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Arizona Real Estate Journal

Arizona School of Real Estate and Business

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Word of the Day: “Encumbrance”

By | Articles, Real Estate

When it comes to real estate transactions, more often than naught, the “devil” is in the details. The Arizona Court of Appeals, Division One, recently provided a roadmap to the rules concerning the specificity of an agreement required to obtain specific performance of an option to purchase real property.

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The LLC Act Overview

By | Articles, Business

Most real estate professionals understand that a purchase-money mortgage is senior to all other liens. But that is only mostly true. One important exception for all real estate professionals to be aware is the “PACA Trust.”

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Supreme Court Rules that Claims for Wrongful Foreclosure Must Be Filed Prior to Trustee Sale

By | Articles, Real Estate

The recent Arizona Supreme Court case, Zubia v. Shapiro, 243 Ariz. 412 (2018), reminds homeowners to obtain early legal counsel when facing foreclosure, while bolstering lenders’ affirmative waiver defenses. Particularly, the Supreme Court ruled that borrowers waive claims to damages concerning the validity of a trustee’s sale when they first fail to obtain injunctive relief to prevent the trustee’s sale.

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Choosing The Correct Business Entity

By | Articles, Business

Societies have conceived new business structures since time immemorial. Fundamentally, joining together with business partners spreads the demands of capital and limits risk.

Italians made family firms, compagnia, where fathers, brothers, and sons would pool their labor and capital. Fittingly, the name compagnia derives from the Latin phrase for the act of sharing bread, cum panis. Then, companies granted by royal charter arrived, like the East India Company, an import-export business who received special privilege from the Crown to pursue a monopoly on trade between London and Asia, with offerings varying from pepper to textiles to tea. The East India Company, the mother of the modern multinational corporation, pioneered the joint stock mechanism. That innovation allowed for separation of investors and managers, broadening the pool of capital; it also spread risk and provided limited liability, and it allowed the enterprise to trade on its own account, rather than in the names of the individual owners.

Now, with a few clicks and an electronic signature, anyone can form a business entity, securing the same limited liability separation between an entity and its owners as employed by corporate giants across America.

But which form of entity is right for your business?

For many business owners, the choice-of-entity decision is driven purely by tax considerations. But the two most prevalent forms, the corporation and the limited liability company (LLC), also offer sought-after advantages of: (i) limited personal liability, (ii) easy transfer of ownership, and (iii) management separation from ownership.

Certainly, the tax benefits are relevant, like the incentive to avoid double taxation or the substantial restrictions on entities under subchapter S of the tax code — but don’t miss the legal distinctions and historical context. The LLC is structurally different than a corporation. Today, many owners form LLCs, almost by default, without considering their unique attributes, such as: (1) the primacy of the operating agreement, and (2) the application of fiduciary duties.

First, owners should consider that the LLC is as much a creature of contract as of statute. As a result, once an LLC comes into existence and has a member, the LLC necessarily has an operating agreement, whether written, oral, or implied by law. The operating agreement plays a vital role, as it establishes the fundamental rules for the relationships between the LLC, its members, and any manager.

Even so, many business owners select the LLC form but never draft an operating agreement — or perhaps worse, draft one, but neglect to sign it.

On the other hand, a corporation is not driven by private contract between individuals. Rather, there is a body of statutory and common law that, in some ways, cannot be displaced. A corporation has been judicially defined as “an artificial being, existing only in contemplation of the law; a legal entity, a fictitious person, vested by law with the capacity of taking and granting property and transacting business as an individual. It is composed of a number of individuals, authorized to act as if they were one person. The individual stockholders are the constituents or component parts, through whose intelligence, judgment, and discretion the corporation acts.”

Second, the owners should consider the obligations they intend to impress on themselves and management; for example, owners should consider whether they can limit their fiduciary duties to simultaneously pursue other ventures.

Granted, the topic of fiduciary duties raises many of the most complex questions in the law of business organizations.

