Monthly Archives: April 2013

Hall v. Aurora Loan Services, LLC– The dangerous life of a real estate agent

Hall v. Aurora Loan Services, LLC.

A real estate agent showing a house to potential buyers was injured when a ladder to a finished attic failed.  A contractor’s report, which recommended replacing the ladder, was available for review in the house.  The agent sued the owner and the listing broker.  The trial court granted summary judgment to the defendants, holding that they did not know of the dangerous condition.

The court of appeals reversed, concluding that there was a triable issue of fact regarding the knowledge of the defendants.

This is a peculiar case because the defendants never should have filed for summary judgment in the first place.  It was undisputed that the listing agents received the contractor’s report which should provide at least constructive notice of its contents.  As agents for the seller, the seller has implied knowledge as well.  A jury could conclude that there was no notice, but a trial judge at the summary judgment stage should never reach the same conclusion as a matter of law.

The flip side is the issue of what the plaintiff knew or should have known.  Is there a duty for real estate agents showing homes to review reports that are readily available, at least to make sure that there are no safety issues at the home?  If the potential buyers were injured, they likely would have included their own agent as a defendant.  It could be that this is not the last we have heard of this case.

 

Sabey v. City Of Pomona- Government Agencies Have To Double Down On Hiring Outside Counsel

Sabey v. City of Pomona

Sabey v. City of Pomona is a strange case with a good heart.  The City had hired a partner from a law firm to provide representation in an advisory (non-binding) employment arbitration proceeding.  The City had previously hired a different partner in the same firm to act as chief labor negotiator.

The arbitration did not go as planned, with the award confirming most of the facts adverse to the employee but recommending suspension instead of termination.  In evaluating whether to accept the advisory award, the City consulted with their chief labor negotiator, who recommended that the City reject the decision and terminate the employee.

The Court of Appeals concluded that the potential bias of the chief labor negotiator in favor of the work done by his partner in the arbitration tainted the advice.  Because of this potential bias, the court concluded that an outside law firm cannot provide advocacy efforts to a governmental agency and then provide advice on those same advocacy efforts because the outside law firm has an interest in promoting itself and in increasing its profitability.  The result of the case was to require the City to reconsider its decision with respect to the arbitration award after receiving independent legal counsel.

In a time when all levels of government are experiencing fiscal difficulties, if not crises, a decision that forces the retention of multiple attorneys seems absurd.  While all private lawyers have financial self-interest, they all have a stronger fiduciary duty to their clients.  One partner should not risk a breach of this duty when asked by a client about the performance of another attorney in the firm.  If a breach occurs, then there are remedies available to the client that should suffice to eliminate this type of paternalistic opinion that requires the needless multiplication of legal fees.

Riverisland Cold Storage v. Fresno-Madera Credit Assn.- fraud v. parol evidence rule

Click here for Witkin.com analysis.

Click here for opinion.

Witkin.com analyzed the recent California Supreme Court decision to allow evidence of fraud that contradicts the terms of a written agreement.  This decision has the potential to gut the parol evidence rule, but is a real world acknowledgement that contracts for consumers have become so lengthy and so complicated that when a party hears an affirmative representation regarding the contents of such a complicated agreement from the party with superior bargaining power and knowledge, then the party making the representation should have to stand by them.

No Openings Even For Unhappiest Job

These two articles from the ABA Journal really say it all:

Job market for would-be lawyers is even bleaker than it looks.

Associate attorney is the unhappiest job in America

Why would any college senior consider law school?

Hagman v. Meher Mount Corporation- an expansion of adverse possession?

Hagman v. Meher Mount Corporation.

This new case expands the ability to acquire property by adverse possession during a time when judicial review of the doctrine seeks to narrow it at almost every turn.

Larry Hagman sued to quiet title to a piece of land that was inadvertently enclosed with a fence and then improved.  The neighbor was a religious organization exempt from property tax.  The trial court granted summary judgment to Mr. Hagman.

The Court of Appeals rejected the argument from the religious organization that it is immune from adverse possession by reason of its status as a public benefit corporation.    The court soundly concluded that because a public benefit corporation is not a governmental agency, it is not entitled to any measure of immunity.

The surprise was that the court also concluded that because the religious organization was exempt from property tax, Mr. Hagman was excused from California’s requirement that he pay taxes on the property he sought to acquire.  California has a very short 5- year time period to acquire property by adverse possession, but balances the brevity with a requirement that the party seeking adverse possession must pay all property taxes levied against the property.  This is often very difficult to accomplish because the true owner will often pay property taxes which will prevent adverse possession even if the claimant pays as well.

This is a peculiar outcome, possibly explained by the celebrity of Mr. Hagman.  He benefited from the fact that his neighbor was exempt from property taxes.  While the religious organization was not a governmental entity, there should be some change to the law, either by statute or at a higher court, to make it equally difficult to seize property by adverse possession regardless of the status of the neighbor.