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Current Cases

Moehrl v. National Association of Realtors, et al.

Status Current Case

Practice area Antitrust

Court U.S. District Court for the Northern District of Illinois

Case number 19-cv-01610

On April 26, 2024, Home sellers reached a $250 million settlement with HomeServices of America and certain of its subsidiaries, including Long & Foster Companies, Inc., BHH Affiliates, LLC, and HSF Affiliates, LLC, resolving class action claims against one of the nation’s largest residential real estate services companies. Home sellers alleged that the National Association of Realtors (NAR) conspired with HomeServices America and several of the nation’s largest residential real estate brokerage companies to illegally require home sellers to pay buyer broker fees – at an inflated rate – in addition to their own brokers’ commissions.

On October 31, 2023, a jury in Missouri found HomeServices of America, NAR, and Keller Williams liable for conspiring to inflate such commissions and for nearly $1.8 billion in damages. This settlement resolves those claims against HomeServices of America. However, it does not release Berkshire Hathaway Energy Company (BHE) or BHE’s or HomeServices of America’s direct or indirect parents or their officers, directors, and employees from such claims or liabilities.

This settlement is in addition to the $418 million settlement reached with NAR on March 15, 2024, and more than $275.25 million in other settlements reached with Anywhere Real Estate, RE/MAX, and Keller Williams in 2023 and Compass, Real Brokerage Inc., and Redfin in 2024, bring total settlements, pending court approval, to more than $952.5 million.

Under the terms of the NAR settlement, NAR will be responsible for paying $418 million in four annual installments along with interest, for the benefit of home sellers across the United States, as well as $3 million toward settlement notices. The settlement also requires NAR to provide valuable cooperation in ongoing litigation against other defendants. 

The ongoing settlement process addresses and resolves claims in not only Moehrl, et al. v. National Association of Realtor, et al.  (N.D. Ill.), but three other similar class actions: Burnett, et al. v. National Association of Realtors, et al. (W.D. Mo.); Gibson, et al. v. National Association of Realtors, et al. (W.D. Mo.) ; and Umpa v. National Association of Realtors, et al . (W.D. Mo.).

Litigation in this proprietary and certified antitrust class action against other defendants continues.

Other Important Rulings & Dates

• On November 20, 2023, the court granted preliminary approval of $138.5 million in settlements with Realogy Holdings Corp., now doing business as Anywhere Real Estate Inc., and Re/Max.
• On March 29, 2023, the court granted class certification to two classes, specifically the damages and injunctive relief classes.
• On May 30, 2020, the court appointed Cohen Milstein Interim Co-Lead Class Counsel to represent home sellers in this litigation.
• On October 10, 2019, the U.S. Department of Justice filed a statement of interest in this lawsuit.

Case Background

On March 6, 2019, Cohen Milstein and co-counsel filed a putative antitrust class action in the U.S. District Court, Northern District of Illinois on behalf of home sellers who paid a broker commission in the last four years in connection with the sale of residential real estate listed on one of twenty Multiple Listing Services (“MLSs”), covering several major metropolitan areas in the Mid-Atlantic, Mid-West, South-West, Mountain-West, and Southeast regions.

Plaintiffs, home sellers who listed their homes on one of twenty MLSs bring this action against the National Association of Realtors (NAR) and the four largest national real estate broker franchisors, Realogy Holdings Corp., HomeServices of America, Inc., RE/MAX Holdings, Inc., and Keller Williams Realty, Inc., for conspiring to require home sellers to pay the broker representing the buyer of their homes, and to pay at an inflated amount, in violation of federal antitrust law.

Plaintiffs allege that Defendants’ conspiracy has centered around NAR’s adoption and implementation of a mandatory rule that requires all brokers to make a blanket, non-negotiable offer of buyer broker compensation (the “Buyer Broker Commission Rule”) when listing a property on a MLS.

Most MLSs (including all MLSs at issue in this case) are controlled by local NAR associations, and access to such MLSs is conditioned on brokers following all mandatory rules set forth in NAR’s Handbook on Multiple Listing Policy, including the Buyer Broker Commission Rule.

The conspiracy, plaintiffs allege, has saddled home sellers with a cost that would be borne by the buyer in a competitive market. Moreover, because most buyer brokers will not show homes to their clients where the seller is offering a lower buyer broker commission, or will show homes with higher commission offers first, sellers are incentivized when making the required blanket, non-negotiable offer to procure the buyer brokers’ cooperation by offering a high commission.

The mandatory Buyer Broker Commission Rule ensures that price competition among buyer brokers is restrained because the person retaining the buyer broker, the buyer, does not negotiate or pay his or her broker’s commission. In addition, the seller’s inflated commission offer cannot be reduced by buyers or their brokers, as Defendants also prohibit buyer brokers from making home purchase offers contingent on the reduction of the buyer broker commission. Absent this rule, buyer brokers would be paid by their clients and would compete to be retained by offering a lower commission.

Currently, total broker compensation in the United States is typically five to six percent of the home sales price, with approximately half of that amount—and increasingly more than half—paid to the buyer broker. Defendants’ conspiracy has kept buyer broker commissions in the 2.5 to 3.0 percent range for many years despite the diminishing role of buyer brokers due to buyers independently identifying homes through online services and retaining buyer brokers only after they have found the home they wish to buy.

The conspiracy has inflated buyer broker commissions, which, in turn, have inflated the total commissions paid by home sellers, who have incurred, on average, thousands of dollars in damages as a result of Defendants’ conspiracy.

MLSs covered in this action:

• The Bright MLS (including the metropolitan areas of Baltimore, Maryland; Philadelphia, Pennsylvania; Richmond, Virginia; Washington, D.C.);
• My Florida Regional MLS (including the metropolitan areas of Tampa, Orlando, and Sarasota);
• The five MLSs in the Mid-West that cover the following metropolitan areas: Cleveland, Ohio; Columbus, Ohio; Detroit, Michigan; Milwaukee, Wisconsin; Minneapolis, Minnesota;
• The six MLSs in the Southwest that cover the following metropolitan areas: Austin, Texas; Dallas, Texas; Houston, Texas; Las Vegas, Nevada; Phoenix, Arizona; San Antonio Texas;
• The three MLSs in the Mountain West that cover the following metropolitan areas: Colorado Springs, Colorado; Denver, Colorado; Salt Lake City, Utah;
• The four MLSs in the Southeast that cover the following metropolitan areas: Fort Myers, Florida; Miami, Florida; Charlotte, North Carolina; and Raleigh, North Carolina.
• Complaint - March 6, 2019
• Consolidated Amended Class Action Complaint - June 14, 2019
• Order - Leadership Appointment - May 30, 2020
• Order - Motion to Dismiss - October 20, 2020
• Order - Class Certification - March 29, 2023
• Motion for Prelim Approval - Oct 5, 2023
• Order - Preliminary Approval of Settlement - November 20, 2023
• Kit Pierson
• John Bracken
• Robert A. Braun
• Benjamin D. Brown
• Daniel H. Silverman
• Daniel A. Small
• Sabrina Merold
• Redfin To Pay $9.2M To Exit Broker Fee Class Action
• Warren Buffett’s Real-Estate Firm Settles Antitrust Matter for $250 Million
• Berkshire Hathaway’s Real Estate Firm to Pay $250 million to Settle Real Estate Commission Lawsuits
• Home Sellers Reach $250M Settlement with HomeServices of America
• Real Brokerage $9.2M Settlement Is Latest in Agent Fee Suit
• Moehrl Attorney: Market Shift After NAR Settlement ‘Will Take Time’
• Home Sellers Hope $58M Compass Deal Helps Spur Others
• Litigators of the Week: Plaintiffs Reach a $418M Market-Shifting Settlement With Realtor Group
• Realtors Reach Settlement That Will Change How Americans Buy and Sell Homes
• Home Sellers Reach Landmark $418M Settlement with the National Association of Realtors
• Powerful Realtor Group Agrees to Slash Commissions to Settle Lawsuits
• In Real Estate Commission Cases, a Funny Thing Happened on the Way to the Forum
• How the $1.8 Billion Real Estate Commissions Lawsuit Came to Be
• Real Estate Commissions Could Be the Next Fee on the Chopping Block
• Broker Commission Practices Change In Antitrust Settlements
• Commissions Lawsuit Now a Class Action, Greatly Increasing Its Scope
• Home Sellers Win Class Cert. for NAR Antitrust Suit
• Home Sellers Blast Keller Williams’ Subpoena Bid in NAR Row
• Home Sellers Blast ‘Fruitless’ Bid to Excise Class Members
• Realtor Group Can’t Ditch Antitrust Suit Over Commission

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Property Rights & Land Use Supreme Court Cases

While most property disputes implicate state law, the Supreme Court has reviewed cases invoking certain constitutional protections. These may arise under the Takings Clause of the Fifth Amendment, which provides that private property must not be taken for public use without just compensation. A taking may occur when a government regulation restricts the use of land, even if the government does not invade or occupy the land. The Supreme Court has defined “public use” broadly, encompassing such purposes as economic development.

Meanwhile, zoning ordinances have faced constitutional challenges under the Fourteenth Amendment principles of due process and equal protection. The Supreme Court has applied a deferential standard of review to these ordinances, finding that they usually fall within the legitimate police power of local governments. Property issues that have reached the Court also include the exercise of free speech rights on various types of property and the enforceability of discriminatory real estate covenants.

Early in the 19th century, Chief Justice John Marshall ruled that Native Americans merely occupy rather than own their land. This decision laid the foundation for core principles of Native American law.

Below is a selection of Supreme Court cases involving property rights and land use, arranged from newest to oldest.

Author: Amy Coney Barrett

The Takings Clause of the Fifth Amendment prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits.

Author: John Roberts

The right to exclude is a fundamental element of the property right. A regulation granting labor organizations the right to take access to an agricultural employer's property to solicit support for unionization was a per se physical taking.

A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under Section 1983 at that time.

Author: Anthony Kennedy

In determining the denominator of the takings inquiry, a court must consider the treatment of the land under state and local law, the physical characteristics of the land, and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that their holdings would be treated as one parcel or as separate tracts.

The Fifth Amendment requires that the government pay just compensation when it takes personal property, just as when it takes real property.

Author: Samuel A. Alito, Jr.

The government's demand for property from a land-use permit applicant must satisfy the Nollan and Dolan requirements even when the demand is for money.

Author: Ruth Bader Ginsburg

Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.

Author: William Strong

The right of eminent domain exists in the federal government and may be exercised by it within the states to the extent that it is necessary to the enjoyment of the powers conferred on the federal government by the Constitution.

Author: Antonin Scalia

The state as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners. Also, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the state even if it interrupts the littoral owner's contact with the water. There is no exception to this rule when the state causes the avulsion.

Author: John Paul Stevens

A city's decision to take property for the purpose of economic development satisfied the public use requirement of the Fifth Amendment.

When a tribe had relinquished governmental reins over an area long before, it could not regain them through open-market purchases from current titleholders.

A permanent deprivation of all use is a taking of the parcel as a whole, but a temporary restriction causing a diminution in value is not, for the property will recover value when the prohibition is lifted.

A Penn Central claim is not barred by the mere fact that the property owner acquired title after the effective date of the state-imposed restriction.

Author: William Rehnquist

It must be determined whether an essential nexus exists between a legitimate state interest and a permit condition. If one does, it must be decided whether the degree of the exactions demanded by the permit conditions bears the required relationship to the projected impact of the proposed development. In deciding the second question, the necessary connection is “rough proportionality.”

When the state seeks to sustain regulation that deprives land of all economically beneficial use, it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of their title at the outset. A total taking inquiry entails an analysis of the following factors: the degree of harm to public lands and resources, or adjacent private property, posed by the claimant's proposed activities; the social value of the claimant's activities and their suitability to the locality in question; and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent private landowners) alike.

Preventing unreasonable rent increases caused by a city housing shortage is a legitimate exercise of the police powers of the city government.

