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January 7, 2025 -    California, Nevada and the federal government enacted several new laws that took effect January 1, 2025.   Of particular importance for our office: 1) California tenants now have 10 days to respond to an unlawful detainer complaint rather than 5 days; and 2) the Consumer Financial Protection Bureau finalized a rule that would remove all medical bills from consumer credit reports and prohibit lenders from using medical information to in their lending decisions.  The scope and range of newly enacted laws are vast, so make sure to stay up to date on particular changes that may affect you!

December 30, 2024 -    In this Ninth Circuit decision, the Court held that particular fines imposed by a county against the cannabis industry violate the Eight Amendment’s Excessive Fine Clause. While this decision dealt solely with cannabis cultivation, the legal concepts and holdings enumerated in this decision may apply to other state, county or local government ordinances that impose excessively punitive fines.  As with most constitutional issues, the application of these legal concepts are likely to be inconsistent and vary widely depending on the type of ordinance at issue. 

November 26, 2024 -  Earlier this year the National Association of Realtors agreed to a $418 million dollar settlement to resolve a class action lawsuit that challenged the universal application of real estate agent commission structures.  Today a federal judge approved the settlement, meaning that previously affected homeowners will receive notice of the settlement and a potential payout.  More importantly, since the summer of 2024 the real estate industry is still grappling with how to implement the requirements of this settlement.  Theoretically, a competitive real estate market with diverse commission structures should ultimately drive down housing costs.  Realistically, implementation is difficult and every city, county and state may have different standards and regulations.  And are homeowners really benefiting from this seismic change?  It remains to be seen, but until then shop around if you are in the market for a new home!

October 29, 2024 - This recent California decision held that certain parcels of real property were subject to various easements for parking spaces and other non-possessory interests.  A simple conclusion but a difficult legal path to reach that conclusion. Were these prescriptive easements, implied easements, or orally granted easements?  Practically, the type of easement is irrelevant for the party simply attempting to use pre-existing parking spaces and a pre-existing area to place a trash dumpster.  Legally, the type of easement is paramount to determining property rights for affected parties.  Thus, unless these legal rights are expressly stated with specificity in enforceable legal documents, these are the type of legal issues that may arise and lead to years of litigation. 

October 1, 2024 -  For several years before, during and after the Great Recession in 2008, many financial institutions offered homeowners first and second mortgages to refinance or purchase homes.  Due to various factors, collection attempts on many second mortgages ceased.  In the past few years, an alarming trend seems to be occurring - after more than 10 or 15 years of silence, financial institutions are contacting homeowners to collect on long dormant second mortgages.  While the financial institutions may have the loan documents to evidence the mortgage, this must be balanced with a blindsided homeowner who faces foreclosure after more than a decade of not receiving any notice of the mortgage.  "Zombie" mortgages is an apt term indeed.  Federal and state legislatures as well as the legal system will need to tackle this growing problem. 

July 1, 2024-  As of July 1, 2024, a cluster of new laws in California and Nevada take effect across many industries.  One change worth mentioning is a California law that caps security deposits at one month's rent when a landlord tenant relationship is created in California (AB12).  There are exceptions, of course, so make sure to follow the new laws and amend business practices accordingly.

June 2, 2024-  We have all signed lengthy contracts without barely reading them.  For most transactions, these are boilerplate contracts that do not require review with a fine tooth comb.  However, this case decision shows that when two parties negotiate a contract to govern business relations, creativity and thoroughness in drafting the contract is still essential despite the standard forms used in daily life.  Here, Plaintiff won a $1,993,670.00 judgment at trial on a "constructive termination" theory.   On appeal, the appeals court held that this theory is not recognized by California law and reversed Plaintiff's victory.  Although legally unavailing, the appeals court implied that the legal analysis may have been different had the contract actually contained a "constructive termination" provision.  Thus, the key takeaway is Plaintiff had a stronger probability of securing its legal victory had the contract contained the necessary verbiage.   When significant money is at stake, the contractual jargon matters!

April 18, 2024 -  At first glance, the case facts here involve a rather simple premise:  A real property owner discovers a wall is built within his property lines.  The owner removes the wall and builds a new wall on the correct property line, as the owner should be and is entitled to do.  A simple issue - until the law is involved.  Does someone have adverse possession rights because the wrongly built wall has been present in the wrong location for many years?  Does another party's right to ingress and egress remain with the new property lines?  Or is it extinguished altogether?  This case illustrates that arcane and complicated legal theories such as adverse possession and prescriptive easements can and will apply to real world scenarios.  Knowing how these rules apply is crucial to ensuring your rights to real property are not jeopardized.

