issue.

MCLE Test No.10--Securities Aspects of LLC Membership Interests

Megan’s Law: A Dilemma for Rental Property Owners and Managers
By Heidi Palutke
This article explores the unique predicament faced by rental housing providers due to the creation of the Megan’s Law Sex Offender Website. While owners face potential tort liability for failing to protect other residents from known sex offenders on the property, Megan’s law places significant restraints on the use of the database for screening tenants. The status of sex offenders as a potential class protected against arbitrary discrimination under the Unruh Act is also discussed.

Challenging a Local Land Use Decision? Knowing Which Limitations Statute Applies
By James W. Andrew and Alexander L. Jackson
Recent court decisions have highlighted the critical importance of knowing which substantive area of law governs court challenges to local land use decisions. As procedures and limitations periods differ among governing laws, picking the wrong legal theory could mean dismissal. This article surveys this topic, with a focus on validation actions, and actions under the Subdivision Map Act, Planning Law and Mitigation Fee Act.

The Unique Characteristics of Commercial & Mixed-use Condominiums
By Jeffrey G. Wagner
A primer on commercial and mixed use condominium projects, including a description of the similarities to and differences from residential condominiums and a plea for legislative relief in the commercial area.

Summer 2007 - Volume 25, Number 3

Irregularities in Mortgage Disclosures: Classwide Rescission Under the Truth in Lending Act
By Jo Carrillo
Innovative lending products, like adjustable rate mortgages, have enhanced consumer access to credit in recent years. However, as the housing markets decline and interest rates rise, borrower class actions are testing the limits of rescission under the Truth in Lending Act.

How the Broad Definition of a Contractor Can Affect Your Real Estate Client
By Gregory Markow
The statutory and judicial definition of who is subject to the contractors’ license law creates issues for real estate attorneys with clients who perform property improvements. This article summarizes the state of the law, flags transactions that need closer review, and proposes ideas to address the issues.

Huge Opportunities & Corresponding Risks: Foreign Real Estate Investment in China and India
By Bruce Boyd and Dena M. Cruz
In the last few years, American and European investment banks, property funds, and private equity funds have aggressively moved into Asian real estate markets. China and India have recently enacted regulations to enhance and control the explosive growth in these markets. This article discusses the new regulations and identifies opportunities for investment in India and China’s Tier I, Tier II and Tier III cities.

Dividing Land and Air: The Impact of the California Subdivision Map Act
By Michael E. Dullea, George E. Hurley, Jr. and Christina R. Sansone
Recent court decisions have reaffirmed that property owners must strictly comply with the Subdivision Map Act before subdividing property. The Subdivision Map Act places the power to regulate and control subdivision design and improvement in the hands of the cities and counties, with the objectives of encouraging orderly community development, preventing undue burdens on the public, and protecting individual real estate buyers. Of particular importance to real estate practitioners is that the failure of subdivider clients to comply with the Subdivision Map Act can result in criminal sanctions.

MCLE Test No. 9--The Impact of the California Subdivision Map Act

Recent Developments in 1031 Exchanges
By Mary Kay Kennedy and Julie Baird
This article reviews further developments in the 1031 exchange area, including issues related to drop and swaps, related party exchanges TIC’s and REIT’s.

Reader Alert: The California Supreme Court Addresses the Roles of Judge and Jury in Eminent Domain Cases
By Bradley D. Pierce
The California Supreme Court has clarified the roles of judge and jury in the context of highest and best use and severance damages. The Court also addressed the property owner’s burden of production in light of prior case law that referred to the owner’s burden of proof.

Reader Alert: Action Apartment Association Case May Bar Many Wrongful Eviction Lawsuits
By Jethro S. Busch
Are wrongful eviction lawsuits dead? In Action Apartment Association v. City of Santa Monica, the California Supreme Court clarifiesthe scope of the litigation privilege defense in cases arising out of a landlord’s wrongful efforts to recover possession of a rental unit.

Spring 2007 - Volume 25, Number 2

Thinking Globally When Acting Locally: How Will CEQA Adapt to A Changing Environment?
By Arthur F. Coon and Kristina D. Lawson
For 35 years, CEQA has been California’s foremost environmental protection law, shaping development and mitigating impacts through project specific review. The serious threat presented by climate change has now generated legal challenges to lead agencies’ failure to adequately address this global issue through the CEQA process. This article discusses whether and how climate change issues and impacts might effectively be raised and addressed within CEQA’s analytical framework.

Spouses In/Deed: The Impacts of California’s Domestic Partnership Law on Real Property Transactions and Disputes
By Frederick Hertz
Effective January 1, 2005, California state-registered domestic partners are treated as spouses under California law, retroactive to the date of the couples registration. At the same time, partners are not spouses under federal law. As a result of the lack of federal recognition and the widespread uncertainties regarding these new laws, real estate practitioners both in transactions and in litigation/arbitration are facing serious professional challenges and complex legal questions.

The Marketable Record Title Act – Is Private Foreclosure Barred 10 Years After Maturity, or Not?
By Lewis Soffer
The 1982 MRTA was supposed to fix an outside limit on power of sale in a deed of trust and thereby eliminate clouds on title from ancient mortgages, but two recent cases and a 2006 MRTA amendment call into question how that outside limit is to be determined. This article attempts to reconcile the recent case law holdings with the MRTA and points out continuing ambiguity in the statutory language that could lead to further litigation about what MRTA’s time limits on the exercise of a power of sale mean today.

MCLE Test No. 8--The Marketable Record Title Act

Catastrophe Planning for Real Estate Practitioners: Traps for the Unwary Contained in Risk of Loss and Premises Damage Provisions in Real Property Purchase and Lease Documents
By Paul Cliff

Winter 2007 - Volume 25, Number 1

The Top Ten Real Property Cases of 2006
By Steven N. Holland, Katherine F. Wisinski, and Theodore K. Klaassen
This article is the California Real Property Journal’s annual review of the top real property cases from the state, federal, and bankruptcy courts.

2006 Legislative Review
By Robert M. McCormick, Matthew W. Ellis, James P. Lucas, and Brandon M.G. Williams
This article reviews the real property related legislation enacted by the California Legislature in the 2006 legislative year.

Tenancy-In-Common: An Old Dog Learns New Tricks
By Lawrence H. Jacobson
This article focuses on how individual investors can gain ownership interests in substantial properties through use of the tenancy-in-common and tax-free exchanges.MCLE

Test No. 7--Tenancy-In-Common Agreements

What’s it Really Worth: Peculiarities in the Valuation of Commercial Properties Under Proposition 13
By Theodore F. Bayer
Opportunities exist for commercial property owners to reduce their property taxes, even in a rising market. The trick is knowing where to look, and this article identifies and explores some likely scenarios.

READER ALERT: Supreme Court Clarifies Rules Governing CEQA Review of Water Supplies for Real Estate Development
By Eric N. Robinson
The article reports on the California Supreme Court’s decision on California Environmental Quality Act (CEQA) review for real estate development projects that rely upon planned future water supplies to satisfy their water needs. The new decision builds upon a growing body of case law concerning the interplay between land-use planning and water supply development, and the performance of CEQA review to avoid reliance upon “paper water.”

Fall 2006 - Volume 24, Number 4

The New 2006 ALTA Policies: The Industry Listens!
By Dena M. Cruz, Paul L. Hammann, and Scott Rogers
The American Land Title Association has recently introduced new Owner’s and Loan Policies that answer many of the concerns practitioners have had with the earlier policies. This article reviews the many changes and gives informative practice tips on title insurance issues.

Please note: The charts mentioned in this article are posted here are availble on request. Contact the Sections Internet Coordinator.

