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About this Blog

Welcome to the Snell & Wilmer real estate litigation blog. Check back here often for useful news and information about current topics involving real estate litigation. We hope that you will find the blog both timely and helpful, and we invite you to join the discussion by posting comments about the articles and contacting the authors with your thoughts about the posts.

A Non-Purchase Money Second Deed of Trust is Not Protected by Arizona’s Anti-deficiency Statute

By:  Ben Reeves & Julie Maurer Arizona anti-deficiency laws do not prohibit a non-purchase money lender from suing on its note after foreclosure by a senior lender.  In Wells Fargo Bank, N.A. v. Brewer, No. 1CA-CV 12-0383 (Ariz. Ct. App. May 21, 2013 unpublished), the Arizona Court of Appeals held that Arizona’s anti-deficiency statute, A.R.S. […]

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Understanding zoning nonconforming uses is no walk in the park, but a mobile-home park may be treated as a unified use.

By:  Erica Stutman When Arizona municipalities adopt new zoning ordinances and regulations, existing property owners have the right to continue using their property for the use in place when the new ordinance or regulation becomes effective, including the right to make reasonable repairs and alterations.  See A.R.S. § 9-462.02(A).   This right to continue the “legal […]

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A Lender Holding Two Liens Can Foreclose on the Senior Lien and Sue on the Junior Lien

By:  Ben Reeves In Wells Fargo Bank, N.A. v. Riggio, No. 1CA-CV-12-0430 (Ariz. Ct. App. June 4, 2013), the Arizona Court of Appeals held:  (i) that the “merger of rights” doctrine does not “merge” a lender’s first and second lien into a single unitary interest upon the foreclosure of the first lien, and (ii) A.R.S. […]

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Protecting Your Project From Litigation: Limited Liability Company vs. Partnership

If you have multiple investors/owners, one of the benefits of using a Limited Liability Company (LLC) to own real property rather than using a partnership is that the LLC offers better protection of the real property from creditors of any individual part-owner (LLC member or partner).  A judgment creditor of an LLC member is limited […]

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Former Counsel

Anticipating Earnest Money “Damages” – Don’t Assume It

By Bob Henry The Arizona Supreme Court issued an opinion last month in Thomas v. Montelucia Villas, LLC, 2013 Ariz. LEXIS 152 (June 14, 2013) that adds a few wrinkles to efforts by sellers in real estate transactions to retain “earnest money” from a buyer upon the buyer’s default.   While the opinion addresses issues that […]

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The U.S. Supreme Court’s Latest Attempt to Differentiate a Fair Quid Pro Quo in the Developer’s Permitting Process From an Unconstitutional Taking

By:  Rick Herold Introduction The U.S. Supreme Court has issued an important decision in an attempt to add clarity and help government land use planners understand the difference between reasonable requests and unreasonable demands rising to the level of unconstitutional takings in the permitting process.  Koontz v. St. Johns River Water Management District, 2013 WL […]

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Arizona’s Anti-deficiency Statute, A.R.S. 33-814(G), Cannot be Prospectively Waived Says the Court of Appeals

By:  Ben Reeves In Parkway Bank & Trust Co. v. Zivkovic, 662 Ariz. Adv. Rep. 26 (Ct. App. 2013), the Arizona Court of Appeals held that provisions in loan documents purporting to waive the applicability of A.R.S. § 33-814(G) violate Arizona public policy and, therefore, are not enforceable under Arizona law. A.R.S. § 33-814(G) provides that […]

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Sign those Real Estate Agreements!