March 15, 2024 -  Nationwide, the National Association of Realtors has faced several lawsuits over the years challenging the universal commission structure that real estate agents earn upon closing a residential real property sale.  The settlement announced today (click here) will, amongst other things, materially change this commission structure.   Regardless of which side you are on, the settlement terms likely will not take effect for many months.  Once the settlement does take effect, one can expect confusion and a bumpy road ahead - how does the industry implement this fundamental change?  Will promising real estate careers be extinguished, or does this create limitless opportunities for creative real estate experts?  Change is inevitable, and there are new opportunities for those that take the time and effort to understand and adapt to the new lay of the land.  Stay tuned!

December 23, 2023 -  As we turn to another calendar year, change remains constant. As society changes, certain issues of law fade while other issues of law arise – for example, how do we apply or amend existing laws to the advent of AI into everyday life? Yet, a recent California decision shows that real property rights may not change as rapidly. This case involved the scope of “mineral rights” to land parcels that were transferred almost a lifetime ago in the 1950s and 1960s. This case is illustrative of the potential long lasting nature of real property rights.  So make sure that your real property rights are protected now and for your future generations!

October 12, 2023 - In the context of real property law, California and Nevada are both “race-notice” states. This means that your rights and title to real property, if not timely recorded in the official county records, may be subject to or junior to third party interests acquired at a later time (also known as “bona fide purchasers” or “bona fide encumbrancers”).  Thus, whenever a party disputes right or title to property in a lawsuit, said party should always record a “lis pendens” on title to the property. This gives legal notice to any outside party that should they take title to the real property at issue while the lawsuit is ongoing, such right or interest will be “subject to” the claims in the lawsuit (win or lose).  As this recent California case illustrates, a recorded lis pendens may also affect a title owner’s right to initiate eviction proceedings against their tenants if its is not properly expunged.

August 24, 2023 - While mortgage rates have increased exponentially in the past few years, the mortgage market continues to offer a variety of loan products to the prospective homeowner.  While every loan product has its unique set of legal rules and regulations, as this case shows the same legal principle can also apply differently to each loan product (i.e., statute of limitations).  Read the fine print and/or consult an attorney if you are unsure of your rights prior to executing closing loan documents.

May 12, 2023 - In this recent California appellate case, a tenant came home to discover he was locked out of his apartment. He was unable to reach the off-site property manager. He then climbed onto the roof and attempted to gain access through his upstairs balcony. After successfully climbing the roof and dangled himself over the balcony, he jumped onto the balcony, lost his balance, fell several stories and significantly injured himself. This case held that given the overall circumstances, it is possible the landlord may owe a duty of care to the tenant and be liable for his injury.  Although the court presented several legal justifications for this conclusion, practically it seems outrageous that a landlord should be responsible for a tenant injuring himself in such a reckless and dangerous manner!  

April 21, 2023 – In the 82nd Session of the Nevada Legislature, Senate Bill 78 continues to work its way through the legislative branch of state government.  In general, this bill proposes additional protections for tenants that rent real property, including limiting late fees, limiting application fees and imposing additional standards for security deposits.  Nothing is finalized yet, but we will be keeping close tabs on this bill as it moves its way towards becoming law. 

March 9, 2023 –California landlords must navigate a perplex maze of state, county and local laws, ordinances and regulations governing rent control.  This myriad of rules and regulations is illustrated by a recent California appellate decision.  In Berkley, CA., rent control does not apply to residential units that obtain a certificate of occupancy after February 1, 1995.   In this case landlords purchased single family properties in 2012, converted them into triplexes and completely remodeled the properties for this purpose.  In doing so, the landlords obtained approval from the City of Berkeley that held the properties were not subject to rent control.  Yet, after Berkeley voters passed a November 2016 proposition to amend the rent control rules, the City of Berkeley reversed course and held the properties were subject to rent control.  The landlords contested the ruling, and the appellate court sided with the City of Berkley.  Thus, despite doing everything correctly, the landlords now face rent control ordinances!  

