Statute of Frauds

What is the Statute of Frauds?

The Statute of Frauds is a legal doctrine that requires certain types of contracts to be in writing to be legally enforceable. Its primary purpose is to prevent fraudulent claims and misunderstandings arising from oral agreements and to create a clear and verifiable record of important contractual obligations. In Arizona, the Statute of Frauds for real property transactions is governed by A.R.S. § 44-101.

Real Property Transactions Covered by the Statute of Frauds in Arizona

The Arizona Statute of Frauds mandates that contracts involving the sale, exchange, or lease of real property, or any interest in real property, must be in writing to be legally enforceable. This encompasses a wide range of real estate transactions, including but not limited to:

  1. Sales of Land and Homes: Any agreement to buy or sell a piece of land or a residential property, whether it’s a single-family home or a condominium, must be documented in writing to be legally binding.
  2. Lease Agreements: If you’re entering into a lease agreement for real property, such as leasing a commercial space or residential unit for a term exceeding one year, it must also be in writing to be enforceable.
  3. Real Estate Option Contracts: Option contracts, which give one party the right to buy or sell real property at a specified price within a specified timeframe, must be in writing to be legally valid.

Key Elements of a Valid Written Agreement

To comply with the Statute of Frauds in Arizona, a written agreement related to real property transactions must include certain key elements:

  1. Identification of the Parties: The names and addresses of all parties involved in the agreement must be clearly stated.
  2. Property Description: A detailed description of the real property being transacted, including its legal description, address, and any relevant parcel or tax identification numbers, should be included.
  3. Terms and Conditions: The terms of the agreement, including the purchase price, financing arrangements, and any contingencies or conditions, should be spelled out.
  4. Signatures: The written document should be signed by all parties involved. Signatures are a critical component of demonstrating consent and intention to be bound by the contract.

Implications of Non-Compliance

Failing to adhere to the Statute of Frauds in Arizona can have significant consequences. A contract that doesn’t meet the statutory requirements is generally unenforceable in a court of law. This means that parties may not be able to enforce their rights, collect damages, or compel performance if the contract is solely oral or inadequately documented.

Seek Legal Guidance

Navigating real property transactions in Arizona can be complex, and ensuring compliance with the Statute of Frauds is just one aspect of it. For individuals, investors, and real estate professionals, it’s advisable to seek legal counsel when dealing with real estate transactions. An experienced attorney can help draft, review, and ensure the enforceability of your contracts, providing you with peace of mind and helping you avoid costly disputes down the road.

In conclusion, the Statute of Frauds in Arizona is a fundamental legal doctrine that underscores the importance of written agreements in real property transactions. If you need assistance with your water well then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* These blog posts are not intended, nor shall they be deemed to render legal advice. Reading these blog post does not create an attorney-client relationship, nor shall it impose an obligation on the part of the law firm to respond to further inquiry. The Dunaway Law Group limits its practice to the states of Arizona and New York.

Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading used in civil lawsuits.

filed where a party is asking the judge to rule the issues in dispute without the need for a trial. This is known as a summary judgment, in that it summarily ends the case before trial. The purpose of a trial is to have somebody — the judge or the jury — decide what the facts are. If the facts are not in dispute, there is no need for a trial.

This blogpost will discuss when a Motion for Summary Judgment is used in a lawsuit and how to defend against it.

When is a Motion for Summary Judgment used?

A Motion for Summary Judgment is used when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. In other words, the party filing the motion is saying that there are no disputed facts that would require a trial, and the court can rule in their favor without the need for a trial.

A Motion for Summary Judgment is typically filed after the discovery process is completed, and all relevant evidence has been gathered. It is important to note that the moving party has the burden of showing that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. If the moving party meets this burden, the court will grant the motion, and the case will be dismissed or the claim(s) in question will be dismissed.

There must be “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law”. This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

If the facts are not in dispute, there is no need for a trial. Instead the party who believes that the undisputed facts compel a ruling in his or her favor will file a motion for summary judgment. The motion asks the court to consider the undisputed facts and apply the law to them, and argues that the law requires a judgment for the party bringing the motion.

When considering a Motion for Summary Judgment, judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Under Arizona Rules of Civil Procedure 56(c), a judgment can be entered only if the court finds that no genuine issues of material fact exist. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

Why File a motion for Summary Judgment?

Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part because a judge can rule on just one aspect of the case. This will allow the Movant to “chip away at the edges” of the lawsuit to see if they can get any of the claims for relief awarded.

