Real estate is a cornerstone of Mark’s practice. For 20 years, Mark served as General Counsel to California’s largest independently-owned brokerage firm and its affiliated businesses in the real estate industry, including mortgage lending, development, title insurance and escrow services. Mark’s background makes him ideally suited to mediate cases involving all aspects of property sales, leasing, financing, construction and development, as well as brokerage claims arising from property transactions. His areas of expertise include:

• Acquisition and Sale transactions
• Leasing of Commercial, Office, Retail and Industrial properties
• Brokerage Industry and Consumer Disclosures
• Construction, including Water Intrusion and Mold, and Landslide and Subsidence
• Development and Land Use
• Title Issues, including Quiet Title, Encroachments, and Easements
• Homeowner Association matters

Sale of Commercial Property

Claim: The purchaser of a $4.5 million commercial property threatened to sue for breach of contract when the seller rejected its request to extend the time period for the escrow.

Result: After signing an agreement regarding environmental indemnities and removal of certain contingencies, the escrow was completed to the satisfaction of both parties. The parties recognized that by working together, they could satisfy the other side’s concerns without jeopardizing their own vital interests.

Residential Property Non-Disclosure

Claim: Shortly after the closing, a major landslide damaged a single family home. The purchaser filed a lawsuit to recover damages from the seller, realty agents and inspector based on a failure to disclose geologic and drainage problems.

Result: A monetary settlement enabled the purchaser to do much of the repair work, and at the same time, released the defendants from any future liabilities concerning the property.

Commercial Lease

Claim: One of the country’s largest Real Estate Investment Trusts (REIT) tried to collect over $200,000 in damages from a media company it claimed was the assignee of an office building lease. The original tenant had defaulted on its lease obligations and was no longer operating.

Result: A mutually satisfactory lump sum payment from the media company to the landlord was negotiated, allowing the parties to manage the litigation risks and also to save a great deal of money.

Specific Performance of Purchase Contract; Broker’s Breach of Duty

Claim: The purchaser of an apartment complex sued the seller for refusing to convey the property. The seller, in defense, claimed that his broker listed the property below market value and that the purchase contract was unconscionable and should not be enforced because the consideration was inadequate.

Result: The transaction was consummated to everyone’s satisfaction. The purchaser and seller agreed to modify the terms of the contract, and the broker contributed a portion of its commission to increase the seller’s proceeds.

Broker Commission

Claim: Broker sued to recover a $150,000 commission against the purchaser of a Michigan retail property.

Result: Hoping to do business together in the future, the parties reached a compromise on the amount of the commission due.

Easements and Encroachments

Claim: The institutional owner of architecturally renowned property and its neighbors each claimed easements across the other’s properties.

Result: Encroaching improvements were removed and easements granted that protected each owner’s privacy and security, and provided for maintenance and repair.

Negligent Grading

Claim: Owner of commercial property in downtown Los Angeles sued to recover more than $750,000 for loss of business equipment and inventory caused by severe flooding of its premises. Plaintiff alleged that, in the process of developing a project on a neighboring uphill property, negligent grading work improperly diverted a large volume of rain water onto plaintiff’s property.

Result: Defendants’ payment compensated much of the plaintiff’s loss.

Injunctive Relief for Nuisance; Use of Easement

Claim: Malibu estate owners sued neighbor alleging that extensive commercial activities on adjoining property and shared roadway were a nuisance, violated local codes, and unreasonably interfered with the enjoyment of plaintiffs’ property.

Result: The parties agreed to limit commercial use of the adjoining property and shared roadway, and to establish an ocean view by trimming trees in a manner that respected everyone’s privacy.

Partition of Joint Tenancy Property

Claim: Unmarried couple acquired residential properties together, and then separated, leading to a dispute about an equitable division of these real estate assets and causing emotional trauma to their children.

Result: The parties, accompanied by a CPA and therapist, agreed to a settle the property issues in a way that also attempted to reduce the impact on the children.

Construction Defects

Claim: Developer of a custom luxury home and its realty agent were sued for defective construction and poor workmanship.

