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2003

Publications

Property Law and Real Estate

Articles 1 - 23 of 23

Full-Text Articles in Law

The Lessened Lis Pendens, Roger Bernhardt Sep 2003

The Lessened Lis Pendens, Roger Bernhardt

Publications

This article warns attorneys to advise their clients to think twice before recording that lis pendens. Two California cases demonstrate that attempts to obtain a lis pendens may be worse than ineffective, and quite dangerous, leading to liability for attorney fees and compensatory and punitive damages.

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Balancing The Automatic Stay, Roger Bernhardt, James Stillman Jul 2003

Balancing The Automatic Stay, Roger Bernhardt, James Stillman

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This article discusses a Ninth Circuit Bankruptcy Appellate Panel decision holding that purchasers at a trustee sale can successfully have the stay that originally prohibited the sale annulled if the court finds that the equities are in their favor.

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Failing Grade: Our Irrelevant Bar Exam, Roger Bernhardt Jul 2003

Failing Grade: Our Irrelevant Bar Exam, Roger Bernhardt

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This article criticizes the California Bar Exam’s testing of real property. The author argues that the Exam fails to test modern issues relevant to everyday practice.

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Making Sense Out Of Insurance, Condemnation, And Settlement Clauses In Deeds Of Trust, Roger Bernhardt May 2003

Making Sense Out Of Insurance, Condemnation, And Settlement Clauses In Deeds Of Trust, Roger Bernhardt

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This article discusses a California case that held that moneys received by trustors in settlement of their damage claims against a contractor need not be turned over to their lender pursuant to their deed of trust, but concludes that other court are not likely to agree with the holding that “owed” means “amounts currently due and payable” instead of principal balance, and that lenders will probably revise their forms to escape that reasoning..

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The Disturbed Subtenant Roger Bernhardt, Roger Bernhardt Mar 2003

The Disturbed Subtenant Roger Bernhardt, Roger Bernhardt

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This article discusses the advantages of a nondistrubance and attornment provision in a lease. An NDA clause benefits the both the subtenant and landlord and may help a tenant attract subtenants. It gives security to subtenants that if the tenant declares bankruptcy the subleases will remain intact. The landlord benefits because it eliminates the need to find new tenants.

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Broker Buying And Then Reselling: Roberts V Lomanto, 2003, Roger Bernhardt Jan 2003

Broker Buying And Then Reselling: Roberts V Lomanto, 2003, Roger Bernhardt

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This article discusses a California case which held that a seller’s real estate agent breached her fiduciary duty when she contracted to purchase the property, assigned the contract to a third party buyer, and refused to disclose to the seller the amount of the assignment fee or third party buyer’s purchase price.

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Dragnet Clauses: Fischer V First Int’L Bank, 2003, Roger Bernhardt Jan 2003

Dragnet Clauses: Fischer V First Int’L Bank, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that a boilerplate “dragnet” clause in a deed of trust did not defeat the borrower’s claim that the bank’s other loans to the borrower were not cross-collateralized.

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Foreclosure Purchaser Vs Late Redeeming Owner: Nguyen V Calhoun, 2003, Roger Bernhardt Jan 2003

Foreclosure Purchaser Vs Late Redeeming Owner: Nguyen V Calhoun, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that a purchaser at a foreclosure sale acquires good title to property, despite the defaulting borrower’s sale of the property on the same day, when the lender did not receive the payoff funds until after the foreclosure sale.

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Frustrated High Bidders At Void Foreclosure Sales: Residential Capital V Cal-W. Reconveyance, 2003, Roger Bernhardt Jan 2003

Frustrated High Bidders At Void Foreclosure Sales: Residential Capital V Cal-W. Reconveyance, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that a high bidder at a foreclosure sale, who is later denied a trustee’s deed because of a defect discovered after its bid was accepted, has no claim to the “benefit of the bargain” damages.

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Interference With Contract And The “Manager’S Privilege”: Huynh V Vu, 2003, Roger Bernhardt Jan 2003

Interference With Contract And The “Manager’S Privilege”: Huynh V Vu, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that, in an action by a broker against a seller’s husband, who managed the seller’s property, for tortious inference, the husband was entitled to assert the defense of “manager’s privilege.”

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Landlord’S Construction Of Defective Tenant Improvements: Del Taco V University Real Estate, 2003, Roger Bernhardt Jan 2003

Landlord’S Construction Of Defective Tenant Improvements: Del Taco V University Real Estate, 2003, Roger Bernhardt

Publications

This article discusses a California case which held the transfer of property relieved a former lessor of liability to the lessee because the sale of the property terminated privity of estate.