Unless a permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use.

When the government has taken property by a land use regulation, the property owner may recover damages for the time before it is finally determined that the regulation constitutes a taking.

Author: Sandra Day O’Connor

While the government has broad authority to adjust the rules governing the descent and devise of property, the complete abolition of both the descent and devise of a particular class of property may be a taking.

Since mine operators retained the right to mine virtually all the coal in their mineral estates, a burden placed on the support estate did not constitute a taking. (The support estate is not a separate segment of property for takings law purposes.)

Author: Thurgood Marshall

Regulation of property rights does not “take” private property when an individual's reasonable, investment-backed expectations can continue to be realized as long as they comply with reasonable regulations.

“Just compensation” under the Fifth Amendment is normally measured by the market value of the property at the time of the taking.

Only the purpose of a taking, rather than its mechanics, must pass scrutiny under the Public Use Clause of the Fifth Amendment.

When the character of a governmental action is a permanent physical occupation of property, there is a taking to the extent of the occupation regardless of whether the action achieves an important public benefit or has only a minimal economic impact on the owner.

State constitutional provisions, as construed to permit people reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the property rights or the free speech rights of the shopping center owner under the U.S. Constitution.

Author: William Brennan

There is no set formula for determining when justice and fairness require that economic losses caused by public action be compensated by the government. Factors to consider include the economic impact of the regulation on the property owner, the extent to which the regulation interferes with distinct investment-backed expectations, and the character of the government action.

Author: William O. Douglas

The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

Author: Lewis Powell

A shopping center does not lose its private character merely because the public is generally invited to use it for the purpose of doing business with the tenants of the center.

Author: Potter Stewart

Federal law bars all racial discrimination, private as well as public, in the sale or rental of property.

Author: Roger Taney

While the rights of private property are sacredly guarded, the community also has rights, and the happiness and wellbeing of every citizen depend on their faithful preservation.

Author: Henry Baldwin

An entry by one party on the land of another party is or is not an ouster of the legal possession arising from the title according to the intention with which it is done. If it is made under claim or color of right, it is an ouster; otherwise, it is a mere trespass.

Public ownership does not need to be the sole method of promoting the public purposes of a community redevelopment project. It is not beyond the power of Congress to utilize a private agency for this purpose, or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project.

Author: Sherman Minton

The Fourteenth Amendment bars the enforcement of a covenant forbidding the use and occupancy of real estate by non-Caucasians by an action at law in a state court to recover damages from a co-covenantor for a breach of the covenant.

Author: Fred M. Vinson

Private agreements to exclude persons of a designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment, but it is violative of the Equal Protection Clause for state courts to enforce them.

Flights of aircraft over private land that are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry on it.

Author: Hugo Black

A state cannot impose criminal penalties for distributing religious literature on the sidewalk of a company-owned town contrary to regulations of the town management, when the town and its shopping district are accessible to the general public.

Author: John Marshall

Private property generally should not be confiscated and private rights annulled on a change in the sovereignty of a territory.

The provision in the Fifth Amendment declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the federal government, and is not applicable to the legislation of the states. (This decision was essentially overruled by later cases.)

Author: George Sutherland

The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment if the health, safety, convenience, or general welfare of the part of the city affected will not be promoted as a result.

Author: Harlan Fiske Stone

When forced to make the choice, the state does not exceed its constitutional powers by deciding on the destruction of one class of property to save another class of property that, in the judgment of the legislature, is of greater value to the public.

A zoning ordinance is not unconstitutional unless it is clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare.

Author: Oliver Wendell Holmes, Jr.

If regulation goes too far, it will be recognized as a taking for which compensation must be paid.

Native American inhabitants are to be considered merely occupants, to be protected while in peace in the possession of their lands, but deemed incapable of transferring absolute title to others.

Author: John Marshall Harlan

A judgment of a state court, even if authorized by statute, whereby private property is taken for public use without compensation made or secured to the owner, is wanting in the due process of law required by the Fourteenth Amendment.

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Real Estate Transactions Case Outline

Contracts for the purchase and sale of real estate may involve many nuances. Litigation may arise over issues such as the validity of the contract and the scope of each party’s obligations. Mortgages and other methods of financing real estate transactions also may trigger disputes that come before courts. Most of these cases are decided at the state level, so rules may vary among jurisdictions. Below is an outline of key cases involving real estate transactions with links to the full text of virtually every case, provided free by Justia.

• 1 Duties of Brokers and Lawyers
• 2 Forming a Real Estate Contract
• 3 Executing a Real Estate Contract
• 4 The Condition of the Property
• 5 Closings and Escrow
• 6 Remedies for Contract Breaches
• 7 The Title System
• 8 Types of Housing Products
• 9 Mortgage Issues

Duties of Brokers and Lawyers

A broker has certain fiduciary duties, such as loyalty, confidentiality, and disclosure of conflicts of interest. Ethical questions can arise when an attorney represents a client as both an attorney and a broker in the same transaction.

Dubbs v. Stribling & Associates 一 When a broker’s interests or loyalties are divided due to a personal stake in the transaction or representation of multiple parties, the broker must disclose to the principal the nature and extent of the broker’s interest in the transaction or the material facts illuminating the broker’s divided loyalties.

In re Roth 一 An attorney whose actions as a broker are undertaken pursuant to the “attorney” exemption to the licensing law may perform brokerage services that are only incidental to the normal practice of law, which cannot be the basis for a claim of compensation as a broker.

Forming a Real Estate Contract

Even if there is a meeting of the minds, each party must have the capacity to be bound for a contract to be valid. Letters of intent during contract negotiations may need to note that material terms remain to be negotiated to prevent them from binding the parties.

Smith v. Beatty 一 Weakness of mind alone, without fraud, does not appear to be a sufficient ground to invalidate an instrument. Also, a vendee who knows that there is a gold mine on the land is not compelled to disclose that fact to the vendor. However, if he is interrogated as to his knowledge of such a thing, and he then denies any knowledge of the mine, this denial will make the transaction fraudulent.

Beller & Gould v. Lisenby 一 There are three essential components to a contract for the sale of real estate: the memorandum of contract must specify the parties; the memorandum must sufficiently describe the subject matter of the contract; and the memorandum must name the consideration. The consideration need not be expressly stated if the memorandum of contract furnishes a key by which the amount of the purchase price can be ascertained.

Executing a Real Estate Contract

A contract must identify the parties, describe the property, state the price, and establish the intent to sell. The document also must describe any conditions that must be satisfied before the contract will be executed, such as mortgage financing conditions.

Roberts v. Karimi 一 An affidavit given by a defendant in an unrelated lawsuit 16 months after the defendant allegedly made an oral contract can constitute a writing sufficient to remove the oral contract from the statute of frauds.

Dweck v. Altman 一 A reasonable construction of a writing in which the only real property of which mention is made is that designated by street address as “513 Quentin Road Brooklyn - NY,” which designation appears below the name of the defendant, warrants the conclusion that the premises so described form the subject matter of the instrument as it relates to realty.

Cohn v. Geon International Corp. 一 The fact that the words “consented to” above the signature of a party were stricken did not conclusively establish that the party did not intend to be bound by all the essential terms, to which a handwritten note indicated that they had agreed.

Stambovsky v. Ackley 一 When a condition that has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, non-disclosure constitutes a basis for rescission as a matter of equity.

Holscher v. James 一 The doctrine of equitable conversion applies only if nothing in the contract states otherwise.

Proctor v. Holden 一 Purchasers are not required as a matter of law to accept owner financing, and the rejection of owner financing in this case did not breach a financing contingency.

The Condition of the Property

A real estate contract should cover issues involving the quantity and quality of the property. For example, it should provide how much land will be transferred. Sellers must inform buyers about latent defects that a buyer could not reasonably discover. Some contracts contain “as is” provisions, but these may not completely shield a seller.

Pitre v. Twelve Oaks Trust 一 An “as is” provision in a contract for the sale of realty, by which the purchaser agrees to take the property in the condition in which it is, will not serve to preclude a purchaser from bringing an action for rescission or for damages if it is based on the seller’s fraudulent representation or concealment concerning the physical condition of the property.

Petrillo v. Bachenberg 一 Under the circumstances, the seller’s attorney had a duty not to misrepresent negligently the contents of a material document on which they knew or should have known that a potential buyer might rely to their financial detriment.

Van Camp v. Bradford 一 Latent defects give rise to a duty to disclose on the part of the seller and constitute an exception to the application of caveat emptor. When latent defects are coupled with misrepresentations or concealment, the doctrine of caveat emptor does not preclude recovery for fraud.

Turner v. Ferrin 一 Equity will provide a remedy when by mutual mistake the land contains materially more or less acreage than the parties believed. A slight disparity will justify equitable relief if the sale is by the acre, but if the sale is in gross, a great disparity must exist to authorize relief.

Richard v. A. Waldman & Sons, Inc. 一 Purchasers had reasonable grounds on which to attribute to the defendant, with its special means of knowledge as a developer of residential real estate, accuracy in what it represented as to the location of the structure on the lot, and they were entitled to rely on that representation. Thus, they could recover damages for misrepresentation without showing that the defendant actually knew of the falsity of its representation or alleging that it acted fraudulently or in bad faith.

Closings and Escrow

An escrow company is a neutral third party that collects certain funds and documents involved in the closing, which is the final stage of a real estate transaction. These may include earnest money, the loan documents, and the deed.

Miller v. Craig 一 When the judgment obtained by the purchaser against the vendors did not direct that any particular funds be paid to the purchaser, an agent breached his duties as an escrow agent by paying the amount that he was holding as an earnest money deposit to the purchaser without obtaining the permission of the vendors.

Regas v. Continental Casualty Co. 一 Attorneys’ conduct in writing a check on their escrow account to assist in the transfer of a client’s funds for a real estate closing constituted the practice of law. The management of all the requirements and execution of instruments necessary to close a real estate transaction demand legal skill and knowledge, as well as professional judgment.

Remedies for Contract Breaches

Most remedies are contract remedies, which are designed to make the non-breaching party whole. In limited situations, a party may pursue tort remedies based on a breach of an independent duty that is not based on the contractual relationship.

Zareas v. Smith 一 The seller’s expenses for normal maintenance and possession of the premises were not damages resulting from the purchaser’s breach and could not be charged to the purchaser.

Miami International Realty Co. v. Paynter 一 A plaintiff who seeks lost profits as a measure of damages must prove that such profits would have been received but for the injury caused by the defendant. Once the fact of damages is proved by a preponderance of the evidence, uncertainty as to the amount of damages will not bar recovery.

Sexton v. St. Clair Federal Savings Bank 一 A reasonable construction lender could easily foresee that a borrower could undergo extreme mental anguish if the lender breached a provision such as the provision that was allegedly breached in this case.

The Title System

Marketable title is usually defined as a title that is free from encumbrances and can be transferred. Issues that may affect marketability include adverse possession, encroachment, land use regulations, and encumbrances involving non-possessory rights or interests in the property held by third parties.

Tri-State Hotel Co., Inc. v. Sphinx Investment Co., Inc. 一 When a contract calls for the delivery of abstracts disclosing merchantable title, a purchaser will not be compelled to accept a title based on adverse possession.

Staley v. Stephens 一 Purchasers of real property who bargain for marketable title cannot be forced to accept property with an admitted cloud on the title.

Voorheesville Rod & Gun Club, Inc. v. E.W. Tompkins Co., Inc. 一 When a party agrees to purchase real estate that is restricted by laws or ordinances at the time, they are deemed to have entered into the contract subject to the same. The purchaser cannot thereafter be heard to object to taking the title because of those restrictions.

Booker T. Washington Construction & Design Co. v. Huntington Urban Renewal Authority 一 When a grantee of real property under a fee simple, general warranty deed contracts to sell the fee to a purchaser, but the grantee has only a life estate, if the purchaser sues the grantee for an inability to convey marketable title, the covenant of general warranty in the deed to the grantee is broken, and the covenantor, upon proper notice, is obligated to defend the title or be answerable to the grantee in damages.