    Comparison of Key Provisions in the Lender's Title Insurance Policies

    Comparison of Key Provisions in the Owner's Title Insurance Policies

MCLE Test No. 6--The New 2006 ALTA Policies

Breathing New Life into Old Maps: The Validity of Pre-1929 Subdivision Maps in a Post Gardner World
By Matthew D. Francois and Michael D. Cling
This article discusses a trial court decision upholding the validity of lots depicted on a 1907 subdivision map. Although a lower court (and thus unpublished) ruling, the case nonetheless provides important guidance as to the validity of subdivision maps recorded between 1893 and 1929, a question expressly left unanswered by the California Supreme Court in Gardner v. County of Sonoma.

Deeds of Trust Securing “Performance” Obligationsand Purchase-Deposit Refunds
By Michael T. Andrew
This Article addresses legal and practical issues raised by the use of a deed of trust to secure non-monetary obligations, often referred to as a “performance” deed of trust. Particular attention is focused on securing an obligation to convey title to real property, and on the related use of a deed of trust to secure a seller’s obligation to refund a buyer’s deposits if a sale transaction does not close.

The Boom Cycle in Housing for an Aging Population: Acquisition and Development of Senior Communities
By Karen ZoBell and Kevin Reisch
Given that an aging population is expected to bring about increased activity in the senior housing market, this article discusses the legal and practical considerations involved in representing the developer of new senior housing and the buyer or seller of existing senior living communities.

The Case of the Vanishing Sublease: How Vulnerable is Your Subordinate Interest?
By Randall Block
A sublease or mortgage in a leasehold can be extinguished in the blink of an eye if the leasehold is terminated. Although the subordinate interest holder might have no way to stop the termination of the leasehold, it might nonetheless be able to protect its interest by way of a separate agreement with the master lessor. There is surprisingly little law in California addressing the effectiveness of such agreements.

Fall 2006 - Volume 24, Number 3

Real Property Law Section--Silver Anniversary Reflections

By Nargis Choudhry
Letter from the Chair of the Executive Committee of the California State Bar Real Property Law Section.

The Yesterday, Today, and Tomorrow of Our Investment Real Estate Marketplace
By Marvin B. Starr
This article explores the ever-changing characteristics of the California investment real estate marketplace over the past 40 years, and what might be yet to come.

25 Years of Commercial Leasing: What a Long, Strange, Cyclical Trip It Has Been
By Richard C. Mallory, Christopher P. Campbell, and Mark Mengelberg
In the last 25 years, commercial leases have grown considerably, both in length and in breadth. This article discusses, in brief, the changes to the leasing landscape over the past 25 years, addresses key areas of growth, and contemplates the future of commercial leasing transactions.

"The High Wire Balancing Act”--A Specialist Reflects on the Volatile and Evolving Field of Landlord-Tenant Law in California Since 1980
By Robert J. Sheppard; Edited by Jaime C. Uziel
The landscape of California landlord-tenant law has dramatically changed over the past 25 years. A San Francisco lawyer specializing in landlord-tenant law examines the most significant changes in that landscape, and presents theories on the political, economic, and legal forces driving the courts and lawmakers who try to find balance in the “high wire act” of landlord-tenant law.

California Land Use Law: A Quarter Century of Key Legal Developments
By Cecily T. Talbert, Daniel J. Curtin, Jr., and Bryan W. Wenter
Over the past 25 years, the laws regulating land use in California have dramatically expanded. This article discusses eight areas of development in land use law which have most significantly affected California’s growth and development during this period, and are likely to continue to affect growth and development in the coming decade: General Plans; Takings; Exactions; the California Environmental Quality Act; Initiatives and Referenda; Vested Rights; Housing Elements and Affordable Housing; and Water Supply.

MCLE Test No. 5--California Land Use

Recent Bankruptcy Law Amendments Affecting Commercial Real Estate--A Historical Perspective
By Phillip K. Wang
This article discusses recent and historical amendments to certain bankruptcy code provisions affecting real estate, offers assistance in subsequent interpretation of the amended bankruptcy provisions, and touches upon developments to the treatment of letters of credit and security deposits.

Spring 2006 - Volume 24, Number 2

Will Eminent Domain for Redevelopment Purposes Survive Legislative Challenges After Kelo?
By Steven R. Meyers, David W. Skinner, and Christopher J. Brophy
Use of the power of eminent domain has played a crucial role in property assemblage, development, and elimination of blight for the redevelopment of California’s inner cities. This article discusses the Kelo jurisprudence, its precedent in California and the United States Supreme Court, and the current political and popular reaction to the Kelo decision that may fundamentally change the manner in which California rebuilds for the future.

Using a Series LLC in California
By Scott Gunderson
This article discusses the Nevada series limited liability company and how it can be used in California.

Property Taxes and Legal Entities
By Craig Dziedzic
This article discusses the triggering of a tax assessment when real property is transferred to or by a legal entity, as well as when ownership interests in legal entities which hold real property are transferred.

SB 800 and the Calderon Act: When Statutes Collide
By Joan M. Cambray and Amanda M. Steiner
This article addresses the overlap of the pre-litigation procedures of the Calderon Act and SB 800, discusses the advantages and disadvantages of each, and suggests ways to reconcile the statutes.

Tenants in Common: Are TIC's Taking Over the World?
By Darryl Steinhause
This article discusses the tenancy in common structure of investing in real estate, and the tax, securities and real estate issues that must be addressed when it is used by investors acquiring property in a IRC Section 1031 exchange.

Winter 2006 - Volume 24, Number 1

The Top Ten Real Property Cases of 2005
By Donald P. Rubenstein and Theodore K. Klaassen
This article is the California Real Property Journal’s annual review of the top real property cases from the state, federal and bankruptcy courts.

2005 Legislative Review
By Robert M. McCormick, James P. Lucas and Matthew W. Ellis
This article is the California Real Property Journal’s annual summary of state legislation affecting real estate practitioners.

The Government Is Always Right: The Supreme Court Tackles Takings
By Basil (“Bill”) S. Shiber and Ethan Friedman
In a trio of decisions, in what we now know was Justice O’Conner’s and Justice Rehnquist’s final term, the United States Supreme Court ventured boldly into the jurisprudential thicket of takings law. This article discusses those three cases, and their significance for the practitioner.

Reader Alert: EPA Publishes Final Rule on “All Appropriate Inquiries”
By Andrew A. Bassak, Craig S. Bloomgarden and David M. Marquez
This article addresses the new EPA standards which will extend the scope of environmental due diligence for real estate developers, other purchasers of property, and their lenders and investors.

Changes in the Law of Punitive Damages -- Evolution or Revolution?
By Edmund L. Regalia
This article outlines developments since 1996 in the area of punitive damages, focusing on decisions of the United States Supreme Court and California Supreme Court, as well as legislative changes.

Fall 2005 - Volume 23, Number 4

Recent Cases Under the California Environmental Quality Act
By Marc R. Bruner
The California Environmental Quality Act is generating an increasing number of published appellate court decisions. This article provides
a thematic overview of some of the more notable decisions from the winter of 2004 through the summer of 2005.

What Every Real Estate Lawyer Should Know About Insurance Coverage (Especially Real Estate Lawyers Who Do Not Do Coverage Work)
By John S. Worden and Joanna V. Stromberg
Every lawyer, especially those in the real estate field, needs to know the basics of insurance law. There is no area of the law with more types of insurance coverage and more complex insurance ramifications than real estate law. Even those with no desire to handle the coverage aspects of real estate litigation need a basic understanding of the coverage ramifications of their actions. This article is a primer on the top insurance coverage issues every real estate attorney should understand.

