Real Property Law
CASE SUMMARY UPDATE: NOVEMBER 2022 REAL PROPERTY CASE SUMMARIES
By: Monty McIntyre, Esq.
Monty A. McIntyre, Esq. is the publisher of California Case Summaries™ which provides short summaries, organized by legal topic, of every new published civil and family law case helping California lawyers easily master the new case law in their practice areas, get better results and referrals, and grow their law practice. Monthly, quarterly and annual subscriptions are available, as well as annual Practice Area subscriptions in the areas of Employment, Family Law, Real Property and Torts. Monty hasbeen a California civil trial lawyer since 1980 and a member of ABOTA since 1995. He currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. conducing Zoom hearings throughout California (to use Monty contact his case manager Haward Cho, haward@adrservices.com, (619) 233-1323). Monty also helps lawyers improve their skills and practices with his Lawyer Master Mentoring™ services (for info visit Monty’s web at https://montymcintyre-law.com).
CALIFORNIA COURTS OF APPEAL
Miller v. Dept. of Real Estate (2022) _ Cal.App.5th _ , 2022 WL 9689825: The Court of Appeal affirmed the trial court’s order denying a petition for writ of administrative mandamus seeking to overturn an order issued by an administrative law judge and adopted by respondent, that revoked the real estate licenses of Nijjar Realty Inc. and its broker of record Everet Miller as a result of their violations of the Real Estate Law (Business & Professions Code, section 10000 et seq.), the Health and Safety Code, and administrative regulations under the Health and Safety Code because they (1) employed an unlicensed individual to solicit and enter into lease-to-own agreements with the tenants/buyers of several mobilehomes; and (2) permitted the tenants/buyers to move into mobilehomes that were not permitted for human occupancy. Petitioners argued they did not receive a fair hearing because the administrative law judge considered improper evidence, including expert testimony from several witnesses respondent did not designate as experts. They also claimed the administrative law judge erred in ruling petitioners had violated the statutes. The trial court properly denied the petition, ruling that the administrative law judge did not consider any improper evidence and, after conducting an independent review of the evidence, that petitioners violated the applicable statutes. (C.A. 2nd, October 17, 2022.)
Tariwala v. Mack (2022) _ Cal.App.5th _ , 2022 WL 4652348: The Court of Appeal affirmed the judgment for plaintiffs, following a bench trial, concluding that an easement allowing access to plaintiffs’ real property was valid, and permanently enjoining defendant from obstructing plaintiffs from accessing their property. In the past, defendant had owned two adjoining properties in Thousand Oaks. He lost title to one of the properties when he defaulted on a secured loan in 2011. Defendant then spent the last decade frustrating the attempts of the new owners to renovate or occupy the house on his former property. Plaintiffs bought the house from the foreclosing lender in 2017 and defendant immediately
blocked physical access to the house by locking a gate that spanned their recorded driveway easement. Plaintiffs obtained a preliminary injunction, which defendant repeatedly violated. The trial court properly declined defendants argument that it should apply the merger doctrine. The trial court concluded that defendant never held the two properties in unity of title because he encumbered the dominant tenancy (plaintiffs’ property) immediately after acquiring sole ownership and again in 2001 and 2005. The court declined to apply the doctrine because doing so would render the lender’s security interest essentially worthless by eliminating plaintiffs property’s only access to the road. (Hamilton Court, LLC v. East
Olympic, L.P. (2013) 215 Cal.App.4th 501, 505-506.) (C.A. 2nd, filed September 27, 2022, published October 26, 2022.)