Hanneman v. Downer 一 Surveyors may be held liable for the damages that result from their mistakes, misrepresentations, or negligence. A surveyor’s duty extends to subsequent purchasers who relied on the survey to their detriment.

Van Der Bent v. Gilling 一 Since a contract is a much less formal document than a deed, the same particularity of description is not required in the agreement, but the description must be sufficiently definite to permit the property to be located with reasonable certainty.

First American Title Insurance Co. v. First Title Service Co. of Florida Keys 一 When an abstract is prepared in the knowledge or under conditions in which an abstracter should reasonably expect that the employer is to provide it to third parties for the purposes of inducing them to rely on the abstract as evidence of title, the abstracter’s contractual duty to perform the service skillfully and diligently runs to the benefit of such known third parties.

Types of Housing Products

While the standard type of housing involved in real estate transactions is the single-family home, other options include condominiums and cooperatives. An owner of a condominium owns a unit and an undivided interest in the common areas, while an owner in a cooperative is merely a shareholder in the corporation that owns the building.

Holleman v. Mission Trace Homeowners’ Ass’n 一 While homeowners were granted a right and easement of enjoyment in and to the common area when they purchased their lots and homes in a subdivision, their rights are subject to reasonable rules and regulations adopted by the board of directors.

Crest Builders, Inc. v. Willow Falls Improvement Ass’n 一 A homeowners’ association validly amended its declaration of covenants and restrictions to terminate the rights of the developer to advertise and promote the units.

Cedar Cove Efficiency Condominium Association, Inc. v. Cedar Cove Properties 一 A condominium association is authorized to regulate and maintain the condominium’s aesthetics, including the building exteriors, so long as it exercises good business judgment. The business judgment rule will protect a board of directors if it has acted in a reasonable manner.

Kohler v. Snow Village, Inc. 一 To legitimately maintain and protect its interests, a cooperative corporation may place substantial restrictions on the right of an individual cooperator to alienate their property interest in the cooperative corporation.

Nevada Dept. of Commerce v. Carriage House Associates 一 A vacation license, which is a form of time-sharing that divides the occupancy rights to resort units among multiple parties, is a mere contractual right that fails to achieve the status of an interest in real property.

Royal Aloha Partners v. Real Estate Division 一 The Real Estate Division does not have the statutory authority to make rules concerning the sale of “right to use” memberships in condominium time-sharing plans.

Mortgage Issues

In a mortgage, a lender (mortgagee) lends money to a borrower (mortgagor) to purchase land, which becomes collateral on the loan. A mortgage involves two documents: the note and the mortgage agreement. Types of mortgages include fixed rate mortgages, buy-down mortgages, adjustable rate mortgages, balloon mortgages, reverse annuity mortgages, and purchase money mortgages.

Chetek State Bank v. Barberg 一 Tortious waste involves unreasonable conduct by the owner of real property that results in physical damage to the property and substantially diminishes the value of the property in which others have an interest. A failure to pay taxes and interest as required under a mortgage agreement did not state a claim for tortious waste.

Myers-Macomber Engineers v. M.L.W. Construction Corp. 一 A mortgagee who goes into possession of an incomplete condominium development upon default in the terms of a mortgage by the mortgagor does not owe a duty to use undistributed mortgage funds to satisfy the mortgagor’s unpaid debts.

Oryx Energy Co. v. Union National Bank of Texas 一 An absolute assignment of rents does not create a security interest but instead passes title to the rent contingent on default. Courts are reluctant to construe an assignment of rents clause as an absolute assignment for public policy reasons.

Chase Manhattan Bank v. Turabo Shopping Center, Inc. 一 To warrant the appointment of a receiver to manage and operate mortgaged property pending foreclosure, as well as only to collect its rents and profits, there must be at least a sufficient showing of something more than the inadequacy of the security and the doubtful financial standing of the debtor. (The court then listed several factors to consider in determining what “something more” means.)

ALH Holding Co. v. Bank of Telluride 一 When the priority of rights in real property is not dictated by the operation of the recording statute, the rule has long been that security interests, or mortgages, given in exchange for money applied to the purchase of the property have priority over all other liens.

Seidel v. 18 East 17th Street Owners, Inc. 一 The consequences to the lender of a usurious transaction can be harsh. The borrower is relieved of all further payment, including not only interest but also outstanding principal, and any mortgages securing payment are canceled. The borrower also can recover interest payments made in excess of the legal rate.

Swindell v. Federal National Mortgage Ass’n 一 The statutory penalty for usury required a defendant to forfeit all late payment charges to which it might otherwise have been entitled under the terms of the loan, but the defendant was not required to forfeit the interest due on the loan itself.

Pawtucket Institute for Savings v. Gagnon 一 In the event of any discrepancy between the terms of the mortgage and those contained in the separate instrument of indebtedness in respect to any material element of the secured claim, the mortgage recital must yield. Also, a mortgage is valid without any note or bond, so long as it secures an existing debt.

W.L. Development Corp. v. Trifort Realty, Inc. 一 A prior recorded mortgage for materials and labor provided for the construction of streets, road drainage, curbs, sewer lines, and gas and electric service mains in a real estate subdivision had priority over a subsequently filed mechanic’s lien.

This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.

Last reviewed August 2023

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The Case of the Landlord's Dilemma

Todd Rakoff and Joseph William Singer

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This case involves counseling a landlord of a three‐decker residential building in Cambridge, Massachusetts, who faces a dispute between two of his tenants. One tenant complains that another tenant (the landlord's nephew) is sexually harassing her in common areas of the building. The harassment is serious enough that she has moved out of the apartment and is staying in a hotel. The complaining tenant asks the landlord to evict the harasser and pay for her hotel bills.  The case presents a host of legal issues which run the gamut of all the first year courses, including procedure, torts, contracts, property, criminal law, and regulatory/administrative law, as well as constitutional law.

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Anatomy of a Real Estate Fraud Case: A Case Study

​Having practiced real estate law in Southern California over the past 30 years, I have represented a variety of clients in real estate fraud cases. These clients, both plaintiffs and defendants, have run the gamut from individuals, families, investors, homebuilders and developers. Buyers of both residential and commercial properties oftentimes complain that they were unaware of certain facts when entering into their purchase transaction, and if they had known such facts, would have negotiated a lower price or, possibly, walked away from the transaction. Such disgruntled buyers learn of these “material” facts (facts that arguably affect the value or desirability of the property) during escrow, shortly after closing, or years later. Upon “discovery” of such undisclosed/misrepresented material facts, the buyer feels cheated and seeks justice, usually in the form of a court or arbitration proceeding for damages. Potential targets include not only the seller, but the seller’s broker/agent and, sometimes, even the buyer’s agent, each of whom has different duties of disclosure.

​As the seller, full disclosure is essential, and one cannot insulate himself merely by selling “as is” or hiding behind exculpatory clauses and disclaimers. Further, even full disclosure will not absolve the seller from liability if he/she should have known of and disclosed material facts that only his agent knew of, since such knowledge by the seller’s agent can be imputed to the seller (principal). Thus, ignorance of facts affecting the value or desirability of the property is not an absolute defense to compensatory damage claims. The trend is approaching strict liability (although the courts have yet to impose such burden), whereby the seller can be held liable for any nondisclosure or misrepresentation of material fact. [Note: The theory of strict liability against a general contractor or homebuilder exists in other related claims, such as the implied warranty of habitability which has evolved from product liability case law, but such claims are typically limited to mass-produced housing involving a defect that was caused or created by the defendant builder/contractor.]

​For realtors representing one or both sides, professional standards are imposed and duties to investigate and disclose material facts are heightened. Listing agents representing the seller typically rely upon their client’s disclosures and knowledge of the property, which is sometimes incorrect. It is oftentimes a triable issue of fact as to whether the agent/broker representing the seller should have known the accuracy of such facts, or was aware of other facts that would arguably lead a qualified professional to investigate and discover the correct facts or other undisclosed facts. Further, an opinion expressed by a real estate professional can constitute an actionable misrepresentation of fact, and it is oftentimes a question for the judge or jury to determine if a statement made to a buyer is mere “puffery” by a salesman (e.g., “this is a nice neighborhood”), which is not actionable, versus an actionable opinion of fact made without a reasonable basis (e.g., “the foundation is well built”). These professional duties are particularly heightened if there is a dual agency (whereby the agent represents both seller and buyer in the transaction), which is oftentimes not worth the extra commission given the potentially-conflicting fiduciary duties owed to the buyer (in addition to the seller).

​Rarely in my experience is there conclusive evidence of active fraud: the type whereby the seller (or seller’s agent) intentionally misrepresents or conceals a substantial defect or material fact affecting the property. In one case where we represented a couple that purchased a multi-million dollar ocean view home, only to discover that there was mold inside the structure when they later remodeled the house, there was some circumstantial evidence of active concealment. When the seller’s broker noticed an odor emanating from one room, the seller assured him that it was odor from pet urine that remained in the carpeting. The seller’s agent burned candles and baked cookies during an open house, allegedly to mask the smell. When such facts were learned through discovery, a substantial settlement was obtained.

​Conversely, we have represented homebuilders, real estate auctioneers and other brokers accused of overreaching sales tactics. In one such case, our real estate auction client allegedly placed “shills” in the live auction audience to bid and artificially “stimulate” bidding activity. In another case, the agents working at a new home sales office were accused of “plugging” the sales office relief map (by placing markers on lots indicating that they were either in escrow or sold, when in fact they were not). The plaintiff homebuyers’ theory was that potential buyers (including plaintiffs) who visited the sales office were more likely to make an offer if only a few lots remained for sale.

​In another case involving a new home development, our developer client was sued on the theory that it (through its sales agents) should have disclosed to new home buyers that it was planning to reduce prices or offer buyer incentives in the (then) near future. (This occurred during a housing recession.)

However, these cases of (alleged) intentional wrongdoing are the exception rather than the norm. The general advice we give to a seller, agent or developer is a version of the Golden Rule: If you were the buyer, would you consider this information (that is being withheld or misrepresented) relevant to your buying decision? If so, it should be disclosed or, if you are making a representation, make sure your statements are accurate and you disclose everything within your knowledge (or accessible by diligent inquiry). [Note: While out of an abundance of caution, full disclosure is prudent, disclosing the obvious to a buyer is generally not actionable. In one case where we represented the seller of a large rice farm north of Sacramento, who was sued by an investor who bought the acreage in hopes of a new freeway extension, we prevailed on summary judgment on the grounds that there was no triable issue of fact as to whether the seller could incur liability for failing to disclose that the rice farm (which requires substantial water) was in a flood plain (a matter of public record).]

​Much more common is the case of a misrepresentation or nondisclosure that is not intentional or, oftentimes, an incorrect disclosure based on faulty information. Although punitive damages may be avoided by the seller and his/her agent, compensatory and consequential damages can be substantial even if the purchase agreement contains disclaimers and exculpatory language inserted for the purpose of protecting those on the seller’s side and/or shifting the duties of investigation to the buyer. Therefore, having a purchase and sales agreement attorney is crucial to ensuring proper handling of the legal complexities involved.

The Furla v. Jon Douglas Co. Case

​An exemplary case in point is the landmark decision of Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, in which my firm represented the plaintiff buyer (Furla). George Furla had a lot of facts stacked against him in his lawsuit against the seller and the seller’s broker/listing agent, defendant Jon Douglas Co., yet ultimately prevailed in obtaining a generous settlement.

Mr. Furla was a self-described “grave dancer,” looking to invest/buy distressed properties for below-market value. Furla, a stock trader with a business administration degree from the University of Southern California, could hardly be described as a naïve homebuyer, particularly since he had a history of bidding on Beverly Hills’ foreclosure properties. His investment criteria was to research property values in a particular area, determine a bargain price per square foot value, and then make an offer based on the product of this square foot value multiplied by the residence’s (living area) square footage. Furla’s research and investigation (with assistance from his broker, Fred Sands Realtors) led him to bid on (and subsequently purchase) a hillside home in Los Angeles’ Mt. Olympus area.