Revenue Procedure 2005-14: Concurrent Application of Internal Revenue Service Code Sections 121 and 1031 to Avoid Capital Gains Tax
By Sandra H. Westin
Revenue Procedure 2005-14 permits taxpayers to apply both the principal residence exclusion under Section 121 and to defer gain under Section 1031 on the sale of real property. This article summarizes the concurrent application of those sections for both a principal residence that has been converted to investment property and for mixed-used property.

Dispute Resolution Provisions in the CAR Form Real Estate Contract
By Palmer Brown Madden
This article identifies several major flaws found in the dispute resolution provisions of form real estate contracts. This article suggests amendments that attorneys reviewing these forms should make in order to make the contracts more effective.

Summer 2005 - Volume 23, Number 3

Recent Developments Relating to Pre-Acquisition Environmental Due Diligence
By Katharine E. Wagner
This article discusses recent and emerging developments affecting environmental due diligence in property transactions.

Electronic Recording in California: The Electronic Recording Delivery Act of 2004
By Stephen M. Wright and Bradley D. Scheick
This article reviews the Electronic Recording Delivery Act of 2004, which authorizes county recorders to establish electronic recording systems for receipt and recording of specified digital and digitized documents, and discusses the implementation and potential benefits of electronic recording.

Measure of Damages for Liability in Real Estate Sales
By Martha Louise Caron
This article examines the rules in California for measuring damages in real estate sales litigation against sellers and brokers as embodied in Civil Code Sections 3333 and 3343 and judicial interpretation of those statutes.

READER ALERT: Commercial Landlord Bankruptcy Protections Continue to Slip
By Mike C. Buckley
This article highlights how recent decisions by the Ninth Circuit Court of Appeals as well as passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 may change the traditional landlord-tenant balance in bankruptcy.

READER ALERT: Recent Changes in California Landlord-Tenant Law
By Jaime C. Uziel and Robert J. Sheppard
California landlord-tenant law has once again been modified. This article addresses the most prominent changes in state law which recently took effect.

Trends and Recent Developments in Common Interest Development Law -- 2005
By Mary M. Howell
This article summarizes changes to the Davis-Stirling Common Interest Development Act, and new case law, pertinent to the operation of common interest developments, including new reserve reporting requirements, internal dispute resolution procedures, and mandatory architectural review procedures. The review of statutory changes does not include bills signed by the governor in the second 2005 session of the legislature.

Spring 2005 -Volume 23, Number 2

A Guide to California Government Code Section 65915: Density Bonuses and Incentives for Affordable Housing
By Mitchell B. Menzer and Svetlana G. Attestatova
This article explains California Government Code Section 65915 and its recent amendment, SB 1818, which offer significant density bonuses, incentives and other benefits to developers providing affordable housing in new market-rate developments. The article also offers to clarify some of section 65915’s ambiguities and suggests additional reforms.

A Practical Guide to Transfer Taxes in California
By Dena M. Cruz and Scott Rogers
This article outlines the transfer tax system in California, including common practices relating to the California Documentary Transfer Tax Act, and a chart summarizing applicable county and city transfer tax rates.

Documentary Transfer Tax MCLE Test

Land Use for Lenders: A Primer
By Richard A. Schulman and Michelle L. Gierke
This article provides a useful framework on land use regulations including a summary of basic terminology, in order to assist lenders’ attorneys in better protecting their clients’ security. The article also examines some of the issues that are likely to arise in a loan secured by real property, with suggestions on finding necessary information.

Premises Owner Liability for Injuries to Non-Employee Workers
By Shawn D. Parrish and Christopher D. LeGras
Although premises owners remain liable for harm that results from their direct negligence--as when the owner’s own employees directly cause the injury--recent decisions have virtually eliminated vicarious liability. This article examines the decisions that have recast the law and it assesses what remains of a premises owner’s vicarious liability for injuries to an independent contractor’s employees.

Winter 2005 - Volume 23, Number 1

The Top Ten Real Property Cases of 2004
By Donald P. Rubenstein and Theodore K. Klaassen
This article is the California Real Property Journal’s annual review of the top real property cases from the state, federal and bankruptcy courts.

2004 Legislative Review
By Robert M. McCormick and Grace M. Arupo
This article is the California Real Property Journal’s annual summary of state legislation affecting real estate practitioners.

Delaware Statutory Trusts: The New TIC for Multi-Investor 1031 Exchanges?
By Paul N. Dubrasich
A revenue ruling issued by the Internal Revenue Service offers a new method for a taxpayer, who has conveyed property in an IRC section 1031 exchange, to invest his or her exchange proceeds in a multi-party real estate investment--other than in a tenancy-in-common. The entity is a Delaware statutory trust. This article explores the background of multi-party 1031 exchange investing, the challenges involved in financing of tenancy-in-common structures, and the possibilities for, and limitations upon, the use of Delaware statutory trusts as investment entities for 1031 exchanges.

READER ALERT: Certain Qualified Leasehold Improvements May Be Entitled to Accelerated Depreciation Under The American Jobs Creation Act of 2004
By Stephen I. Berkman
This article highlights a portion of The American Jobs Creation Act of 2004, which permits the depreciation over a 15-year, rather than
39-year, period of certain qualified leasehold improvements placed in service prior to December 31, 2005.

Enabling the Disabled in Multi-Family Housing
By J. Kathleen Belville and D.J. Ryan
The most common fair housing violation alleged in recent years is the failure to accommodate a tenant’s disability appropriately. This article
discusses the new HUD guidelines and the continued uncertainty regarding the rights and responsibilities of both landlords and tenants.

Fall 2004 - Volume 22, Number 4

Letter from the Chair
By Jean Bertrand

A Modern Perspective on the Williamson Act: Conservation,Confusion, and Controversy
By Michael Patrick Durkee, David H. Blackwell, and Thomas P. Tunny
The Williamson Act was enacted 40 years ago to protect agricultural lands from premature development. This article examines how the Williamson Act works, and it explains why the Act should be implemented in a manner that is consistent with the local general plan and related land use regulations.

Williamson Act MCLE Test

Complying with EPA’s 404(b)(1) Guidelines in Obtaining a 404 Permit: Determining the Least Environmentally Damaging Practicable Alternative
By Jon Schutz
To obtain a 404 permit, an applicant must conduct an analysis to demonstrate that, among other things, the proposed project is the least environmentally damaging practicable alternative (LEDPA), which is often one of the steepest hurdles in obtaining a 404 permit. This article will help a 404 permit applicant understand and successfully navigate the LEDPA determination process.

Calculating and Recovering 502(b)(6) Commercial Lease Rejection Damages in a California Bankruptcy
By Alain M. R’bibo
When lessees breach their leases and file for bankruptcy relief, lessors are faced with the challenge of recovering early termination damages from the bankruptcy estate. This article explains how to calculate the damages afforded lessors under the Bankruptcy Code, and how to prove up those damages adequately to avert objection by the bankruptcy trustee and ensure the maximum possible recovery.

The Fair and Accurate Credit Transactions Act and Its Implications on the Rental Housing Industry
By D. Patrick O’Laughlin and Stacy H. Rubin
On December 4, 2003, President Bush signed into law the Fair and Accurate Credit Transactions Act. The Fair and Accurate Credit Transactions Act modifies certain provisions of the Fair Credit Reporting Act. This article discusses the influence the Fair and Accurate Credit Transactions Act will have on the rental housing industry.

