BPE Law | Blog

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Februrary 20, 2025

We’re back with another Business Brunch on February 20, 2025, featuring an important discussion you won't want to miss on Deed & Title Fraud Insurance with special guest speaker Tom Lugar from Placer Title Company. If you missed our last event, check out the recap video, above!

Februrary 15, 2025

When people inquire about forming a “partnership” or a “joint venture,” it’s essential to understand the distinctions between the two, as these differences can be quite subtle yet significant for determining the best structure for achieving business goals.

Februrary 7, 2025

Dearest gentle reader, I am back! And if you thought my five-part non-disclosure blog was enough…you were wrong… there is just too much exciting stuff to write about. This time it is Assembly Bill 968…"the flipper disclosure."

January 28, 2025

Two new laws went into effect on January 1, 2025 that could have potential effects on the real estate transaction process. The first was Assembly Bill 2992, which requires the use of buyer representation agreements. As we all recall, in October 2023 the National Association of Realtors (“NAR”) lost a major class action case. The fallout sparked massive amounts of copy cat litigation across the country that was ultimately settled by NAR in a nationwide settlement.

January 21, 2025

A new year brings with it new opportunity and, at least in California, new additions or revisions to the laws. Exciting stuff! Luckily for you, we will happily dredge through the plethora of changes to provide you, our audience, an update on the laws that are most pertinent to the field of real estate. So, stay tuned for further blog posts in our “new laws” series.

January 14, 2025

Investor forms a trust and buys rental properties. Maybe they pay cash, maybe they finance, but they take the property at the time of closing in the name of their trust. The investor never owns the property in their name, they never live there, they simply operate it as a rental for a period of time. Then the market or life circumstances make it advisable or necessary to sell that rental property. So they hire a real estate professional to help them navigate a sale.

December 31, 2024

As I look back on 2024, it proved to be an interesting year. Through the year, BPE continued to help and work with hundreds of clients across Washington, Nevada and California. We look forward to the launch of our next office in Cody, Wyoming, which should be up and operational by Summer 2025.

November 11, 2024

Two hundred and forty-nine years ago, in 1775, thirteen fledgling British colonies on the east coast of North American called on their citizens to help defend their rights. In April 1775, Paul Revere set out on his midnight ride from Boston to Lexington Massachusetts to alarm the countryside that British soldiers were marching from Boston towards Concord to destroy provisions, powered and ammunition that was stored for the Massachusetts militia.

October 24, 2024

In today's article we will look at road maintenance agreements. Once the easement is established and multiple parties are benefiting from the access, how is the responsibility to maintain the property split amongst the benefited parties.

October 8, 2024

Boundary line fences have a long history of generating disputes between neighbors. One neighbor wants to change the location, another wants a particular style of fence. One wants nothing to do with the maintenance, another seeks pristine maintenance. All of these create strife and foster hostility between neighbors.

September 3, 2024

When the purchaser of the downleg property cannot obtain financing to complete the transaction, the seller/taxpayer may want to do a seller carry back transaction. Can it be done? Unless certain precautions are taken, the taxpayer's promissory note or any payments received thereunder would be considered property "not solely in kind" and "shall be recognized, but in an amount not in excess of the sum of such money." IRC §1031(b). The taxpayer can either include the promissory note financing the transaction in the IRC §1031 exchange or handle it separately.

August 29, 2024

Let’s talk money, perhaps the most important question of all for the buyer is “what can I recover if I win?” and for the seller, “what can I be on the hook for or in the alternative, what do I get if I win.” While entire books are dedicated to this question and there is an entire law school class called “Remedies”, this part will give you at least a glimpse into the world of remedies for non-disclosure, while by no means addressing every possibility or every set of facts.

August 23, 2024

It is relatively easy to understand the concept in Exchanges that the Seller of the downleg property should be the same as the Buyer of the upleg property in order that the seller's capital gains tax can be moved forward to their new property. This is generally called the Same Taxpayer Rule. It gets trickier however when title is held by different entities.

August 19, 2024

On August 17, the practice changes outlined in the NAR Settlement Agreement will go into effect for covered people and entities. What does this mean? Who is covered? How does this affect me? All three questions are answered below (with the caveat that the answer to the last question depends on who is reading this article).

August 15, 2024

Having exhausted the pre litigation methods for resolving a non-disclosure dispute, we turn our attention to the formal litigation options.

July 23, 2024

Money is often a major player if not the player in determining how a nondisclosure is handled on a practical level. If a buyer’s damages for fraud are $20, there is no rational economic justification for litigating that issue. Admittedly, this example is at least a little hyperbolic, mold remediation, HVAC repairs, and leaking roofs are all expensive especially when the buyer has just purchased a property and is likely not flush with cash. As such, pre litigation means of resolving a nondisclosure may be particularly attractive in situations where a buyer cannot fund litigation or the damages, while substantial are not so substantial to justify years of litigation.

July 18, 2024

July 9, 2024

Clients often come to us with business or investment property that is under-performing. The client wants to continue the investment but feels that a new property would generate a higher rate of return. The client's perceived problem is that as soon as they sell the property, they will get hit with a capital gains tax. The good news is that the tax code provides a "non-recognition" provision to alleviate this exact predicament.

July 5, 2024

In 1776, 56 imperfect patriots gathered at Independence Hall in Philadelphia to formally declare the American Colonies’ independence from Great Britain. Little more than a year earlier, the troops of Great Britain had marched on Lexington and Concord, where the first shot was fired in what would become known as the American War for Independence or the American Revolutionary War. These patriots, their families, their neighbors, and citizens of the colonies, sacrificing and risking their own self-preservation, would take the step of creating a new country in the New World. This American Experiment, predicated on self-governance, peaceful transitions and leadership selected by the people, was a new way of thinking.

