TOP TEN REAL PROPERTY CASES OF 2023

Written by Star Lightner^*

Each year, we grapple with how to select the top ten real estate cases for our annual overview. The impact of COVID-19 and the pandemic on the courts appears to continue, with fewer real estate cases overall than in past years, and therefore fewer that might be deemed truly significant. Thus, while narrowing the list down to 10 cases was still difficult, we have fewer "related cases" and "honorable mentions" again this year.

The cases in 2023 represented a slightly narrower offering of real estate issues than in years past, with housing—both in the land use and CEQA contexts—figuring even more prominently. These cases involved compliance with the housing element, historic preservation, general plan consistency, and an application that had lapsed under the Permit Streamlining Act. Certainly, the most significant case was a Clean Water Act case decided by the U.S. Supreme Court, which is likely to significantly change the way wetlands are regulated.

This article also includes cases involving development impact fees and a city’s police power, exemptions from rent control for certificates of occupancy under the Costa-Hawkins Act, whether a letter of credit constitutes a tenant’s property in an attachment proceeding, and a lease provision that ignored the Rule Against Perpetuities. Several pandemic-era force majeure cases round out the state court offerings. As always, we have included some "honorable mentions," one of which involves reliance on a subsequently invalidated quiet title judgment, while the other addresses an inverse condemnation claim relating to decades-old developer improvements.