For the LLC, the primary issue is to what extent the members can privately agree in the operating agreement to vary or eliminate those duties. Although a contract cannot completely transform an inherently fiduciary relationship into a merely arm’s length association, the operating agreement has substantial power to “reshape, limit, and eliminate fiduciary and other managerial duties.” For example, the classic fiduciary “duty of loyalty” means: (i) not “usurping” company opportunities or otherwise wrongly benefiting from the company’s operations or property; (ii) avoiding conflict of interests in dealing with the company (whether directly or on behalf of another); and (iii) refraining from competing with the company. Members can agree, however, to tailor those limitations and allow a member or manager to engage in other business or compete with the company. On the other hand, corporate directors and officers are not free to contract out of their duties to shareholders.

The law of business organizations has continually modernized, providing us with accessible tools to limit personal liability. But, whether your company is in real estate or technology, simply holds investments or engages in long-distance trade voyages around the Cape of Good Hope, building upon the right legal structure is critical to its long-term success. If you or someone you know has questions about how to structure their business or investments, please call our office today to schedule a consultation with Andy Anderson.

Andy Anderson is an Attorney with Provident Law®. He serves businesses and individuals, counseling them as they form, operate, and protect their companies. He is a member of the State Bar of Arizona Subcommittee tasked with revising the Arizona Limited Liability Company Act. He also serves on the Board of Directors of the Christian Legal Society and he is a graduate of the James E. Rogers College of Law at the University of Arizona and the W.P. Carey School of Business at Arizona State University. Andy can be reached at andy@newnewprovidentlawyers.mystagingwebsite.com or 480-388-3343.

Property Owners Waive All Claims And Defenses Against Lender After Foreclosure

By | Articles, Real Estate

Pursuant to Arizona’s deed of trust statutes, if a borrower defaults on her mortgage obligations, the lender may foreclosure non-judicially by recording its Notice of Trustee Sale with the County Recorder’s Office. See generally, A.R.S. § 33-801, et seq. Importantly, if the borrower believes that she has any claims or defenses against the lender concerning the loan, those claims must be filed before the non-judicial foreclosure takes place.

There are generally only three ways to stop a trustee sale:

  1. reinstate the loan by paying the outstanding balance or otherwise curing the default;
  2. file for bankruptcy protection; or
  3. file a lawsuit and seek an emergency temporary restraining order (TRO).

To be clear, reinstating the loan or filing for bankruptcy are the only guaranteed strategies to postpone a trustee sale; the filing of a lawsuit, on the other hand, is only successful if the Court:

  1. grants the request for a TRO; and
  2. enters the TRO sometime prior to the date and time of the trustee sale.

Based on recent history, it generally takes the Court about five business days to consider and enter a TRO. (Importantly, any lawsuit and request for TRO must have a good faith basis and is subject to sanctions pursuant to Rule 11, Arizona Rules of Civil Procedure.)

Pursuant to Madison v. Groseth, 279 P. 3d 633, 636 Ariz. Add. Rep. 23 (App. 2012), the failure to obtain a TRO prior to the trustee sale waives all claims against the lender (and the new owner), including any allegation that the lender failed to provide the borrower with proper notice of the trustee sale.

At first blush, the above holding appears inequitable and even unconstitutional – after all, how can the borrower object to lack of notice if the borrower doesn’t discover the wrongdoing until after the fact? In Madison v. Groseth, the Court of Appeals observed this potential paradox:

Under other circumstances, [requiring a borrower to obtain a TRO to halt the trustee sale] may apply to deprive borrowers of due process if the borrower does not receive sufficient notice of the trustee sale to obtain an injunction of the sale.

Id. at 635. The Court noted that in the present case, however, the borrower admitted that she received notice of the trustee sale yet failed to apply for a TRO to halt the trustee sale. Indeed, the borrower not only received notice of the trustee sale, but the borrower actually filed a lawsuit against the lender prior to the trustee sale and did not allege that she received inadequate notice of the sale. Consequently, the Court held that this waiver requirement did not deprive her of due process.

In conclusion, if a lender initiates the foreclosure process and the borrower believes that she has claims or defenses against the lender regarding the foreclosure process, the borrower must immediately file a lawsuit against the lender and request a TRO to halt the trustee sale or else the borrower will waive all claims against the lender regarding the alleged wrongful foreclosure.

Mr. Charles regularly represents lenders and borrowers in foreclosure matters. If you or someone you know has questions regarding foreclosures or buyer/lender disputes, please call or email today to speak with Mr. Charles.

