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Part 3. Practical Resolution Tools in a Non-Disclosure: Pre-Litigation

July 18, 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.

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Understanding 1031 Exchanges - Part 1

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.

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Celebrating the Fourth of July 2024

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.

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Don't Get Blindsided: Understanding IRS Imputed Interest Rules

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.

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Honoring the Accomplishments of BPE Professionals 2024

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.

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Part 2. The Applicable Causes of Action In a Non-Disclosure

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.

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Part 1. The Playing Field: What is the Applicable Law in a Non-Disclosure Dispute

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.

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FTC Adopts Rule Banning Most Non-Compete Clauses

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.

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US Supreme Court Addresses Real Estate Issue Related to Permit Fees

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.

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National Association of Realtors® Proposes to Settle Commission Lawsuits Nationally

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.

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Rain and Failure to Disclose Claims

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?

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The Uniform Directed Trust Act in California

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.

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Get a Fresh Start to a New Year

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.

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Looking Forward to 2024

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.

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2023 – A Year in Review

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.

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Settlement Agreement Terms in Commission Lawsuits Approved by Court

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:

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Honoring the Accomplishments of BPE Professionals 2023

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.

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Corporate Transparency Act: How Business Owners Can Comply With New Ownership Disclosures For Their Entities

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.

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1.78 Billion Dollar Jury Award in Burnett et al. v. National Association of Realtors, et al.

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.

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Understanding Shared Land Rights Easements and Licenses Series Finale

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.

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Understanding Shared Land Rights Easements and Licenses Part Two

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.

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Understanding Shared Land Rights Easements and Licenses Series Introduction

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.

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Understanding the CAR Residential Contracts Series Part 7

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.

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Understanding the CAR Residential Contracts Series Part 6

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.

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Understanding the CAR Residential Contracts Series Part 5

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.

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Understanding the CAR Residential Contracts Series Part 4

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.

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Understanding the CAR Residential Contracts Series Part 3

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.

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Understanding the CAR Residential Contracts Series Part 2

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.

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Understanding the CAR Residential Contracts Series Introduction

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.

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The Estate Tax Exemption Sunset is Just Over the Horizon

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.

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The Future is Bright for Craft Breweries in California

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.

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