Real Property Law

Real Property Case Summary Updates

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Monty McIntyre

April 2021

By Monty McIntyre

California Case Summaries™ (
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. Annual Practice Area subscriptions are also available in the areas of Employment, Family Law, Real Property and Torts. Monty hasbeen a California civil trial lawyer since 1980, a member of ABOTA since 1995, and currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. (ADR) conducing Zoom hearings throughout California. (   

New Monty McIntyre annual publications California Case Summaries Annual – Real Property 2020 ™ (with summaries of every new Arbitration, Attorney Fees, Civil Code, Civil Procedure, Environment, Evidence, Government, Landlord & Tenant, Real Property & Settlement case published in 2020), and California Case Summaries Annual 2020™ (with summaries of every civil case published in 2020) are now available at



Boshernitsan v. Bach (2021) _ Cal.App.5th _ , 2021 WL 936580: The Court of Appeal reversed the trial court’s order sustaining defendants’ demurrer, without leave to amend, to plaintiff’s complaint for unlawful detainer seeking to evict the defendant tenants under a provision of San Francisco’s rent control ordinance allowing a landlord to evict renters from a unit to make the unit available for a close relative of the landlord (the family move-in provision; Rent Ord., § 37.9, subd. (a)(8)(ii)). A rule enacted by the San Francisco Rent Stabilization and Arbitration Board defined landlord for purposes of the family move- in provision as “a natural person, or group of natural persons, . . . who in good faith hold a recorded fee interest in the property.” (Rule 12.14(a).) The trial court sustained the demurrer because title to the apartment building was held by plaintiffs’ revocable living trust which was not a natural person. The Court of Appeal agreed that the living trust was not a natural person. The trust, however, was not the landlord. As a matter of law, only trustees—not trusts—can hold legal title to property. The Court of Appeal held that natural persons who are acting as trustees of a revocable living trust and are also the trust’s settlors and beneficiaries qualify as a “landlord” under the family move-in provision. (C.A. 1st, March 11, 2021.)

Real Property

Felkay v. City of Santa Barbara (2021) _ Cal.App.5th _ , 2021 WL 1034275: The Court of Appeal affirmed the judgment for plaintiff, following a jury trial, awarding plaintiff fair market damages of $2.4 million for inverse condemnation and attorney and expert fees of  $1,007,397. Plaintiff purchased an ocean-front residential lot in Santa Barbara (“the property”) for $850,000. The property was a “flag lot” consisting of a narrow driveway from the street to the remainder of the property, which then sloped downward toward the ocean, ending in a sheer cliff above the beach. Defendant denied plaintiff’s permit seeking to build a residence on the property.  The Court of Appeal rejected defendant’s arguments regarding  ripeness and exhaustion of administrative remedies because substantial evidence established that defendant would not permit any development below the 127-foot elevation, and the limited area above that elevation was unbuildable. The Court of Appeal also rejected defendant’s argument re exhaustion of judicial remedies. (C.A. 2nd, March 18, 2021.) 

Gray v. Quicken Loans (2021) _ Cal.App.5th _ , 2021 WL 790650: The Court of Appeal affirmed the trial court’s order sustaining defendant’s demurrer to plaintiff’s complaint alleging breach of fiduciary duty and violations of Civil Code section 2954.8 and Business and Professions Code section 17200 against his mortgage company for its failure to put homeowner insurance proceeds into an interest bearing account while repairs were being made to plaintiff’s home that was damaged in a firestorm. The Court of Appeal affirmed, ruling that neither Civil Code section 2954.8 nor the mortgage loan agreement required the payment of interest. (C.A. 2nd, March 2, 2021.)

Husain v. California Pacific Bank (2021) _ Cal.App.5th _ , 2021 WL 865357: The Court of Appeal affirmed the trial court’s judgment for defendant/cross-complainant, following a bench trial, concluding that defendant was entitled to a prescriptive easement allowing tenants on defendant’s property to use portions of plaintiff’s property for access, parking, and garbage removal, and as a garden. For over 50 years the two pieces of property were jointly owned and the owners allowed the uses in question. After the most recent owner defaulted on her mortgage, the properties were sold to lienholders, who continued allowing the use in question. When plaintiff purchased the property in 2017, he was aware that defendant claimed a prescriptive easement over the property. After he purchased the property, plaintiff sued to quiet title. The Court of Appeal affirmed the judgment, concluding that the decision of the trial court was sound, equitable, and supported by the record. (C.A. 1st, March 9, 2021.)

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