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A court may create an “equitable easement”, on equitable grounds, even though the user is not entitled to an easement on one of the more traditional grounds. The judge balances the rights of the various parties to achieve an equitable solution. Generally, the courts apply a three-part test to determine if such an easement should be legally granted. In most cases there is an existing use, and either one landowner sues to stop the use (they see it as a trespass), or the user sues to legally establish the easement. However, in a recent decision out of Ventura County, the court granted an equitable easement where there had been no preexisting use.

Sacramento-equitable-easement-attorneyIn Hinrichs v. Melton, Hinrichs inherited two adjoining parcels. He used to live in a house on the southern lot, but had lived in Alaska for the past 20 years. He conveyed the southern property to Asquith, which left the northern parcel landlocked – it had no legal access from anywhere. The trial court granted the plaintiff an easement by necessity over the Asquinth parcel, up to the Melton property. Beginning at the Melton property, the court granted an equitable easement under the doctrine of balancing the hardships.

The Equitable Easement

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The Statute of Frauds requires certain agreements to be in writing. The reason is that these agreements are too important to allow oral agreements, as they are susceptible to fraud. It is codified in Civil Code section 1624, and also applies to agreements for real estate commissions, about which the Supreme Court has said that a “broker’s real estate commissions agreement is invalid unless the agreement `or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party’s agent.'” But what happens when not everyone who should sign does? Parties may need to consult with a Sacramento real estate attorney, because a dispute may result that the contract is not valid. I have never seen a matter where a real estate broker did not require ALL the parties on title to sign a listing agreement, but that was the case in a February decision regarding a listing agreement signed in 2013 – they waited four years to get a result, which is why, in my experience, everybody must sign. In this case, in a decision that combined the statute of frauds, the equal dignities rule, and the parole evidence rule, the broker lucked out…

Sacramento-Statute-of-frauds-attorneyIn Bernice Jacobs v. John Locatelli as Trustee, Jacobs was the broker looking to sell vacant land in Marin for over $2 million dollars. The broker Jacobs signed, as did Locatelli. However, there were blank signature lines for five other people, five other owners.

Right above Locatelli’s signature line is the notation “Owner: John B. Locatelli, Trustee of the John B. Locatelli Trust,” with his title listed as “Trustee.” As mentioned above, while there were signature lines for the remaining owners, they were left blank. However, at the very top of the agreement, “Owner” is defined (with emphasis added) as “John B. Locatelli, Trustee of the John B. Locatelli Trust, et al.” “Et al.” clearly means, in this context, “and others.”

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Assigning claims and causes of actions regarding real estate to someone does not necessarily give them the right to file a lawsuit for quiet title. A quiet title action seeks a declaration of the parties’ rights to the real estate. A description of the parties’ legal interests in real property is all that can be expected of a judgment in an action to quiet title. Without an interest in the property itself, a party has no standing to ask the court to quiet title in the property or to obtain damages for the cloud on title. An action to cancel a trustee’s deed or other instrument transferring title is no different. Parties in this situation should speak with a Sacramento real estate attorney to make sure that the assignment has them covered because the assignment needs something else – assignment of all the assignor’s interest in the property itself. This was a surprise to several people in a 2012 California decision.

Sacramento-real-estate-attorneyIn Chao Fu, Inc. v. Wen Ching Chen, Chao Fu Inc. (CFI) had a 25% interest in property at 852-860 Villa Street in Mountain View, CA (conveniently located between a brewpub and a beer garden.). CFI’s secretary, Kuo, borrowed money from Chen (Lender) and Chen received a promissory note. Chen got nervous and wanted security. They gave him a deed of trust against the Mountain View property. The CFI principals were out of the country for a long time, and the lender foreclosed, obtaining title to the property.

The lender, in a further attempt to collect on the note, sued Kuo. Kao obtained an assignment from CFI of its claims regarding the dispute with the lender. Important is the language of the assignment:

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It is not often that residential real estate cases make it to the Supreme Court, but in this instance Coldwell Banker tangled with a very wealthy buyer of a very expensive ($12.25 million) house. Presented was the common scenario in which the two agents in the deal both were licensed under the same large corporate broker. This house was marketed as 15,000 square feet, and the buyer discovered it was actually 3-5,000 sq. ft. smaller. The salesman who listed the property made the inaccurate representation. The Buyer claimed that, as the broker was a dual agent, so was this listing salesman (“associate licensee”) – owning the buyer the same duties that he had owed the seller. The Supreme Court addressed whether the associate licensee owed to the buyer a duty to learn and disclose all information materially affecting the value or desirability of the property, including the discrepancy between the square footage of the residence’s living area as advertised and as reflected in publicly recorded documents. This is an issue frequently presented to Sacramento real estate attorneys – whether the listing agent owes any duty to the buyer. It was undisputed that Coldwell Banker owed such a duty to the buyer. Now, the Supreme Court has ruled that the associate licensee, who functioned on Coldwell Banker’s behalf in the real property transaction, owed to the buyer an “equivalent” duty of disclosure under Civil Code section 2079.13, subdivision (b).