Statement of Facts and Affidavit

A Statement of Facts and Affidavit(s) are submitted along with the Motion for Summary Judgment.

  • Statement of Facts– For the movant party, (person filing the MSJ) they must file a Statement of Facts providing the facts of the situation as they see them.
    • Supporting Documents-In addition to just stating the “facts”, each Party must provide documentation that supports their statement facts. When it decides a motion for summary judgment, the court may only consider facts in the pretrial record, such as deposition testimony, affidavits, answers to written discovery requests, documents, etc. It cannot decide which side is more credible than the other. If the court has concerns about the credibility of witnesses or which side to believe, the case should be resolved in a trial.
  • Affidavit in Support– Both Parties must file an affidavit swearing that their statements are true.

responding to the motion

A response to the Motion for Summary Judgment must be filed within 30 days of receiving the motion. A response gives a party the opportunity to respond to the allegations made in the Motion for Summary Judgment. As part of the response, a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts, the respondent must cite a source for every statement made to the court. Doing this is incredibly tedious and time consuming!

How to defend against a Motion for Summary Judgment?

When facing a Motion for Summary Judgment, the non-moving party has a few options for defending against it. Firstly, the non-moving party can argue that there are genuine disputes of material fact that require a trial. To do this, the non-moving party must point to specific evidence that creates a genuine dispute of material fact.

Secondly, the non-moving party can argue that the moving party is not entitled to judgment as a matter of law. This may be because the moving party has not met their burden of proof or because the law is not clear on the issue in question.

Finally, the non-moving party can argue that the court should deny the Motion for Summary Judgment without prejudice. This means that the court would not dismiss the case or claim(s) at this time, but rather, would allow the case to proceed to trial. This option is typically used when the non-moving party needs more time to conduct discovery or gather evidence.

RULING ON THE MOTION FOR SUMMARY JUDGMENT

There are essentially three way a Judge can rule.

  1. The Arizona Judge may rule 100% against the Party filed the Motion for Summary Judgement. If the Judge rules completely against the moving Party then the case will continue towards trial as if the Motion for Summary Judgment had never been filed!
  2. The Arizona Judge may grant a partial summary judgment. Meaning the Judge ruled in favor of the moving Party on some of their claims but not on all of them. If a partial summary judgment is awarded, then a decision is made on the claims involved without holding a trial but the the remaining issues will continue towards trial.  
  3. The Arizona Judge may rule 100% in favor of the Party who filed the Motion for Summary Judgment. If this happens, if the Judge rules completely in favor of the party who filed the Motion for Summary Judgment then it is deemed to be a final judgment from which a party may appeal. On appeal, the appellate court can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done because most summary judgments are upheld on appeal. Lastly, depending on the type of case, the winning party will likely be awarded their attorneys’ fees and costs.

In conclusion, the legal doctrine of Motion for Summary Judgment is an important tool for litigators in civil cases. It allows parties to avoid a trial when there are no genuine disputes of material fact and one party is entitled to judgment as a matter of law. However, when facing a Motion for Summary Judgment, the non-moving party has options for defending against it. They can argue that there are genuine disputes of material fact, that the moving party is not entitled to judgment as a matter of law, or that the court should deny the Motion for Summary Judgment without prejudice. Ultimately, it is up to the court to determine whether a Motion for Summary Judgment should be granted or denied.

If you need help from an Arizona attorney then contact the Dunaway Law Group at or 480-702-1610 or by sending us a message HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the States of Arizona and New York.

Discovery in Litigation

What is Discovery of Evidence?

During a lawsuit, each party has the opportunity to request formal “discovery” from the opposing party. The Discovery process is accomplished in a variety of ways, one is to send the opposing party a formal set of requests. These requests each seek different types of information from the opposing party.  

stack of legal documents

Uniform and non-uniform Interrogatories:

Uniform interrogatories are a series of questions that are listed in the Arizona Rules of Civil Procedure. Depending on the type of case there is a set of different questions for the opposing party.

Non-uniform interrogatories are questions written by one party to a lawsuit. They send the questions to the opposing party and wait their response.

For example, a non-uniform interrogatory might ask, “Explain in detail why you did not make the payments as agreed”.

Request for Admissions:

“Requests for Admissions” allow one party to present the opposing party with statements that they must either Admit or Deny. They are written in a way so that the responding party must Admit the statement. If the responding party does not respond in the affirmative then they must provide a detailed explanation of why they denied the statement.