Summer 2004 - Volume 22, Number 3

Mediating a Complex Construction Defect Case
By Michael P. Carbone
The life of a construction defect case is now typically two to three years, if not longer, resulting in the need for ADR processes to manage and settle these cases. This article discusses the techniques and procedures developed in the past that remain useful in construction cases, as well as new methods that respond to the current climate.

2004 Changes in California Landlord-Tenant Law
By Robert J. Sheppard and Jaime C. Uziel
This article addresses the most prominent changes in California landlord-tenant law that took effect in 2004.

READER ALERT: In Re Mayan Networks Corporation--Letter of Credit Draw Effect on an Allowed Claim Under 11 U.S.C. § 502(b)(6)
By Eric J. Shelby and Michael E. McFadden
This article examines the recent United States Bankruptcy Appellate Panel of the Ninth Circuit's decision in In re Mayan Networks Corporation, which upheld a lower bankruptcy court's order determining that a draw upon a "secured" letter of credit (i.e., a letter credit which is secured by assets of the applicant's bankruptcy estate) given as security for a lease shall reduce the amount of a landlord's allowed bankruptcy claim under 11 U.S.C. § 502(b)(6).

SB 179--What You “Should Know” Can Hurt You
By Jim Fowler and Camarin Madigan
This article reviews Senate Bill 179, which became effective January 1, 2004 as Labor Code Section 2810, and discusses how the has the potential of significantly altering the principal/independent contractor relationship and the standard information required in contracts and insurance policies.

Damages Determined for Giving Farmers’ Water to Fish
By Eric N. Robinson
This article analyzes the damages decision in Tulare Lake Basin Water Storage District v. United States (Tulare Lake II). The decision applies principles that may affect resolution of future takings cases arising from Endangered Species Act restrictions on the exercise of rights and, perhaps, other types of private property as well.

Spring 2004 - Volume 22, Number 2

CREW Issue Introduction

Commercial Title Insurance Endorsements (The Basics for Owners and Lenders)
By Dena M. Cruz and Scott Rogers
This article provides a brief overview of the standard endorsements requested by owners and lenders when insuring commercial property. Particular emphasis is made on the new ALTA and CLTA endorsements approved and filed within the last six months.

Reverse and Improvement Exchanges: More Options for Minimizing Tax Liability
By Mary Kay Kennedy
Section 1031 of the Internal Revenue Code permits investors to defer tax on capital gains when exchanging like-kind property. This article summarizes the basic requirements of a delayed 1031 exchange, and then discusses the use of reverse exchanges, where the closing of the purchase of the new property occurs before the existing property is sold, and improvement exchanges, where improvements are constructed on the replacement property.

Reader Alert: The United States Treasury Department Promulgates Regulations under the Terrorism Risk Insurance Act of 2002
By Lisa Greer Quateman
This article describes highlights of the Terrorism Risk Insurance Act of 2002, which established a temporary program of federal reinsurance for terrorism coverage in property and casualty insurance policies.

Retail Leasing: Unique Issues and Major Differences Between Retail and Office Leasing Negotiations
By Theani C. Louskos
This article examines the negotiation of a retail lease for a shopping center, reviews some issues that are unique to the retail environment, and illustrates the major differences between retail and office leases.

The Parallel Universe of Common Interest Developments: Selected Issues
By Alice M. Graham
Common interest developments are more popular than ever as housing demand grows and available land shrinks. This article addresses some of the current legal issues and unique differences of common interest ownership.

Attention Developers: Your Tentative Map May Be in Jeopardy -- or May Have Expired
By Judy V. Davidoff, Art Friedman, and Jennifer Renk
This article reviews the recent decision in Bodega Bay Concerned Citizens v. County of Sonoma regarding tentative map extension requests under California’s Subdivision Map Act.

Winter 2004 - Volume 22, Number 1

Reader Action Alert: A Uniform Law on Assignment of Rents?
By Norma J. Williams
This article is a brief overview of a current effort to enact a national uniform law on assignments of rents in real estate secured transactions and includes the proposed statutory text under consideration.

2003 Legislative Review
By Robert M. McCormick
This article presents the annual review of real property-related legislation from the prior year.

The Top Ten Real Property Cases of 2003
By Steven D. Atlee and David A. Campbell
Ordinances depressing property values in anticipation of the exercise of eminent domain; misrepresentations by a real estate agent; a city's $18 million-dollar windfall; spiteful landlords; roach-infested motels and the city's response; and a discussion of whether you need to brush up on OSHA before hiring a tree trimmer -- the Top Ten Real Property cases in California run the gamut from interesting to absurd.

Securitized Commercial Mortgage Loans, Modifications and Workouts
By Gregg J. Loubier
This article discusses the statutory and contractual framework governing modifications and workouts of securitized commercial mortgage loans, including an overview of the governing tax rules and servicing contracts under which such loans operate.

Public/Private Workforce Housing Projects and California Competitive Bidding and Prevailing Wage Laws
By Robin Beth Kennedy and Michael Charles Polentz
In the context of California's workforce housing crisis, this article explores the impact of prevailing wage and competitive bidding statutes on public-private partnership projects; analyzes statutory and case law exceptions to these statutes and their applicability to such publicprivate partnerships; and proposes modest legislative solutions to eliminate some of the more significant barriers to the success of public-private workforce housing projects.

Fall 2003 - Volume 21, Number 4

Miscellaneous Lease Provisions--What You Don’t Know Can Hurt You
By Brad H. Nielsen and Gregory A. Clark
This article explores the commonly overlooked “miscellaneous” section of a commercial lease from both a tenant’s and a landlord’s perspective, considers reviewing and negotiating issues related to the “miscellaneous” section, and suggests negotiated model provisions.

The Entitlements Clause in a Purchase and Sale Agreement: What Goes Where and Why It Goes There
By Richard Schulman
One of the most important provisions in a purchase and sale agreement describes the land use permits or entitlements that are necessary to close escrow. The technicalities relating to permit decisions can significantly affect the terms of a transaction. This article proposes a sample entitlements provision and explains the sources of and alternatives to the proposed language.

Noticing a Change: California Civil Code Section 827 Re-Visited
By Jethro S. Busch
This article provides a brief overview of the California law applicable to Civil Code Section 827 notices, and provides the reader with examples of sample language provisions that may be profitably employed by landlords.

IRS-Approved Tenancy-In-Common Arrangements: Are These De Facto Limited Partnerships?
By Cecily A. Drucker
IRS Rev. Proc. 2002-22 provides guidelines for obtaining a ruling that a proposed “tenancy-in common” arrangement to hold rental real estate (a “TIC Investment”) will not be considered a partnership for federal tax purposes. This article explores the requirements of the IRS guidelines and considers the legal and practical implications of promoting, or investing in, a TIC Investment.

Take This! A Roadmap Through a Regulatory Takings Claim
By Basil S. Shiber and Ethan K. Friedman
When does governmental regulation of real property step over the line and become a taking? This article provides a practical guide to answering that question and includes an overview of case law on the subject.

Summer 2003 - Volume 21, Number 3

Stopping the Work
by James Acret
This article reviews construction default issues and contract law as applied when a contractor walks off - or is thrown off - a job. The article includes a checklist for counsel representing a party contemplating stopping work on a construction contract.

The California Environmental Quality Act: A Transactional Primer
by Richard Schulman
The California Environmental Quality Act requires that all state and local agencies in California study the potential environmental impacts of their decisions, including permits for private projects such as subdivisions. This article summarizes the law and how its application can affect real estate transactions.

READER ALERT: Preventing Identity Theft and the Obligations of Real Property Owners
by D. Patrick O’Laughlin
When screening prospective tenants through the application process, real property owners in California have obligations to individuals who are victims of identity theft. California Civil Code Section 1785.20.3 sets forth these obligations and carries with it significant penalties for failure to comply.

