February 2016 Real Estate Law Newsletter


Happy Leap Day! 2016 is a leap year, where we add an extra day to the calendar every four years to compensate for the fact that it takes the Earth 365.25 days to completely orbit the sun. The leap day ensures that the calendar is in sync with the seasons of the planet.

Alignment is important in more than just calendars. When contract terms are not aligned with the intentions of a party to a transaction, legal disputes can arise. If a seller acts out of line with the terms of an accepted purchase contract, the deal can fall apart. A lender could underestimate the risk of a loan if their expectations about the law are not aligned with the opinion of the courts.

Real estate lawyers help to see if case law, contract terms, or marketing conditions are in alignment with a client’s interests, and can advise how to proceed forward. So this month, we focus on the theme of looking for alignment of interests before taking a “leap”:

  • Simon Offord writes about key issues to consider in negotiating commercial property leases and sales
  • Julia M. Wei discusses the evolving opinion that courts in California have regarding short sales and anti-deficiency statutes
  • Henry Chuang highlights an important shift in wrongful foreclosure litigation
  • Ashlee D. Adkins blogs about the options a buyer has if the seller refuses to close escrow

We hope you enjoy reading the February edition of our newsletter!


Listing or selling commercial property involves a series of contracts and negotiations, beyond the lease or purchase contract itself. Many terms and conditions are discussed and considered in these negotiations. Failure to establish agreeable terms that protect the interests of a party to the transaction can result in future litigation.

A few areas that are ripe for negotiation include:

  • Timing of Commission Payments
  • Duration of Listing Agreement
  • Discretion Allowed to Owner
  • Warranties
  • Indemnification
  • Post-Termination Responsibilities

Attorney Simon Offord writes about these topics in his most recent article, where he explains how the different terms of negotiation can impact the leasing or sale of commercial property.


California courts have issued a number of decisions over the past few years concerning California’s anti-deficiency statutes. The purpose of these statutes is to protect homeowners by keeping the burden of underwriting risk on the side of lenders. In the event of a default, lenders can only take “one action” to get the collateral back – and nothing more. In the most recent decision by the California Supreme Court, a borrower was pursued by a lender for a deficiency after a short sale occurred.

Attorney Julia M. Wei covers this important decision, and provides an update on the impact that anti-deficiency statues have on short sales.




Seller Refusing to Close Escrow? Know Your Options

In a highly-competitive housing market like the one in the Bay Area, it can be incredibly difficult to get a purchase offer accepted by the seller. Once an offer is accepted and the terms of the contract are fulfilled, the closing of escrow should be a celebration. But occassionally, the seller will refuse to close. Attorney Ashlee D. Adkins covers this issue, and the options available to the buyer.


Court Rules in Favor of Borrowers Suing for Wrongful Foreclosure

In a recent case argued before the California Supreme Court, a borrower challenged a foreclosure sale on the grounds that the deed of trust was improperly assigned. After the lower court upheld the foreclosure sale, the borrower appealed to the state supreme court. Attorney Henry Chuang covers this important case, and the impact of the decision handed down by the court.

  • Peter N. Brewer was appointed to the Silicon Valley Association of REALTORS® (SILVAR) Palo Alto District Council as the 2016 Chair of the Tour Meetings & Marketing subcommittee
  • Charlie Bronitsky had published an article in the February 3rd edition of the Foster City Islander, titled “The 40-Year Plan – The Reprise”
  • Simon Offord and Ashlee D. Adkins filed a breach of contract complaint in San Francisco County Superior Court, and received the entire amount demanded within one day
  • Henry Chuang obtained insurance coverage and a payout for a Palo Alto homeowner for an easement that was not previously disclosed by the seller or the title report
  • Peter N. Brewer was selected as an expert witness on the subject of easements and CC&Rs for a case heading to trial in March
  • Clayton Dodds was selected to be on the planning committee for the 2016 Legal Marketing Association (LMA) Technology Conference-West
  • Simon Offord was appointed to the SILVAR Menlo Park-Atherton District Council as the 2016 Affiliate Chair
  • Julia M. Wei presented to the Don Edwards Inns of Court on representing multiple creditors in bankruptcy and the implications of the ad hoc committee
  • Julia M. Wei resolved a lien dispute between a borrower and a private money lender for a rental property
  • Simon Offord presented to the San Mateo County Association of REALTORS® (SAMCAR) on February 23rd about the issues that real estate agents are facing in 2016
  • Clayton Dodds, Julia M. Wei, and Peter N. Brewer attended the monthly breakfast for the Silicon Valley chapter of the California Association of Mortgage Professionals (CAMP) on February 12th
  • Simon Offord presented to Keller Williams on February 9th about the 2016 new real estate and lending laws in California