​At an open house, Furla picked up a flyer about the property (which did not mention the square footage of the house) along with a copy of the Multiple Listing Service listing, which described the home’s size as “APX: 5500” (or approximately 5,500 square feet). In typical fashion, at the bottom of the listing was a disclaimer: “Information Deemed Reliable But Not Guaranteed.”

​Defendant broker obtained the information that the house was 5,500 square feet from the seller’s daughter (the seller did not speak fluent English), who had the custom home built and believed the house was 5,500 square feet based on the architectural plans. The seller’s broker relied on this information, and testified that she saw no indication that the house was other than 5,500 square feet after several visual inspections of the property. In short, everyone on the seller’s side believed that the house was approximately 5,500 square feet.

​The parties negotiated the price at a meeting inside the home, and according to Furla, he pulled out a large calculator, declared “okay, 5,500 square feet, I’ll pay $170 a foot,” and he then entered those numbers into his calculator and held up the calculator with the resulting computation of $935,000 (stating that was his final and best offer, which was then accepted). [Note: This number calculation was important because by Furla showing the numerical result to limited-English speaking Krasinski, seller Krasinski could not claim he misunderstood Furla’s understanding (reliance).]

​Subsequently, the parties signed a purchase and sale agreement, which contained several disclaimers and exculpatory-type clauses. For instance, there was express language that buyer Furla was “aware that Broker makes no representations with respect to ‘square footage of the subject lot or the improvements thereon.’” Further, “square footage provided in the Multiple Listing Service, including, without limitation room sizes, and information materials concerning the Property are approximations only.” Further, the contract stated that by “having a professional appraiser measure the Property, Buyer may verify actual. . . square footage.”

​Elsewhere in the purchase agreement were recommendations and advisory provisions to Buyer, including in capital letters: “BROKER STRONGLY RECOMMENDS THAT BUYER EMPLOY . . . PROFESSIONALS AT BUYER’S EXPENSE TO INSPECT AND INVESTIGATE THE PROPERTY. . ..”

​Furla also acknowledged in the contract: “BUYER IS ADVISED THAT UNDER CIVIL CODE SECTIONS 2079.5, BUYER HAS AN INDEPENDENT LEGAL DUTY TO USE REASONABLE CARE TO PROTECT BUYER CONCERNING FACTS ABOUT THE PROPERTY WHICH ARE KNOWN TO BUYER, OR WITHIN BUYER’S DILIGENT ATTENTION AND OBSERVATION.”

​Despite these written disclaimers and exculpatory clauses, at no time during escrow did Furla measure the house’s square footage. In fact, had Furla obtained a copy of his own lender’s appraisal, he would have learned that the appraiser measured the house as 4,311 square feet. Nevertheless, the loan was approved and Furla closed on the house.

​Two years later, Furla decided to sell his home and, in the process, interviewed several local realtors. When Furla showed the house to one local realtor (John Parks at Prudential California Realty) and stated that the house was 5,500 square feet, Parks expressed doubt and casually stepped off the interior area at approximately 4,130 square feet.

​Furla was understandably upset because he had believed his home contained substantially more living area (5,500 vs. 4,130 sq. ft.), and he based his purchase offer on a price per square foot. He then went out and retained two real estate appraisers to measure the square footage. One appraiser measured the gross living area at 4,437 square feet, and the other at 4,615 square feet. [Note: In my experience having both retained appraisers and also having examined opposing appraisal expert witnesses, the calculation of “gross living area,” particularly when dealing with unusual hillside or irregularly-shaped custom homes, is not an exact science.]

​After receiving this information and confronting the seller’s broker (with no success), Furla retained our firm and sued the seller and seller’s broker (listing agent that exclusively represented seller) for fraud and deceit, alleging, among other things, that defendants should have known the house was actually smaller than represented to Furla.

​What followed was a civil procedure journey that took several dramatic turns. After extensive discovery, defendants brought a motion for summary judgment contending there was no triable issue of fact in that, as a matter of law, plaintiff did not reasonably rely upon the misrepresentations and, further, unreasonably failed to exercise due care for his own interest as buyer in not investigating and affirming the square footage.

Defendants presented substantial evidence that plaintiff was repeatedly warned in the purchase agreement and in the disclaimer language of the MLS that all statements concerning square footage were approximations only, not to be relied upon, and to be confirmed by buyer if he chose to do so (which he did not during escrow). Further, the broker defendants claimed that they reasonably relied on the square footage information provided to them by seller’s daughter, who built the home and had architectural plans. Defendants also pointed out that the Los Angeles County Assessor, the appraiser who did the “Freddie Mac” appraisal for seller and the property profile for the house all stated that it contained 5,500 square feet. Defendants argued that they reasonably relied on such information and should not be held liable for its inaccuracy.

​The trial court (Hon. Alexander H. Williams III) agreed with defendants and granted summary judgment in their favor. Undeterred, plaintiff appealed, which resulted in lengthy briefing, including amicus briefs from the California Association of Realtors and numerous defense firms, including the distinguished appellate firm of Haight, Brown & Bonesteel. After considering all of these briefs and hearing lengthy oral argument (albeit predominately by me and appellate counsel Roy Weatherup for defendants), the Court of Appeal (Charles S. Vogel, Presiding Justice) reversed the summary judgment and gave George Furla a hard-fought victory (defendants ultimately settled with Furla for a substantial amount).

​The Court of Appeal published its decision that has since been frequently cited in legal treatises and lawyer’s briefs. Among other holdings, the Furla decision held that a buyer is ordinarily entitled to rely on the representations of the owner or the owner’s agents regarding the size of the property without having to hire his own experts to affirm such representations. Further, a statement expressed as an opinion, by one having superior or special knowledge (a broker) can be an actionable misstatement of fact if the opinion is incorrect. The issue as to whether a statement is actionable is a question of fact for the jury to decide, as opposed to being summarily disposed of by summary judgment or other procedural pre-trial tactic.

Understandably, the seller and his agents need to be concerned about making any representations of fact, particularly if they are not absolutely certain of the accuracy of such representations. “As is” clauses and similar exculpatory provisions are oftentimes ineffective. Even a purchase agreement’s inclusion of an integration clause stating that there are no promises, representations, understandings or agreements outside of the written agreement are oftentimes ineffective.

Miller & Starr, California Real Estate 3d summarizes the law and pitfalls for sellers and their agents (Section 1:153) in the following excerpts:

Many times the prospectus, brochure, or broker’s statement describing the property contains a disclaimer provision stating that “the information contained herein is based upon information from sources deemed reliable and which we believe to be correct, but we cannot assume responsibility for errors or omissions therein,” or words of similar effect. These types of provisions are intended to protect the seller from liability for intentional or negligent misrepresentation, or the failure to disclose some fact to the buyer, but they have only a limited effect.

A principal who utters a false statement is not relieved of liability merely because the contract contains an integration or exculpatory clause. . . .[A] party who has induced the other party to enter into the contract based on either an intentional or negligent misrepresentation cannot be relieved of liability by any integration or exculpatory clause, or other clause waiving liability, contained in the contract. See Herzog v. Capital Co. (1945) 27 Cal.2d 349.

​​​The buyer may rely on the misrepresentations of the seller even if the contract contains an integration clause stating that there are no other representations [other than those expressly stated in the contract] that have induced the buyer to enter into the contract. See Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Development Corp. (1995) 32 Cal.App.4th 985.

Despite an integration clause stating that there are no other representations other than those contained in the contract, parol evidence of fraudulent misrepresentations is admissible. See Oak Industries, Inc. v. Foxboro Co. (S.D. Cal. 1984) 596 F.Supp. 601.

The general principle that an integration or exculpatory clause does not protect a party against his or her own fraud applies equally to a seller who has an affirmative duty to disclose known material facts to the buyer. A seller who has a duty to disclose a known material fact to the buyer who fails to make the disclosure can be personally liable for fraud regardless of an integration or exculpatory clause in the contract. See Civil Code §1668; Lingsch v. Savage (1963) 213 Cal.App.2d 729. An integration clause does not protect a broker or other agent from liability for his or her own fraud. In re Jogert, Inc. (9th Cir. 1991) 950 F.2d 1498, 1505-1506. A principal [i.e., seller] who ratifies the conduct of the agent may be held liable for damages resulting from an agent’s fraud, despite an exculpatory clause or integration clause when the agent’s fraudulent conduct is within the course and scope of his or her authority. Therefore, where the principal is innocent and does not participate in the fraud but accepts the benefits of the transaction and fails to disaffirm the contract after discovery of the agent’s fraud, the contractual provisions do not relieve the principal from personal liability for damages. See Crawford v. Nastos (1960) 182 Cal.App.2d 659.

Generally, an innocent seller is liable to the buyer for his or her agent’s failure to disclose a material fact. An integration clause or exculpatory clause does not protect the innocent seller from damages liability when he or she does not know of the defect, but the seller’s agent has knowledge of the defect and fails to disclose it to the buyer. Because the agent’s knowledge is imputed to the principal, the seller is deemed to have knowledge of the defect and, therefore, has a duty to disclose the defect even though his or her nondisclosure is not with fraudulent intent. The seller is liable for damages for the [agent’s] failure to disclose the defect just as if he or she had failed to disclose a known defect.

In conclusion, the parties to a real estate transaction, whether residential or commercial, are well advised to seek legal counsel through a real estate attorney concerning their respective duties, obligations and rights in the transaction. To minimize liability, everyone on the selling side should disclose, investigate, and continue to disclose before and during escrow.

In the event a dispute subsequently arises between the parties or their brokers, experienced real estate litigators are necessary to advise the parties as to their options, and to oftentimes settle or resolve a dispute at an early stage. Sometimes however, like in the Furla case, there are disputed facts and strong arguments to be made by both sides of the dispute, and experienced litigators are required to argue the case at both the trial and appellate level in order to obtain a favorable outcome. [Note: While a contractual arbitration provision may sometimes streamline the process, the liability issues and legal analysis remain the same.]

John S. Gleason is an attorney with the Newport Beach law firm Bridgford, Gleason & Artinian, and has been practicing real estate and business litigation throughout California for 30 years. Mr. Gleason received his law degree from U.C. Hastings College of Law, his MBA from U.C. Berkeley, and a degree in Business Economics from U.C. Santa Barbara. He also received hands-on experience in sales as a registered stockbroker and investment advisor at the regional firm of Bateman Eichler, Hill Richards. Contact:  [email protected] .

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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Five Property Law Cases You Should Know About

Property law is the area of law that governs various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions), and in personal property, within the English Common Law legal system. This article will aim to give an insight into five property law cases which have shaped English property law.

1. Central London Property Trust Ltd. V High Trees Housing Ltd (1947) KB 130

An agreement from 1937 granted the plaintiffs a 99-year lease over a block of flats. Owing to the Second World War, these properties were never fully occupied as people fled the capital. In order to minimalise losses, the ground rent was reduced from £2,500 per annum to £1,250.

This reduced rate was paid for the period of 1941-1945. Following the conclusion of war in 1945; High Trees Housing Ltd sought to revert back to the £2,500 figure and reclaim back rent. The court held that by virtue of their prior agreement, the plaintiff had relied on the statements made by the respondent.

Key principle:

Promissory Estoppel is established in proprietary matters where one makes a statement which another relies on to their detriment.

2. Street v Mountford (1985) AC 809

Mountford occupied two rooms in Street’s property subject to a weekly rent. The agreement was labelled a licence and contained a clause signed by Mountford agreeing it was not a tenancy. When a dispute arose, the House of Lords was asked to rule on whether this document was a licence or a lease.

