April 2008 Nevada Lawyer
THE BIRTH OF A NEEDED ORGANIZATION: BOARD OF GOVERNORS APPROVES REAL PROPERTY SECTION
A couple of months ago, I learned of several new laws affecting Nevada real property lawyers while reading an issue of the ABA’s Probate & Property magazine, including the significant Uniform Assignment of Rents Act (NRS Chapter 107A). As a long-time and active member of the Business Law Section of the State Bar of Nevada, I knew that the section had not been involved prior to consideration and passage of these new laws.
Something was obviously wrong. New laws and new proposals dramatically affect what we do as real estate attorneys, yet rarely do they trigger the devoted attention of the Business Law Section or provide the opportunity for real estate practitioners to give input. It seemed to me that, as a result of the continuing growth and development in this state, the number of pure business issues and pure real property issues had increased to the point where a single section could no longer fully address both areas.
As a result of lobbying by myself and others, the Board of Governors approved the creation of the State Bar Real Property Section at its December 2007 meeting. The new section’s executive committee then held its first meeting in January. It will continue to meet monthly throughout the year as it plots an initial course for the section. Strategic planning, however, involves a bit of a chicken and egg situation. While the section’s executive board will need to establish the section’s initial objectives, those of you who practice in the area will need to join the section to provide the variety and quality of input we need to make it effective.
That said, some guidance about the purposes of the new section may be found in the application submitted to the State Bar of Nevada, which included – as required by the state bar – a statement of immediate and long-range goals of the proposed section:
1. “The Section will serve as a resource for expert analysis and as a sounding board (through study committees, legislative testimony or “white papers”) for legislative proposals affecting real property, beginning in the 2009 legislative session. ... We believe that the 2009 Legislature will likely consider a number of proposals affecting residential mortgage lending and foreclosures.
2. The Section will serve as a resource for expert analysis of regulations affecting real property. As an example of regulations for which commentary might be offered, we have recently been advised that regulations relating to the real property transfer tax (NRS Chapter 375) are being considered.
3. The Section will serve as a forum for considering and addressing the continuing education needs of practitioners in the field of real property. In particular, we hope to develop a newsletter or other topical publication, including contributions to the Nevada Lawyer and/or participation at the annual meeting of the State Bar.
4. Having a list of interested practitioners whose contact information is readily available will help the Section leadership and individual members keep up to date on matters of interest such as new cases and new laws.”
There are a number of things on the section’s agenda. In the near term, the executive committee has agreed to sponsor a onehour CLE program in June at the state bar’s Annual Meeting in Santa Barbara. Long-term, the committee will need to identify those areas of practice that are important enough and have enough support to generate strong subcommittees. (An illustrative list, which is neither required nor exhaustive, might be borrowed from the California bar’s real property section, which includes subcommittees on commercial leasing, common interest development, construction and commercial industrial development, environmental law, inverse condemnation/ eminent domain, natural resources, public private development, real estate finance, real estate litigation, residential landlord-tenant, sales & brokerage, and zoning and land use.)
Of even greater importance, the 2009 Legislature is on the horizon. If you have ever had the pleasure (and pain) of participating in the legislative process, you will know that there is a tremendous need for the input of experienced real property lawyers. (Case in point: the 137-page condo hotel bill, which now resides in NRS Chapter 116B.) The 120-day session provides little time for careful consideration of the complexities wrought by new legislation. It is my hope that our section will be a resource for good laws.
Taken all together, we have a rather large “to-do” list. I say again, we will need your help. Please contact me or any of the members of the executive committee if you are interested in serving on a committee, whether relating to a substantive area of law or any other aspect of section work (e.g., publications). The executive board presently includes officers Karen Dennison, Vice Chair; Matt Watson, Secretary; DeArmond Sharp, Treasurer (the easiest job so far!); CLE Committee Chair, Layne Butt; Membership Committee Chair, Doug Flowers; Substantive Law Committees Chair, Mary Drury; and myself as chair. Additional members are: Dave Davis, Colleen Dolan, Pierre Hascheff, Craig Howard and Sandi Turner. You will need to pay the $25 section dues to the State Bar, but they will gladly accept your check or credit card!