You’re Not in Kansas Anymore: A Cautionary Tale Concerning Real Estate Transactions in Arizona

By | Articles, Real Estate

This article was written by Christopher J. Charles, Esq. and Eric L. Walberg, Esq.

With interest rates hovering at historic lows and prices generally stable, many experts agree that now is still a good time to purchase real estate in Arizona. Everyone appreciates a good deal.  But some buyers approach that goal with the wrong strategy. For example, some buyers aim to keep “one foot in and foot out” in case a better deal comes along prior to close of escrow.  We refer to this as “buyer’s leverage.” Arizona is not unique in experiencing this phenomenon. But two of Arizona’s key contract interpretation rules could result in unintended consequences for the unwary buyer.

The first of these two unique rules is that the court cannot rewrite contract terms. On the other hand, the second rule allows the court to consider oral or other extraneous evidence outside the “four corners of the contract” in interpreting an agreement (i.e., a broad interpretation of the “parole evidence rule”). This article explores these Arizona-unique contract interpretation rules and their relationship to each other in the context of real estate agreements.

The ready, willing, and able buyer cannot maximize his leverage without an appreciation and impact of these two Arizona-unique rules on the following “boiler plate” contract provisions:

This agreement constitutes the entire agreement of both parties, and all previous communication between both parties whether written or oral with the reference to the subject matter of this agreement is canceled and superseded.

In the event that any provision of this agreement is deemed vague or unenforceable, the parties agree that the [judge/arbitrator] shall rewrite the provision to be enforceable and/or to reflect the intent of the parties.

Including the latter contract provision in an effort to insert “flexibility” and maximize “buyer’s leverage” could have the unintended consequence of bogging the buyer down in litigation, thanks to the above contract interpretation rules.

For example, a common issue addressed in real estate contracts is the financing contingency. The ready, willing and able buyer might wish to keep its “options open” by requiring that the financing contingency language be drafted in such a manner that he can “escape” the deal if another more advantageous deal comes along. The buyer can demand and may receive a rather vague financial contingency provision that on its face places little or no parameters on the source or terms of financing it might be required to pursue, believing that negotiating such vague terms might prevent the buyer providing more information about its efforts than it might want to divulge to the seller. By insisting on this “flexibility,” however, the buyer may unwittingly open itself up to litigation in Arizona because the seller is able to press the buyer to provide more detail about its efforts to secure financing than the buyer is accustomed to providing in other states. lf the buyer balks at providing this information, the unique contract interpretation rules in Arizona can provide the leverage to the seller against the buyer by asserting that either the brokers or parties involved in the negotiation of the agreement envisioned that the buyer would pursue a certain type of financing. In the end, the seller can claim that although the explicit terms of the agreement do not set forth what efforts the buyer must undertake or agree to, the parties cannot release the buyer from its contractual obligations by claiming a failure to obtain acceptable financing for the purchase of the real estate.

In the example above, the next move by the buyer might be to point out to the seller that the financing contingency language in the contract is so broad that the buyer need only claim the inability to obtain “acceptable” financing, and the contract is terminated. The problem with this approach is that it opens the door to the second Arizona-unique rule of contract interpretation: that court cannot rewrite the contract, notwithstanding inclusion of a contract provision expressly providing to the contrary. The seller will counter that the buyer is simply trying to insert certainty into a contract that did not contain certainty, something an Arizona arbitrator or judge cannot do. This would require the court to delve deeper into the “real intentions” of the parties, and to look to oral or other evidence outside the “four corners” of the contract. Ultimately, this results in a potentially vicious cycle of investigation into the contract that the buyer may never have envisioned at signing. Because the Arizona court cannot re-write the contract, there is no clear end game for either side.

The buyer’s leverage is a function of how many deals it can be involved with at any one time, and how motivated the seller is to close the deal to possibly become the ready, willing and able buyer himself. The dynamics of the real estate deal are rarely known by the parties and can change quickly. But often the parties (including brokers) fool themselves by believing they understand these dynamics. For example, the respective brokers or other agents (including legal counsel) can be fully informed of the motivations of both parties in entering the deal. But in the course of due diligence, the seller or buyer might be introduced to a totally unrelated alternative deal that they simply cannot pass up, making the closing (or failure to close) so important that they are willing to risk the relationship by killing (or forcing) the deal.