A lease would be favourable for Mountford, giving her additional proprietary rights and protection from eviction that a licence would not. The court held that this was in fact a lease due to the presence of:

• Term Certain
• Exclusive Possession

If the three essential characteristics for a lease are present, then the tenant more than likely has a lease as opposed to a licence.

3. Bernstein of Leigh (Baron) v Skyviews and General Ltd. (1978) QB 479

This property law case surrounded the principle of Culus est solum eius est usque ad coelum et ad inferos, meaning one can enjoy his land from the highest heavens down to the centre of the Earth. Skyviews were a company that flew over land in order to take aerial photographs from above. They then offered to sell these photographs to the landowners offering an aerial view.

Sidney Bernstein who was then the Chairman of Granada Television objected to this activity. He objected on the grounds of privacy since photos were taken without his consent. The court sided with Skyviews and General Ltd.

Rights are restricted to such height as was necessary for the ordinary use and enjoyment of the land and structures upon it. The defendants’ aircraft did not infringe any rights in the plaintiff’s airspace and thus did not commit any trespass by flying over land for the purpose of taking a photograph.

Courts will only intervene in land matters up to a reasonable height.

4. Parker v British Airways Board (1982) QB 1004

This is one of two key property law cases in English law, clarifying the myth of finders’ keepers where items found on land are concerned. A bracelet was found by a passenger named Parker in an executive lounge, which a section of the public had the right to access based on their ticket class.

He handed the bracelet in and asked for it to be returned to him if the original owner was not identified. However, he found out shortly after that the British Airways Board had sold it afterward, so took the company to court. The court ruled that the item belonged to Parker and that British Airways did not have sufficient control over the area. They should have had signs detailing a lost and found policy.

Where items are found on the land, the default position is that they belong to the ‘finder’ if the original owner cannot be located.

5. Waverley Borough Council v Fletcher (1996) QB 334

This is the second key case in English law, clarifying the myth of finders’ keepers where items found on land are concerned. Fletcher was using a metal detector in a public park. He found a brooch traceable to King Henry Vlll located nine inches underground.

There was some argument that the use of a metal detector was banned in the park. The Council was found to own the brooch seen as it was in as opposed to on the land. Fletcher had gone digging where he may have not been entitled to do so. He unlawfully damaged Waverley Borough Council’s land having not asked permission.

Where items are found in the land, the default position is that they belong to the landowner, if the original owner cannot be located.

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Words: Matthew Knights

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January 1, 2002   

Real estate litigation case studies, by kenneth j. abere, jr.  .

Case Study No. 1:  Sale of property with home and adjacent piece of vacant land.  

Facts: Parcel 1 contained a house on one tax lot.  Parcel 2 was a vacant lot with two tax lots divided by a line running north and south. 

The property was advertised in MLS as a house with adjacent property that contained two buildable lots.  One realtor represented both the buyer and seller.  Our clients purchased the property because they felt it was reasonably priced and intended to build two homes on Lot 2 which they understood to be two separate lots. 

A.         Litigation Procedure.  The parties Earnest Money Agreement (EMA) had dispute resolution clauses that required mediation and then arbitration.  According to the EMA, if a party refused mediation, they could not submit a claim for attorney fees after arbitrating the claim.                       

1.         Mediation. 

2.         Arbitration – Arbitration Service of Portland. 

B.         Obligations Real Estate Agent. 

1.         Both seller’s and buyer’s agents fiduciary duties of loyalty, obedience, disclosure, confidentiality to the client and must perform the services with reasonable care and diligence (Exhibit 1, Oregon Revised Statutes (ORS) 696.805 and 696.810)   If the realtor is a dual agent, they still must perform their duties with reasonable care and diligence.   (Exhibit 1, ORS 696.815) 

2.         A realtor is precluded from providing services outside their area of expertise.  (Exhibit 2 – Article 11, Code of Ethics and Standards of Practice of the National Association of Realtors) 

C.        Problems Encountered by Agent.           

1.         Incorrect property description.  When property being listed is subject to a prior partition, you need to get the description from the Plat Map. 

2.         Failure to recognize property subject to a Land Use Ruling (LUR).  Plat Map references LUR , puts agent on notice to find out what LUR is.

3.         Failure to recognize a tax lot line and a property line may be different.  Property that has been partitioned may contain more than one tax lot. 

4.         Completing property description in listing agreement after meeting with seller, but failing to get seller approval of description.  If don’t complete listing agreement before seller signs it, need to have them approve additional language you  may add.

5.         Agreeing to accept responsibility to confirm whether lot 2 was buildable and failing to get correct answer.  Even if you have no duty to provide service, once you agree do it, you must use reasonable diligence. 

6.         Failing to obtain LUR file at Portland Planning Bureau.         

a.         Advice City Planner based on computer search. 

b.         Request formal zoning confirmation letter take 8-10 weeks. 

c.         Obtain copy LUR file.  The most recent three years of decisions are on file at Portland Planning Bureau; older decisions at archives. 

7.         Failure to recognize “Shadow Plan” not an approved use of the land. 

D.        Beware of E-mail Communication.  

E-mail is a convenient mode of communication, but it can be used against you at later time.  If you have a transaction that is starting to become a problem, then treat e-mail like a letter and give the same thought and consideration to it before you send it. 

E.         Joint and Several Liability. 

The liability of a seller and a real estate agent can be joint and several.  This means one party can be responsible to pay all damages awarded to a plaintiff and be forced to collect the other defendant’s fair share from them. 

Case Study No. 2:  Seller Representations.  

Facts: Seller represented that her property was hooked up to public sewer when it was not. 

A.         Seller Representations.  All representations based on seller’s actual knowledge, seller has made no investigation.  

B.         Problems Encountered by Seller.  Seller had actual knowledge because never got bill from City of Portland Water Bureau.  Relied on representatives of prior seller that the property was hooked up to a public sewer. 

Case Study No. 3:   Property Line Mistakes.  

Facts:  Realtor conferred with seller regarding location of property lines for home in Government Camp.  The lots in the area have odd sizes that are not as uniform as you often see in a platted subdivision in Portland.  Based on a conversation with seller and walking the alleged property lines with the seller, realtor represents incorrect property line. 

Facts:  Realtor represents buyer who is purchasing property with a home on it that is next to a vacant lot.  One of the alleged property lines is a row of arborvitae that has been described by the seller and the seller’s agent as the property line.  Based on a conversation with the seller’s agent, realtor represents the arborvitae as the property line, when the property line is actually 10′ closer than the arborvitae. 

A.         When in doubt, tell your client to get a survey or make them sign an addendum to the earnest money agreement in which they agree that you advised them to get a survey and they declined to get one.           

Case Study No. 4: Letting an offer lapse  

Facts: Seller wants to sell a 20 acre parcel of vacant land near Eugene, Oregon that is outside the urban growth boundary.  Realtor does a market survey and sets a value for the land and seller agrees with the selling price.  Seller receives two offers and agrees to sell the property to buyer number 1, who is also a general contractor.  

After buyer number 1 agrees to purchase seller’s property, he asks seller if seller would like to buy a home he is building in Springfield, Oregon.  Seller agrees and an addendum to the earnest money agreement for the purchase of the vacant land is signed by both parties.  However, a second earnest money agreement for seller’s purchase of the house being built by buyer number 1 is not completed at this time. 

The listing agreement for realtor expires before closing of the sale of the vacant land.  A month before the closing date for the sale of the vacant land, buyer number 2 offers to buy the vacant land for slightly more than buyernumber 1 with several contingencies.  Since buyer number 1 is still under contract with seller, the offer by buyer number 2 is accepted as a back up offer.  

Buyer number 1 and seller fail to close the sale for the vacant land by the date required by their earnest money agreement because they are negotiating a reduction in the price seller will pay for the home buyer number 1 is building for him.  After the closing date for the deal involving buyer number 1, buyer number 2 increases his offer for the vacant land and removes all contingencies.  Realtor does not present the no contingency offer from buyer number 2 to seller until after seller signs an addendum to the earnest money agreement with buyer number 1 and a separate earnest money agreement for the home being built by buyer number 1 for seller. 

A.         Potential problems for Realtor. 

1.         Having two separate transactions in one earnest money agreement.     

2.         Does realtor continue to have authority to represent seller when the listing agreement has lapsed?

3.         Whether a second offer has to be presented to a seller when the seller is still negotiating with buyer number 1 after the closing date has passed and no extension has been executed? 

4.         What constitutes a fair valuation of vacant land?  Is reviewing comparable sales good enough or is an actual appraisal required? 

Case Study No. 5:   Zero Lot Line Disclosure  

What is a zero lot line? A zero lot line means that the lot line for a structure runs along the foundation of the structure, there is no set back from a separate property line. 

Facts:  Real estate agent represents the seller of a home.  During his review of the home with seller, they both discover that neighbor’s garage encroaches onto seller’s property.  Seller tells neighbor that she wants to build a fence on the true property line.  Neighbor tells her they own the property by adverse possession and will not consent to fence.  Seller gets survey which shows neighbor’s garage encroaches onto her property.  Realtor tells seller to get a lot line adjustment and assumes it has  been done. 

Realtor includes a description of the zero lot line in the Multiple Listing Service listing.  He also verbally tells the seller’s agent about the zero lot line, but does not disclose it in the earnest money agreement.  Realtor never checked to see that the lot line adjustment had been done.  Buyer purchases seller’s home and finds out about neighbor’s adverse possession claim and the encroaching garage. 

1.         Sent a letter on behalf of seller to neighbor regarding resolving their adverse possession claim?  Let seller do that herself. 

2.         Did not confirm whether the lot line adjustment was actually completed, relied on client? 

3.         Did not disclose the zero lot line in the earnest money agreement?  Seller did not have title to the property she represented she was selling? 

4.         Did not disclose pending adverse possession claim, which would never show up on a title report. 

Case Study No. 6:  Failure to obtain access easement  

Facts:  Duplex owner owns a duplex on a lot that has enough land for another home to be built to the north of the duplex.  Owner sells vacant land to builder and they orally agree that builder will give owner an access easement to access the north side of the duplex for maintenance and egress to the back yard because the sale of the vacant land has created a zero lot line for the duplex. 

Builder subsequently agrees to build home on his lot for Buyer, but does not tell buyer he has agreed to give duplex owner an access easement.  After Buyer signs an earnest money agreement to buy house from Builder, she finds out about proposed access easement.  We represented Duplex Owner to get access easement from Buyer. 

Realtor in these transactions represented Duplex Owner when sold land to Builder, Builder when he sold home to Buyer and Duplex Owner for sale of Duplex. 

1.         Did not negotiate terms of the access easement before sold vacant land to Builder.  What does an access easement mean? 

2.         Did not get access easement in writing and record it prior to sale of vacant land to builder.  Has to be in writing to be  enforceable. 

3.         Did not disclose oral agreement to grant access easement to Buyer when sold home to her. 

4.         Clear conflicts of interest in representing multiple parties on same pieces of properties.  Realtor wanted to meet with my client Duplex owner and I told her she could not because we  had a potential conflict with her other client Builder over the access easement. 

Case Study No. 7:  Utility easements  

Facts:  Buyer intends to purchase home with adjacent lot that has a swimming pool that is diagonally across from the lot with the home but does not  actually touch it.  Prior owners did not use swimming pool very much, but have access easement across the corner of neighbor’s yard.  Seller did not disclose that there was no utility easement to get water and electric to the pool, nor disclose whether there was any existing water or electrical source to the pool. 

We represented the buyer and found out there were no utilities running to the pool, (it had been filled with a hose) and no electrical lines.  We drafted a utility easement which allowed buyer to run water and power to the pool from her own property. 

1.         Failing to discover whether there was water and electrical service to pool. 

2.         Failing to disclose that there was no water or electrical service to pool.

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Normile v. Miller

Professor Melissa A. Hale

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Brief Fact Summary.