July 3, 2024

Are you thinking about loaning someone money? You might think you’re being nice when you offer a 0% or low interest loan, however the IRS thinks otherwise. When a someone loans money interest-free or below market rate, the IRS will impute an interest rate and charge taxes based on that imputed interest rate. That means the IRS deems interest to be received, regardless of whether actual interest was paid.

June 28, 2024

Today’s blog is a little different than normal. We want to take to time acknowledge the professional accomplishments of some of our attorneys and say congratulations to the recipients. We are truly humbled and grateful for the support our clients, peers, and community have shown us over the years and continue to show.

June 25, 2024

Now that we have a working knowledge of the applicable laws and each actors’ duties, we can move to the causes of action most likely to be alleged in a non-disclosure action. The most common three causes of action are negligent misrepresentation, fraud or intentional misrepresentation, and breach of contract. I have also included a bonus cause of action, breach of fiduciary duty as it applies to real estate agents. Be aware, this is not an exclusive list, but these are the core causes of action at play.

June 11, 2024

Before diving into the thrilling world of nondisclosures, it is worth taking a moment and becoming familiar with the “rules of the game,” i.e. the applicable law. You don’t step onto the field without knowing the rules of the game.

April 23, 2024

On April 23, 2024, the Federal Trade Commission (FTC) issued a final rule that bans non-competes nationwide. According to the FTC, this final rule would result in people having greater freedom to change jobs, start new businesses, or even bring new ideas to the market.

April 19, 2024

The United States Supreme Court recently issued its ruling on a case that originated in our own backyard of El Dorado County in Sheetz v. County of El Dorado, California. Stemming from a dispute between a property owner and our local El Dorado County government, this case discusses the delicate balance between regulatory interests and individual property rights. Let’s delve into the case’s nuances and explore its implications for real estate law.

March 18, 2024

On March 15, 2024, the NAR broke the news that it had reached an agreement with the class-action plaintiffs in the Sitzer-Burnett anti-trust commission lawsuit. This is the lawsuit in which NAR and the remaining defendants had lost at trial in October 2023 and the jury returned a verdict for ~$1.8 billion in damages (that could have subsequently tripled if District Judge Hon. Stephen Bough awarded treble damages). Under the agreement, NAR will pay $418 million over a four-year period.

February 6, 2024

You look for that new home, maybe it is your starter home and you stretched financially to get that first home. Maybe, it is your “dream” home; or maybe it is your retirement home. Any way you look at it, you expended significant sums of money to acquire what for most people is the single largest purchase they will make during their life. Their home. All is well, until that first storm hits. When all of the sudden drops of water begin to drip from the light fixture (this actually happened to me). Or water pooled in the garage. Or there was river flowing through the crawl space. Or water was pouring in around a sky light. You get the picture. The dream home just became a vision of Walter Fielding and Anna Crowley’s worst nightmare. The next question naturally becomes – what are my rights?

January 30, 2024

California joins 46 other states by enacting the Uniform Directed Trust Act on January 1, 2024. The new statute adds Probate Code sections 16600¬–16632. The California Act will apply to any decision or action occurring after January 1, 2024, regardless of the date the trust was established.

January 16, 2024

January is a good time to check your financial situation. Make sure all of your investment accounts, 401ks, IRAs and Life Insurance policies have designated beneficiaries. It is also a good time to create your Estate Plan or review your existing Estate Plan with an Estate Planning professional.

January 9, 2024

Every year we take an opportunity to look forward to the New Year and 2024, promises to be an interesting year. A main question will be focused on how will the real estate market perform this year? 2023 saw higher interest rates and significantly reduced number of transactions in the local markets. In the Sacramento metro area, I recently saw a statistic that suggested that transactions were about 50% of a normal year. Needless to say, we are anticipating the market adjusting.

December 21, 2023

As I look back on 2023 – I do so with mixed emotions. 2023 was a year of both tremendous difficulty and incredible highs. Many of you know that for me personally, 2023 started off with the passing of my father on January 4, 2023. What appeared to be a cancer recovery story quickly turned to another reminder of how harsh that disease can be. To my team and BPE and all of you, I want to say “Thank you”. I know these words are not enough, but I want to say Thank you for being patient with me, Thank you for giving me the space I needed to process, but most of all Thank you for sticking with me and BPE as I navigated (and continue to navigate) through this journey in life.

November 21, 2023

If you’re keeping up with our coverage of the line of commission lawsuits across the country, you’ll recall that several national real estate companies settled with the class-action plaintiffs a month-or-so before trial commenced in the first case. The parties that did not settle: National Association of Realtors®, Keller Williams, and Berkshire Hathaway HomeServices, were hit with a whopping $1.8 billion to potentially $5.4 billion jury award in favor of the plaintiffs. This was the Burnett trial. The Moehler trial starts in mid-2024, and the same law firm representing the class-action plaintiffs just opened another case in Gibson that attempts to ropes-in several other national real estate companies. If you’re scratching your head wondering why all these lawsuits are going after NAR and national brokers at the same time, here’s a brief background:

November 20, 2023

Today’s blog is different than normal. We want to take time to acknowledge the professional accomplishments of some of our team members. George “Trey” Van Dyke passed the California State Bar, and will be taking a position as an associate attorney for the BPE Law Group after he is sworn in as an attorney. Mr. Van Dyke has been a legal intern with the BPE Law Group for over two years. His experience as a Captain in the United States Air Force and as a licensed real estate agent, prior to becoming an attorney, form a solid foundation for Mr. Van Dyke to be a superb attorney for the BPE Law Group. We are proud of his accomplishments and look forward to him being sworn in as an attorney in the near future.