For example, a Request for Admissions could state,
“Admit that you entered into a written contract with the Plaintiff”.
“Admit that under the contract you were to pay the Plaintiff $5,000 a month.” “Admit that you did not pay the Plaintiff $5,000 per month”.

A party might deny one of the above statements of admissions by responding. “I deny that I was to pay Plaintiff $5,000 per month because I gave him a parcel of land as payment for the money borrowed.”

The effect of not responding to the Requests for Admissions is quite harsh. Under Arizona Rule of Civil Procedure 36(a)(4) “A matter [request] is admitted unless, within 30 days after being served, the party to who the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.”

Why does it matter if the Requests for Admissions are deemed Admitted? Well, the party asking for the Admissions can say to the Judge, “Your honor, we’ve proven our case and you should rule in our favor. The Defendants admitted there was a written agreement to borrow money and they admitted that they did not pay back the money as agreed. [Refer to my example above].

Arizona Rule of Civil Procedure 36(b) does allow a party to file a Motion asking the court for permission to withdraw or amend the admission. “Subject to Rule 16, the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on its merits.”

Request for Documents:

We are given the opportunity to request up to 10 different sets of documents from the opposing party. In Arizona, in the Rule 34 of the Rules of Civil Procedure, the responding party has 30 days to respond to the request for production of documents.

Lastly, similar to 26.1 initial discovery statements. These discovery requests are not submitted to the Court. In fact, the Judge will never see this information unless specifically and formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply exchanging all relevant information with the opposing party.

If you need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Arizona’s Anti-Deficiency: A.R.S 33-729

Arizona’s Anti-deficiency statute allows certain home owners to stop making payments on their home and walk away with no negative financial recourse.

The Arizona anti deficiency protection is set forth primarily in A.R.S. § 33-729(A) which provides in part:

“if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment.”

A.R.S. 33-729(A)

qualifying properties

To obtain anti-deficiency protection the property securing the loan must be (1) two and one-half acres or less, and (2) limited to a single one-family or a single two-family dwelling. The Arizona Supreme Court has interpreted this language to require that the dwelling actually be built and at least occasionally occupied. The property will qualify under the statute for anti-deficiency protection whether occasionally occupied by the owners or third party renters.

qualifying mortgages

Additionally, the Arizona mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

*** NOVEMBER 2019 UPDATE ***
The Arizona Court of Appeals ruled that a loan used to expand and upgrade a home is not entitled to anti-deficiency protection because it is not a home construction loan. Arizona’s anti-deficiency statutes may protect the homeowner from a deficiency judgment if the loan’s proceeds were used for a certain purpose. A “construction loan” qualifies for protection, but a “home-improvement loan” does not qualify. the anti-deficiency statutory provisions do not define “home construction loan”. Under its common sense meaning, “home construction loan” means a loan used to build a new residence from scratch, not a loan used to pay to transform an existing home over time with significant improvements, additions, and upgrades. Helvetica Servicing, Inc. v. Pasquan, 1 CA-CV 7-0699.

arizona debtor protection

If the property meets Arizona’s anti-deficiency statute, the lender may not obtain a deficiency judgment against the debtor. If a qualifying property is sold by the lender “no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses”. A.R.S. §§ 33-814(G). Therefore, certain Arizonian’s are able to walk away from their homes and face no financial recourse from their lender. 

If you have questions about how the Arizona anti-deficiency law protects you then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the states of Arizona and New York.

What is an Easement?

“An easement is the right to use real property owned by another person for a specific and limited use.”

how are easements created?

Easements are created by several methods but the two most common methods are by an “express” act or “use” of the land.

1. Express Easement– An express easement is created by deed, contract, or other written agreement. Express easements are the fastest and most cost-effective way to establish access to a property.

2. Prescriptive Easement– Prescriptive easements are created through the circumstances and facts surrounding the use of land which indicates the parties intended for it to exist. This is why prescriptive easements are also known as “implied easements”. They are implied easements after a dominant estate has used the servient estate’s property in a continuous, uninterrupted and open manner for more than 10 years. There is not an official contract or written agreement for prescriptive easements.

Arizona law (A.R.S. § 33-2401) recognizes easements that may be requested by a landlocked owner who is surrounded by land owned by the state (of Arizona) or any political subdivision of the state, and states that “Notwithstanding any other law, reasonable access to private property shall not be denied by this state or any political subdivision of this state.”

