Category Archives: Real Property

Belasco v. Wells- If You Sign It, Then It Will Apply

Click here for PDF of opinion

A buyer of a new home built in 2004 filed a claim against the contractor in 2006.  They settled for $25,000.00.  In exchange for the money, the buyer signed a general release of all claims, known and unknown, related to the construction of the home.

In 2011, the buyer found problems with the roof and filed another action.  The trial court granted summary judgment to the contractor because the 2006 release applied to any issues related to the construction, known or unknown.

In a construction defect case, it is important to take some care in drafting the release, especially if the construction is less than 10 years old, as latent defects may appear.  In Belasco, however, the court examined the release, found it to apply to the entire house, and affirmed summary judgment.  It could be, however, that no judge was going to be sympathetic to Mr. Belasco, since he was himself an attorney.


Richardson v. Franc- easements, licenses, and litigation

Click here for opinion

Richardson v. Franc is a case of once happy neighbors becoming less so.

There was peace for many years.  For their driveway, James Richardson and Lisa Donetti (“respondents”) had an access easement over their neighbors’ property.  The boundaries of the easement had beautiful landscaping and an expensive and  complicated irrigation and lighting system around and under the driveway.  The respondents and their predecessors maintained the easement with their neighbors for over 20 years.

The Francs bought the neighboring property in 2004.  For six years, they lived in harmony.  In late 2010, the discord began.  Mr. Franc cut the irrigation and electrical lines without notice and then had an attorney send a letter demanding the removal of all landscaping within five days.  Litigation ensued.

The trial court held that there was an irrevocable license to maintain the landscaping and supporting systems.  The Francs appealed.

The landscaping exceeded the defined purpose of the access easement.  The Francs’ predecessor permitted, however, if not encouraged, the landscaping, creating a revocable license.  A license is typically revocable, but can become irrevocable when the grantor knowingly allows acts that involve substantial amounts of money and improvement.  It would then be unfair to terminate the license, which becomes irrevocable.

Licenses and easements are creatures of equity and fairness.  The Francs lost their right to claim fairness when they cut the lines.  The court’s opinion did not say that bad people should not prevail, but I expect that the trial court judge and the appellate panel probably thought it.

Lawrence v. La Jolla Beach And Tennis

Click for Lawrence v. La Jolla Beach And Tennis.

A young child fell out of a second story window at a beachfront hotel, suffering serious injuries.  The parents sued.  The hotel moved for summary judgment, claiming that the parents’ negligence overrode any obligation on the part of the hotel and that the hotel had no duty to install a fall prevention device.

The trial court granted summary judgment to the hotel, from which the parents appealed.

The Court of Appeals reversed.  The parents’ negligence, if any, would impact the proportion of blame that the hotel might have, not whether the hotel had any duty to the injured child.

The issue of duty is a question of law suitable for summary judgment.  The factors to determine whether a duty exists, however, are more subtle than whether the window met the applicable building code.

In Lawrence, The parents requested a first floor room when they made their reservation, but only second room floors were available on check-in.  The window through which the child fell had a screen, but it was not sufficient to restrain the child.

The court recognized that a determination of “the scope of foreseeable perils to children must take into consideration the known propensity of children to intermeddle.”  The opinion reviewed cases falling on either side of the argument, concluding that a hotel operator does not guarantee the safety of the guests, but has a duty of ordinary care to make the premises reasonably safe for their expected use; and that  the hotel operator did not meet its burden to show that there was no duty, relying heavily on the presence of children.

Once the court concluded that a duty existed, it was a simple process to conclude that the myriad factual issues related to breach and causation warranted a reversal of summary judgment.

The duty analysis in the opinion was a challenge, since it confirmed that cases were split and that the involvement of children made it difficult to decide.  Hotel owners would probably prefer a clearer rule on when a duty does exist, rather than when it might.  This clarity, however, may not arrive unless the California Supreme Court has a chance to weigh in on this opinion.

Foster v. Williams- The Notice To Quit Must Be Perfect

Click for Foster v. Williams opinion.

The tenant failed to pay rent.  The landlord issued a notice to pay rent or to quit.  The notice provided the payment procedure that the tenant had used for a year.  The procedure, however, was a website for electronic payments without any physical address.

The trial court in Santa Monica concluded that the website sufficed.  The Appellate Division of the Los Angeles Superior Court disagreed.  The statute required a person and an address.  Even though a website is an “address,” the requirement of a person to whom payment can be made implies a requirement of a physical address.  Without it, the notice is invalid and the landlord must start over.

If you are a landlord, then be careful.  If you are a tenant, then this case shows how a minor technical problem can delay an eviction.

When Is A Defect Patent?

Click for Delon Hampton v. Superior Court.

Delon Hampton provides a useful summary of latent and patent construction defects.  This is a critical analysis for construction litigation as a claimant has as many as ten years from the date of completion to sue for latent defects while only four for patent ones.

The case involved  a stairway at a train station that was too narrow with a handrail that was too low.  The court recognized that a defectively secured handrail was latent because the defect was not readily apparent.  Whether a stairway is narrow or a handrail too low is apparent, even if most people would not recognize the problem.

Builders and developers appreciate these statutes of repose as they provide some closure once four or ten years elapse from substantial completion.   The analysis, however, can often be subtle even when matters are right in front of your eyes.



Horiike v. Coldwell Banker- Dual Agents Are Fiduciaries Of All

In Horiike, two agents of the same broker represented the parties to a transaction.  As Professor Shaun Martin noted in his article (California Appellate Report: Horiike v. Coldwell Banker Cal. Ct. App. – April 9, 2014), it is hard to see how the trial court missed the fundamental rule of real estate agency by concluding that the agent of one side did not have duties to the other.   The court of appeal, however, figured it out.