November 20, 2023

Starting on January 1, 2024 both new businesses, and existing entities will need to comply with the new Corporate Transparency Act. That means that starting January 1, 2024, many companies will be required to report information to the U.S. government about who ultimately owns and controls them.

November 7, 2023

If you haven’t been glued to the Real Estate Legal News Channel (don’t look for it) over the past few years, you may not be aware of a landmark jury decision that was just awarded a couple days ago. This jury verdict is from one of two class-action lawsuits that have taken aim at the NAR’s Participation Rules, that require listing agents to make a blanket offer of compensation to buyers’ agents to list the property on the Multiple Listing Service, commonly known as MLS. Nearly all the most prominent real estate brokerages with franchises across the country were also sued along with the NAR.

October 10, 2023

In part one of this series, we introduced the concept of shared land rights and provided some introductory information on easements and some common terminology to be aware of. In part two of this series, we discussed three of the most common easements found today: express easements, implied easements – by necessity, and implied easements – prior existing use.

October 3, 2023

In part one of this series, we reviewed the concept of shared land rights and why this information is very important for all real estate owners, no matter how experienced they may be. We also provided some introductory information on easements and some common terminology to be aware of. Be sure to revisit part one if you need a quick refresher on this terminology. Because of how common shared land rights are, this series is intended to help you identify shared land rights and to protect or defeat these rights, depending on whether you are the owner of the dominant or servient tenement.

September 26, 2023

Whether you just purchased or are a long-time owner of real estate, it is very important to understand the concept of shared land rights to prevent future litigation. For example, many individuals assume that their newly purchased residence is exclusively theirs. They then spend their hard-earned money to build a fence or plant several bushes along a bare strip of land on their property. The neighbors then approach the new homeowners, demanding the blockade be removed. Surprised, these new homeowners have inadvertently stumbled into the world of shared property rights.

September 19, 2023

Thus far in this series on the CAR Forms we have completed our review of the Residential Purchase Agreement (“RPA) by examining contingencies and how they work, then reviewing liquidated damages and cancelling a contract, followed by collecting the earnest deposit and specific performance when parties breach and finally reviewing the contractual language related to closing an escrow. This is the process of navigating the RPA from a high level.

September 12, 2023

Thus far in this series on the CAR Forms, we have completed our review of the Residential Purchase Agreement (“RPA) by examining contingencies and how they work, then reviewing liquidated damages and cancelling a contract, followed by collecting the earnest deposit and specific performance when parties breach and finally reviewing the contractual language related to closing an escrow. This is the process of navigating the RPA from a high level.

September 5, 2023

In part 4 of this series on the CAR forms, we examined the escrow deposit and the specific performance and remedies related to buyer and seller breaches of the agreement. Today, we look at closing the transaction under the CAR forms, the timelines and important legal implications related to complying with the written agreements. Failure to follow the contract, intentionally or unintentionally, can create significant legal issues.

August 28, 2023

In part 3 of this series, we examined liquidated damages and its relationship with the RPA. Liquidated damages are the hammer that seller’s have when a buyer breaches the RPA. Questions often come up related to how one goes about collecting that escrow deposit when the buyer breaches and the potential to sell the property while the escrow deposit is in dispute. Both are legitimate issues.

August 21, 2023

In part 2 of this series, we examined the impacts of the contingencies and the contractual importance. We examined the writing requirements and survival of contingencies even when time lapses. Today, we look at how to effectively cancel a contract and what happens when the buyer the breaches the agreement and remedy of liquidated damages.

August 15, 2023

In part one of this series we introduced the series on Understanding the CAR Residential Contract Series. The idea behind the series is to give a behind the scenes look at the legal workings of a residential transaction from the legal perspective. Many buyers and sellers do not understand the complexities that these contracts provide or why certain provisions exist. Today, we begin our journey to unpack the complexities of the Residential Purchase Agreement, generally referred to as the RPA.

August 8, 2023

Every year we work with hundreds of individuals including investors, buyers, sellers, and real estate professionals. This work is centered on understanding how the real estate contracts effect everything from a specific performance and non-disclosure lawsuit to the relationship between buyer and seller or client and agent to the impact on an earnest money deposit. Last year, the California Association of Realtors (CAR) released a significantly revised Residential Purchase Agreement (RPA). Over the next several weeks we will walk through the standard transaction with the updated forms.

July 24, 2023

What is the Estate Tax? An estate tax is the Federal Government’s way to tax your estate’s assets when you die. The estate tax has been significantly avoided by most people for the last decade, primarily through smart and proactive estate planning.

July 18, 2023

With over 950 craft breweries, California is the go-to state for local brewers to set up shop and sell some amazing locally brewed beer. Will California stay the leading state for craft beer brewers? Craft beer brewers will be happy to hear that California has recently passed favorable legislation aimed at promoting the growth of the craft beer industry, and helping small businesses grow in an ever-competitive market.

July 18, 2023

July 10, 2023

Risk management has been a hot topic, and routinely, agents are trying to reduce liability exposure in the way the agent provides disclosures. It is a rare week that goes by where we don’t get a question about the agent’s duty to disclose certain items and we routinely defend agents when they are accused of failing in their disclosure obligations. One of the more common scenarios that we are questioned with is, “I have this listing and the seller has told me about some issues – but the seller told me that I am not allowed to disclose the information to the buyer. What should I do?”

June 27, 2023

The sale of a dental practice is a complicated matter. From considering what will be included in the sale, what happens to employees, the desirability of the business, and tax liabilities, there is a lot that could easily go wrong without the right plan in place. Due to the complexity of dental practice sales, we have put together a guideline of do’s and don’ts to help navigate the sale.