Addressing Post 9-11 Building Safety Issues in Commercial Office Leases
by Richard C. Mallory, Anton N. Natsis and Benjamin M. Birnie
This article explores how office space lease negotiations are affected, following the events of September 11th, from the perspectives of landlords and tenants; reviews issues of general security versus access controls; identifies some of the basic warranties a tenant might reasonably expect to be incorporated into the lease agreement; evaluates degrees of emergency preparedness; analyzes the ways in which a landlord can ensure that any increased security costs are properly allocated to tenants; examines theories of landlord liability for prevention or containment of criminal or terrorist activity; and considers new lease provisions being contemplated by landlords and tenants addressing both the physical and financial aspects of building safety.

READER ALERT: Insurance Coverage for Constructive Eviction
by Randy G. Gerchick
This article explains how the personal injury section of a typical general liability policy may protect landlords and property owners against tenants’ claims of constructive eviction, as well as actual eviction.

Spring 2003 - Volume 21, Number 2

SB 800: Builder’s Right To Repair v. Homeowner’s Right To Sue
by Jeffrey G. Wagner
The rules for making, defending, and resolving construction defect claims in the sale of new residences were radically altered with the enactment of SB 800. This article previews the new rules, describes interpretive problems, and makes a preliminary assessment regarding SB 800’s impact on construction defect litigation.

What’s My Line? Mortgage Impairment Insurance: A National Issue Being Shaped in California
by Richard G. Carlston
What type of insurance is “mortgage impairment insurance” and who can issue it? Is mortgage impairment insurance title insurance? If so, can an insurer not licensed as a title insurer offer it or bundle it with its non-title insurance product? This article addresses the significance of these questions in the arena of real estate financing and the secondary mortgage market and the attempts of non-title insurers and some lenders to market mortgage impairment products.

READER ALERT: The Sarbanes-Oxley Act of 2002: Prohibition on Personal Loans to Executives
by Toni Pryor Wise
The Sarbanes-Oxley Act of 2002 is aimed at restoring investor trust and confidence in the public markets with a broad array of provisions designed to improve corporate practices. Section 402 of the Act seeks to regulate and reform corporate conduct in the area of loans to directors and executive officers. This article provides an overview of the Act’s prohibitions on such loans.

Constructing and Modernizing Our Public Schools
by Dean Pappas
With the recent passage of Proposition 47 (the $13.050 billion Kindergarten-University Public Education Facilities Bond Act of 2002) and multitudes of local school construction bond measures, an increasing number of real property practitioners will find themselves representing school districts, architects, contractors, subcontractors, and other construction consultants in connection with public school construction projects. This article provides an outline of many of the significant statutory provisions and other legal principles that govern and otherwise impact such public works projects.

READER ALERT: Woodman Partners v. Sofa U Love – Acceptance of Payments of Rent After Filing of Unlawful Detainer Action
by Scott W. Singer
In light of the Woodman v. Sofa U Love decision, this article discusses landlord concerns regarding acceptance of partial payments of rent following the filing of the an unlawful detainer action, including the “actual notice” requirements of California Code of Civil Procedure 1161.1 and the timing requirements of the “actual notice.”

Lobbying Guidelines and Rules for Ex Parte Contact
by William W. Eigner and Robert L. Wernli, Jr.
Advocates seeking to influence a government land use decision must tread carefully - lest they violate an opposing party’s due process rights, the results of which can be catastrophic. Ex parte contact with a government official acting in a quasi-judicial role is one such due process violation. This article attempts to clarify the definition of “quasi-judicial” and also discusses the severe consequences of improper ex parte contact.

Winter 2003 - Volume 21, Number 1

The Top Ten Real Property Cases of 2002
by Steven D. Atlee and Bonita Dombey Moore
This article is the California Real Property Journal’s annual review of the top real property cases from the state, federal, and bankruptcy courts.

2002 Legislative Review
by Robert M. McCormick
In this last legislative session that ended on September 30,2002,lawmakers had to deal with an energy crisis,a budget crisis,and over 5,000 bills,several of which included important changes affecting different aspects of the real estate industry.This article highlights and
summarizes some of the legislation affecting the real estate law practice.

Predators Bawl? California’s Law To Deter Predatory Lenders Snags All High-Interest Home Lenders
by Allen E. Rennett
Everyone opposes predatory lending;legislators compete with each other to outlaw the practice.In their zeal they have not taken the time to adequately define the target,the result of which is that legitimate “subprime ” lenders are being driven out of the market..This article examines recently enacted federal and California anti-predatory lending laws,the restrictions they impose on lenders,and the expected impacts on subprime borrowers.

READER ALERT: Changes in State Law Provide New Protections to Tenants
by Robert J. Sheppard and Jaime C. Uziel
California landlord-tenant law has once again been statutorily modified, providing additional protection for tenants.This article addresses three of the most recent changes in the law.

Growth Within Bounds: A discussion of the recent changes to the laws governing Local Agency Formation Commissions (LAFCOs)
by Michael Patrick Durkee, Karen Donovan, and Melanie Tang
In the late 1990s,faced with rapid growth and diminished local government independence due to voter initiatives,state officials again began focusing on local agency boundaries and the effects of rapid growth.The resulting process and changes to the policies, practices, and statutes affecting the organization and boundaries of California ’s local agencies are examined in this article.

Fall 2002 - Volume 20, Number 4

Off-Balance-Sheet Sale-Leasebacks and Synthetic Leases After Enron
by Ken Miller
In the post-Enron quest for accounting transparency,corporations and accounting regulators are re-examining off-balance-sheet financing structures.This article analyzes and compares two popular real estate off-balance-sheet structures:the synthetic lease and the sale-leaseback. Although transparency concerns and adoption of new accounting regulations may significantly limit the future use of the synthetic lease, the off-balance-sheet sale-leaseback should continue to serve as a useful structure for corporations and real estate investors.

Recent Superfund Amendments: New Defenses to CERCLA Liability and New Standards for Pre-Acquisition Environmental Due Diligence
by Catherine N.Johnson and Carolyn Johnson Stein
This year, the U.S.Congress amended CERCLA to add new defenses to liability,modify the existing innocent landowner defense, and adopt new interim standards for the pre-acquisition due diligence required to assert these defenses.These amendments have significance for all real estate transactions, including leases. This article discusses the likely impact the new amendments will have on real estate transactions.

READER ALERT:Lot Line Adjustment Exception Significantly Narrowed by SB 497
by Robert McCormick and Nicole R.Duval
On January 1, 2002, certain amendments to the Subdivision Map Act became effective that significantly narrow the “lot line adjustment exception.” This article describes the newly implemented changes to the lot line adjustment exception and discusses the possible ramifications of SB 497 for this commonly used exception.

Reference: An Arbitration Alternative
by Michele Trausch
This article discusses reference,an alternative dispute resolution method authorized under the California Code of Civil Procedure.

READER ALERT: SB 20 Imposes Significant Restrictions on Ability of Property Owners to Replace Janitorial Service
by Courtney McAlister
This article describes the Displaced Janitor Opportunity Act, which significantly limits the ability of new building owners to replace poor janitorial service for a period of time after the acquisition of a facility.

Summer 2002 - Volume 20, Number 3

Financial Security Requirements For Construction Projects: New Civil Code Section 3110.5
by Gordon K. Eng
Under Civil Code Section 3110.5, contractors in many private construction projects can now require owners to provide financial security of 15% to 25% of the construction contract cost. This article examines the types of projects covered by the statute and the financial security.