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What Is Real Estate Law? Everything You Need To Know

Updated: Jan 2, 2024, 6:00am

About 61% of Americans own their homes, meaning more than half of Americans own real estate. Individuals who own property and do not have a thorough understanding of the property market may encounter legal troubles. That’s where real estate lawyers come in.

If you’re interested in the real estate market and finance, you might consider a career in real estate law. Real estate attorneys enjoy steady job security and above-average salaries.

This guide offers practical information on how to become a lawyer specializing in real estate.

Why You Can Trust Forbes Advisor Education

Forbes Advisor’s education editors are committed to producing unbiased rankings and informative articles covering online colleges, tech bootcamps and career paths. Our ranking methodologies use data from the National Center for Education Statistics , education providers, and reputable educational and professional organizations. An advisory board of educators and other subject matter experts reviews and verifies our content to bring you trustworthy, up-to-date information. Advertisers do not influence our rankings or editorial content.

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What Is Real Estate Law?

Real estate law is a branch of civil law that governs the ownership and use of landed property. This legal sector determines who is entitled to occupy a piece of land or structure and for how long. Some refer to this specialization as “real property law.”

Real estate law covers titles, deeds, zoning, estate planning and property taxes. It governs ownership rights and the limitations to those rights stipulated by the government or agreements (e.g., leases, purchase agreements).

Property and land use laws differ by state. For a real estate attorney to oversee a transaction in one state, they must be licensed to practice there.

What Do Real Estate Lawyers Do?

Responsibilities.

A real estate lawyer’s main focus is protecting their client’s interest under state laws. This goal entails a variety of other responsibilities, including:

• Offering legal advice on real estate management, property taxes, real estate restrictions and state laws
• Preparing and reviewing legal papers like purchase agreements, titles and mortgage and transfer documents
• Assessing legal risks in real estate documents and advising clients accordingly
• Ensuring compliance with state laws during real property transactions
• Supervising the closing and transfer of titles
• Negotiating settlements on behalf of clients during real estate disputes
• Representing clients in court in cases of real estate fraud

Real estate lawyers should be adept at negotiating and have an in-depth understanding of the real estate market.

According to Payscale , real estate lawyers earn around $97,000 a year on average. Compared to the average U.S. salary of $61,900, real estate attorneys are on a higher rung of the income ladder. However, their income may differ by location, experience level and clientele.

The Bureau of Labor Statistics projects an 8% employment growth rate for lawyers from 2022 to 2032, indicating a steady demand for real estate lawyers in the coming years as more people invest in landed property.

Skills for Practicing Real Estate Law

Practicing real estate law requires a strategic mindset as these professionals must navigate the market, win over clients and settle disputes with opposing parties. Below are vital skills that every real estate attorney should develop to succeed.

Analytical Skills

A real estate lawyer needs a critical mind to analyze legal provisions, detect potential risks and advise clients accordingly.

Communication and Speaking Skills

When it comes to legal jargon, most real estate investors have a surface-level understanding at best. Therefore, real estate attorneys must know how to break down legal concepts and documents into understandable language for their clients and other parties involved in transactions. These lawyers also need to speak clearly when presenting their cases in court.

Interpersonal Skills

Real estate lawyers must gain their clients’ confidence and respect by demonstrating legal expertise and empathy for clients’ situations.

Problem-Solving

Objective assessment of agreements, legal limitations and provisions in a real estate transaction is vital to lawyers’ careers. These skills allow attorneys to negotiate settlements and build compelling cases in court.

Legal research involves locating and retrieving the right information to support a legal position. A real estate attorney must be able to find precedents that pertain to the situation at hand and advise their client accordingly.

A real estate attorney must be precise when drafting legal papers for a transaction, leaving no room for misinterpretation.

How To Become A Real Estate Lawyer

Law is one of the oldest professions. The traditional path to becoming an attorney is relatively standard across countries. However, real estate lawyers have to go the extra mile to become experts on the law and the real estate market.

If you decide that this career is for you and are wondering how to become a real estate lawyer, you must complete the following steps.

Earn a Bachelor’s Degree

The first step to becoming a lawyer is earning a bachelor’s degree. Many law schools prefer applicants from pre-law majors , but there are no strict restrictions on degree choices at the undergraduate level. Any four-year undergraduate degree from an accredited college qualifies you to apply for law school.

However, undergraduate students who want to specialize in real estate law should consider a major in business, economics or psychology.

Pass the LSAT

Once you have earned a bachelor’s degree, the next step is attending law school. To qualify for admission into a law school accredited by the American Bar Association (ABA), candidates must pass the Law School Admissions Test (LSAT)®.

The LSAT is an integral part of the law school admission process used to determine how well applicants would perform in a law program. The exam tests learners’ comprehension, analytical and writing skills.

Many ABA-accredited law schools now accept the GRE in lieu of the LSAT.

Earn a Real Estate Lawyer Degree

It typically takes three years of full-time study in law school to earn a juris doctor degree. However, some schools offer part-time programs for students with other obligations. Part-time degree programs typically take longer to complete.

The first year of law school focuses on the fundamentals of law. In the last year or two, learners can take up real estate law as their specialty and gain experience through an internship.

But how much is law school ? The ABA publishes tuition data reported by law schools. According to this data, law school tuition costs $42,823 per year on average for full-time, in-state students. This totals $128,469, excluding student fees and living expenses, after three years of law school.

According to the National Center for Education Statistics , public graduate degree programs cost less than $20,000 per year on average in tuition and fees, making law school comparatively expensive. So, is law school worth it ? If you want to become a real estate lawyer, that’s the path we recommend.

Learners who need help funding their degrees can seek scholarships and student loans from the government and private sources.

Pass the Bar

Upon completing your law school program, you must sit for the bar exam. This test determines whether you are qualified to practice in your state. Note that each state sets its own requirements for the bar exam.

Passing the bar qualifies you to obtain the attorney’s license needed to practice law in the United States. Check out our list of the best law school loans to get started.

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Real Property Law

• Solo and Small Firm
• Trusts and Estates
• Workers’ Compensation

CASE SUMMARY UPDATE: June/July 2022 Real Property Case Summaries.

By: Monty McIntyre

California Case Summaries™ ( https://cacasesummaries.com )

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, [email protected] , (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

Real Property

Canyon Vineyard Estates I v. DeJoria (2022) _ Cal.App.5th _ , 2022 WL 1565262: The Court of Appeal affirmed in part, and reversed in part, the trial court’s order granting defendants’ motion for summary judgment entering a judgment an injunction against plaintiff, and awarding defendant Mountains Restoration Trust (MRT) 1,371,962.20 in attorney fees and $5,424.55 in costs and awarding the California State Attorney General $189,675 in attorney fees and $5,552.88 in costs. The trial court properly determined that the real property was subject to a conservation easement that prohibited development. However, the Court of Appeal concluded that the trial court’s injunction prohibiting plaintiff from violating the easement was overbroad in that it improperly barred plaintiff from filing further litigation to challenge the conservation easement without regard to the potential merits of a future claim. (C.A. 2nd, filed April 21, 2022, published May 17, 2022.) Morris v. JPMorgan Chase Bank (2022) _ Cal.App.5th _ , 2022 WL 1419712: The Court of Appeal reversed in part and affirmed in part the trial court’s order sustaining all of defendants’ demurrers, without leave to amend, to all of plaintiff’s causes of action alleging violations of the California Homeowner Bill of Rights (HBOR; Civil Code, sections 2923.6, 2923.7), other statutory violations (Civil Code, section 2924b; Business & Professions Code, section 17200), and common law and equitable (negligence, voiding of trustee’s sale, quiet title) theories. The Court of Appeal reversed in part, directing the trial court to enter a new and different order overruling the demurrers to the first cause of action alleging failure to appoint a single point of contact (section 2923.7), the second cause of action alleging dual tracking (section 2923.6), and the third cause of action alleging failure to mail upon request a notice of default and notice of trustee’s sale (section 2924b). By forcing plaintiff to deal with multiple people, none of whom could inform her of the status of her loan modification application; by giving her inconsistent and inaccurate information; and by stringing her along until her home was sold without notice, plaintiff alleged that defendants deprived her of a meaningful opportunity to be considered for a loan modification, which alleged a material violation of section 2923.7. The Court of Appeal concluded that plaintiff alleged a viable cause of action under section 2923.6, because her cause of action survived the repeal of section 2923.6(c)-(f) effective on January 1, 2018. The Court of Appeal concluded the trial court erred in ruling that plaintiff’s section 2924b cause of action was subject to demurrer because it adequately alleged defendant. The Court of Appeal affirmed the trial court’s rulings on the remaining causes of action. (C.A. 1st, May 4, 2022.)

Romero v. Shih (2022) 78 Cal.App.5th 326: The Court of Appeal affirmed the part of the trial court’s judgment for defendants and cross-complainants, following a five-day bench trial, resolving a property line dispute between neighbors by creating an equitable easement in favor of defendants, the encroaching property owners, granting them an easement over the entire 1,296-square-foot encroachment. However, the Court of Appeal reversed the part of the trial court’s judgment granting defendants an implied easement, concluding the trial court erred in granting an exclusive implied easement that amounted to fee title. (C.A. 2nd., May 5, 2022.)

Reznitskiy v. County of Marin (2022) _ Cal.App.5th _ , 2022 WL 2154703: The Court of Appeal affirmed the trial court’s denial of a petition for a writ of administrative mandamus seeking to overturn the denial of petitioners’ application to build a nearly 4,000-square-foot single-family home on a hillside lot in San Anselmo (the project). After concluding that the project was not subject to the Housing Accountability Act (HAA; Government Code, section 65589.5), respondents denied the application on several bases, including that the home was outsized compared to the surrounding neighborhood. Petitioners argued claim that their planned home qualified as a “housing development project” under the HAA.  They also claimed that respondent County of Marin was equitably estopped from arguing that the HAA does not apply, and that insufficient evidence supported the County’s decision. The Court of Appeal ruled that the HAA does not apply to a project to build an individual single-family home. It also rejected petitioners’ equitable-estoppel and insufficient-evidence claims. (C.A. 1st, June 15, 2022.)

XPO Logistics Freight, Inc. v. Hayward Property, LLC (2022) _ Cal.App.5th _ , 2022 WL 2187897: The Court of Appeal affirmed in part and reversed in part the judgment entered by the trial court quieting title to a disputed area to plaintiff, denying defendants’ purchase-price restitution claim, and awarding relief on defendants’ property tax restitution claim in a sum stipulated to by the parties-plus prejudgment interest. Plaintiff also challenged postjudgment orders taxing its costs and declining to award it attorney fees as a sanction for defendants’ discovery abuses and alleged pursuit of a “knowingly false” claim. As of 1979, the entire real property was owned by one entity and divided into four parcels. Sometime before 1997, the county assessor divided the property—for purposes of property taxes—into three assessor’s parcels with distinct assessor’s parcel numbers (APNs). In 1997, the owner reconfigured it into two parcels. The 1997 document reconfiguring the property into two parcels had an undisputed error in defining one of the parcels by its metes and bounds. When the property was reconfigured into two parcels, which later passed to different owners, the boundaries of the APNs were not changed In several transactions between 1998 and 2002, one reconfigured parcel was conveyed to plaintiff, and the other to defendants. The Court of Appeal concluded that the trial court

correctly disregarded APN references in the deeds, and its judgment must be affirmed insofar as it encompassed a declaration that defendants did not acquire an interest in the disputed area. The Court of Appeal reversed the trial court’s award of prejudgment interest on defendants’ restitution claim for the trial court to exercise its discretion in determining whether and from what date to award such interest and, if awarded, to apply the correct interest rate. It also affirmed the trial court’s orders taxing plaintiff’s costs and denying its request for attorney fee sanctions. (C.A. 1st, June 17, 2022.)

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Regulation Of Building Projects In Nigeria - Inadequate Or Unenforced? A Case Study Of Lagos State

Contributor.