June 20, 2023

We are often asked by parties to real estate litigation, what is it that protects my rights as a litigant? Lawsuits take time and there is no certainty that my rights will be protected if a defendant decides to transfer or cloud title regarding a property that is the subject of litigation. This uncertainty creates an angst for the plaintiff who is about to embark on a legal claim. The law provides that when there is litigation in which the plaintiff asserts a real property claim which would affect title to, or the right to possession of, specific real property or the use of an easement the plaintiff may record a notice of pendency of action, or “lis pendens”.

June 9, 2023

In a controversial move, the United States Supreme Court recently issued its opinion in Sackett v. EPA (2023) 598 U.S. ____. Sackett is the latest in a string ¬of cases about “Waters of the United States” (“WOTUS”) as defined by the federal Clean Water Act (“CWA”). While this may seem to be a dry and technical topic, the definition of WOTUS is important to anyone looking to develop land because it determines the extent of the U.S. Army Corps of Engineers’ (“Corps”) and the U.S. Environmental Protection Agency’s (“EPA”) regulatory authority under Section 404 of the CWA.

May 27, 2023

Memorial Day, originally known as Decoration Day, is unique and special to the American people.

April 4, 2023

The Federal Reserve continues to ratchet up interest rates and as a result the once hopping housing market has begun to constrict rapidly. Along with the rising interest rates, consumer demand for homes has fallen and seems likely to continue to fall. When the market does an about face as it seems to be doing now, a host of new legal issues arise. One such issue occurs when a buyer pulls out after entering into contract for the purchase of a home. This results in a dispute over “liquidated damages.”

March 28, 2023

On March 10, 2023, the Department of Justice (DOJ) filed an amicus brief in the 9th Circuit Court of Appeals case Top Agent Network (TAN) v. National Association of Realtors (NAR), weighing in on an antitrust lawsuit against the real estate industry’s largest trade group. The District Court for the Northern District of California (located in San Francisco) dismissed the case with prejudice, meaning District Judge Vince Chhabria would not allow TAN to amend their complaint and start anew. Judge Chhabria commented, “[i]t may well be that NAR’s policy has anticompetitive effects. But it is not anticompetitive to the extent that it prevents members of an exclusive listing service like TAN from concealing listings from NAR’s subscribers while simultaneously benefitting from access to NAR’s service.” Top Agent Network, Inc. v. Nat’l Ass’n of Realtors, 554 F. Supp. 3d 1024, 1026 (N.D. Cal. 2021). TAN subsequently appealed to the 9th Circuit Court of Appeals, which is where the case presently sits.

Feburary 14, 2023

One of the confusing provisions of the California Ass’n of Realtors Residential Purchase Agreement (RPA) is the mediation and arbitration provisions. It is often the source of many discussions between client and real estate professional and even more discussion when the deal goes bad and parties are looking to engage in an adversarial process to resolve their differences. We often hear questions about what do these terms mean? How are they applied? How are they different? Today we look at the mediation and arbitration provisions and in the next installment we will explain the arbitration process.

January 10, 2023

Some of you that own businesses or run websites have been receiving demand letters in the mail indicating that your websites are not accessible for persons with disabilities. Some of the more unscrupulous senders even threaten lawsuits. With this trend continuing to rise, California enacted AB 2917 on September 30, 2022 to, among other things, gather information about complaints alleging that an internet website is not accessible, and develop educational modules that would educate businesses on website accessibility requirements.

January 3, 2023

AB 12, introduced by Matt Haney (D-San Francisco), seeks to limit the amount of money landlords can legally require as a security deposit for rental properties. As of the date of this article, AB 12 has not yet been passed by the California Assembly. AB 12 would change California Civil Code Section 1950.5 which currently allows deposits to be up to two months rent for unfurnished residential properties and three times monthly rent for furnished properties.

November 15, 2022

It is that time of year again. Seems like 2022 has flown by and I wonder where the time went. Anyway, the legislative cycle has been completed, bills passed and signed by the governor to go into effect. It was a busy year related to the real estate laws that have been enacted in California.

October 18, 2022

National Estate Planning Awareness Week is October 17 – 23, 2022. National Estate Planning Awareness Week was designated by the U.S. House of Representatives in 2008 to help people understand what estate planning is, and why it is important. For more information about National Estate Planning Awareness Week, just search for “National Estate Planning Awareness Week” on the internet.

August 23, 2022

Individuals may share certain pieces of real property for specified uses, such as using a common driveway to access housing developed on neighboring parcels of land. The shared use of the same property creates what is known as an easement or right-of-way. Ordinarily, the owner of a piece of property, on which an easement is created for use by others, is responsible for the maintenance of the easement. However, users of the easement may agree to maintain it (Rose v. Peters (1943) 59 Cal.App.2d 833, 835.) In 1939, the California Legislature established the right of owners of an easement to file an action to require other owners to share the cost of maintaining and repairing the easement. The legislature also provided for a method of apportioning costs if no agreement is reached among owners of an easement. These have been codified in Civil Code section 845.

July 4, 2022

This weekend we celebrate the 246th anniversary of the signing of the Declaration of independence on July 4th 1776.

June 28, 2022

Understanding this area of the law must begin, unexpectedly, at the source of our legal system in general: the U.S. Constitution. The commerce clause of the U.S. Constitution delegates to Congress the power to regulate matters involving domestic and international commerce and trade. Section 8 of Article I of the Constitution states:

June 21, 2022

It wasn’t that long ago that we were looking that we had mortgage rates below 4%, multiple offers on many homes with many going into contract over list price, and buyers waiving contingencies and inspections before they even got into contract. How things have changed in the last several weeks. Now we are hearing questions like are we head for a housing recession? The answer is I don’t know, but we are seeing some concerning trends.

