Articles Posted in real estate law

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A lender was foreclosing on a house in Southern California, and the owner was arranging financing to avoid foreclosure. They were down to the wire, and the owner’s broker was in contact with the foreclosure officer. The foreclosure sale had been postponed to August 30, but they needed more time. The foreclosure officer said the property ” won’t go to sale because I have the final say-so and as long as I know that you could close it the first week of August [sic], I’ll extend it.”

Of course, he didn’t extend it. The owner closed on the new loan, incurring the costs and debt of a new loan. But, unknown to them, the lender foreclosed, and a lawsuit ensued.

The court found that the lender’s statement did not establish a contract, because the owner suffered no detriment, and provided no consideration. All the owner did was agree to pay the debt, which the owner was obligated to do anyway. The court contrasted this with a case in which an owner, by agreement with the lender, found a new buyer for the property who paid off their loan. The court found that locating a new buyer was not something they were obligated to do, and thus this was sufficient consideration to support a contract. But merely paying off the loan one agreed to pay is not consideration.

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Someone bought a property in Berkeley, then discovered that there was an easement across it that no one told her about. She sued her broker and the seller’s broker for failing to disclose the easement.

The buyer’s broker brought a cross-complaint against the seller’s broker for “equitable indemnity.” Under California law, where there are two tortfeasors (wrongdoers) who are both liable for the plaintiff’s injuries, they are entitled to have the liability split between them based on comparable fault. This can be accomplished through the cross-complaint for equitable indemnity.

However, the trail court judge threw out the cross-complaint, claiming that, since both brokers were already in the lawsuit, their comparable fault would be apportioned anyway in the trial.

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California anti-deficiency laws provide in some cases that on foreclosure the buyer/borrower has no personal liability; only the property is at risk. The law primarily protects residential properties; but in some cases buyers of commercial property can be protected. What follows are five steps to determine how the anti-deficiency laws apply to your commercial or investment property. These are the most common issues that arise. For our purposes, reference to “foreclosure” includes exercise of the power of sale in the deed of trust.

Disclaimer: The content of this comment contains general information based on California law and is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You will require specific legal advice and should not rely on general information provided here. You should consult with an attorney to discuss the matter and for any specific legal advice.

1. Determine if the anti-deficiency laws apply in your case.

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In a recent case in San Francisco, the landlord served a three-day notice, but never filed an unlawful detainer. The parties entered a settlement agreement, and the Landlord was sued by the Tenant for fraud and other claims relating to the pre-settlement conduct. Seems that the landlord was attempting to transform the property into condominiums, and there were other complicating facts.

The Landlord then filed a motion to have the claims of the Tenant stricken under the Anti-SLAPP (“strategic lawsuit against public participation”) statute. This statute was enacted to prevent parties from filing a lawsuit to discourage others from exercising their free speech rights.

An anti-SLAPP motion requires showing that the challenged claims are based on “protected activity;” that is, for our purposes, activity in furtherance of the right of free speech before a judcial proceeding, or in connection with an issue under consideration by a judicial body. (Protected activity is broader than this, but this article concerns only court-related activity.)

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Under California law, “benefit of the bargain” damages for breach of a real estate contract is the difference between the actual value of what the plaintiff got and what he expected to receive. If Joe breaches his contract to buy a house from Sam for $100,000, and Sam later sells it for $80,000, Sam is entitled to damages of $20,000.

In a recent California decision parties contracted to buy & sell a commercial property, with environmental and financial contingencies in the contract. There was a problem with subsurface contamination, and it was unclear what the cleanup cost would be.

The buyer unexplainably released all financing contingencies, though they apparently did not have a firm commitment from the bank. The lender said they would not fund the loan due to the environmental contamination. The seller ended up selling to a third party for less, and in the process lost out on a 1031 exchange.

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As noted in prior blog post the Fed confirms the end of program to buy mortgage securities which has been financing US debt. There is some evidence that the asset-backed securities market is already responding, and China has become a net seller of US Treasuries. The Fed claims they are in no hurry to raise rates but they will have to raise cash to finance government spending. It is only a matter of time -short, or shorter- before rates climb.

Law Office of James J. Falcone

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In my previous post, I discussed a case where the parties had a “non- refundable” deposit in their real estate purchase contract, but the court refunded it anyway.

Liquidated damages are damages whose amount the parties agree during the formation of a contract for the injured party to collect as compensation upon a breach.

In addition to the forfeiture concern, the court also noted that to find that the seller was entitled to keep the deposit without regard to actual damages would essentially create a “liquidated damages provision. Among other problems with this view, the court noted that California Civil Code section 1677 requires a liquidated damages clause to be”separately signed or initialed by each party to the contract.” That was not the case here. But what does it take to enforce a clause liquidating damages in a real estate purchase contract?

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A California Buyer entered a contract to buy Seller’s California beachfront property for $14 million. The agreement required a total of $620,000 in non-refundable deposits. The agreement did NOT contain a liquidated damages provision.

Buyers backed out of the deal, and Seller sold to someone else for $15 million- one million more that the original contract was for. Seller sued to get back their $620,000 deposit. The trial judge let the Seller keep the deposit.

The appeals court said no- allowing the Seller to keep the deposit would be an “invalid forfeiture.” Here, where the Seller eventually sold for more then the original contract amount ($1 million more), the Seller suffered no harm from the Buyer’s default. To allow Seller to keep the deposit would be a penalty in excess of any damages he caused.

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A California Broker entered a contract with a Buyer to locate commercial property for development; the broker would be representing the Buyer exclusively. They located a project, and the Buyer entered a contract to buy the property from the seller. The contract also required the seller to build over 175 condo units and obtain a certificate of occupancy before escrow would close.

There were delays, the certificates were never issued, the condo market collapsed, and escrow never closed. The broker sued the Buyer for its commission, which was $1.74 million.

The Buyer’s claimed it did not have to pay the commission, because escrow never closed. The Brokerage agreement stated that “the commission was to be paid the Broker through escrow at closing.”

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As reported in the Financial Times, the Federal Reserve plans to end its special program of buying mortgage securities in March. This program was implemented to keep mortgage costs – that is, the home buyer’s interest rate- artificially low to create a boost to real estate sales. The expectation is that the end of the program will result in an increase in rates, but how large a jump is a matter of debate.

As John Maudlin spells out, the purchase of these securities resulted in lower interest rates, but it also seems to have indirectly financed the US government deficit. The funds and banks that sold the mortgage securities turned around and bought US government debt or put the cash right back at the Fed. With a booming deficit, someone has to buy US debt, but who will, unless rates increase significantly, with a similar drop in the value of the dollar? If you need a real estate loan, now is the time. After the first quarter of 2010, rates are going up, and qualifying for that loan may be out of reach.

Law Office of James J. Falcone