February 22, 2023 – In one of the first Supreme Court of the United States decisions for the 2022-2023 term, the highest court in the land held that a business partner could potentially be liable for an ex-business partner's fraudulent conduct - even if the individual had no participation in the fraudulent conduct!  As with all court decisions, this is (thankfully) a nuanced decision that may not apply in all circumstances.  Nonetheless, be careful who you do business with, and make sure that partnership and other business agreements expressly and clearly set forth the parties rights and obligations. 

January 3, 2023 – Happy New Year to everyone!  2023 brings new challenges, with new legislative representatives elected and an uncertain economy.  One pending issue is whether businesses can recover from their insurance policies for COVID-related income loss.  In 2022 California courts issued numerous opinions on this issue, and the “majority view” is  that COVID business losses are not recoverable.  However, the issue is far from decided, and the California Supreme Court is now tasked with resolving the issue (see attached).  We will continue to keep abreast of all legal developments as we take on the new year!

September 13, 2022 – When running a business, there are many benefits in hiring an independent contractor rather than hiring employees.  This legal designation, however, is far from clear as many unique situations arise.  For example, recently a California appellate court affirmed the applicability of the "Privette" doctrine.  The Privette doctrine (named after a 1993 case decision) holds that a hirer of an independent contractor generally delegates all responsibility for workplace safety and therefore is not liable for an independent contractor's on the job injuries.  The court also analyzed the key exceptions to this doctrine.  Thus, whether an independent contractor can obtain compensation from the hirer of his/her/its services for on the job injuries remains a pliable area of the law.  

September 6, 2022 – Especially after COVID-19, landlords may feel the system has created a landmine of tenant rights that must be navigated in order to successfully evict a tenant for nonpayment of rent.  For example, a California code section (Civil Code section 1962) requires landlords to provide the name, telephone and "usual" street address at which personal service may be effectuated on them or their agents.  If this is not done, a landlord cannot evict. Today, a California appellate court found that even though a landlord provided the name, telephone and "usual" street address of its new agent to accept rent, by failing to provide all of the required Civil Code section 1962 information the landlord could not evict.  Technicalities matter in the law, and thus make sure that notices comply with all required laws before initiating the eviction process!

September 2, 2022 – COVID-19 created many new legal questions.  For example, does a business insurance policy cover loss of business income as a result of the pandemic?  Thus far, at least two California cases have said...maybe.  On July 13, 2022, a California appellate court found that businesses may, in some circumstances, have a potential claim for loss of business income due to the pandemic.  However, on September 2, 2022 another California appellate court held that businesses cannot recover lost income due to the pandemic under certain insurance provisions.  This area of the law will likely continue to be murky.  While business as usual has returned, if you have a potential  claim for loss of business income due to COVID-19 consider making a claim against the insurance company as quickly as possible!

August 18, 2022 – Should homeowners be allowed to rent their properties for short term use (such as AirBnb)?  This is a relatively hot button issue debated amongst neighborhoods across the country.  Recently, the Nevada Supreme Court heldthat a homeowner association’s governing documents that restrict properties to “residential use” does not necessarily bar a homeowner from renting its properties in a short term fashion.  Most Nevada homeowners are subject to homeowner association rules and bylaws.  This case decision can help you determine whether your homeowner association can prohibit short term rentals!

August 1, 2022 – In Martinez v. Cot’n Wash, Inc., a California Court of Appeals held that a website is not a “place of public accommodation” for purposes of asserting an Americans with Disability Act (“ADA”) claim.  In the last few years there have been hundreds, if not thousands of lawsuits filed against businesses for alleged ADA violations relating to their website.  Insurers have not uniformly agreed to defend such claims on behalf of the business owners.  Thus, while this ruling will stem the tide of these types of lawsuits, to avoid any issues make sure your business website is up to date and has the latest and greatest WCAG certification!

July 19, 2022 – A California Court of Appeals in Meda v. Autonzone, Inc. considered whether an employer “provides” suitable seating to its employees within the meaning of certain California regulations.  The Court did not reach a decision, other than to give notice that even commonly used words such as “provides” may become a contested issue in employment cases.  Determining who prevails in an employment case almost always depend on the workplace, job description and unique factors specific to said employment.  This case is no different, and it will be interesting to see how it turns out!