May 10, 2022

If you’ve sold an investment property, you may already know about a transaction commonly known as a “1031 exchange.” This transaction is governed by the Internal Revenue Code Section 1031. Essentially, the transaction allows the owner of an investment property to defer realizing capital gains when selling the investment property if the profits are immediately used to invest in a new investment property. This transaction applies to both residential and commercial investment properties. In this article, “investment property” refers to the property sold resulting in profits that are subject to capital gains tax, and “replacement property” refers to the property purchased as an investment to avoid capital gains tax. Please note that both the investment and replacement properties are for investment purposes; these properties are not primary residences. As a side note, many people view the 1031 exchange as a method to avoid capital gains – this is not true, the capital gains taxes are not avoided, they are merely deferred to a later date.

April 19, 2022

As landlords were finally about to breathe a sigh of relief with the end of the last time period affected by COVID-19 protections, the notice requirements and eviction procedures originally enacted by the COVID-19 Tenant Relief Act and the COVID-19 Rental Housing Recovery Act were extended when the California legislature passed AB 2179 on March 31, 2022. The extended requirements and procedures will be in effect until June 30, 2022. While it appears that the passage of AB 2179 will be applauded by tenants and bemoaned by landlords, the details of the new law and its effects still require a closer look to understand what exactly the new status quo is.

April 12, 2022

In,Part One of our 2022 Partition series defined what Partitions are and how they work, Part Two focused on the accounting stage of the partition and how the proceeds of the partitioned property will be divided between the former owners in court. Part 3 will focus on specific types of expenditures and whether or not a co-owner can recoup those costs in the Accounting stage of a Partition litigation.

April 15, 2022

In, Part One of our 2022 Partition series defined what Partitions are and how they work, Part two will focus on the accounting stage of the partition and how the proceeds of the partitioned property will be divided between the former owners in court.

March 22, 2022

Given the currently favorable market conditions, an owner of a jointly held property who is no longer getting along with their co-owner has every reason to want to sell. But what happens when the other owner doesn’t agree? With the current increase in legal disputes between co-owners of real estate, and the recently adopted Uniform Partition of Heirs Property Act, it is a good time to reprise and update our 2017 Series on Partition Sales. Today’s Article, Part 1, will focus on what Partitions are and how they work.

March 1, 2022

With the recent turn of events surrounding the explosion of the real estate market, it appears that many buyers are eager to purchase real estate at whatever cost necessary. Some buyers have gone to the extreme of waiving the ability to conduct an inspection of the real property to incentivize a seller to sell to that buyer.

Feburary 15, 2022

California law allows individuals to bypass estate planning and leave real property to a beneficiary via a revocable Transfer on Death Deed, which is codified in Probate Code section 5600. What is a Transfer on Death Deed, you ask?

Feburary 8, 2022

2021 proved to be an interesting year for California in terms of new laws and regulations as we attempt to transition into a post-pandemic world. Some of the changes to be aware of as we head into 2022 include new diversity requirements for board of directors, banning the sale of gas-powered leaf blowers, lawn mowers & small off-road engines, continuing to-go sale for alcoholic beverages, and a tax credit for business owners who employ homeless persons.

Feburary 1, 2022

A couple of weeks ago we introduced our looking forward series and we’ve touched on a few things to look for in 2022. Today, we continue this series by looking at new laws and regulations that will be affecting real estate industry professionals and real estate consumers. We’ll group the laws into categories for easy reference back to this article, if necessary, but some of the laws could easily fit into multiple categories. These categories are Consumer Protection/Relief, DRE and Licensing, Housing Development, Landlord/Tenant, and Estate-Related.

January 25, 2022

January 11, 2022

Last week we introduced our looking forward series and touched on a couple things to look for in 2022. Today, we start by looking at new laws and regulations that will be affecting various industries. We start by looking at some of the new laws and regulations related to Fair Housing in California.

November 30, 2021

The California Court of Appeal, Fourth Appellate District recently held in The Inns By The Sea v. California Mutual Insurance Company (Super. Ct. No. 20CV001274) that a California Hotel would not be provided insurance coverage for the loss of income sustained during the COVID-19 pandemic.

November 23, 2021

In California if you prepare a Revocable Trust to transfer your assets outside of the Probate Court, it is essential that you include a Pourover Will as part of your complete Estate Plan.

November 16, 2021

According to research from Baylor University, real estate cold calls are answered 28% of the time and out of the total number of people spoken to, 1.7% become appointments or referrals.[1] On the other hand, “you miss 100% of the shots you don’t take!” – Michael Scott (quoting Wayne Gretzky). Although its effectiveness is hotly debated, cold calling remains a foundational business model for many successful real estate agents and brokerages. Federal and state lawmakers have tried to balance the needs of businesses to solicit new clients, with the needs of consumer privacy and protection from harassment.

November 2, 2021

The previous two blogs have focused on describing the recently approved Senate Bill (SB) 9. However, there is another important Senate Bill that was approved along with SB 9. Senate Bill 10 added sb 9, sb 10, , which is discussed below. Additionally, this blog will outline a few of the major arguments made in support and opposition of the two (2) bills. In case you missed the previous blogs in this series, the first blog can be found.

October 19, 2021

You may have heard rumors about the necessity of ADA compliance related to websites. More importantly you may be asking yourself is this real and should I be worried. The short answer is: yes, it is real, and you should be checking on your compliance. In 1990 the Americans with Disabilities Act was signed into law by George H.W. Bush with purpose of increasing access to commercial facilities for the disabled and thereby reducing discriminatory impacts against the disabled based on accessibility.

October 13, 2021

Continuing our series discussing the recently approved Senate Bills (SB) 9 and 10, this post will provide information on the second Government Code section added by SB 9. If you missed the first blog in this three-part series, you can find it.