Don’t Forget the Water: A Water Due Diligence Primer for Real Property Transactions
by Scott L.Shapiro
For many Californians, water is simply something that flows when you turn on the tap. But the client purchasing real property needs to ensure that the water will continue to flow after the transaction is closed. Along with the other types of due diligence performed for a real property transaction, real property lawyers need to think about performing water due diligence as well. This primer provides a place to start.

Intercreditor Agreements for Mezzanine Financing – Issues and Answers
by Janet C.Norris
As financing becomes more difficult,more borrowers are seeking mezzanine financing behind their senior financing. The mezzanine lenders and senior lenders often enter into intercreditor agreements that address the risks inherent in the position of each lender.This article discusses the typical provisions of an intercreditor agreement.

The Toxic Mold Protection Act – When Will It Be Implemented?
by Robert McCormick
California has enacted sweeping legislation to address the growing public concern regarding exposure to toxic molds in indoor environments.The new legislation, however,remains a work in progress, and this article reviews the present status of implementation and the new law ’s implications for real property transactions.

En Banc Ninth Circuit Finds “Passive Intervening Owner” Not Liable for Historic Contamination
by William D.Wick
In an 8-3 en banc decision,the Ninth Circuit ruled in Carson Harbor Village Ltd.v.Unocal Corp.that an intervening landowner was not liable under the federal Superfund statute for previously disposed contaminants migrating through soil and groundwater;however,a spill or leak from a tank or other container during ownership would constitute “disposal ” and trigger liability.

Winter-Spring 2002 - Volume 20, Number 1-2

Top Ten Real Property Cases of 2001
by Steven D. Atlee and Cory Hartsfield
This article reviews the "Top Ten" California real property cases decided in 2001.

2001 Legislative Review
by Steve Stwora-Hail, Robert McCormick and Courtney McAlister
This article reviews the significant new legislation enacted in 2001.

Sprawl and "Paper Water": A Reality Check from the California Courts
by Paul S. Kibel and Barry H. Epstein
In recent years, the California courts have issued several critical decisions involving the adequacy of water supply and the approval of new residential and commercial projects on undeveloped land. These cases have broad implications for both proponents and opponents of such projects. In this article, the authors analyze major recent California cases addressing the question of water supply, provide examples of how these cases are tangibly affecting current development disputes, and present a forecast of the water supply litigation to come.

Dissecting the California Supreme Court
by Glenn P. Zwang
Golden Gateway Center v. Golden Gateway Tenants Ass'n presented the California Supreme Court with the opportunity to clarify the boundaries of its landmark free speech case, Robins v. Pruneyard Shopping Center. While not establishing definite legal standards, the opinion demonstrates that privacy and security rights of the apartment's residential tenants may outweigh freedom of speech.

Timing is Everything! When to Bring Challenges to Land Use Initiatives and Referenda
by Michael Patrick Durkee, Jeffrey A. Walter, David H. Blackwell and Thomas F. Carey
The return of a strong economy over the last few years resulted in explosive property development and, as a result, popular support for growth management has been rekindled. This article reviews the legal standards and judicial attitudes regarding pre-election and post-election challenges to California's initiative process.

Impact of Federal Privacy Laws and Regulations on Real Property Lawyers – The Threshold for Applicability to the Bar is High
by Melissa L. Richards
This article discusses the limited extent to which real estate practitioners may be subject to Federal privacy rules on disclosure and sharing consumer non-public information and illustrates instances in which a real estate lawyer could invariably trigger Federal privacy disclosure requirements and information-sharing restrictions.

Summer - Fall 2001, Volume 19, Number 3-4

The Nuts and Bolts of Telecom Leasing
by William G. Murray, Jr. and Todd Chapman
Telecom leases are becoming more and more common. This article provides an overview of the telecom lease, its basic elements, how it differs from a regular lease and how the parties and their counsel can best approach the telecom tenancy.

A Primer on Drafting Contractual Provisions to Cure Environmental Impairments
by Jennifer T. Taggart
Environmental issues impact most real property transactions. Drafting provisions to address remediation of environmental impairments can be difficult for even the most seasoned attorney. This article explores some of the common and not so common provisions to address remediating environmental impairments in real property transactions.

Claims Court Rules that Giving Farmers’ Water to Fish Requires Just Compensation
by Eric N. Robinson
A recent decision by a federal claims court, Tulare Lake Basin Water Storage District v. United States, holds
that the federal government violated the Fifth Amendment’s takings clause by taking water away from farmers. This article discusses the decision and the broader implications for property owners and agriculture.

Annual Report

Spring 2001 - Volume 19, Number 2

It’s Time to Take a Close Look at UCC Article 9
by Steven O. Weise, Philip Ebling, Dena M. Cruz, Theodore H. Sprink, & Randall L. Scott
The revisions to UCC Article 9 have changed the way lenders and lender’s counsel approach financing that is secured by personal property or mixed collateral. The authors examine the provisions that will most effect the real estate practitioner, and also take a look at some recently introduced insurance products that absorb some of the risks inherent in these transactions.

Ninth Circuit Reconsiders “Passive Former Owner” Liability for Historic Contamination
by William D. Wick
The Ninth Circuit is reconsidering, en banc, a three-judge panel's ruling that "passive intervening landowners" are liable for prior contamination under the federal Superfund statute. If the panel's decision is adopted, any intervening landowner is potentially liable for cleanup costs, even if he or she never caused or even knew about any contamination.

Nonpayment of Taxes as Tortious Waste in Nonrecourse Mortgage Loans
by John C. Murray
This article reviews case law finding that a mortgagor’s nonpayment of real estate taxes constitutes actionable waste of the security, under either a contractual or tort theory. It examines recent cases, such as the California appellate court’s decision in Nippon Credit Bank v. 1333 North California Boulevard, that have found the mortgagor personally liable under the tort theory of "bad faith" waste for deliberately failing to pay taxes from available property income even where the mortgage loan is nonrecourse.

Tulipmania Redux
by Janet C. Norris
As many dot-com tenants have failed, landlords are attempting to exercise their lease remedies against these tenants, including drawing on letters of credit posted by such tenants. Landlords are discovering that there are issues with these letters of credit, but there are steps landlords can take to maximize their recovery in the event of a tenant default. This article addresses drafting issues in both leases and letters of credit where a letter of credit is used as credit enhancement. This article also discusses issues in the enforcement of letters of credit and the impact of bankruptcy in such enforcement.

Winter 2001, Volume 19, Number 1

Top Ten Real Estate Cases of 2000
by Steven Aclee and Kristin Van Vleck
This article reviews the "Top Ten" California real property cases decided in 2000.

Lease Reiection Claims in Bankruptcy
by Howard J. Weg
More and more failed dot-coms, problem retailers and other troubles businesses often have significant leases that can be rejected under United States Bankruptcy Code. It is, therefore, important to know the rules that govern the claims that landlords can assert when their cases are rejected in bankruptcy. Generally, after a landlord computes its damage claim under the lease and applicable state law, the Bankruptcy Code then steps in to impose a cap on the amount the landlord can assert as damages lor the rejection of the lease. This article walks landlords and tenants through the two-step process of computing lease rejection damage claims under California law and applying the complicated rules in the Bankruptcy Code lor determining the maximum rejection damage claim landlords can assert when their tenants file bankruptcy and reject their leases.

Reader Alert: A New Form of Title in California-Community Property with Right of Survivorship
by Lawrence E. Green
This Reader Alert discusses a new type of community property in California.