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Late Payment Penalties In Leases: Harbor Island Holdings V Kim, 2003, Roger Bernhardt Jan 2003

Late Payment Penalties In Leases: Harbor Island Holdings V Kim, 2003, Roger Bernhardt

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This article discusses a California case which held a provision of a commercial lease doubling rent in the event of breach by the tenant was an unenforceable penalty.

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Liquidated Damage Provisions In Sales Contracts: Timney V Lin, 2003, Roger Bernhardt Jan 2003

Liquidated Damage Provisions In Sales Contracts: Timney V Lin, 2003, Roger Bernhardt

Publications

This article discusses a California case which held a provision providing for forfeiture of buyer’s deposit was unenforceable even when included in a settlement agreement.

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Love Your Husband – But Don’T Lend Him Money, Roger Bernhardt Jan 2003

Love Your Husband – But Don’T Lend Him Money, Roger Bernhardt

Publications

This article discusses a California case where the husband’s note to his wife was held invalid for undue influence, and questions what unfair advantage means, its consequences, and how it can be rebutted.

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Measure Of Liability For Broker Misrepresentation: Fragale V Faulkner, 2003, Roger Bernhardt Jan 2003

Measure Of Liability For Broker Misrepresentation: Fragale V Faulkner, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that the measure of damages for a broker’s intentional misrepresentation to principal agent is not limited to the buyer’s out-of-pocket losses but may be measured by the benefit-of-the bargain rule.

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Rent Control: Santa Monica Rent Control Bd. V Pearl Street, Llc, 2003, Roger Bernhardt Jan 2003

Rent Control: Santa Monica Rent Control Bd. V Pearl Street, Llc, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that a rent control board’s suit alleging that a landlord was not entitled to charge market rate rents was not a SLAPP suit because it was based on the alleged charging of unlawful rent, not the landlord’s act of filing documents with the board.

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Redeeming From Tax Sales: Bevan V Socal Communications Sites, 2003, Roger Bernhardt Jan 2003

Redeeming From Tax Sales: Bevan V Socal Communications Sites, 2003, Roger Bernhardt

Publications

This article discusses a Ninth Circuit case which held that when a lienor forecloses on a debtor’s property that which is also subject to an IRS lien, the lienor will not be equitably subrogated to the IRS claim where it eliminates the IRS’s right of redemption by paying the IRS the amount owed by the debtor to it.

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Retaliatory Withdrawals From Rental Housing Market: Drouet V Superior Court, 2003, Roger Bernhardt Jan 2003

Retaliatory Withdrawals From Rental Housing Market: Drouet V Superior Court, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that in an unlawful detainer action, a landlord’s bona fide intent to withdraw the property from the rental market defeats the tenant’s claim of retaliatory eviction.

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Seller’S Withdrawal For Buyer’S Late Performance: Ninety Nine Invs. V Overseas Courier Serv., 2003, Roger Bernhardt Jan 2003

Seller’S Withdrawal For Buyer’S Late Performance: Ninety Nine Invs. V Overseas Courier Serv., 2003, Roger Bernhardt

Publications

This article discusses a California case which held that a buyer was entitled to specific performance when the seller’s failure to comply with escrow instructions prevented the buyer’s timely performance of the financing condition.

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The Undue Influence Presumption Vs The Record Title Presumption: Marriage Of Delaney, 2003, Roger Bernhardt Jan 2003

The Undue Influence Presumption Vs The Record Title Presumption: Marriage Of Delaney, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that when an interspousal transaction is to one spouse’s advantage, the Family Code presumption that the transaction was a result of undue influence is trumped by the Evidence Code’s presumption of record title.

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Sacred Sites And Religious Freedom On Government Land, Richard B. Collins Jan 2003

Sacred Sites And Religious Freedom On Government Land, Richard B. Collins

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No abstract provided.

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Filling In The Blank Spots On Powell's And Stegner's Maps: The Role Of Modern Indian Tribes In Western Watersheds, Charles Wilkinson Jan 2003

Filling In The Blank Spots On Powell's And Stegner's Maps: The Role Of Modern Indian Tribes In Western Watersheds, Charles Wilkinson

Publications

No abstract provided.

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In The Absence Of Title: Responding To Federal Ownership In Sacred Sites Cases, Kristen A. Carpenter Jan 2003

In The Absence Of Title: Responding To Federal Ownership In Sacred Sites Cases, Kristen A. Carpenter

Publications

This paper examines the challenge of protecting American Indian sacred sites located on federal public lands. Many have addressed this issue in the religious freedoms context, but I believe the problem is just as much about property law. The Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association, for example, would appear to suggest that federal ownership of certain sacred sites trumps tribal free exercise clause claims regarding those sites. This holding corresponds with a classic model in which "[p]roperty is about rights over things and the people who have those rights are called owners." However, a …

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