A dual agency relationship requires all agents to treat all parties as fiduciaries.  This may mean that neither side gets a zealous advocate.  Since the commission stays the same in most real estate transactions regardless of the identity of the buyer’s agent, the parties might be better served if they each have independent representation.  


McCaffrey Group- More Right To Repair- More Fees!

Click here for McCaffrey Group v. Superior Court.

The Right To Repair Act returns with another avalanche of writs and fees.

The homeowner had a leak and called Allstate, his insurance company.  Allstate promptly repaired the home and sued KB Home, the developer, for subrogation to recover just over $80,000.00.

KB Home demurred to the complaint because it did not allege compliance with the Right To Repair Act.  The trial court eventually concluded that the prelitigation procedures of the Act did not apply to a subrogation action.  On writ number one, the court of appeals ordered the trial court to reconsider, which it did, sustaining the demurrer with leave to amend.

After the first writ, KB Home demurred to the amended complaint.  The trial court again concluded the the Act did not apply to subrogation matters.  On writ number two, the court of appeals ordered the trial court to sustain the demurrer on negligence and strict liability and to overrule the demurrer for noncompliance with the Act.

KB Home and Allstate both moved for summary judgment.  The trial court granted Allstate’s motion and denied KB Home’s, holding that two letter constituted sufficient notice.  On writ number three, the court of appeals ordered the trial court to reverse itself on both motions.  The trial court declined, resulting in this motion.

Unsurprisingly, the court of appeals reversed the trial court, ordering the trial court to enter judgment in favor of KB Home.  The Act applies to require a meaningful opportunity to inspect and to repair a home, even when an insurance company believes it is fulfilling its obligations to its insured by acting promptly to address a covered loss.

The attorney’s fees for three writs and an appeal for two sides almost certainly eclipsed the amount in controversy, making the Right To Repair Act a tremendous billing opportunity for attorneys when its purpose was to reduce the time spent in court for contractors, developers, and home owners.

Richman v. Hartley — When In Doubt, Disclose And Then Disclose Some More

Richman v. Hartley, Cal: Court of Appeal, 2nd Appellate Dist., 6th Div. 2014 – Google Scholar.

This is a simple case.  California law requires a statutory Transfer Disclosure Statement for sales of 1-4 unit residential properties.  This case involved a mixed use property consisting of a commercial building and a duplex.  The seller did not provide a Transfer Disclosure Statement then sued the buyer for failure to close even though the buyer failed to close because the seller did not provide the necessary disclosures.

The trial court granted summary judgment to the buyer based on the lack of a statutory disclosure.  The Court of Appeals affirmed.

California Civil Code § 1102(a) provides that “any transfer . . . of real property . . . improved with or consisting of not less than one nor more than four dwelling units.”  The subject property had two dwelling units, making the statutory obligation “clear and unambiguous.”  

The peculiar elements of this case include (i) how the attorney for the seller could argue with a straight face that his client did not need to provide a disclosure statement; (ii) how it was a good idea to sue the buyer; or (iii) how there was any chance of success on appeal. 

When in doubt, disclose.  If you are uncertain about whether to comply with a statute that does not impose an overwhelming burden on a seller, then play it safe and comply.



Saffie v. Schmeling- Buyers Need To Do Their Homework

Click here for opinion.

An MLS listing stated that an undeveloped parcel of land in Riverside County was “declared buildable” and that there was a report available.  The report, however, was from 1982, before the 1994 Northridge earthquake.

The buyer reviewed the report, bought the property, and tried to develop it.  Riverside County was more sensitive about development and stated that what might have been a state of the art investigation in 1982 was not in 2006.  The buyer concluded that the additional geological testing made development impractical and sued his broker, the seller, and the seller’s broker.

The buyer prevailed against his own broker, but lost versus the seller and his broker.  The buyer only appealed the decision involving the seller’s broker.

The court of appeals affirmed.  The report was accurate at the time and generally approved the condition of the property (even though it did not use the term “buildable”).  The court would not impose on the seller’s broker a duty to confirm the ongoing reliability or accuracy of a report.  That task falls to the buyer and his broker.

Buyers must review disclosures and reports carefully with their broker.  If questions arise, then ask them.  A developer cannot blame a seller’s broker because a 24 year old earthquake fault report did not create an absolute right to develop property.



Johnson v. Prasad- Premises Liability For Swimming Pools

Johnson v. Prasad – Google Scholar

This case involves the tragic drowning of a four-year old.  The issue is who is responsible.

The owners of the home with the pool rented it.  The pool did not have a perimeter fence or a self-closing mechanism on the sliding glass door that led from the house to the backyard.

The tenants had people over, including the victim and the victim’s father and grandmother.  Everyone went swimming.  Everyone left the pool, but no one secured the sliding glass door.  The young boy left the house and was discovered at the bottom of the pool.

The victim’s mother sued for wrongful death, naming the owners, the property manager, the grandmother, and the father.

In the trial court, the owners and property manager prevailed on their summary judgment motions.

The court of appeals reversed with respect to the owners, holding that summary judgment was improper in light of factual issues related to the absence of both a perimeter fence and to the absence of a self-closing door; and whether those absences caused the death of the little boy.

A reversal of summary judgment does not mean that the owners have lost, just that the case should be heard by a jury.  The decision, however, should persuade all swimming pool owners, whether landlords, tenants, or residents, to take all reasonable steps to insure that the pools are secure.   Winning or losing a lawsuit is nothing compared to the loss of a child.