By: Bobby Kethcart The Statute of Frauds is a BIG deal in real estate transactions and litigation. (This is our second post about it already…) We know it requires (most) agreements related to real estate to be in writing—agreements for the sale of an interest in real property, agreements for a lease of longer than […]

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A Person Owning a Fractional Interest in a Vacation Home is Protected by Arizona’s Anti-deficiency Statute

By:  Ben Reeves In Independent Mortgage v. Alaburda, the Arizona Court of Appeals held that Arizona’s anti-deficiency statute, A.R.S. § 33-814(G), precluded a lender from suing its borrowers for a deficiency after foreclosing on the borrowers’ fractional interest in a vacation home.  230 Ariz. 181, 281 P.3d 1049 (Ct. App. 2012). If a lender conducts […]

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Owners of Multifamily Housing Beware

By:  Julie Maurer Owners and developers of multifamily housing beware—you may be held responsible for your architect’s oversight. A growing number of state and federal courts are in universal agreement that owners and developers cannot sue their architects for designs that fail to meet accessibility requirements of the Fair Housing Act (FHA) and Americans with […]

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JM
Former Counsel

The Clock Doesn’t Tick-Tock for Owners in Possession

By: Cory L. Braddock The Arizona Court of Appeals recent decision in Cook v. Town of Pinetop-Lakeside, 661 Ariz. Adv. Rep. 31 (App, May 28, 2013) reiterated its forty-three year old holding in City of Tucson v. Morgan, 13 Ariz. App. 193, 195, 475 P.2d 285, 287 (App. 1970) and held that “the statute of […]

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Green construction sounds great, but…

It isn’t always easy being green. Snell & Wilmer partner Marc Erpenbeck talks about emerging litigation issues generated by the proliferation of green construction projects in this informative article entitled “Understanding LEEDigation, The fast-growing trend of GREEN building spurs new issues for the commercial real estate industry” published in the May/June issue of AZRE Magazine. […]

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Moving From Quiet Title to Wrongful Recordation

By: Adam Lang Pretend you own real property in Arizona that you want to sell.  You have a buyer.  You enter into a purchase contract.  But when the buyer runs a title report, she learns that someone else has wrongfully recorded a claim on your property.  The buyer cancels.  You want to hold the individual […]

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A.R.S. § 33-814(A) and Bankruptcy Proofs of Claim: To File or Not to File…Conflicting Cases Leave Creditors With No Clear Answer

By: Ben Reeves Under Arizona law, does a secured creditor need to file a deficiency action within 90 days after a trustee’s sale to preserve the unsecured portion of its claim in a bankruptcy case? Or is filing (or amending) a proof of claim sufficient? Two recent cases out of Arizona provide conflicting answers. The […]

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Arizona Residential Landlords in Foreclosure – Expanding the Duty to Notify Tenants

By: Bob Henry The Arizona Residential Landlord Tenant Act, A.R.S. § 33-1301 et seq., already requires landlords to provide written notice (with specific language) to tenants of a “potential foreclosure” on the property if a “foreclosure action” has been “initiated” at the time the parties enter into the rental agreement. A.R.S. § 33-1331. This obligation […]

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Does an Appraiser Owe a Duty of Care to Non-Client Third Parties? It Depends.

By: Andy Stone Under what circumstances do appraisers owe a duty of care to third parties sufficient to give rise to liability for negligent misrepresentation claims was examined (again) by the Arizona Court of Appeals in late 2012.  See Belen Loan Investors, LLC v. Bradley, 296 P.3d 984, 650 Ariz. Adv. Rep. 8 (App. 2012).  […]

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Former Associate

Broker Beware?

By: Erica Stutman While oral contracts are often enforceable, certain categories of contracts must be documented in a signed writing or an action for breach of the contract will be barred by the statute of frauds.  See A.R.S. 44-101 for Arizona’s statute of frauds.  The statute of frauds plays an important role in real estate […]

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Statutory Caveat Emptor Survives…or Does It?

By:  Matthew P. Fischer Arizona has codified the concept of caveat emptor (i.e., buyer beware) for three particular circumstances.  Pursuant to A.R.S. § 32-2156, real property sellers are not obligated to disclose:  (1) deaths or felonies that have occurred on the premises; (2) prior occupancy by someone with a non-communicable disease; and (3) nearby sex […]

Introducing the Snell & Wilmer Real Estate Litigation Blog

The Snell & Wilmer Real Estate Litigation Group is proud to announce the launch of its new blog.  After decades of handling commercial disputes and trials involving real estate, the Group was officially formed in 2008.  The firm’s real estate litigation and trial attorneys formed the Group to maximize expertise, efficiency and results for the […]

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