Result: Developer agreed to make certain repairs at its own expense and to pay a cash sum to the purchaser. The confidential settlement and timely resolution helped assure that the developer’s reputation for quality work wouldn’t be harmed.

Breach of Fiduciary Duty and Indemnification

Claim: Seller of $2 million home pursued an indemnity action against its listing agent for non-disclosure. After the close of escrow, the purchaser discovered that plans to expand a neighboring residence would interfere with views from the property.

Result: The broker agreed to a monetary settlement in exchange for a release.

Office Building Lease

Claim: Beverly Hills law firm sued its Landlord, claiming that a failure to timely complete promised renovations disrupted its business.

Result: The Tenant obtained favorable rent concessions from the Landlord.

View Preservation; Fire Damage; Easements and Access

Claim: Purchaser of a Topanga Canyon hillside residence sued the seller and brokers, claiming they failed to disclose that structural beams were compromised by fire damage, that a local developer planned to build new homes obstructing panoramic canyon views, that the seller and others were embroiled in a dispute over a private road leading to the property, and that a driveway was shared with an adjoining landowner.

Result: The parties agreed to a six-figure settlement, averting costly and protracted litigation.

Short Sale Transaction

Claim: Broker was a dual agent in a transaction involving a foreclosure property. The prospective buyer argued the short sale process was “mishandled” by the broker, who allegedly failed to protect his interests and bungled the negotiations with the lender. Ultimately, another bid was accepted at a higher price and the property was transferred to a third party.

Result: While not admitting liability, the broker recognized that the documentation it prepared was incomplete and that a monetary settlement was preferable to a lawsuit.

Water Intrusion and Mold

Claim: The purchaser of a $4.6 million home sued the seller and listing agent for failing to disclose water intrusion and mold affecting a lower level wine cellar, dining room and walk-in safe. Repair costs and attorney’s fees in excess of $150,000 were demanded. The seller denied knowledge of the problem and maintained that its disclosure statement was adequate.

Result: A monetary settlement was negotiated that allowed the parties to avoid a scheduled arbitration.

Broker Commission; Withdrawal-From-Sale

Claim: Broker sought a $200,000 commission based on the seller’s alleged breach of an agreement for the sale of business assets. The seller pointed to technical deficiencies in the agreement as a defense to the broker’s withdrawal-from-sale theory.

Result: The parties reached a mutually satisfactory settlement.

Lease Interpretation; Shopping Center Operating Expenses

Claim: Tenant, a supermarket chain, disputed Landlord’s interpretation of the Operating Expenses provision of its lease and Landlord’s demand for over $500,000.

Result: A settlement was reached without litigation being filed.  The tenant agreed to pay a negotiated amount and the parties modified the lease language to eliminate ambiguities.

Breach of Office Building Lease

Claim: Landlord sought damages when the tenant, a defunct Beverly Hills hedge fund, ceased operations and vacated the premises.

Result: Tenant agreed to a make installments payments in exhange for a release.

Lease for Retail Space; Delivery of Possession

Claim: Landlord, whose retail property was undergoing government-mandated redevelopment and asbestos remediation, was unable to deliver possession as required by the lease.  Tenant sued for breach of contract and fraud, including damages for lost profits and expenses incurred to open at a different location.  

Result: Shortly before trial commenced, the parties negotiated a settlement and release of claims. 

Property Under-Listed; Broker’s Breach of Duty

Claim: Seller’s estate alleged that broker, acting as a dual agent, breached her fiduciary duty and exercised undue influence by persuading the seller, who was elderly and hospitalized during the transaction, to convey apartment building at a below market price and with higher than customary commission rate.  

Result:  After the closing, the broker agreed to make a payment to the seller’s estate contingent on a good faith settlement determination.

Luxury Home Lease; Mistake of Fact

Claim: The owner of a Northern California luxury home claimed that the tenant, a Fortune 500 company, breached a written lease agreement, and refused to return any portion of the 10-weeks rent that had been paid in advance.  Tenant argued there was a mistake of fact which allowed it to rescind the lease.

Result:  The parties decided to allocate the advance rent between them and to exchange releases.