Snell & Wilmer

By: Ben Reeves

The National Association of Realtors (NAR) has been the subject of several recent lawsuits alleging anticompetitive conduct. In a nutshell, the allegations are that agents restrict the flow of information regarding homes for sale, and leverage that informational asymmetry to inflate agent commissions. After a nearly $2 billion judgement was entered against NAR (and others) in Missouri, things are certainly going to change in the industry. Here’s an article that explores the history of these issues: Realtors Partied, Spent Big and Lobbied Hard. Then It All Came Crashing Down.
Continue Reading Fundamental Shift Coming in Real Estate Agent Compensation

By: Patrick Tighe

If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant.  However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

  • Do Not Breach the Peace.  It is vital when performing a lockout to not breach the peace.  What constitutes a “breach of the peace” depends on the particular circumstances at hand. 


Continue Reading Best Practices: Commercial Lockouts in Arizona

By: Robert A. Henry and Emily R. Parker

The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed.   It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally.  

The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied
Continue Reading The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

By: Christian Fernandez

Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable deposit,” but each typically denote a negotiated amount of money that a seller is entitled to retain should a buyer breach a purchase and sale agreement. The purpose of liquidated damages is to provide the parties with certainty when actual damages arising from a breach
Continue Reading Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.

By: Ben Reeves

The Arizona Supreme Court recently clarified that a judgment lien does, in fact, attach to the proceeds of the sale of a homestead property. See In re McLauchlan. In sum, if the sale of a home produces more than the homestead exemption amount, then a judgment creditor can collect from those excess sale proceeds.

A few prior decisions held that a judgment could NOT recover any proceeds from the sale or foreclosure of a homestead property. See In re Rand, and Pac. W. Bank v. Castleton. These decisions are now effectively overruled.
Continue Reading The Arizona Supreme Court Confirms that Judgment Liens Attach to Homestead Property

By Rick Erickson

Our clients probably spend significant time, money and effort refining and updating their contract provisions covering indemnification and the duty to defend claims arising on their projects. But they should also consider spending an appropriate and adequate amount of time, money and effort when sending notices, or “tenders,” to enforce those critical provisions. Tenders demanding defense and indemnity are strictly interpreted based on what the contract documents require. Getting tenders wrong can result in losing one of the most significant risk-shifting tools in the contract. It can also be a monumental mistake if insurance coverage for indemnification
Continue Reading Don’t Be Lazy with Your Tenders

By: Ben Reeves

Recent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real property located within Arizona. See TWE Retirement Fund Trust v. Ream, 198 Ariz. 268 (Ct. App. 2000). Apparently, there’s some debate about whether foreign litigation can support a local lis pendens. See Boca Petroco, Inc. v. Petroleum Realty II, 285 Ga. 487 (Ga. 2009). As noted in the TWE case, Arizona’s lis pendens statute (A.R.S. 12-1191)
Continue Reading Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?

By: Ben Reeves

Recent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real property located within Arizona. See TWE Retirement Fund Trust v. Ream, 198 Ariz. 268 (Ct. App. 2000). Apparently, there’s some debate about whether foreign litigation can support a local lis pendens. See Boca Petroco, Inc. v. Petroleum Realty II, 285 Ga. 487 (Ga. 2009). As noted in the TWE case, Arizona’s lis pendens statute (A.R.S. 12-1191)
Continue Reading Can I Recorda Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?

By: Ben Reeves

Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale.  We’ve blogged about some these past unreported decisions here and here.  Those decisions, somewhat inexplicably, required excess sale proceeds to be paid to senior creditors.  As we noted at the time, these unreported (and non-precedential) decisions did not seem to make much sense in the context of debtor/creditor rights.  Thankfully, a reported opinion finally sets the record straight.  Excess sale proceeds should be paid downstream. 

In Tortosa Homeowners Assoc. v. Garcia,
Continue Reading HOA Foreclosure Excess Sale Proceeds Go to Owner

By Rick Erickson

Welcome to 2022!  This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays.  The COVID-19 pandemic contributed to suspension of work and closure of construction projects worldwide in 2020.  The end of 2021 brought additional delays caused by an inexplicable clog in the supply chain of construction materials.  The combined impact of these events on project milestones and completion deadlines led our clients to ask, with unusual and particular urgency, who is liable for such delays and how do contracting parties lessen the consequences from such
Continue Reading When Is A Project Delay Material and Actionable?

By: Luke Mecklenburg

Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2.  Thus, Woodbridge II concluded, the claimants acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.  Id.  That decision was up for review by the Colorado Supreme Court at the time
Continue Reading The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction

By:  Ben Reeves
Courts overseeing receivers generally enjoy broad discretion in directing and approving a receiver’s proposed actions.  But does that authority extend to a receiver not only granting a super-priority lien ahead of existing liens, but also selling the real property free and clear of all liens?  In County of Sonoma v. Quail, 56 Cal.App.5th 657 (Ct. App. 2020), the California Court of Appeals answered that question in the affirmative.
Quail involved a 47,480 square-foot lot with two houses, a few garages, several outbuildings, and numerous trailers surrounded by a veritable junk yard.  Despite many of these structures
Continue Reading Can a Receiver Prime and Strip Liens Against Real Property?

By: Amanda Z. Weaver
For the first time in nearly twenty years, the Arizona Court of Appeals last week weighed in on Arizona’s equine activity liability statute, finding that a form signed by participants before a trail ride did not qualify as a “release” under the statute, and concluding that participants’ claims of negligence against the trail ride operators remained in the case.
In Gruver v. Wild Western Horseback Adventures, LLC, No. 1 CA-CV 20-0566 (Ariz. App. Aug. 17, 2021), two individuals participated in a trail ride after signing a “Visitor’s Acknowledgment of Risk,” which provided:
I assume full
Continue Reading Equine Activity Liability Releases: The Arizona Court of Appeals Finds “Release” of Trail Ride Operator Doesn’t Block Negligence Claim for Participant Riding Injury

By:  Kevin J. Parker
In a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of workmanship and habitability was effective.  In that case, the buyer initialed the builder’s prominent disclaimer of all implied warranties, including implied warranties of habitability and workmanship.  After the purchase, the buyer sued the builder, claiming construction defects.  The builder moved for summary judgment, seeking enforcement of the disclaimer of warranties.  The trial court granted the builder’s motion for summary judgment,
Continue Reading Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?

On May 27, 2021, a division of the Colorado Court of Appeals issued its opinion in Amada Family Limited Partnership v. Pomeroy, 2021 COA 73.  In that case, the court decided two significant issues that apparently had never been expressly ruled on by a Colorado appellate court before: (1) that Colorado’s common-law after-acquired title doctrine was not abrogated by adoption of the after-acquired interest statute; and (2) that utility easements may be implied by necessity.
As is often the case in matters involving access and implied property rights, the facts and history underlying Amada are complicated, but the case’s two
Continue Reading Amada Family Limited Partnership v. Pomeroy: Colorado Court of Appeals expressly affirms the continuing viability of the common-law after-acquired title doctrine and expressly recognizes utility easements by necessity

By: Tony Carucci
California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “[i]n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing party is the party specified in the contract or not. But what about an action that alleges tort causes of action against an alter ego of a contracting party but that does not include a breach of contract claim against the alter ego? This was the question facing the California Court of Appeal in 347 Group, Inc. v. Philip Hawkins
Continue Reading Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717