Introduction

The recent collapse of a 21-story building on Gerard Road, Ikoyi area of Lagos State and the consequent loss of precious lives in that debacle has once again brought to fore the persisting unresolved issues plaguing the built environment sector 1 in Nigeria and the inadequacy of existing measures put in place to safeguard the life and property of citizens. Over the past two decades, the number of collapsed buildings in Lagos State alone has risen to worrisome levels and this once again raises the question of whether Nigeria is behind in enacting adequate laws to regulate this crucial sector or whether adequacy is not the problem but rather that the laws are more honored in their breach than in their observance.

Despite Nigeria's huge housing deficit, and the need to encourage foreign direct investment into the built environment sector, investors and citizens continue to encounter various challenges in obtaining building permits from regulators. A four-year assessment of business regulations by World Bank around the 36 Nigerian States and FCT Abuja in four regulatory areas including dealing with construction permits, discloses Kaduna, Enugu, Abia, Lagos and Anambra as States showing the largest advancement toward the global good practice frontier. The assessment ranked Lagos the least State 2 in dealing with construction permits as investors and developers have to go through 17 procedures to obtain permit which is estimated to take about 118 days.

In 2017, one of the writers of this article writer was privileged to be a member of the Construction Permits Working Group which participated in compiling an Enabling Business Report on the Nigerian Business Climate, a project of the Steering Committee of the Presidential Enabling Business Environment Council & the Nigerian Bar Association Section on Business Law Collaboration. The Report adopted the World Bank's Doing Business indicator which has a building quality control index that evaluates as a prototype, the time, and costs of the permitting process of building a warehouse, transparency of processes, quality of building regulations, the strength of quality control and safety mechanisms, liability and insurance regimes, and professional certification requirements.

Permitting processes are regarded as important because delays in obtaining a building permit, particularly with planning approvals, can create adverse effects on a building project and can lead developers to abandon otherwise viable investments. In many instances, it may also cause builders to choose to bribe building officials for a "fast-track" permit or resort to building informally which can lead to poor compliance with standards and increased risks to lives as well as loss of critical infrastructure. Good permitting practices are regarded as those which ensure that building quality control and safety mechanisms are in place, sets rules and ensures that they are clear and coherent, use one-stop shops to improve coordination, and differentiate projects by risks. At the moment, most of the nation's permitting processes fall below these standards and sadly, the same issues identified in the 2017 Report, continue to plague the sector and it seems there is no respite in sight. This article will put forward a couple of the solutions proffered in the Report in the hope that reform efforts will take them into consideration.

Building Regulation in Nigeria

Nigeria has a National Building Code which was enacted in 2006. The Code was first initiated by the National Council on Housing and Urban Development which deemed the Code necessary to halt the ugly trend of perennial building collapse in the built environment sector and promote integrity of building projects and qualitative housing for every Nigerian. The Code makes provision for the administration of the entire building process and State Governments in Nigeria were implored to integrate the provisions of the Code into their local laws particularly those relating to Design, Construction and Maintenance (Post Construction), and efficiently monitor its implementation. Aside from the industry concern that the Code is obsolete and non-operational, one of the major issues has always been the fact that the Code is only applicable and enforceable in States where the State Government choses to integrate the provisions of the Code into their local laws. Lagos is one of those States which has integrated the Code into its construction permitting processes, and as the commercial nerve center of the country, our discourse will focus on Lagos State's building and construction permitting processes.

Lagos State Building Regulation and Permitting Process

With the plethora of reform guidelines issued by international institutions such as the World Bank and examples from other jurisdictions that have been able to effectively regulate their built environment sector as well as recommendations from commissions set up in the past to look into the issue, has Lagos State, which is lauded as a pacesetter State in Nigeria, been able to implement standardized good practices in its construction sector in a manner that ensures a high level of regulatory compliance with planning and building code requirements and improve the outcome of industry practitioners' interactions with regulatory agencies in the permitting process? The obvious answer is of course in the negative. Building collapse (of both old and new structures) continue to be a reoccurring decimal in the State notwithstanding the regulatory policies on building construction and the establishment of agencies 3 for the monitoring of building development from its design stage through the various stages of construction to completion. A brief review of extant enforcement and building control regulations in Lagos State clearly indicate that the problem is not inadequacy of relevant laws and monitoring agencies but rather lack of proper enforcement of building regulations either due to corruption on the part of the enforcement agencies or inexperience, lack of capacity and industry knowledge amongst agency officials, infrastructural deficit, and lack of adequate monitoring mechanisms amongst others.

Extant Statutory Provisions in Lagos State

Over the years, Lagos State has developed a number of laws/ policy directives and has established agencies to implement these laws and policies. These include the Lagos State Urban and Regional Planning and Development Law 2010, established to provide for the administration of physical planning, urban development, urban regeneration, building control and other connected purposes (the "Planning Law"). The Planning Law established relevant Physical Planning and Development Agencies that would play crucial roles in the execution of the provisions of the law. A very significant establishment of the Planning Law is the Lagos State Physical Planning Permit Authority ("LASPPPA"), established for processing and issuance of Planning Permit in the State and ensuring compliance with planning approval standards, and the Lagos State Building Control Agency ("LASBCA"), established as a necessary measure to combat lapses in building projects in Lagos State by enforcing building control regulations and implementing the Planning Law. 4

Recently, the Lagos State Building Control Agency Regulations, 2019 (the "Regulations") was released and it sets out the procedures for obtaining authorization of LASBCA and LASPPPA for commencement of construction, building stage certification, certificate of worthiness for electrical, mechanical elements and fire safety before occupation of high-rise buildings and, a certificate of completion and fitness for habitation amongst others. There is also the Building Control and Stage Certification Process Law, the Building and Civil Engineering (Construction) Materials Quality Control Laboratory Law, the Model City Plans Approval Orders, Operative Development Plans, Operative Approval Orders on Approved Layout Plans as well as other bodies such as the Lagos State Urban Renewal Agency ("LASURA") for clearance for urban renewal sites, LASURA- Inspectorate & Quality Control Department – for stage Certification and Habitation for Fitness, Lagos State Material Testing Laboratory–for Building Material and Equipment Testing, Lands Bureau – for Clearance on Land allocation and associated clearances. Thrown into the mix also is the need to obtain tax clearance from Lagos State Internal Revenue Services. In addition, there are other MDAs 5 involved in the permitting and certification process such as the Ministry of Environment - for Drainage Clearance, Ministry of Transportation – for Traffic and Transportation Clearance, Waterfront and Infrastructure Development Agency - clearance from water bodies, Ministry of Agriculture - clearance for agricultural lands where applicable.

Is the multiplicity of laws and enforcement agencies a good thing?

The reality is that multiplicity of agencies dealing with different levels of the permit process can create unwanted bottlenecks notwithstanding the efforts made by the government to make all relevant information and required permitting processes available in a single platform. There is, therefore, need for streamlining of processes and collaboration between agencies, and stripping off some layers of approvals to reduce processing time and bureaucracy. Considering the limitations of these agencies in carrying out their functions, it is important that they collaborate with approved private building practitioners to assist in the permits and inspection process and stage certifications to reduce workload, delays, and bottlenecks. The process should be clearly thought out and would involve some form of certification and accreditation process for the professionals beyond registration with relevant professional bodies as well as imposition of accountability and liability obligations. Such professional consultants may be retained by the government or be contracted by the developers directly from a list of approved, accredited professionals or agencies, with requisite checks and balances and enforcement of higher mandatory professional standards including the enforcement of adequate insurance coverage. The agencies themselves should be required to undergo periodic rigorous trainings to keep them informed and up to date with best international standards and practices.

Accessibility of Building Regulations

Lagos State has embraced the use of technology in disseminating information. The Planning Permit Authority has established an online presence in an attempt to provide access to regulations, permit and certification requirements, stages of approval/ procedure for grant of permit, as well as availability of electronic application system. 6 This however needs to be fine-tuned for greater effectiveness. The permitting/inspection/certification processes need to be reduced and simplified to encourage developers, and there is a need to discontinue physical/paper applications in order to reduce the avenues for corrupt practices. The government can take a cue from successful systems from other jurisdictions, such as Singapore's CORENET. An effective, unified Building Guidelines/Regulation should capture all the provisions for an Online Single Window System for complete process: building plan approval, stage level inspection etc. The system should be sophisticated enough to issue online building plan approvals with digital signature, in downloadable format. There should be established a one-stop shop for all the building stages with collaboration between relevant MDAs thus, improving administrative efficiency, transparency, and cost management.

Regulatory Controls Exercised Before, During and after a Building Project

Section 5(1) of the Regulations mandates developers to request authorization from LASBCA to commence construction in the manner provided under Schedule 2 of the Regulations. The developer is required to keep on site a copy of the Planning Permit granted, for sighting upon demand by officers of LABSCA. To ensure building quality control following the issuance of a permit and an authorization to commence construction, Section 11 (1) & (2) of the Regulations provides that LABSCA shall monitor the use of certified professionals and artisans in construction sites and to ensure compliance. LABSCA is authorized to request any professional or artisan working on a construction site in the State to show evidence of registration with their respective professional bodies and/or the Lagos State Government.

The Regulation also mandates developers to display details of the permit granted by LASPPPA using a project site board erected at the construction site which shows the planning permit number, title of project, names and addresses of the professionals/consultants appointed for the project, name and address of main contractor, number of floors approved, inclusive of the ground floor, project duration, safety and health coordinator, and quality control consultant (where applicable). Developers are also required to obtain Stage Certification upon the conclusion of each stage of a building construction. Additionally, every developer is required to obtain from LABSCA, a Certificate of Completion and Fitness for Habitation 7 . The Certificate shall be issued upon an assessment of satisfactory completion, and where a defect is observed or an alteration made, the Certificate issued may be withdrawn or revalidated. Buildings under construction are also required to undergo material evaluation and testing, and upon conclusion, a structural integrity test of the building would be carried out by the developer in authorized centers of LABSCA, prior to the grant of the Certificate of Completion and Fitness for Habitation. The Certificate would be issued upon the submission of pictures showing all the elevations of the building, Electrical Certification, Gas Certification, Mechanical Certification, Fire Safety Certification, Insurance Policy, and a Letter of indemnity obtained from all relevant professionals (Architect, Builders and Structural Engineers).

Where a developer fails to comply with any of the Regulatory requirements, LABSCA may issue any of the authorized notices including a Contravention Notice 8 , Stop Work Order 9 , Quit Notice 10 , Seal Off Order 11 , Demand Notice 12 , Regularization Notice, and a Demolition Notice 13 . Clearly, these requirements are not strictly adhered to and in the writer's view, aside from monitoring constraints experienced due to lack of proper data on all construction works embarked upon in the State, the major culprit for non-compliance is corruption. Using the collapsed Ikoyi building as a case in point, if the officials of the relevant agencies and other relevant government actors had done their work conscientiously, ensuring that one stage has passed all the relevant tests before moving to the next stage, the building should not have been raised to the level it was when the collapse happened. To combat this, there is the need to adopt an automated system that publishes information online, including the application processes, the permit approval processes, etc., with e-signatures of the approving officers for accountability purposes.

Liability for Defects and Regulatory Requirement for Insurance:

Where a development is above two floors, the developer in line with the provisions of the Insurance Act 2003 and the Regulations is required insure his liability in respect of construction risks which may be caused by his negligence or the negligence of his servants, agents or consultants likely to result in bodily injury or loss of life to or damage to property of any workman on the site or of any member of the public. Under the Regulations 14 a General Contractors' All Risk Insurance Policy is a requirement for the submission of a commencement notice to LABSCA. The Insurance Policy is also a pre-requisite for the issuance of a Certificate of Completion and Fitness for Habitation. Additionally, LABSCA may issue a demand notice requiring a contractor to submit for verification its General Contractors' All Risk Insurance Policy and Building Insurance Certificate in respect of a building under construction and existing developments respectively. The Insurance Act makes failure to obtain an insurance policy for a property development of more than two floors an offence and the offender liable upon conviction to a fine of N250,000 or imprisonment for three years or both. The fine in our view is not in keeping with current economic realities and needs to be significantly increased. Where a structural defect is observed in a building, or the building fails due to negligence leading to collapse, the law holds the developer liable, 15 including the Civil Engineer/Structural/Mechanical, the Builder, and the Architect who participated in the development of the building. Section 43 (1) – (19) of the Regulation also provides for penalties where a developer commits such offences as failure to obtain permission before commencement of construction work, giving of false information to LABSCA, failure to insure building, proceeding to another stage of development without obtaining stage certification, failure to obtain certificate of completion and fitness for habitation before occupation, and failure to comply with fire requirements amongst others.