The moral to this story? Draft clear and complete contracts (including well-drafted amendments or addenda) to maximize the chance of smooth transactions and to reduce the risk of disputes or litigation.

If you or someone you know has questions regarding real estate contracts, please call today to speak with Mr. Charles.

Whose Business Is It Anyway? Considerations For Dividing Assets In A Divorce

By | Articles, Estate & Trust

Community Property

Sadly, according to recent statistics, roughly half of marriages end in divorce. When “irreconcilable differences” occur, one of many important considerations is how to equitably divide marital assets.

Arizona is a community property state. Absent other contracts or agreements, when a couple resides in a community property state, when they marry, everything that each of them earns from the day they get married belongs to both spouses.

In most cases, the assets a person had before marriage remain that person’s sole and separate property, as do any gifts or inheritances received after marriage. If one chooses to combine his or her sole and separate property with the couple’s community property, generally speaking, the property that is combined then becomes community property.

These legal principles apply to real estate and businesses that a husband or wife has an ownership interest in. In the context of divorce proceedings, as with all other community property, after receiving evidence submitted by the parties, the judge will determine the value of the asset, and then equitably divide the community property interest in the assets between the spouses.

Business Valuation

If the ownership of the business predates the marriage, the judge will examine what the community invested in the business by time and money during the marriage. The judge will also look at the value of the business on the date of the marriage and on the date the Petition for Dissolution was served. In order to present such evidence to the court, the spouse can hire a forensic accountant and obtain the businesses’ financial records for the past 5 years (or longer in some cases).

For some businesses, it may be necessary for the judge to assign a value to the intangible assets of the business as well as the tangible assets of the business. Intangible assets may include patents, trademarks, contracts, and goodwill. The courts recognize two types of goodwill, personal goodwill and enterprise goodwill. Personal goodwill is also known as professional goodwill and attaches to a particular individual such as a REALTOR®, surgeon, or a lawyer, rather than the business the individual owns. Enterprise goodwill or business goodwill comes from the attributes of the business itself.

A business valuation expert is essential to assigning a value to the intangible assets of a business to present to the court. Enterprise goodwill is recognized as a community asset of the business in all states, including Arizona. Some states have declined to include personal goodwill as a part of the community assets of a business. Arizona continues to include personal goodwill as a community asset of a business in a divorce.

SIDS (Sudden Income Deficiency Syndrome)

One spouse is often unfamiliar with a business that has been started and managed by the other spouse. This lack of knowledge leaves that spouse vulnerable to pre-divorce financial maneuvering that has become so common that it is known as “SIDS” (sudden income deficiency syndrome).

Example: A business that has been supporting the family for years that suddenly has little or no income or value. Clues that the sudden lack of income from the business is a result of improper financial maneuvering include correlating the drop in income with a time when the couple began having serious marital difficulties. Other clues include:

  1. when the spouse operating the business begins having the business pay his personal expenses; or
  2. when one spouse’s involvement in the business is reduced.

The more that one spouse performs work or provides services for the business, the stronger her claim is for an partial ownership of the business and the more likely the spouse is to have knowledge of the value of the business.

To prove to the court that the value or income of the business is not what it seems, an attorney will need to call upon a forensic accountant to assist in gathering evidence of manipulation to present to the court.

Prenuptial Agreements, Management and Operating Agreements

In Arizona, the laws regarding community property can be limited by contracts, such as prenuptial agreements. A “prenup” is the most common contract to limit or modify the application of community property law in a divorce. A prenuptial agreement can clearly state whether a business becomes community property after a marriage and which spouse will get to keep the business after a divorce. If a business is created after the marriage, the prenuptial agreement can determine whether that business is community property. In order to be a valid contract, the prenuptial agreement must be fair to both sides, and each party must fully disclose their financial condition. Each party should have their own attorney review and attest to the fairness of the prenuptial agreement and that their client was not coerced into signing the prenuptial agreement.

Absent a prenuptial agreement that establishes ownership and management of the business, the business should have a management agreement and operating agreement that restricts stock transfers to anyone without the consent of all partners. The operating agreement should define who would manage the business if a Petition for Dissolution is filed and served.

