Does at Any Time Really Mean at Any Time
A basic truth about contracts is that once the contracting parties have come to a meeting of their minds regarding the terms of their contract, absent some overriding law, such as one that makes the contract illegal, or some other reason why an unambiguous contract should not be enforced literally as written, the courts will not substitute their own business judgment for that of the contracting parties, or rewrite … Read More
When people think of a contract, the first thing that usually comes to mind is a written contract, whereby the contracting parties have put into writing what each of them is promising to the other. For example, If you want to have your trees cut, and ask the tree trimmer to do the job, the tree trimmer may provide you with a written contract, which sets forth specifically what he agrees to do, as well … Read More
What Happens to the Other Tenants when the Anchor Tenant Leaves the Mall?
When a commercial tenant leases space in a shopping center or mall, a primary consideration for the tenant is the expected benefit to their business of the foot traffic from the customers that will be attracted to the other businesses being operated by their neighboring tenants. This is particularly true when the neighboring tenant is the “anchor,” or one of the “anchors” in the center, who … Read More
Can Your HOA Say No to VRBO?
In the not-so-distant past, if you wanted to get from one place to another without a car of your own, you would call a taxi, with your only choice being which of the many taxicab companies to call upon. Now, of course, calling a taxi is scoffed at as being “old fashioned” and overpriced, with many, if not most, people opting to instead call Uber or Lyft, or some other rideshare service. Likewise, it … Read More
Dragnet Clauses and Priority
A “Dragnet Clause” in a Deed of Trust is a provision that states that the Deed of Trust secures any and all future debt owed by the borrower to the lender, in addition to whatever debt the Deed of Trust originally secured. The use of the terminology “dragnet” symbolizes that such a clause causes the Deed of Trust to “spread” like a net, so as to “capture” within its … Read More
Reasonable Reliance in Connection with Fraud in the Inducement
If you ask most people what it means to be “fraudulently induced” to enter into a contract, they will likely respond that it means that they were lied to. But while it's true that being told something that is not true is one of the elements of fraud, each of the four following elements must be present, for the non-truthful party to be legally liable for “fraud in the inducement”: (1) … Read More
That's Not Fair: What is Unjust Enrichment
On all of the television court shows, one theme that is pervasive is that the judge, in issuing his or her ruling, attempts to fashion as result that is “fair” to the parties. But as anyone who has first-hand experience, either as an attorney or as a party, with “real life” lawsuits, knows well, it is all too often true that the concept of “fairness” plays no part in the … Read More
Real Estate Easements and Licenses
The legal right to use someone else’s land for some limited purpose usually arises out of the user having either an easement or a license. A very common easement is one used for ingress and egress, meaning the right to travel over someone else’s property to reach one’s own property. Easements can also include such rights as the right to place utilities under someone else’s property, or the … Read More
What is Knowledge?
If you ask somebody whether they “know” something, they will readily tell you either “yes” or “no.” There is no doubt while watching Jeopardy – either you know or you do not know the answer (or actually the question). A person is said to have actual “knowledge” as to a certain fact because they have actual awareness of it; whereas, if they are unaware of it, … Read More
Covenants and Conditions in Contracts
Both real estate professionals and laypersons oftentimes are confused by the differences between covenants and conditions. In its simplest terms, a “covenant” is an agreement to do or to not do something. Covenants are unconditional promises found in contracts, and the failure of a party who makes such an agreement to abide by its terms will entitle the other contracting party to damages for breach of … Read More