Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable
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Don’t Be Lazy with Your Tenders
Our clients probably spend significant time, money and effort refining and updating their contract provisions covering indemnification and the duty to defend claims arising on their projects. But they should also consider spending an appropriate and adequate amount of time, money and effort when sending notices, or “tenders,” to enforce those critical…
The Arizona Supreme Court Confirms that Judgment Liens Attach to Homestead Property
By Ben Reeves
By: Ben Reeves
The Arizona Supreme Court recently clarified that a judgment lien does, in fact, attach to the proceeds of the sale of a homestead property. See In re McLauchlan. In sum, if the sale of a home produces more than the homestead exemption amount, then a judgment creditor can collect from those…
Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?
By Ben Reeves
By: Ben Reeves
Recent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real property located within Arizona. See TWE Retirement Fund Trust v. Ream, 198 Ariz. 268 (Ct.
HOA Foreclosure Excess Sale Proceeds Go to Owner
By Ben Reeves
By: Ben Reeves
Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale. We’ve blogged about some these past unreported decisions here and here. Those decisions, somewhat inexplicably, required excess sale proceeds to be paid to senior creditors. As…
When Is A Project Delay Material and Actionable?
Welcome to 2022! This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays. The COVID-19 pandemic contributed to suspension of work and closure of construction projects worldwide in 2020. The end of 2021 brought additional delays caused by an inexplicable clog…
The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
By: Luke Mecklenburg
Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA…
Can a Receiver Prime and Strip Liens Against Real Property?
By Ben Reeves
By: Ben Reeves
Courts overseeing receivers generally enjoy broad discretion in directing and approving a receiver’s proposed actions. But does that authority extend to a receiver not only granting a super-priority lien ahead of existing liens, but also selling the real property free and clear of all liens? In County of Sonoma v. Quail,…
Equine Activity Liability Releases: The Arizona Court of Appeals Finds “Release” of Trail Ride Operator Doesn’t Block Negligence Claim for Participant Riding Injury
By Aweaver
By: Amanda Z. Weaver
For the first time in nearly twenty years, the Arizona Court of Appeals last week weighed in on Arizona’s equine activity liability statute, finding that a form signed by participants before a trail ride did not qualify as a “release” under the statute, and concluding that participants’ claims of negligence against…
Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?
By Kevin Parker
By: Kevin J. Parker
In a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of workmanship and habitability was effective. In that case, the buyer initialed the builder’s prominent disclaimer…