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REAL ESTATE

Chair:
510.832.7770

 

The Real Estate practice group handles both transactional and litigation matters for real estate agents and brokers, mortgage brokers, real estate appraisers, property owners, home inspectors, and landlords.

Real Estate Litigation: This includes all forms of advice, consultation and representation regarding real estate disputes, including mold claims, claims of non-disclosure, breach of fiduciary duty, negligence, malpractice and misrepresentation.
Landlord-Tenant: Representation of landlords in lease disputes, habitability claims, vendor disputes and lease negotiations.
Real Estate Transactions: This includes the creation, interpretation and application of real estate purchase contracts and leases.

Representative Matters

  • Represented a real estate brokerage firm sued regarding the purchase of a hotel for $10 million. Buyer and seller sued each other, claiming that the other breached covenants contained in the purchase contract. The broker negotiated the purchase for the buyer and was sued by the seller under the theory that the broker knew that the buyer intended to breach the contract by failing to tender the full purchase price. The suit settled for a return of the purchase deposit with our client making a nuisance contribution of less than $3,000.
  • Represented an appraiser sued by purchasers, who sued the lender, mortgage broker, real estate agents and appraiser, claiming that they were duped into purchasing a home they could not afford. The central claim of the suit was that the lenders and their agents had engaged in predatory lending practices. The suit was filed in federal court and alleged violation of various federal lending statutes. Plaintiffs dismissed our client from the case after we filed a Motion to Dismiss.
  • Represented an appraiser who was sued by the purchasers of a gas station. The suit against the sellers, lenders, mortgage brokers, real estate agents and the appraiser claimed that the gasoline and retail mart sales represented by the seller were inflated. Our client's defense was that the appraisal clearly stated that the sales information was supplied by the seller and that the buyer's remedy was against the seller only. After we filed motions repeatedly attacking the complaint, our client was dismissed for a waiver of costs. We prevailed on a motion filed by the sellers, challenging the "good faith" of our settlement (which barred their cross-complaint).
  • The firm represented a real estate agent and broker in connection with the buyer's purchase of raw land. The buyer sued the seller and the (dual) agent, contending that the size of the parcel did not allow the plaintiff to build the size of the home originally intended. We contended that our client was entitled to rely on public records regarding the size of the parcel and that plaintiff should have commissioned a survey if the size of the parcel was a critical factor in his purchase. While our Motion for Summary Judgment was pending, the plaintiff accepted our offer of $2,500.
  • Negotiated a settlement for a title company in a multi-million dollar suit. The settlement was well within the malpractice limits and settled under the policy limits with enough left over to defend and settle various other claims.
  • Represented a dual agent in a single family residence. The buyers claimed that the agent failed to fulfill her fiduciary duty by recommending various inspections, including a foundation inspection. We successfully settled the case through mediation and the buyers recovered approximately 15% of their demand.
  • At a settlement conference, successfully negotiated a nuisance value settlement for real estate broker client who was accused of slander and defamation.

Seminars

Expedited Jury Trials: The Why, When and How of the New California Law

Effective January 1, 2011, California has enacted statutes for Expedited Jury Trials (EJT). Sharon Hightower, assistant managing partner of Ericksen Arbuthnot's San Jose office, has prepared a seminar to explain this new statute to attorneys, clients and insurance carriers. She will explain what types of cases are best suited for EJT and how cases are selected for this alternative trial option. Her presentation includes the following topics:
  • Background of the new law
  • Pre-trial procedures
  • Rules
  • Selection process for cases
  • Trial procedures:
    • Admissibility of evidence
    • Voir dire
    • Challenges
    • Required deadlines

For more information about EJT, see "California Offers a New Trial Option."

Keeping Home Inspectors Out of Suits: Minimizing Litigation by Maximizing Information

This seminar, presented by Steve Dollar and Brian Sanders, covers the following issues for California home inspectors:
  • Legal Standard for inspections: B&P Code 7195 and 7196
  • Differences between Legal Standard and ASHI/CREIA/NAHI standards
  • Scope of the inspection under 7195 / 7196 vs. under the contract
  • Need for establishing video / photographic record of inspection
  • The Contract: Pre-Inspection or Post? Enforceable? Against Whom?
  • The Report: statements that can result in litigation and potential liability
  • Working with real estate agents: selling a proper report
  • Insurance and indemnity issues
  • California Civil Code 1102 and increased litigation exposure for home inspectors
  • Relevant cases:
    • Leko v. Cornerstone (2001) 86 Cal.App.4th 1109
    • Duncan v. Amerispec Home Inspection Serv., (2007) Ca. App. Unpub. LEXIS 924, 15-16
    • Moreno v. Sanchez (2003) 106 CA 4th 1315.

Handling Claims Against Real Estate Professionals in California and Relevant Documents in California Real Estate Litigation

  • Potential defendants, including agents, brokers, buyers, sellers, home inspectors, appraisers, title companies, and mortgage brokers
    • Applicable standard of care
    • Dual agency problems
  • Joint and several liability
    • Parties that can be held legally responsible
    • Indemnity among joint tortfeasors
  • Damages
    • Recoverable damages for negligence and fraud cases from various defendants
    • Attorneys' fees
    • Emotional distress or punitive damages
  • Settlement
    • Mandatory alternative dispute resolution clauses

How to Defend and Protect Your Real Estate License and Professional Reputation from a Failure to Disclose Lawsuit and a Department of Real Estate Audit

  • Department of Real Estate record keeping requirements
    • Employment records
    • Transaction records
  • Overcoming the audit
    • Attorney involvement following notice of audit
    • Communications with DRE auditor

Professional Duties and Disclosure Obligations of Real Estate Agents and Brokers Under California Law

  • Real estate broker's legal relationship to agents
    • Extent of broker's supervision of a real estate sales person
    • Independent contractor versus employee status
    • Broker's vicarious liability for agents
  • Real estate agent's legal relationship to clients
    • Extent of fiduciary duty owed to client
    • Duty of loyalty and good faith
    • Disclosure obligations
  • Dual agency
  • Disclosure duties of the buyer's real estate agent
    • Agent's fiduciary duty to the buyer
    • Client's obligation to conduct own investigation
  • A seller's agent's disclosure duties under California law
    • Extent of an agent and broker's fiduciary duty
    • Buyer's duty to conduct own investigation
  • The transfer disclosure statement (TDS)
  • Civil lawsuits against an agent or broker
    • Potential causes of action against an agent or broker
    • Extent of potential damages in a real estate agent malpractice or fraud case
    • Statute of limitations for civil suits

Real Estate Disclosure and Department of Real Estate Compliance Issues

  • Key agent/broker relationships
  • Dual agency
  • Disclosure duties of the buyer's agent and/or broker
  • Disclosure duties of the seller's agent
  • Importance of record-keeping
  • Audit "vaccination"
    • Employment records for salespersons
    • Transaction records
  • Overcoming the audit and involving your attorney
  • The audit process

Legal and Ethical Issues in Handling Residential Real Estate Transactions

  • Legal and ethical duties of real estate agents to clients
    • Fiduciary obligations owed by a real estate broker and agent
    • A listing agent's obligations to the buyer
  • Dual agency and the consent and disclosure requirements
  • Buyers and sellers and their duty to disclose material facts
  • Importance of record keeping

Articles

 

 

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