R. Bernhardt

• Golden Gate University

Commentary on a recent California decision permitting a servient tenant to alter the dimensions of an existing easement, but not to extinguish it

Commentary on a recent California decision awarding damages for cutting branches on a neighbor’s tree

Commentary on a recent California decision giving a refinancing lender priority over a previously recorded lien.

Commentary on a recent California decision sanctioning an attorney for charging fees in advance for loan modification services

Commentary on a recent California decision dealing with a claim of agreed boundaries

Analysis of a recent decision dealing with the priority of claims against an owner of property held by the seller and by its secured lender.

This article analyzes a recent California appellate decision that rejects the claim of an Article 9 secured creditor to loan funds held in escrow to buy out a former partner of the borrower.

This article analyzes a recent California appellate decision dealing with the number of renewal options that a lease gives a tenant and what remedies the tenant has for misconduct by the lessor.

This article comments on a recent California appellate decision holding that the designated officer of a real estate corporate broker is not liable for failure to supervise employees.

This article comments on a recent United States Supreme Court decision holding that RESPA does prohibit the collection of unearned charges.

A recent California decision rejects the contention that the waivers contained in a guaranty are invalid because the document is really a promissory note.

A recent California decision suggests that the rule that a broker earns its commission when it procures a purchaser whose offer matches the seller’s asking price may be changing.

A recent California decision (now depublished) held that a tenant could offet the landlord’s subsequent profits from reletting against its earlier losses after the tenant abandoned.

A recent California decision holds that a guaranty is not triggered when the debtor’s lease is terminated by insolvency.

A recent decision applies California’s deficiency bar to the holder of a second mortgage note despite its previous transfer by the holder of the first.

A recent California decision allows homeowners to successfully their foreclosure sale because the original loan was unconscionable.

A recent Ninth Circuit decisions holds that homebuyers may state a claim for developer misrepresentations about its future sales plans despite the parol evidence rule.

In the past few months, two California decisions have made strong statements to lawyers about improper behavior in handling real estate matters for their clients. One such case is concerned with going into business with a client while representing the client and the other case addresses supporting the other side after the termination of the client'...

This article analyzes a recent California appellate decision holding that two lenders had equal priority because their mortgages were deemed received by the county recorder’s office at the same time when the overnight mail was opened.

Analysis of a recent California decision exempting the assignment of a deed of trust from California’s statutory recording requirement on the ground that the act applies only to mortgages.

Analysis of a recent Ninth Circuit Decision holding that plaintiffs have alleged sufficient injury for standing purposes in claiming that developers misrepresented the future quality of the neighborhood to them.

Analysis of a recent decision holding that the insurance carrier who had paid the first mortgagee had a superior right to the remaining value of the property by virtue of subrogation than did the second mortgagee, even though the second was also insured under the same policy.

A review of recent federal and state decisions in California involving mortgage transfers.

A review of recent California decisions involving challenges to mortgage foreclosures.

Landlord’s recovery of waste as affected by time of action.

A review of recent California decisions challenging the validity of mortgage transfers through MERS.

Two cases sanctioning lawyers for improperly 1) going into business with the client, and 2) working with the other side after quitting the case.

Analysis of a Seventh Circuit decision involving priority of claims to rents.

Ability of secondary market participants to foreclose on transferred mortgages.

Analysis of a Ninth Circuit involving pollution by a former owner.

Analysis of a California decision applying usury sanctions to third party investors.

This article is a dialogue between Roger Bernhardt of Golden Gate University School of Law and David Callies of University of Hawaii’s William S. Richardson School of Law as to whether a city’s affordable housing impact fees, set-asides, and exactions pass constitutional muster.

This article forewarns litigators and transactionalists of the potential pitfalls regarding lost profits where a seller breaches a contract it conveys property. Considerations cover the various stages of a purchase agreement from negotiating the deal, conducting litigation, and introducing evidence.

This article discusses the addition of CCP Section 580e to the current anti-deficiency statutes, the kinds of borrowers protected and lenders affected. The article coves the new Section 580e exceptions and the protection it provides in short sales.

This article examines the decision in Holmes v. Summer where the court held that a sellers broker "had a duty to disclose... liens before the buyers signed... [an] agreement." The article discusses the conflict between the duty of confidentiality and the new duty of disclosure to the other side.