September 28, 2021

While in office, Governor Newsom has signed “16 CEQA (California Environmental Quality Act) reform bills to streamline state laws to maximize housing production,” hoping to lower the housing shortage, make homes more affordable, and reduce homelessness.1 The Newsom Administration also “created an inventory of all excess state land and…has launched partnerships with California cities to develop affordable housing on that land.”1

September 21, 2021

Occasionally, life presents us with perfect examples that can be better than anything we try to come up with on our own. When my family and I returned from vacation, there was one such perfect example awaiting us on our front door. Unfortunately, this was a perfect example of what NOT to do!

September 14, 2021

Oftentimes parties that co-own real estate find themselves in the midst of dispute. More often than not, the parties have no written agreement that govern how to resolve the dispute and what to do with the real estate that is creating the dispute. Generally, the law resolves these disputes through the partition method that is governed by Civil Code Section 872 et seq. The law generally states that parties cannot be compelled to co-own real estate so when a dispute arises the court will either (1) partition the property by sale (force the parties to sell the real estate on the open market); or (2) partition in kind (if the real estate is large enough split the property between the parties); or (3) if the parties agree partition by appraisal (one party buys out the other based upon the appraised value of the real estate).

September 10, 2021

The morning of September 11, 2001, the American people were shocked by the news of a coordinated terrorist attack on American soil that took the lives of almost 3000 people and injured more than 6000, along with destroying the Twin Towers, vast infrastructure in New York City, and parts of the Pentagon. Many thousands more died afterwards due to injuries or exposure to hazards.

August 31, 2021

The scenario goes like this: Buyer and Seller enter into an RPA related to the purchase of a home. Seller gives Buyer a TDS, Buyer does their inspections and then subsequently waives contingencies. Low a behold a week before closing Seller drops a bombshell and in a supplemental disclosure Seller discloses some material defect with the property. The Buyer frantic at this point does not know what to do. Do their contingencies get revived? Can they cancel with this new information? Will the Buyer lose their deposit if they back out now?

August 24, 2021

In a real estate market like we have been experiencing for the last 18 plus months, the demand to close may just be one of the most important documents in a real estate transaction for a buyer. Certainly, getting a property under contract is important, but once that property is under contract, how does one insure that the transaction actually closes? More importantly, how does the buyer or seller preserve their rights under the RPA if the transaction does not timely close?

August 10, 2021

In competitive housing markets like the one we currently find ourselves in, home prices can quickly soar beyond the value that a home will actually appraise for. This is due to a fundamental difference in the means by which the value is calculated. Appraisers typically use one of three types of valuation methods: sales comparison, cost approach and income approach. For the residential resale market they almost exclusively use the sales approach, where appraisers value a property based on the recent selling prices of similar properties in the same neighborhood. In a fast-moving market with so many multiple offers, the auction-like environment can move the purchase price up faster than the value would appear from just looking at the most recent sales. This difference is what’s commonly known as the appraisal gap.

July 27, 2021

A low inventory and a historic demand have often placed California homeowners in precarious positions as they consider if and when to sell. Many Sellers dream of selling at the top of the market but without a magic eight ball, that is a very difficult thing to predict! The traditional 7/8 year business cycle is presently out the window! Fortunately, California Association of Realtors® (“C.A.R.”) provides some excellent tools to help Sellers plan and strategize when the best time to sell might be for them, and for the market.

June 22, 2021

The housing market continues to heat up across California this Summer. In some markets, homes are being nearly auctioned-off as double-digit numbers of offers has become the standard. Although the situation is not the same in every market, there is one aspect of nearly every residential real estate transaction that is common across the State: the use of the Residential Purchase Agreement (RPA).

June 15, 2021

Sellers and real estate agents both owe a statutory and common law duty of disclosure to buyers of residential real estate. The law requires that known defects likely to affect price or desirability must be disclosed to the buyers. Nearly ten years ago, the big plumbing issue that dominated the disclosure world was the defects related to pex plumbing (what was generally referred to as Kitec plumbing). It was so big that a major class action settlement resulted providing relief to some of the early cases of damage resulting from the faulty pex plumbing issues.

June 8, 2021

Many people who inherit their family homes, businesses, and investment properties will no longer be able to afford the property taxes. Proposition 19, passed in November 2020, limits the protections provided by Proposition 58 and 193 for those who inherit property from their parents and grandparents. Assembly Constitutional Amendment 9 seeks to reinstate the protections given by Proposition 58 and 193.

May 11, 2021

As we all recall early in the COVID pandemic the CARES Act was passed creating PPP loans for struggling small businesses. Many small businesses jumped at the opportunity to take these forgivable loans to help them weather the struggles related to COVID shutdowns. In less than four weeks the first round of PPP funds was exhausted. Forcing Congress to work on additional legislation to create a second round of funding.

May 4, 2021

Over the last month, we have been addressing the issue of selling tenanted properties and the impacts of the eviction moratoriums. It is no secret the market is very hot right now and landlords are trying to figure out to sell the tenanted investment properties. The statewide eviction moratorium has made things particularly difficult in regard to selling tenant-occupied properties. While there seems to be no difficulty in securing buyers, the problem lies in closing out the transaction, particularly if financing is dependent on the buyer occupying the property. If you are dealing with a difficult tenant, you will likely run into issues closing out escrow, which may cause exposure to liquidated damages, penalties, etc.

April 27, 2021

When the market heats up and individuals begin to feel priced out of the market, buyers look to get creative in how they can purchase a house. There are lots of ways to complete real estate transactions, various financing models and one that seems to be getting more traction these days is the wrap transaction. Maybe you went to a seminar recently and they discussed this transaction model. Maybe a seller or investor identified this type of real estate transaction. to show you how to buy or sell properties using a transaction called a wrap-around loan, or a wrap loan. The wrap transaction is often promoted as an alternative way to buy and sell properties when conventional lending does not accommodate the parties. While they can be attractive in some circumstances, they do come with considerable risks.