Advanced Environmental Insurance for the Legal Practitioner
by Daniel Romano and Brad A. Maurer
Environmental liability insurance is a relatively new product. This article discusses how to negotiate a policy of environmental liability insurance on behalf of your client.

Fall 2000 - Volume 18, Number 4

2000 Legislative Review
by Stephen G. Stwora-Hail and Dena M. Cruz
This article discusses the most signifant legilation passed by the California Legislature concerning issues affecting real property.

It's the Message, Not the Medium: Electronic Commerce in the New Millennium
by Dena M. Cruz
The explosive growth of the Internet has triggered the passage of legislation that enables e-commerce. This article summarizes the Model Uniform Electronic Transactions Act, California's Electronic Transaction Act, and the Electronic Signatures in Global and National Commerce Act, and discusses the extent to which California law has been preempted by federal e-commerce law.

Understanding the Different and Often Dichotomous Roles of a City and the Options Available to It When Dealing with "Growth-Related" Ballot Measures
by Michael P. Durkee, Jeffery A. Walter, and David H. Blackwell
This article focuses on the issues faced by local governments when dealing with local land use initiatives, particularly those initiated by its constituents. The robust economy and accompanying accelerated property development makes the issue of "ballot-box planning" one of the hottest land use topics in California. It is critical for local governments and project proponents to understand the procedural rules of the electoral process and the options and strategies available when faced with local attempts at ballot-box planning. A failure to recognize these issues may mean a lost opportunity to balance the desires of the constituency with the goal of sound local planning.

The Mortgagee's Right to Property Insurance Proceeds
by Carlisle G. Packard
A real property-secured lender typically requires its borrower to obtain property damage insurance, the proceeds of which the lender assumes will also be security for its loan after its collateral is damaged, This articles explores lenders' and borrowers' rights to receive and determine the application of insurance proceeds, including the creation and perfection of security interests in insurance! proceeds and the effect of the implied covenant of good faith and fair dealing on their disposition.

Summer 2000 - Volume 18, Number 3

Letter from the Chair-Elect
by Jonathan Rivin
Jonathan Rivin is the new chairperson of the Real Property Subsection of the State Bar of California. In this "Letter from the Chair," he sets forth his goals for the Real Property Section of the California Bar for the coming year.

Structuring Deals with High-Tech Tenants: "The Good, The Bad and The Ugly"
by Anthony N. Natsis, Joseph M. Davidson, and Michael S. Greger
High-tech tenants are the newest commodity in the office building industry. Their explosive growth potential makes them and financial volatility makes them both analtractive and potentially risky tenant for landlords. In order to successfully consummate lease transactions with high-tech tenants, landlords must fully understand and deal with credit enhancement issues and potential default and bankruptcy risks. They must also evaluate the benefits and risks of receiving warrants from such tenants. This article analyzes the nuances and structuring issues relating to various types of credit enhancement and supplies a framework for landlords when addressing defau/t and bankruptcy concern.

Improving Your Environmental Investigations: Better Results with Less Time and Cost
by Christopher J. McNevin
This article suggests ways to improve the environmental assessment process. After reviewing the environmental risks that a landowner or tenant may face, it explains how to tailor the assessment process to identify and weigh risks and make a more informed decision to take or reject property.

Working with the AlA Documents: What You Need to Know About the 1997 Revisions to the B141 and the A201. Part II: Substantive Changes to the A201 General Conditions of the Contract for Construction
by Mary McElroy
In the 1997 edition of the A201 General Conditions of the Contract for Construction, the AIA has made several substantive changes from the 1987 edition. This article examines the important differences between the 1997 and 1987 editions of the A201 and is a helpful guide for all users of the 1997 A201 document.

READER ALERT: Tenant Fees in Residential Leases After Kraus: "Tenant Initiation Expense Reimbursement Fees" Survive; "Early Termination Fees" May Not
by Paul K. Watkins
In June 2000, the California Supreme Court decided Kraus v. Trinity Management Services, Inc., a milestone case to apartment ow'ners and other residential landlords. The decision upholds a landlord's right to collect a non-refundable, up-front administrative fee, but while casting doubt on a landlord's right to collect a lease termination fee if a tenant wishes to prematurely end a lease. This article reviews the Kraus decision and offers guidance on drafting a form providing for a legally sustainable lease termination fee.

Spring 2000 - Volume 18, Number 2

Letters of Credit Posted by Dot-com Tenants -- How Lenders Can Avoid Becoming a Victim of Tulipmania
by Janet C. Norris
California lenders are finding themselves undgewriting more and more loans on properties leased to dot-com tenants. Many of these dot-com tenants have posed large letters of credit as security deposits for their leases, How can lenders get the benefits of these letters of credit to flow through to them?

Resources for Real Estate Practitioners on the Internet
by Michacl S. Klein and Ira J. Waldman
The World Wide Web has exploded into the dail life of businesses and the legal field is no exception. For real estate lawyers the Internet IS a resource for keepIng tabs on cllent developments,industry trends and legal developments in real time. In a manner not previously imagined, it is almost impossible to provide a comprehensive list of all resources available on the Internet for real estate practitioners. The goal of this article is to make your job easier by describing some of the many websites we have found useful in our practIces.

Fraudulent Transfer Remedies for Real Estate Secured Creditors in California
by James R. Stillman
Is a recourse creditor secured by California real estate ever entitled to pursue remedies under California's version of the Uniform Fraudulent Transfer Act prior to foreclosure and entry of a deficiency judgment? The issue arrises, first, because real estate loan documents typically do not contain the net-worth financial covenants found in more comprehensive commercial credit transactions. Therefore, so long as installment payments are current, it may not constitute a loan default for the borrower to dispose of general assets that would otherwise be available to satisy the deficiency. Second, given the structure of some loans, market conditions may indicate to lender and borrower a strong probabiliy of ultimate payment default and recourse exposure, at a time some years before the maturity date occurs. This article discusses these issues and offers suggestions regarding how borrowers and lenders should protect themselves under current law.

Judicial Review of Community Association Decisionmaking
by Curtis C. Sproul
In August 1999, the California Supreme Court issued its long-awaited decision in Lamden v. La Jolla Shores Clubdominium Homeowners Association. This decision has important ramifications for the growing number of common interest real estate developments in California. In Lamden, the California Supreme Court adopted a "rule of judicial deference to community association board decisionmaking." This differential standard of review is to be applied by trial courts in cases where members of a community association challenge board decision involving the exercise of managerial discretion.

Supreme Court's Decision in Toland v. Sunland Housing Group Should Put an End to Major Source of Liability of Owners and Contractors to Subcontractor's Employees
by John P. Carpenter
The California Supreme Court in Toland v. Sunland Housing Group rejected the use of the peculiar risk doctrine and emphasized California's workers' compensation system as the exclusive remedy for injured emp!oyees. This article reviews the Toland decision and presents some options for those advising lawndowners and contractors to avoid potential liability.

Winter 2000 - Volume 18, Number 1

1999 Legislative Review
by Steve Stwora-Hail

The "Top Ten" Real Property Cases of 1999
by Steven D. Atlee

The Statute of Limitations Under California's Uniform Fradulent Transfer Act After Cortez v. Vogt
by James R. Stillman

A Rule to Spare Them Reasoning: California Courts of Appeal "Find" that Oil and Gas Leases Are to Be Interpreted Liberally in Favor of the Lessor and Strictly Against the Lessee
by John Quirk

Fall 1999 - Volume 17, Number 4

Workouts in the Twenty-First Century
by William G. Murray, Jr.