This article reviews Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envt’l Protection where four Justices announced a judicial decision could, under the right circumstances, by itself constitute a taking of a litigant’s property, and applies that rule to existing California Supreme Court cases on 1) the implied warranty of habitability, 2)...

This article examines SB 1178 and its potential to significantly modify the CCP 580b anti-deficiency rule.

This article examines the the California Supreme Court case Steiner v. Thexton as to illusory promises and critiques the various standard broker forms Realtors Residential Purchase Agreements.

This article discusses title Insurance & the secondary market & warehoused loans.

This article highlights the importance of a judgment creditor to record a request for notice of default and to execute on insurance funds before they are paid to the judgment debtor.

This article discusses Holbert v. Fremont Inv. & Loan where a homeowner refinanced her home numerous times in the recent past and asks whether she would now be better off to default.

This article discusses the California decision in RC Royal Dev. & Realty Corp. v. Standard Pac. Corp. finding it a cautionary warning to clients who try too hard to avoid honoring their obligation to pay a commission owed to their broker.

This article criticizes the 2009 California Bar Exam Property question for its irrelevance to modern practice.

This article is a discussion between Professor Roger Bernhardt of Golden Gate University School of Law and Professor David Callies of University of Hawaii’s William S. Richardson School of Law as to whether a city’s affordable housing impact fees, set-asides, and/or exactions pass constitutional muster.

A recent decision made me think that it was time to write about what I think are some misapprehensions about the effectiveness of deeds in lieu of foreclo-sure. In Hendrickson v JGR Properties Inc. 2008 WL 5053440, Ohio Court of Appeals, December 2008), JRG acquired property on March 30, and on April 3, it gave Hendrickson a note, a mortgage (proba...

This article considers the California case Garcia v. Roberts, showing that a sale and leaseback can actually be a mortgage, with the twist that if title to the property goes directly to the lender from a third party seller, rather than from the borrower, the mortgage is one of purchase money rather than refinance.

This article discusses simultaneous priority found in a Nebraska case where a notice of commencement and a trust of deed were recorded within five minutes of each other. It also considers why UCC article 9 defines filing so differently than state real estate recording laws do.

This article functions as an intellectual checklist for navigating community property issues in divorce cases where title to the family home has been taken in only one spouse’s name. The discussion includes potential claims, constructive and inquiry notice, and the evidence code presumption.

This article discusses the use of the word “exclusive” in easements through, with advice to transactionalists as to prudent drafting and to litigators as to arguments to make for dominant and servient estate holders.

This article considers the difficulty of drafting future rental provisions as illustrated in California National Bank v. Woodbridge Plaza, LLC.

This article discusses a recent California case illustrating some potential ethical dangers for lawyers as to conflicts of interest, secret profits (while helping a client secure a mortgage loan) and elder abuse claims.

This article discusses the California case Blickman Turkus v. MF Downtown Sunnyvale which could have been a rich source of guidance as to brokers’ commissions, disclosure duties, confidential communications, and agency, but instead focused on pleading issues.

This article urges attorneys to make sure that their clients are well advised when deal with the issue of relative priority of leases and loans. The subordination clause may be less important than the nondisturbance and attornment provisions.

This article discusses a California case where the county attempted unsuccessfully to alter a parcel’s status by way of a development agreement rather than by a zoning amendment.

This article discusses surprising outcomes in dealing with equitable contribution and equitable subrogation and that since the rules may eliminate the rights of parties to equitable contribution or subrogation, counsel must create intraguarantor agreements that contain appropriate contractual contribution rights to replace them.

This article discusses two California Court of Appeal cases where tenants lost actions against credit reporting agencies.

This article discusses a California case rejecting a guarantor’s claim of equitable contribution from co-guarantors because they were not at the same level of liability, and also rejecting a subrogation claim because it could be used only against the primary debtor, not other secondary debtors.

This article discusses the unpredictability of determining whether the rules of offset or the rules of priorities will prevail in a situation, and goes into the question of whether attorneys’ fees will be given priority over other claims when those fees are contractual and do not relate back. The article concerns a California decision which held th...

This article reviews conflicting appellate court decisions where landlords were sued in tort under state statutes that all imposed the same general duty to take care of the property but failed to address what happens when personal injuries follow.

This article examines a California decision that held that the attorneys fees of a successful purchaser in a specific performance action are subordinate to any liens the seller imposed on the property during the litigation.