April 20, 2021

With the real estate market in overdrive and with COVID related eviction restrictions in place, many landlords that want to sell their properties seem stuck. They wonder if there is a solution to sell that property. A couple weeks ago,Laura Ferret, addressed issues related to SB-91’s impact on residential sales and the notices that need to be given. While that looked as certain issues related to the sale, landlords are also making use of the cash for keys model that was prominent during the Great Recession.

April 13, 2021

On April 2, 2021 the California State Third District Court of Appeal issued a ruling upholding two previous judgments for attorney’s fees and costs to BPE Law Group’s Client Locke Management Association (LMA). Previously, the trial court had ruled in favor of LMA on the underlying merits of the case and the appeals court had dismissed prior appeals. At stake in this hard-fought case was approximately $118,148 in post-judgment attorney’s fees that had previously been awarded to LMA. The Court of Appeal ruling marks a tremendous victory for BPE Law Group and its clients. The California Appeal Court has once again affirmed LMA’s position in the context of an extensive history of litigation spanning more than a decade.

April 6, 2021

As part of our series on the ever-changing atmosphere of landlord tenant law during the COVID-19 pandemic, today we will discuss the options available to property owners who want to take their properties off the rental market and sell them instead. These owners are faced with a maze of restrictions when it comes to terminating the tenancy of the tenant occupying the property. However, if done correctly, landlords can successfully evict their tenants despite the eviction moratorium currently in place in California.

March 23, 2021

Retirement planning has been a topic at both the federal and state levels for many years. It is no secret that Social Security as currently structured is struggling. It is projected that by as early as 2035 the social security trust fund reserves would be depleted and benefit levels would likely be reduced to 79% of the promised benefit. Further, company-sponsored pensions are largely a thing of the past. The idea of working for 20-30 years for a company and receiving a pension as the reward has overtime faded from the norm. As a result, the discussion of how to provide for a retiring population has become ever more pressing.

March 9, 2021

The scenario starts off innocently enough: Investor forms a trust and buys rental properties. Maybe they pay cash, maybe they finance, but they take the property at the time of closing in the name of their trust. The investor never owns the property in their name, they never live there, they simply operate it as a rental for a period of time. Then the market or life circumstances make it advisable or necessary to sell that rental property. So they hire a real estate professional to help them navigate a sale. That agent looks at the transaction and says “hey, this is a trust owned property and sale, it’s exempt from disclosures and provides the exemption forms to the buyer.” The question – is it really an exempt transaction? There is some homework to be done.

Feburary 23, 2021

Dying without a will popped back up recently related to the terrible and tragic death of Tony Hsieh, the former CEO of Zappos. People ask how can this happen? For some, estate planning seems far in the future. For others it is on their mind, but tragedy happens before it can be completed. Still for others, they do not think they have a need. There are lots of reasons, but when it happens, many wonder – what happens if I die without a will?

Feburary 16, 2021

As part of our continuing series on legislation that is new to 2021, today we will discuss AB 3182. AB 3182 applies to homeowners in common interest developments (CIDs) and prohibits HOAs from imposing unreasonable rental restrictions within their communities. The Covid-19 pandemic had much of the legislature’s attention focused on housing last year, and AB 3182 is no exception. As with many new laws, there are still open questions about how AB 3182 will be applied and how effective it will be at solving the problems it is meant to address. However, AB 3182 will certainly be of interest to homeowners or investors looking to utilize their properties for additional rental income.

October 20, 2020

As evident by the increasing growth in online shopping, American consumers are shifting from shopping in physical stores to online websites. Further, with COVID-19, workforces have endured a new challenge of creating methods for employees to work from home effectively. These shifts create many changes and challenges to small businesses, one of which includes ADA online compliance. Approximately 51.2 million people in the United States have disabilities and as the average life expectancy continues to increase, more online users will be older and business owners will need to adjust the way they handle business.

October 13, 2020

One of many propositions offered for voters to consider this election cycle, Proposition 15, also known as California Initiative Number 19-0008, will be on the California Ballot this November as an effort to generate revenue and reverse part of the famous Prop 13 passed in 1978. Proposition 15’s stated purpose is to provide additional funding for local education and communities through an increase in commercial and industrial property taxes. These tax revenues will occur by a reassessment of the property’s taxable value to reflect the current fair market value. Proposition 15 purports to provide tax exemptions for small businesses and only target property owners with aggregate interests in commercial and industrial property that exceed a fair market value of $3 million. Although the modification of properties’ taxable value would naturally increase property tax revenue, as many properties have a taxable value based upon their previous purchase price, this change would significantly affect the owners of properties that were purchased years ago with the expectation of Prop 13 to protect their investments.

August 25, 2020

July 21, 2020

Recently, NPR reported more than 4.75 million mortgages or 9% of all mortgages are in some sort of a forbearance plan with their lender and they suspect this number is low. The National Multi-family Housing Council reports that in June 94.4% of renters paid a full or partial rent payment, but cautions that the high rent payment statistics may be attributed in part to expanded unemployment benefits, which unless Congress acts to extend, will be coming to an end on July 31, 2020.

July 1, 2020

Because of the economic consequence of the COVID-19 shut down, jobs have lost and as a result, mortgages will go unpaid and an increase in home foreclosures will occur. Now home prices currently remain high because of the fact inventory is low. So many in default will decide to sell their homes, take whatever equity is left, and move on. However, others may do nothing until they are facing foreclosure. Owners allow this to happen because they just cannot voluntarily let their home go even if the foreclosure strips away whatever equity their home may hold. Accordingly, some who obtain knowledge a property is in foreclosure, contact the defaulting owner and offer deals such a purchase with a rent back option, among other things.