What Real Estate Practitioners Need to Know About Y2K Impacts on the Construction Industry
by Bryan C. Jackson and Jean-Claude Andre

Draconian or Clever? "Private" Statutes of LImitation Revisited
by Jethro S. Busch

Working with the AIA Documents: What You Need to Know About the 1997 Revisions to the B141 and the A201 -- Part 1: A look at the AIA Revisions Process and a Discussion of the 1997 Changes to the B141 Owner-Archietect Agreement
by Mary J. McElroy

Killer Zoning: The Moratorium Power
by Joshy C. Gottheim

Winning in CEQA Litigation: Formulating, Attacking and Defending the Project Description
by Charles M. Gale

The Future of California's New Residential Construction: The Land of Aas or Safely-Built Homes?
by David M. Huff, Esq. and Sona S. Hingnikar, J.D.

Summer 1999 - Volume 17, Number 3

The CAM Audit: Winning the Battle Without Starting a War
by Anton N. Natsis and Cheryl S. Prell

READER ALERT UPDATE: State Superfund Hazardous Substance Release Reporting Provisions
by John J. Gregory and John R. Epperson

READER ALERT: Steiny v. Citicorp Real Estate
by Elizabeth A. England and Nancy E. Perham

READER ALERT: California Supreme Court Affirms Court of Appeal in DeBerard Case: Code of Civil Procedure Section 580b May Not Be Waived
by Steven H. Zidell and Lisa Greer Quateman

Maximizing Tentative Map Extension Opportunities Under the Subdivision Map Act
by Michael P. Durkee, Tyson H. Powell and Matthew D. Beinke

READER ALERT: Schmitt v. Tri-Counties Bank
by Peter Brian Bothel

Spring 1999 - Volume 17, Number 2

The Brownfield Toolbox
by Brian S. Haughton, Janine Keck Massey and Hope Schmeltzer

READER ALERT: Avoiding the Risk of Characterizing a Lien on the Fee as a Guarantee
by Norma J. Williams

U.S. v. Bestfoods: Corporate Guidance for Property Owners
by Janice Kamenir-Reznik, Kenneth A. Ehrlich and Ryan David Lapidus

READER ALERT: Solit v. The Tokai Bank
by Douglas W. Borchert and Dena M. Cruz

READER ALERT: The Impact of the Federal Fair Debt Collection Practices Act on Landlord-Tenant Practice
by Susan Fowler McNally

Recent Developments Concerning California's One Action Rule and Anti-Deficiency Laws
by Lisa Greer Quateman and Steven H. Zidell

Winter 1999 - Volume 17, Number 1

The "Top Ten"
by Barry P. Jabon

1998 Legislative Review
by Steve Stwora-Hail

READER ALERT: State Superfund Hazardous Substance Release Reporting Provisions Repealed
by John J. Gergory and John R. Epperson

Basic Issues in Hotel Lending
by Carlisle G. Packard

The Priority of Liens and Leases -- An Update
by Patricia Frobes and David Kitchen

Fall 1998 - Volume 16, Number 4

California Supreme Court Sets Rules for Determining Insurance Coverage for Environmental Claims
by Jon Enscoe and Paul M. Zieff

Letter from the Chair
by Steve Stwora-Hail

Obtaining Insurance Coverage for Construction Defect Claims
by William T. Eliopoulous and John L. Antracoli

"Environmentally Challenged" Property: Is Environmental Insurance the Answer?
by Jon K. Wactor

New CLTA Extended Coverage Homeowner's Policy
by Greta T. Hutton

Summer 1998 - Volume 16, Number 3

New Natural Hazard Disclosure Requirements
by Jeffrey G. Wagner

Current Trends in the Arbitration and Mediation of Real Estate Disputes
by Michael P. Carbone

The Environmental Responsibility Acceptance Act – A Step in the Right Direction
by William S. Waller and Keith Allen-Niesen

The Fictitious Granto Meeets an Uncommonly Strong Lis Pendens
by Jeffrey Brodrick and Robin L. Deems

Will Strict Liability in Inverse Condemnation Be Replaced by a Balancing Standard?
by Gordon B. Burns

Growth Management Through Consensus
by Deborah M. Castles

Spring 1998 - Volume 16, Number 2

Tax Considerations Affecting Construction Allowances and Disposition of Leashold Improvements
by Mark S. Hennigh and Stephen A. Bonovich

Reader Alert: Win One – Lose One: Current Case Developments for Secured Creditors
by Peter S. Munoz

Liquidated Damages Provisions in Real Estate Sales Contracts
by Ben Hamburg

The Synthetic Lease: Off-Balance Sheet Financing of the Acquisition of Real Property
by James Blythe Hodge

Winter 1998 - Volume 16, Number 1

The "Top Ten" (Top Ten Cases of 1997)
by Barry P. Jablon

1997 Legislative Review
by Steve Stwora-Hail

First Supplement to 1995 California Real Property Legal Opinion Report

Controlling the Construction of Tenant Improvements in Office Leases: A Tenant's Perspective
by Richard C. Mallory

Your Land Is My Land: Fence and Yard Encroachments
by Stephen N. Cool and Monte J. Cool

Fall 1997 - Volume 15, Number 4

The Priority of Liens and Leases
by Patricia Frobes and David Kitchen

Reader Alert: Real Property Law Specialization Proposal
by the Legal Specialization Committee

The Duty of Sellers' Brokers to Inspect and Disclose Property Defects in Residential Real Property Sales
by Richard J. Stratton and Nicole S. Kamian

The Construction Industry: Proving Ground for Courtroom Alternatives, from Arbitration to Partnering
by Orrin F. Finch

The Mechanics of Creating Condominiums and Planned Developments in California
by M. Brett Gladstone and Rosanna S. Russell

Summer 1997 - Volume 15, Number 3

Supreme Court Declares S.B. 1612 Applies to Commercial Standy Letters of Credit Predating Its Enactment: Western Security Bank, N.A. v. Superior Court (Beverly Hills Business Bank)
by Michael F. O'Neil

Legal Malpractice and the Real Estate Attorney: Conflicts of Interest
by Edward D. Haas

Filling the Gaps: The Use of Mezzanine Financing in Real Property Transactions
by William G. Murray, Jr.

The Ebb and Flow of Panic: In re McConville and the Changing Risks to Real Estate Lenders
by Peter S. Muno

A Commissure for Real Estate Commissions: The Juncture Where Written Agreements Meet the Implied Covenant of Good Faith
by Elizabeth England and Nicole Kamian

Spring 1997 - Volume 15, Number 2

Building on the Past: A Road Map to Compliance With Historic Preservation Laws
by Margo N. Rabinovitz

Letter from the Chair
by David M. Fields

A Practical Guide to Using Letters of Intent in Real Estate Transactions
by Scott D. Brooks and Robert J. Sykes

An Overview of Recoverable Fraud Damages in Real Property Litigation
by Ian W. Craig

The Use of Bankruptcy-Remote Entities in Real Property Securitizations and Structured Financings
by William L. Myers

Land Use Planning and Watter Supply in the Wake of SB 901 and Stanislaus Natural Heritage Project v. County of Stanislaus
by Heather B. Lee

READER ALERT: Effects on Proposition 218 on Maintenance Assessments
by Daniel S. Hentschke

Winter 1997 - Volume 15, Number 1

The "Top Ten"
by Barry P. Jablon

1996 Legislative Review
by Steve Stwora-Hail

Toxics Liability Reform for Lenders and Fiduciaries
by Maurine C. Padden

Assignment of Rents -- The Next Generation
by Norma J. Williams, Jack Hindmarsh, Sylvia O'Neill, Ira Waldman

Senior Housing Laws: The Legislature Strikes Again!  The Riverside County Boondoggle
by Jeffrey G. Wagner

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