Sacramento dual agent attorneyIn the case of Horiike v. Coldwell Banker Residential Brokerage Company, the buyer had been working with a Coldwell Banker agent in looking for a house. She connected him with this listing agent, who had listed this Malibu property for sale. According to an interview with the NY Times, this agent told the buyer that the property had 15,000 square feet of living area and was the largest property available in Malibu. “He said that there was new regulation that prohibited developers from building over 11,000 square feet, and that made the property unique and also a very good investment prospect.” This same agent had previously told a different potential buyer multiple times that they did not warrant the square footage, and that they should hire a specialist to verify it. However, he did not tell this to Mr. Horiike. After the sale closed, the buyer wanted to add a sunroom and learned about the discrepancy in size. This lawsuit followed. The NY Times article linked to above indicates that this particular salesman, with a Hollywood client list, has a record of overstating the size of homes which he has listed.

Sacramento  real estate broker dual agent attorneyThe defendant argued that the disclosure statutes only imputed the duties of the salesperson to the broker, and not the other way around – thus, the dual agency concern was not imputed to the salesmen. The court disagreed. Referencing Civil Code § 2079.13, it found that by describing an associate licensee’s duty in a real property transaction as “equivalent to” the duty of the “broker for whom the associate licensee functions,” the provision specifies that when an associate licensee represents a brokerage in a real property transaction, his or her duties are the same as those of the brokerage.

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Real Estate Purchase Contracts encountered in California are often detailed and explicit as to the terms of the deal – parties, price, escrow, when closing is to occur, time for inspections, etc. While some terms are subject to varied interpretation, rarely do Sacramento real estate attorneys encounter contracts with glaring omissions. But when they do, the question arises, is the contract enforceable? In a 2008 Supreme Court decision, the court clarified that the only elements necessary for enforceability are the seller, the buyer, the price to be paid, the time and manner of payment, and the property to be transferred. Everything else can be provided by the court based on what is usual and customary.

sacramento real estate contract attorneyIn Sunil Patel v. Morris Liebermensch, Patel was a tenant in a building owned by Liebermensch. Patel held a lease option – he had the right to buy the property under specified terms. The option purchase terms were as follows:

“Through the end of the year 2003, the selling price is $290,000. The selling price increases by 3% through the end of the year 2004 and cancels with expiration of your occupancy. Should this option to buy be exercised, $1,200.00 shall be refunded to you.”

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A Quiet Title action is a lawsuit which a person files to establish their title against adverse claims. The plaintiff’s interest in the land can be the title to the property, an easement, a license, a lease, or title by adverse possession. Sacramento real estate attorneys often see quiet title used in situations where there is a dispute as to title and ownership in real estate. However, there is a general rule is that the holder of equitable title cannot maintain a quiet title action against the holder of legal title. This begs the question – what is the difference between legal title and equitable title?

Sacramento legal title attorneyLegal Title

A shorthand way to consider it is that legal title means that you are on the deed. The term ‘legal title’ has been defined as ‘one cognizable or enforceable in a court of law, or one which is complete and perfect so far as regards the apparent right of ownership and possession, but which carries no beneficial interest in the property, another person being equitably entitled thereto; in either case, the antithesis of “equitable title.” ’ ” (Solomon v. Walton, 109 Cal.App.2d 381)

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The plan to build tunnels to ship water from the Sacramento-San Joaquin delta is underway. The Department of Water Resources needed to conduct environmental and geological tests by boring test holes on over 150 privately owned properties. Normally, the government is not allowed to take actions on privately owned real estate without a standard condemnation proceeding, but the California Eminent Domain law provides a procedure for precondemnation entry and testing. Owners faced with such a situation may want to consult a real estate attorney to ensure that they are protected. In a recent test of the law, the Court of Appeal ruled that the state could not conduct geologic studies – boring deep test holes – without conducting a classic condemnation action. The Supreme Court disagreed.

Sacramento condemnation attorneyNO NEED FOR A CLASSIC CONDEMNATION ACTION

The court of appeal ruled against the state in finding that this procedure was not good enough and that a classic condemnation was required.