May 22, 2020

Ronald Reagan once said “The greatest leader is not necessarily the one who does the greatest things. He is the one that gets the people to do the greatest things.”

May 8, 2020

COVID-19 has impacted the country and the entire world in an astonishingly short period of time. Businesses of all kinds have had their operations curtailed due to shelter in place orders. However, even as those restrictions are loosened business may be slow respond as customers may be cautious about re-entering the consumer marketplace, supply chains have been disrupted, and employees may be concerned about infections. Commercial and residential landlords are also facing difficult times as tenants are failing to pay rent and evictions have been halted. This has created a situation where our commercial borrower clients have suddenly found themselves in a position with reduced or no income and an inability to pay their loans as they come due. However, a lack of income does not relieve the obligation to make those loan payments. Failing to make loan payments will result in a default of loan agreements, promissory notes, deeds of trust, and personal guaranties. In some circumstances, the reduced income could result in a default even if timely payments are being made under a debt service coverage ratio covenant (a requirement that the borrower’s income is a specified multiple of their loan payments). This puts businesses, real estate, and livelihoods at stake.

May 1, 2020

With the April 14, 2020, California Department of Insurance (DOI) Notice requiring insurance companies to comply with California Fair Claims Settlement Practice Regulations in their investigation of business interruption claims caused by the COVID-19 virus, holders of business interruption insurance need to understand when their insurance carrier has fairly investigated their claim and when they have been the victim of bad faith insurance practices. We previously addressed the issues of business interruption insurance as it relates to the COVID-19 outbreak. Bad faith commonly refers to an insurer’s unreasonable or wrongful failure to provide benefits under the policy, including indemnity for business interruption. Actions to recover these benefits under a policy proceed like any other breach of contract action. In addition, the insured may seek extra-contractual damages from the insurer that the policyholder incurs by reason of the insurer’s bad faith denial of policy benefits. Those extra-contractual damages can include punitive damages.

April 25, 2020

As the COVID-19 pandemic changes the way business is done, it is most certainly having an impact on how the residential real estate transaction is completed. A critical point of the transaction is the ability of the buyer to walk the property, inspect and make determinations of quality and fitness of a home for the buyer’s family. With current shelter in place orders affecting the business cycle, real estate, like all other businesses are adapting to this new reality.

Feburary 25, 2020

In our prior employment law blog topic, we discussed that travel under employer’s control was compensable and advised our clients to update their policies accordingly. Today, we analyze the California Supreme Court’s recent decision, Frlekin v. Apple, Inc., regarding whether non-exempt employees undergoing mandatory bag or other security checks is compensable work time under California law. In Frlekin, the California Supreme Court held that the time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees is compensable as “hours worked” under California law concerning the retail industry. This decision is outright in contrast to U.S. Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk’s case, where the Court decided that time spent awaiting bag checks was not compensable time under the Fair Labor Standards Act.

Feburary 18, 2020

Our Sixteenth President, Abraham Lincoln, is remembered by many as one of the greatest Presidents in United States history. Even a casual student of history may recall that “Honest Abe” was a self-taught lawyer long before he ever sought national political office. Indeed, history remembers President Lincoln as a distinguished lawyer, who, as his nickname recalls, was unfailingly truthful.

Feburary 4, 2020

Almost immediately after the legalization of cannabis in California, local municipalities began to adopt ordinances governing the cultivation of cannabis in residential properties. These regulations included the number of plants that could be cultivated, ventilation and electrical upgrades required, and adoption of strict liability penalties for non-compliance. Consequently, municipalities began to levy administrative fines against landlords for the violations of the tenants. Unlike federal law which created innocent owner exceptions for drug and cannabis-related offenses, the municipal ordinances did not.

January 21, 2020

In the standard residential real estate transaction, a seller lists their home for sale and a buyer makes an offer to purchase. A standard transaction that results in a short-term relationship between the buyer and seller than hopefully culminates in a closed sale. However, with the short supply and increasing prices of homes, more and more people are being priced out of the market and the would be buyers are looking for alternative methods to buy a home.

May 22, 2018

Today, we take a look at the Black Sky Capital v. Cobb (“Black Sky”) case that is currently pending before the California Supreme Court. This case in its current form could change the course of court rulings related to foreclosures and deficiency rulings and if the law changes it could create a significant harm to consumers. For more than 60 years, California has maintained a strong policy restricting the ability of lenders to pursue borrower’s for deficiency judgment following a foreclosure. This policy started with the adoption of California Codes of Civil Procedure 580b and 580d. CCP 580b restricted the lender’s right to seek deficiency judgments related to purchase money loans on 1-4 unit residential dwellings. CCP 580d provided that a lender could not pursue a deficiency judgment following a foreclosure through the power of sale process (a non-judicial foreclosure).

Apri 17, 2018

In honor of Tax Day, it seems fitting to take a look at the history of income taxes in America. Income tax has not always been legal in the United States, in fact for most of the United States history, income tax has had its brushes with its constitutionality. Americans, in general, have been skeptical of the taxing authority from the earliest foundations of this nation. The American Revolution has its earliest makings arising from Colonial protests over Britain’s right/authority to tax the colonies without representation. It is out of this concern that when the founding fathers crafted the Constitution, taxing authority while allowed was vague and legally weak.

August 11, 2018

As the markets improve buying trends also change. We are beginning to see more and more people trading city life for rural life. But those trades come with issues that are generally unique to larger rural parcels. Where urban development is often in the form of small lot subdivisions, rural properties tend to be larger. They also tend to be less accessible and many rural lots lack urban services such as water delivery and sewer, which means well drilling and septic system. It also means access problems. This short series will look at the common issues of rural property, namely access easements, road maintenance agreements and well and irrigation easements.

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