Conclusion

The equitable division of assets, especially business-related assets can be difficult. This article briefly summarizes the basic principles of how the business interests of a couple going through a divorce are treated by the courts in Arizona and the steps that can be taken to simplify the division of business interests in a divorce. Each situation is unique. If you or someone you know has questions concerning a specific situation, please contact us for a case strategy session.

HUD Says Screening Based on Arrest Record May Violate Fair Housing Act

By | Articles, Real Estate

As many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record. The U.S. Department of Housing and Urban Development (HUD) recently issued a warning and compelling statistics that reveal that certain protected classes are being disproportionately impacted by their criminal history.

The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin. 42 U.S.C. §3601 et seq.

Although criminals are not a protected class under the Fair Housing Act, criminal background-based restrictions may violate the Act if, without justification, the restrictions negatively impact one race more than others (known as “discriminatory effects liability”). In addition, where two or more applicants have similar criminal backgrounds, the Act is violated if the housing provider prefers one race over another (known as “disparate treatment liability”).

HUD warns that a housing provider violates the Fair Housing Act if the provider’s policy or practice has an unjustified discriminatory effect, even if the provider had no intent to discriminate. This is noteworthy because under this standard, an ostensibly neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification. And according to the statistics quoted by HUD, housing decisions based on criminal records conclusively result in a discriminatory effect on certain races of people.

HUD does, however, mention the following safe harbor: the policy or practice may be lawful notwithstanding its discriminatory effect as long as the decision is supported by a legally sufficient justification. For example, safety. Some landlords and property managers site the need of protecting other residents and their property as legal grounds for denying applicants based on their criminal background. For sure, ensuring resident safety and protecting property are among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate, assuming they are the actual reasons for the policy or practice.

But a word to the wise: denial of housing opportunities based on past history of criminal arrests (without proof of conviction) will not likely satisfy this test. Indeed, according to the U.S. Supreme Court, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than someone probably suspected the person apprehended of an offense.” Schware v. Bd of Bar Examiners, 353 U.S. 232, 241 (1957); see also United States v. Berry, 553 F.3d 273, 282 (3d Cir. 2009) (“[A] bare arrest record – without more – does not justify an assumption that a defendant has committed other crimes and it therefore cannot support increasing his/her sentence in the absence of adequate proof of criminal activity.”); United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) (“[A] mere arrest, especially a lone arrest, is not evidence that the person arrested actually committed any criminal conduct.”). Thus, a housing provider who denies housing to persons on the basis of arrests alone (without proof of conviction) cannot prove that the exclusion actually assists in protecting resident safety and/or property.

On the other hand, denial of a housing-related opportunity based a criminal conviction is likely okay. But the housing provider must still prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A blanket ban on anyone with a conviction record – no matter when the conviction occurred, regardless of the crime, or what the person has done since then – will be unlawful.

According to HUD, a blanket ban against anyone with a criminal record results in discrimination against certain races of people because of the disparities in the U.S. criminal justice system. As a result, the housing policy should differentiate between various crimes and the date of the convictions. For example: [1] convicted sex offenders need not apply (regardless of the date of conviction); [2] convicted felons guilty of violent crimes, kidnapping, terrorism, drug manufacturing, need not apply (regardless of date of conviction); [3] conviction of any drug-related offenses involving possession only, or alcohol-related offenses where no one was injured or killed, must be at least 2 years old.

To summarize, the Fair Housing Act does not prohibit housing providers from considering an applicant’s criminal background when making housing-related decision. But according to HUD’s recent warning, the Act does prohibit housing-related decisions based solely on the applicant’s criminal history. And the Act may prohibit housing-related decisions based solely on the applicant’s conviction record without evidence of a legally sufficiency justification such as safety concerns. As a result, housing providers should immediately implement thoughtful application policies and practices that consider the type of crime, evidence of a conviction, the date of the conviction, and the person’s behavior since the conviction.

If you or someone you know has questions regarding multi-family housing, landlord tenant issues, or other real estate matter, please call or email today.

Christopher J. Charles is the founder and Managing Partner of Provident Law®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). He is also an Arbitrator and Mediator for the AAR regarding real estate disputes; and he serves on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.

Christopher is a licensed real estate instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at chris@newnewprovidentlawyers.mystagingwebsite.com or at 480-388-3343.