The Appellate Court in Orange County has determined that the arbitration clause in CAR’s Independent Contractor Agreement (Form ICA) is invalid. CAR publishes contracts which are widely used in the Real Estate business in California. They publish an Independent Contractor Agreement, which is commonly used by brokers when employing salespeople. In this case, a salesperson sued Century 21 and its broker, claiming damages arising from alleged gender discrimination and sexual harassment. Century 21 filed a petition for arbitration of the dispute, citing the binding arbitration clause in the Independent Contractor Agreement, which was signed by both parties. However, the court held that the binding arbitration clause was procedurally and substantively unconscionable, leading to the inevitable conclusion it is unenforceable. In June, 2011, CAR published a new version of this form which deleted the binding arbitration clause.
Arbitration Clause in CAR Independent Contractor Agreement Invalid
Written by Tracy Ettinghoff on July 10th, 2011Trial Court Must Award Attorney’s Fees If One Party Clearly Prevails
Written by Tracy Ettinghoff on July 8th, 2011The appellate court in Orange County recently ruled [CUESTA v. BENHAM, G043788 (Cal.App. 3-29-2011)] that a landlord was entitled to recover its attorney’s fees against a tenant, where the landlord prevailed in an action for rent, but did not recover the full amount he was suing for. “If the results in a case are lopsided in terms of one party obtaining “greater relief” than the other in comparative terms, it may be an abuse of discretion for the trial court not to recognize that the party obtaining the “greater” relief was indeed the prevailing party. (Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1541 (Silver Creek) ["Although a trial court has broad discretion to determine the prevailing party in a mixed result case, its discretion is not unlimited."]; Hilltop Investment Associates v. Leon (1994) 28 Cal.App.4th 462, 468 (Hilltop) ["Appellant's final argument is that the trial court's discretion under Civil Code section 1717 is not unlimited, a proposition with which we agree."].)”
Brokers Have Duty To Disclose Short Sales
Written by Tracy Ettinghoff on July 4th, 2011The Court of Appeal in Orange County recently held that Real Estate Brokers have a duty to disclose to buyers that a listing is a short sale if the encumbrances exceed the value of the property. In HOLMES v. SUMMER, 188 Cal.App.4th 1510 (2010), the broker had a listing on a home which was over-encumbered. A buyer made an offer and during escrow, spent money investigating the property, and made arrangements to move into it. However, the transaction fell apart because the lenders did not approve the short sale, resulting in the buyer not being able to complete the purchase. The buyers sued the Broker who had the listing. The Appellate Court in Orange County held that the Broker had a duty to disclose to the buyer that this was a “short sale”, meaning that the deal could not be done without approval of the lenders.
Sewer Pipe is Common Area
Written by Tracy Ettinghoff on July 4th, 2011In DOVER VILLAGE ASSOC. v. JENNISON, 191 Cal.App.4th 123 (2010), the appellate court in Orange County held that the Association was responsible for maintaining a sewer pipe that was two feet under the slab. Patrick E. Jennison had a leaky sewer pipe two feet beneath the concrete slab underlying his Newport Beach condo. The homeowners association said he was responsible for the repair bill on the theory that the sewer pipe was “exclusive use common area” for which he was responsible. On cross-motions for summary judgment, the trial court disagreed, and entered a judgment declaring that the association should bear the expense of the repair cost. The court later awarded Jennison about $17,000 in attorney fees and court costs. The association appealed from the ensuing judgment.
The appellate court affirmed the judgment. Under a natural reading of the CC&R’s (covenants, conditions and restrictions), the sewer pipe was a genuine common area to be maintained and repaired by the association, as distinct from “an exclusive use common area appurtenant” to an individual owner’s separate interest.
Orange County Appellate Court Upholds Towing of Inoperable Vehicle
Written by Tracy Ettinghoff on July 3rd, 2011The Fourth District Court of Appeal in Orange County has upheld the towing of an inoperable vehicle by a Homeowner Association. In YAN SUI v. STEPHEN D. PRICE, just published in June, 2011, the court affirmed the dismissal of a lawsuit against an association which towed an inoperable vehicle which was in violation of the CC&Rs. The court also upheld the towing which was done in compliance with Vehicle Code section 22658. Vehicle Code section 22658, subdivision (a), permits an association of a common interest development to remove a vehicle parked on the property under a variety of circumstances, including the giving of notice of the parking violation, and the lapse of 96 hours after such notice. Thus it was not inappropriate to enforce a parking rule in the manner authorized by law.
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Written by Tracy Ettinghoff on May 31st, 2011This is your source for information about Real Estate Law in Orange County, California. The author is a real estate attorney who has more than 25 years of experience. Issues will include Homeowner Association Law, Foreclosures, Short Sales, Real Estate Contracts, Escrows, and other real estate related issues.
