2010 September Archive - Combs Law Group

In Arizona, Adverse Possession Not Usually Granted Against Government

Question: I have an Arizona real estate law question. I recently received a notification from the Arizona Department of Transportation that my fence is blocking their highway right-of-way. I have fenced off this right-of-way for at least 10 years, but ADOT is demanding that my fence be removed from the right-of-way. Can ADOT after more than 10 years force me to remove my fence?

Answer: Probably. Generally, title to any real property interest such as a right-of-way owned by the state or other governmental entity cannot be acquired by adverse possession. Therefore, even though ADOT has not used the right-of-way for more than 10 years, ADOT probably can require you to remove the fence.

Note: The principle of adverse possession goes back to early English common law. The theory is “use it or lose it.” In other words, if the landowner is not using the land and another person is using the land without the landowner’s permission, the other person after a reasonable time (in Arizona generally 10 years) should be entitled to ownership of the land. #CLG-bp~2

Arizona Real Estate Broker Entitled to Commission if Contingencies Satisfied and Contract is Mutually Cancelled

Question: We signed a contract to sell our home in Goodyear last month. The buyer qualified for a new loan and, except for some minor repairs that we fixed, the buyer was satisfied with the home inspection. Two weeks before closing, however, the buyer contacted us and said he no longer wanted to buy the home, and, inasmuch as my husband and I were no longer anxious to sell our home, we agreed with the buyer to cancel the sale. When we contacted the listing broker to cancel the transaction, however, she said that she was entitled to her real estate commission. Although we would be happy to compensate the listing broker for her time and expenses, we have refused to pay her the full commission. Is the listing broker correct? Is this an Arizona real estate law?

Answer: It is not a law, but the general rule is that a listing broker has earned a commission if the broker produces a ready, willing and able buyer at a price agreeable to the seller. If there are any material contingencies such as financing or a home inspection, however, the buyer is not a ready, willing and able buyer until the material contingencies are removed. I assume from your question that all material contingencies have now been removed. Therefore, the listing broker has earned her real estate commission. The fact that you and the buyer have mutually cancelled the sale does not affect the listing broker’s right to her real estate commission. Furthermore, the buyer’s broker has a claim against the listing broker for any “co-brokerage” commission offered by the listing broker in the Multiple Listing Service. #CLG-bp~2

Read Your Real Estate Contract Carefully

Question: At the time that we purchased our new Queen Creek home we received a color brochure from the builder showing the features of the builder’s homes. However, after we moved into the home, two of the features, a dishwasher and sunscreens, were not in our new home. When we contacted the builder and the builder said that our contract did not provide for a dishwasher and sunscreens, and the sales price would have been higher if a dishwasher and sunscreens were provided for in the contract. Under Arizona real estate law, does the builder have to put in a dishwasher and sunscreens?

Answer: Probably not. A brochure is generally only a marketing tool, and the contract will control regarding the type of extras in the home that the builder is required to construct for a buyer. You should have confirmed in the contract that a dishwasher and sunscreens were included.

Note: If a marketing brochure makes a statement, however, such as “solid wood doors” but non-solid wood doors are installed, a buyer may have a claim against the builder if there is nothing in the contract to describe the type of door to be installed. A court would probably rule that a reasonable buyer had the right to rely on the builder’s representation that solid wood doors would be installed.

Do Arizona Commercial Property Leases Require a Two-Day Notice for Inspection?

Question: Our property management company does mostly residential property management for owners of apartment complexes, but we also do some commercial property management for several small office buildings. Under Arizona real estate law we know that we must furnish two day’s notice to the tenant before inspecting the tenant’s apartment. With Arizona commercial property leases, do we have to furnish a two day notice to an office tenant before inspecting that office?

Answer: Probably not. Under Arizona law a residential landlord must furnish two day’s notice of an inspection of a residential property such as a home or an apartment, and can only inspect the property during reasonable times. Arizona law imposes no such requirement upon commercial landlords, however, and a commercial landlord is entitled to enter a commercial property at any time to inspect the commercial property, e.g., the tenant’s office, under reasonable circumstances, unless there is specific language in the lease regulating inspections by the landlord.

Note: In general, residential leases are highly regulated under a public policy to protect “mom and pop” in their homes. For example, there are at least fifty Arizona statutes regulating residential landlords and tenants, plus the new federal law that generally allows residential tenants to stay in their home after foreclosure until the end of the lease term. On the other hand, there are only a handful of Arizona statutes regulating commercial leases. The reasons for this lack of regulation in commercial leases are that there is not a public policy to protect commercial tenants, and that, commercial landlords and tenants are theoretically “big boys” who can afford to hire lawyers and other professional advisors to negotiate the terms of commercial leases. An example of this distinction between residential leases and commercial leases is that Arizona law specifically prohibits the landlord from “locking out” a residential tenant for non-payment of rent, and specifically prohibits a landlord’s lien on the residential tenant’s personal property until the payment by the tenant of delinquent rent. The residential tenant cannot waive this protection. On the other hand, Arizona law specifically authorizes the “locking out” by the landlord of a commercial tenant, and specifically authorizes a landlord’s lien on the commercial tenant’s personal property.

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In Arizona, Adverse Possession Not Usually Granted Against Government

Arizona Real Estate Broker Entitled to Commission if Contingencies Satisfied and Contract is Mutually Cancelled

Read Your Real Estate Contract Carefully

Do Arizona Commercial Property Leases Require a Two-Day Notice for Inspection?