Based on the foregoing, it is clear that lack of adherence to laid down laws by developers with or without the complicity of regulatory agencies and the inefficiency of these agencies are some of the major problems experienced by the State rather than inadequacy of regulation or enforcement provisions. The State government needs to urgently take things in hand. Beyond the efforts already made to improve the permitting processes, decisive steps must be taken to clean up the agencies and implement recommended measures for transparency and accountability in its processes, without this, the government will only continue to pay lip service to lasting reform. There is also an urgent need for public awareness of regulatory requirements for buildings and improvement of regulatory checks on long existing buildings with a view to encouraging good maintenance culture. Occupiers and purchasers of properties should be encouraged through public awareness to demand for transparency from developers and landlords . Adequate transparency should be evidenced by a demand for the disclosure of requisite approvals and insurance coverage (especially for newer buildings such as those constructed from 2010 upwards), and the introduction of a whistle blowing policy which rewards exposure of erring developers and State officials.

1 This includes housing, industrial, commercial, hospitals, schools, etc.

2 The World Bank- IBRD-IDA; Doing Business – Measuring Business Regulations; Accessed Nov 11, 2021; https://www.doingbusiness.org/en/data/exploretopics/dealing-with-construction-permits/nigeria

3 Lagos State at different periods developed different agencies to monitor building development in the State. Lagos State Physical Planning Permit Authority was established in 1998; Lagos State Building Control Agency also officially started in August 2012; Lagos State Material Testing Laboratory was established in 2006 and Lagos State Safety Commission inaugurated in 2009.

4 Its functions include inspection of building works and certification of various stages of building construction and keeping of such records, issuance of certificate of fitness for habitation, removal of illegal, non-conforming material evaluation and testing services, fire and health control, structures, etc.

5 Ministries, Departments and Agencies of the Federal Government.

6 https://epp.lagosstate.gov.ng/Home/AboutPlanningPermit

7 Section 10 (1), (2), (3), (4), (5) of the Regulations

8 Section 30 of the Regulations

9 Section 31 of the Regulations

10 Section 32 of the Regulations

11 Section 33 of the Regulations

12 Section 35 of the Regulations

13 Section 34 of the Regulations

14 Section 3(v)

15 Section 13(5) of the Regulations

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Elektrostal

Elektrostal Localisation : Country Russia , Oblast Moscow Oblast . Available Information : Geographical coordinates , Population, Altitude, Area, Weather and Hotel . Nearby cities and villages : Noginsk , Pavlovsky Posad and Staraya Kupavna .

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Elektrostal Demography

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USD 61.5333 Rub. ↓-0.04 EUR 68.5358 Rub. ↓-0.12 CNY 8.97105 Rub. ↑+0.03 city, Analysis of real estate market in Moscow Oblast, Russia:   ,   ,   ,   RUB: USD: /m² EUR: /m² USD: /ft² GBP: /ft² CHF: /m² CNY: /m² JPY: /m² Change of cost per square foot in per week (USD): Change of average apartment cost in rubles per week, 906 apartments $49.14 million 49.0 thousand m² 527.5 thousand ft² flats/apartments in secondary housing market 1 bedroom apartments 27.3% 247 $9.00 million 8.67 thousand m² 93.4 thousand ft² 2 bedroom apartments 37.4% 339 $17.08 million 17.3 thousand m² 186.3 thousand ft² 3 bedroom apartments 31.0% 281 $19.48 million 19.4 thousand m² 209.2 thousand ft² multi-bedroom apartments 4.3% 39 $3.58 million 3.59 thousand m² 38.6 thousand ft² average apartment cost per square foot/meter 1 bedroom apartments 2 bedroom apartments 3 bedroom apartments multi-bedroom apartments flats/apartments cost on 06.01.2020 1 bedroom flat 35.1 m² 378.0 ft² 2 bedroom flat 51.1 m² 549.7 ft² 3 bedroom flat 69.1 m² 744.3 ft² 4+ bedroom flat 92.0 m² 989.8 ft² | | | and date of original publication. Liability limitation: the owner and administration of website RLT24.com are not responsible for the interpretation and consequences of using the materials from this website. Current time by city For example, New York Current time by country For example, Japan Time difference For example, London For example, Dubai Coordinates For example, Hong Kong For example, Delhi For example, Sydney Geographic coordinates of Elektrostal, Moscow Oblast, Russia City coordinates Coordinates of Elektrostal in decimal degrees Coordinates of elektrostal in degrees and decimal minutes, utm coordinates of elektrostal, geographic coordinate systems. WGS 84 coordinate reference system is the latest revision of the World Geodetic System, which is used in mapping and navigation, including GPS satellite navigation system (the Global Positioning System). Geographic coordinates (latitude and longitude) define a position on the Earth’s surface. Coordinates are angular units. The canonical form of latitude and longitude representation uses degrees (°), minutes (′), and seconds (″). GPS systems widely use coordinates in degrees and decimal minutes, or in decimal degrees. Latitude varies from −90° to 90°. The latitude of the Equator is 0°; the latitude of the South Pole is −90°; the latitude of the North Pole is 90°. Positive latitude values correspond to the geographic locations north of the Equator (abbrev. N). Negative latitude values correspond to the geographic locations south of the Equator (abbrev. S). Longitude is counted from the prime meridian ( IERS Reference Meridian for WGS 84) and varies from −180° to 180°. Positive longitude values correspond to the geographic locations east of the prime meridian (abbrev. E). Negative longitude values correspond to the geographic locations west of the prime meridian (abbrev. W). UTM or Universal Transverse Mercator coordinate system divides the Earth’s surface into 60 longitudinal zones. The coordinates of a location within each zone are defined as a planar coordinate pair related to the intersection of the equator and the zone’s central meridian, and measured in meters. Elevation above sea level is a measure of a geographic location’s height. We are using the global digital elevation model GTOPO30 . Elektrostal , Moscow Oblast, Russia Games & Quizzes History & Society Science & Tech Biographies Animals & Nature Geography & Travel Arts & Culture On This Day One Good Fact New Articles Lifestyles & Social Issues Philosophy & Religion Politics, Law & Government World History Health & Medicine Browse Biographies Birds, Reptiles & Other Vertebrates Bugs, Mollusks & Other Invertebrates Environment Fossils & Geologic Time Entertainment & Pop Culture Sports & Recreation Visual Arts Demystified Image Galleries Infographics Top Questions Britannica Kids Saving Earth Space Next 50 Student Center Elektrostal Our editors will review what you’ve submitted and determine whether to revise the article. Elektrostal , city, Moscow oblast (province), western Russia . It lies 36 miles (58 km) east of Moscow city. The name, meaning “electric steel,” derives from the high-quality-steel industry established there soon after the October Revolution in 1917. During World War II , parts of the heavy-machine-building industry were relocated there from Ukraine, and Elektrostal is now a centre for the production of metallurgical equipment. Pop. (2006 est.) 146,189. 132 IMAGES Real Estate Law Case Study 2 Attorneys Real Estate Case Study 6 Steps To Write A Flawless Legal Case Study Real Estate Case Study 8+ FREE Real Estate Case Study Templates in PDF, Word Best legal case study example by robert hook COMMENTS Legal Case Summaries The South Carolina Court of Appeals recently reinstated a $250,000 arbitration award by overturning a decision that previously vacated the award. Search hundreds of legal cases about key real estate topics, summarized by NAR's Legal Affairs department. Search Legal Case Summaries. Moehrl v. National Association of Realtors, et al. This settlement is in addition to the $418 million settlement reached with NAR on March 15, 2024, and more than $275.25 million in other settlements reached with Anywhere Real Estate, RE/MAX, and Keller Williams in 2023 and Compass, Real Brokerage Inc., and Redfin in 2024, bring total settlements, pending court approval, to more than $952.5 ... Property Rights & Land Use Supreme Court Cases Below is a selection of Supreme Court cases involving property rights and land use, arranged from newest to oldest. Sheetz v. County of El Dorado, California (2024) Author: Amy Coney Barrett. The Takings Clause of the Fifth Amendment prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits. Library of Real Estate Case Studies Case Study #9 - UK Debt Advisory Firm Modeling Test (Case + Solution) October 13, 2021/by Spencer Burton. Case Study #7 -The Cellon Group - Asset Management Analyst Test (Case + Solution) January 1, 2021/by A.CRE. 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DeJoria (2022) _ Cal.App.5th _ , 2022 WL 1565262: The Court of Appeal affirmed in part, and reversed in part, the trial court's order granting defendants' motion for summary judgment entering a judgment an injunction against plaintiff, and awarding defendant Mountains Restoration Trust (MRT) 1,371,962.20 in attorney fees and $5,424.55 in costs and awarding the ... Case Study: Real Estate Law Cesar manages a real estate law firm that has grown immensely since starting with Back Office Betties. With a team of Virtual Legal Receptionists handling their calls, nothing goes unnoticed and all prospective clients go through a seamless intake process. This gives Cesar and the other attorneys at his firm the time to focus on the work that ... Real estate company saves $2.3 million in taxes using cost segregation At a 34% federal income tax rate, the $6.9 million deduction saved over $2.3 million in tax in the year the apartment building was placed in service. 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Real Estate Landscape A Comprehensive Case Study of Magicbricks Information-systems document from St.xaviers College Of Education, 5 pages, Title: Disrupting the Real Estate Landscape: A Comprehensive Case Study of Magicbricks and India's Emerging Startup Ecosystem Abstract: This extensive case study provides an in-depth analysis of Magicbricks, a prominent player in India's real estate tech. New Orleans LA Real Estate & Homes For Sale Zillow has 3334 homes for sale in New Orleans LA. View listing photos, review sales history, and use our detailed real estate filters to find the perfect place. Elektrostal, Moscow Oblast, Russia Elektrostal Geography. Geographic Information regarding City of Elektrostal. Elektrostal Geographical coordinates. Latitude: 55.8, Longitude: 38.45. 55° 48′ 0″ North, 38° 27′ 0″ East. Elektrostal Area. 4,951 hectares. 49.51 km² (19.12 sq mi) Elektrostal Altitude. Real estate in Elektrostal, Moscow Oblast, Russia RLT24 - information resource about Russian real estate. Real estate in Elektrostal, Moscow Oblast, Russia. Main Price analysis Advert: Русский(RU) Average apartments price in Russia Moscow : 4 234 $/m² ↓-1.96%: Saint Petersburg: 2 157 $/m² ↓-0. ... Geographic coordinates of Elektrostal, Moscow Oblast, Russia Geographic coordinates of Elektrostal, Moscow Oblast, Russia in WGS 84 coordinate system which is a standard in cartography, geodesy, and navigation, including Global Positioning System (GPS). Latitude of Elektrostal, longitude of Elektrostal, elevation above sea level of Elektrostal. Elektrostal Elektrostal, city, Moscow oblast (province), western Russia.It lies 36 miles (58 km) east of Moscow city. The name, meaning "electric steel," derives from the high-quality-steel industry established there soon after the October Revolution in 1917. During World War II, parts of the heavy-machine-building industry were relocated there from Ukraine, and Elektrostal is now a centre for the ... case study cover letter presentation problem solving rewiew prompts websites tips