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A lis pendens, or Notice of Pending Action, is a document which may be recorded which provides notice of a lawsuit that has to do with title to real property. It cannot properly be recorded until after the lawsuit has been filed. The owner of the property can file a motion to clear their title by having the lis pendens expunged, i.e. declared invalid by the court, if the lawsuit does not concern title to real property. Sacramento Real Estate attorneys often hear from parties who are anxious to record a lis pendens, but really do not have a property title claim. This is so important that if the party is not represented by an attorney but are representing themselves, they must get court approval to record a lis pendens. If a lis pendens is expunged, the property owner may also receive an award of their attorney fees and costs. But what about the harm to the owner while the property was tied up with the lis pendens? Slander of title is a false statement about real estate which harms the property’s value or salability, causing a direct pecuniary loss. As the court of appeal points out, a wrongful lis pendens may still not be found to be a slander of title.

Sacramento slander of title attorneyIn Alpha and Omega Development, LP v. Whillock Contracting, Inc., Whillock was a builder who brought an unsuccessful action to foreclose a mechanics lien. Part of that action included a lis pendens. Alpha had the lis pendens expunged. Alpha defaulted on the loan, and the property was foreclosed. Alpha then brought a slander of title action against the defendant, claiming that defendant without justification and without privilege caused to be recorded a Lis Pendens against the real property; that the recording of the lis pendens “directly impaired the vendibility and value of the [subject real property] on the open market while the real estate market in San Diego was rapidly declining”; and that as a result of the lis pendens, Alpha was damaged.

The elements of a cause of action for slander of title are

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Indemnity provisions usually refer to third-party claims. This means a claim by a person other than the two parties to the indemnity. If I sell you a box of widgets and indemnify you for all claims resulting from the use of the widgets, the idea is that if a third person is injured by the widget and sues you, I am on the hook. But these provisions are commonly more expansive, and include first-party claims. Thus, if you get injured using the widget, I am on the hook. Environmental indemnity agreements are typically the most expansive types of provisions you can find and seem to have included all the word someone could think of. One concerned about what an environmental indemnity provision covers should consult with a real estate attorney. In a recent decision, I suspect that the defendant knew that the provision covered first-party claims, but still make the argument and was shown to be wrong. There was a lot of money at stake. A second case discussed below does not include first party claims.

Sacramento indemnity attorneyIn HOT RODS, LLC v. NORTHROP GRUMMAN SYSTEMS CORPORATION, Hot Rods bought contaminated property from Northrop. The purchase contract had an indemnity provision to protect Hot Rods from environmental actions and remediation. Over time Hot Rods incurred remediation expenses, and Northrop reimbursed them. Eventually, Northrop called it quits and stopped reimbursing Hot Rods. Hot Rods sued, claiming that a tenant had delayed entering a lease because of remediation issues, Hot Rods claimed lost rent; Northrop denied being liable for this, claiming that the indemnity provision only covers third-party claims. Here, where Hot Rod was making its own claim for damages, this was a first party claim.

Covers First-Party Claims

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The California civil code provides that, in a breach of a real estate purchase and sale contract, the breaching party may be liable for consequential damages. An appellate court determined that this may include lost profits in certain cases. Where lost profits are recoverable as consequential damages, “Not only must such damages be pled with particularity [citation], but they must also be proven to be certain both as to their occurrence and their extent, albeit not with ‘mathematical precision.’” Thus, the offended party in consultation with their real estate attorney must develop their argument to establish their lost profits to ensure that they can be awarded. In discussing how a particular plaintiff failed to provide sufficient evidence for lost profits, the court indicated what it would take.

lost profits attorneyIn Greenwich SF. LLC v. Wong, Mr. Chan bought property with Mr. Wong with the intent to remodel or develop it, and they held title as joint tenants. They had worked together on flipping properties, as Chan was a contractor. Mr. Wong died, so title automatically passed to Plaintiff. But Wong’s wife tied up the property in Probate (! Mr. Chan should have consulted with a real estate attorney, this mess should never have occurred!) and refused to convey the property to Chan. She led Mr. Chan to believe that she would once it cleared probate. Chan eventually formed the plaintiff LLC for the redevelopment. The plaintiff had plans drawn up. The defendant widow entered a contract to sell the property to plaintiff. Ultimately, Wong’s widow refused to convey the property as she could sell it for more to a third party, and plaintiff filed this suit for breach of contract. Part of the damages claim was for lost profits.

Until this time California law was unsettled as to whether lost profits could be claimed in a breach of a real estate purchase contract. Civil Code Section 3306 allows consequential damages in the breach of a real estate contract, but no decisions have decided the lost profits may be included as consequential damages. Here, this court determined that lost profits ARE available, as long as such damages are pled with particularity, and they must also be proven to be certain both as to their occurrence and their extent.