This article discusses the California Supreme Court case Sterling v. Taylor which held that extrinsic evidence may be admitted to support a claim that the Statute of Frauds has been met. When a writing is not sufficient, the attorney must not only decide whether there is sufficient supporting evidence to get past the Statute of Frauds, but also whe...

This article examines option to purchase agreements and when the doctrine of relation back applies, with a warning as to the effect of altering the terms of an existing deal.

This article discusses a case where the buyer was defrauded by a real estate broker into purchasing property he could not afford.

This article discusses a Wyoming Supreme Court case which refused to accept the Restatement’s position that equitable subrogation ought to be available to refinancers even though they know or have constructive notice of intervening other creditors.

This article criticizes the property essay given on the July 2007 California Bar Exam.

This article examines a case involving subescrows, popular in southern California. They are not the same as true escrows, but their role if often blurred.

This article discusses the conflict that arises in commercial property where neither tenant nor landlord has a duty to repair: the landlord may not evict and the tenant may not quit. The tenant may ultimately be held responsible for the repair under the duty to avoid waste.

This article details the conflicts of interest that can arise when an attorney representing a buyer also acts as escrow agent for both parties.

This article examines the commission claims of buyers’ brokers encounter with commissions and the tort for interference with prospective economic advantage.

This article discusses the nature of unlawful detainer actions in California and the difficulties they create on tenants’ ability to negotiate with landlords over honest disputes..

This article compares judicial foreclosure to nonjudicial trustee sales and the significance of recitals in the trustee’s deed

This article discusses a California decision holding the broker liable to a buyer for misrepresenting the ability of the sellers to convey good title.

This article discusses the uncertainty in commercial lease situations where the roof requires complete replacement, and neither party is obliged to do so.

This article reviews what landlords can and can’t do when confronted with an abandoned tenant in California, including considerations of CC 1951.2, security deposits and the impact of the CC 1950.7 mandates to return return the unused part of a security deposit - even when the damages may exceed the security deposit.

This brief article criticizes the property essay question on the July 2005 bar exam for concentrating on covenants running with the land, which is a rare occurrence in everyday practice.

This article advises attorneys representing landlords in drafting exculpatory clauses in California where an exculpatory clause that does not include the word “negligence” protects a landlord only from liability for passive negligence, not for active negligence. Even a well-written exculpatory clause may not shield the landlord of liability in crit...

This article previews two California cases where easements were acquired - one through prescription, the other by implication – and where conditions had thereafter changed before the defendants had acquired the servient parcels. The article deals with the question as to how title insurance protects clients who are acquiring property against being h...

This article discusses arbitration clauses between buyers, sellers, and brokers. In California. CCP 1298 is preempted by 9 USC 2, but agreements, however, may still require being initialed. Brokers are cautioned on using the CAR Residential Purchase form because the arbitration clause may be ineffective.

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theories can also be used if the property was possessed for at least five years and other stand...

This article discusses purchase agreements and the clauses affecting their termination and extension, including the question of when the contract is formed and what happens when a party is defrauded out of a contract rather into one. Also covered are ‘time is of the essence’ issues,.

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.

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.

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.

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 o...

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.

This article deals with a California case involving alleged predatory lending and analyzes the duty of fair dealing and why lenders prefer an objective reasonableness standard to that of subjective good faith.

This Article describes an alternative way of teaching the Property course so as to have students appreciate that the rules covered there are relevant to the everyday practice of law. It concentrates on the use lawyers make of those rules, rather than treating the rules as ends in themselves.

Measurement and calibration play an increasingly important role in robot production, as well as in robot implementation and operation within computer-integrated manufacturing or assembly systems. The production, implementation and operation of and with robots and multi-axis machine tools are all areas where robot-calibration results can lead to sig...

The Uniform Land Security Interest Act (ULSIA or Act) seeks to improve the collection process in cases of default; indeed, most of the text and commentary of the Act deals with that topic. ULSIA has the blessings of the American College of Real Estate Lawyers and the Real Property Section of the American Bar Association. However, though it was firs...

Analysis of California’s statute permitting real estate brokers to select whether to be single agents or dual agents.

Commentary on a recent case denying a mortgagee the opportunity to cure the omission of a junior lienor from its foreclosure action because of the doctrine of merger.

Analysis of recent decisions in California and New York dealing with broker commissions.