June 28, 2022 – In JJD-HOV Elk Grove, LLC v. Jo-Ann Stores LLC, a California Court of Appeals held a commercial co-tenancy penalty can be enforceable.  Generally speaking, a co-tenancy provision is a common lease provision in commercial leases that generally provides certain “anchor” tenants or a percentage of a leasing space must be occupied on a commercial property.  If a landlord fails to meet the co-tenancy provision set forth in the lease, then commercial leases often are structured such that the commercial tenant  can pay a different rental amount due to the lack of tenancy.  This case is important because it distinguished a 2015 California appellate decision (Grand Prospect L.P., v. Ross Dress for Less, Inc.) that held co-tenancy provisions are unenforceable.  If you are a commercial landlord or tenant, make sure to determine whether your co-tenancy provisions is enforceable under this JJD-HOV Elk Grove decision or unenforceable under the Grand Prospect decision!

June 7, 2022 – As a general rule, the personal assets of an owner, director, and/or shareholder of a corporation cannot be liable for corporate debts absent serious malfeasance (fraud, criminal acts).  In Lopez v. Escamilla, an individual obtained a $157,370 judgment against a corporation.  The corporation had no assets, and the individual then sued the sole shareholder of the corporation to collect the judgment.  The trial court ruled in favor of the corporation, applying the general rule that personal assets are not liable for corporate debts.  However, on appeal, a California Court of Appeals says not so fast!  In some circumstances, personal assets of a sole shareholder can be liable for corporate debts even absent fraud, criminal acts or intentional misdeeds. This makes forming the proper business entity all the more important.

May 23, 2022 – Two decisions related to contractual arbitration rights were issued today.  First, in Morgan v. Sundance, Inc., the U.S. Supreme Court held that certain legal requirements cannot be imposed on parties who seek to enforce contractual arbitration provisions.  The contract language controls as well as certain arbitration procedures established by law.  The implication is that the contracting parties should be relatively unburdened in seeking to enforce a bargained for contractual provision.  Second, in Trinity v. Life Insurance Company of North Am., the California Supreme Court held that certain arbitration provisions can be considered unenforceable even if the contracting parties agreed to the provisions.  This holding generally only applies to "one-sided" negotiations where one of the contracting parties hold immense bargaining power.  Two courts issuing somewhat contradictory opinions on the same day is an example of how convoluted contract negotiations and formation can be!  If you are seeking to enforce a arbitration provision (or any contractual right or obligation for that matter), know your rights before you do so.

April 6, 2022 – Fannie Mae issued an announcement that it will accept attorney title opinion letters in lieu of a lender’s title insurance policy for certain residential loans.  This could significantly lower your closing costs when you purchase or refinance residential real property.  This could also have a ripple effect as to how real estate professionals do business.  We will be keeping abreast of developments as title companies across the country begin to implement this new product!

January 1, 2022 - NRS Chapter 116, which governs HOAs, is amended as follows: a) limits HOAs from imposing certain fees against homeowners, including creating an administrative remedy to adjudicate any fee disputes; b) expands the notice requirements a HOA must provide after a foreclosure sale occurs; c) imposes additional requirements on HOAs in partition sales.  Boring and technical, but may have a tremendous effect if you become involved in HOA related issues!

December 1, 2021 -  With real estate sales continuing to be red hot in Nevada, hopefully for most folks these life changing transactions proceed smoothly.  Unfortunately, inevitably issues arise.  Has the developer for your new build substantially delayed construction of your residence?  Are there construction defects in the new build, such as defective flooring material or poor craftsmanship?  Are sellers required to remedy all defects that may exist on the property?  If you recently purchased a home from a private seller and there was an existing defect, did the seller disclose the defect pursuant to NRS Chapter 113?  Whether you are a seller or buyer, know your rights if the desired transaction did not proceed as smoothly as expected.    

October 15, 2021 -  On May 31, 2021 at 11:59 PM, the Nevada COVID-19 eviction moratorium officially ended.  Immediately, thousands of Nevada households faced evictions.  On or about June 4, 2021, Nevada’s Governor passed legislation known as “AB 486,” which provided tenants “rental assistance” defenses.  The effect is that otherwise valid eviction proceedings initiated due to nonpayment of rent are now being further delayed upon a tenant showing proof of a pending rental assistance decision.  Landlords should familiarize themselves with the CARES Housing Assistance Program (CHAPS) and how eviction courts throughout the valley are interpreting AB 486’s contents and applicability to various rental assistance provisions.  As with many COVID-19 related issues, this is a fluid situation that continues to evolve as evictions work their way through Nevada’s legal system.