Two final points need mention. First, our great state can no longer wait for an organized, informed and active real estate bar. The prior efforts of the Business Law Section’s real property committees, despite much good work, failed to get off the ground. A number of years ago (March 1994 to be exact), the Real Estate Committee of the Business Law Section met for the first time. Present were Jerry Trenberth, Chuck Deaner, Bill Crowell (by telephone) and myself. Barry Goold and Wilbur Roadhouse joined later that year. At its initial meeting, the committee noted that “The Arizona Law Real Property Section has lawyer and non-lawyer members with $20 dues per year; during the year, the section conducts four or five full-and half-day seminars, makes a presentation with a nationally-recognized speaker at the state bar meeting, publishes a quarterly newsletter, and holds monthly meetings. The Arizona section has also published a real estate practice manual. Arizona does not get involved with legislation.”
The first meeting minutes also reflect discussion of issues that still resonate today:
(1) “In view of the lack of case precedent in Nevada, legislative efforts are appropriate work for the Committee.”
(2) “Mechanics’ lien issues were discussed, including a California proposal, ‘implied consent’ provisions, and notice to property owners. Mr. Deaner noted that Nevada mechanic’s lien laws were patterned upon Colorado statutes in the 1960s.”
(3) “It was noted that the [Business Law Section] Executive Committee recommended that the Committee look into various UCIOA issues. It was agreed that many issues and a wide variety of interests exist. Input should be received from a wide variety of sources.”
(4) “Several of those present indicated a desire to simplify the notice periods required in landlord/tenant evictions by making the time periods more uniform. . . . Mr. Trenberth noted a problem with procedures for personal property abandoned by commercial tenants. . .”
(5) “The idea of a column in the Nevada Lawyer was explored.”
(6) “It was agreed there might be some merit to a Nevada real estate practice manual. A considerable effort may already exist toward publication of that book through the various CLE materials done by different lawyers (e.g., in landlord/tenant law, foreclosures and construction law), and if different lawyers can contribute articles on different topics, the idea might work.”
Years later, beginning in 2001, a separate Chapter 116 committee, consisting of Dave Johnson, Mandy Shavinsky, Karen Dennison, Layne Butt, Chuck Deaner and myself, met about once a month over the course of a year.
The committee proposed several revisions to NRS Chapter 116, including the adoption of the 1994 UCIOA changes to the 1982 version of UCIOA, the basis of the original Nevada legislation. (UCIOA is presently undergoing a third revision.) Unfortunately, the committee’s proposals were unable to obtain a legislative sponsor in the 2003 Legislature, and, while several of the committee’s proposals found their way into other legislation, many more were not acted upon. During the 2007 Legislative Session, the history of AB 396 (the usual stew of various amendments to Chapter 116), eventually vetoed by Governor Gibbons, is a good example, I think, of a situation where an official and carefully considered bar-sponsored proposal might have fixed problems with the chapter without getting bogged down in some of the more contentious areas of the law.
The point to be made is that, with the stakes much higher today and areas of concern about real estate so much greater, lack of input by real property practitioners in Nevada legislation is no longer acceptable. Lastly, while the formal objectives of the section are not without their significance, the greatest benefit of the section will be to create a framework by which attorneys who practice in our area get to know one another. There is much we have to share. Two of the highlights of my career as a Nevada real property lawyer have been getting to know and working with – on bar-related projects – the deans of the real property bar, Chuck Deaner in the south and Edward Hale in the north. These days, if you are like me, very often you find yourself dealing with out-of-state attorneys in big firms around the country. You may not even know the Nevada attorney on the other side of the transaction. Also, with more and more “legal guides” and ranking of lawyers, unless we know our in-state colleagues, we can’t speak to their abilities. Karen Dennison made a remark at the initial meeting of the executive board which speaks to this important aspect of the section; namely, we need to get the word out that there are good real estate practitioners in the state. While real property law is the subject around which the section will be organized, it is our people who will make our section great.
Several years ago, I was discussing a rather complicated issue with another lawyer in the office, when a colleague who practiced in the area of administrative law walked by and overheard our discussion. He smiled and said “Oh, it’s law talk!” Yes, we need more “law talk” about real property issues. And we need your support, your ideas, your energy and your efforts. We ask all interested to join the Real Property Section now.
Michael E. Buckley is a stockholder in the firm of Jones Vargas. He has practiced real property law in Nevada since 1975 and is a member of the American College of Real Estate Lawyers. He is a member of the Business Law Section, and former member of the Executive Committee (1985-1991), where he served on the One Action Rule subcommittee (1988-1989); Uniform Common Interest Ownership Act study committee (1990-1991); Real Estate Law Committee (1994); and NRS Chapter 116 study committee, (2001–2002). He is presently the chairperson of the Nevada Commission for Common-Interest Communities and Condominium Hotels. The editorial assistance of Mary Drury and Doug Flowers with this article is gratefully acknowledged.