Arizona law (A.R.S. § 12-1202) also recognizes a private landlocked landowner’s right to seek an easement from a neighboring landowner upon a showing of “reasonable necessity.”

types of easements

Right-of-Way Easement.
A right-of-way easement is a legal right that allows someone to travel through or use a specific portion of another person’s property. It provides access across someone’s land for a particular purpose, such as reaching a public road, accessing a neighboring property, or accessing utilities or services. The dominant estate (the property benefiting from the easement) has the right to pass over the servient estate (the property subject to the easement) without interference. Right-of-way easements are typically established through a written agreement, deed, or court order.

Key Features of a Right of Way Easement
a. It grants the right to pass over or use a specific part of the property.
b. It is often used for access purposes, such as roads, driveways, or pathways.
c. It may be exclusive (only the holder of the easement can use it) or non-exclusive (multiple parties can benefit from the easement).
d. The easement holder usually has the duty to maintain and repair the portion of the property subject to the easement.
e. The right of way may be limited to specific hours or purposes, depending on the agreement.

Ingress-Egress Easement.
An ingress/egress easement, also known as an access easement, is a type of easement that specifically grants the right to enter or exit a property through another person’s land. It allows a property owner or occupant to access their property by passing over a neighboring property. Ingress refers to the right to enter the property, while egress refers to the right to exit the property.

Key Features of an Ingress-Egress Easement
a. It grants the right to enter and exit a property.
b. It is often used when there is no direct access to a public road or when an alternative access route is more convenient.
c. The easement holder typically has the right to use the access route but may not have the right to use the rest of the servient estate.
d. The easement may specify the type of vehicles or equipment that can use the access route.
e. Maintenance and repair responsibilities may vary depending on the agreement.

Both the right-of-way easements and ingress-egress easements grant certain rights to individuals or entities regarding the use of someone else’s property. While there may be some overlap in their application, the easements types serve different purposes and have distinct characteristics. In comparison, a right-of-way easement provides a broader right to pass through or use a specific part of someone’s property, while an ingress-egress easement specifically grants the right to enter and exit a property through a neighboring property.

Easements of Support.
An easement of support prohibits other parties from digging too deep and affecting the foundation of the property’s structures.

Easements of “Light and Air”
An easement of light and air prevents a neighboring property from building too high and affecting the view from the dominant estate’s structure(s). When we think about property rights, we often envision ownership in terms of land and structures. However, there’s another aspect that deserves equal consideration: the rights to light and air. These rights, known as easements of light and air, play a crucial role in maintaining harmony, well-being, and livability within communities. They are essential for preserving tranquility in our surroundings.

Understanding Easements of Light and Air: Easements of light and air refer to the legal rights that property owners have to the access, flow, and enjoyment of natural light and air on their premises. These easements recognize the importance of sunlight and fresh air in promoting a healthy and conducive living environment. They ensure that neighboring properties do not obstruct or impede the reasonable access to these vital elements.

Easements of light and air prevent scenarios where buildings or structures significantly block sunlight or restrict airflow to adjacent properties. By preserving these rights, we maintain a peaceful and health-supporting atmosphere within our communities, ensuring a higher standard of living for everyone involved.

Legal Aspects and Regulations of Easement of Light and Air: Easements of light and air are often established and regulated through local zoning ordinances, building codes, and property laws. These regulations aim to strike a balance between the rights of property owners and the need for urban development. They outline restrictions on building heights, setback requirements, and other considerations to prevent overshadowing or obstruction of light and air.

Aviation Easements
Aviation easements are legal agreements that establish rights and restrictions pertaining to land use and development around airports and aviation facilities. They serve as a framework to safeguard the interests of both aviation operations and neighboring property owners. These easements recognize the need for clear zones around airports to maintain safety, minimize noise, and prevent obstructions to airspace.

Aviation easements play a vital role in maintaining the safety and operational efficiency of airports. Clear zones established through these easements provide essential space for aircraft takeoff, landing, and emergency procedures. They help mitigate the risk of accidents, ensure adequate approach and departure paths, and prevent the encroachment of structures or objects that could impede flight operations. Additionally, aviation easements often include restrictions on building heights, land use, and lighting to prevent obstructions to airspace and ensure clear visibility for pilots.

Airports can generate significant noise levels due to aircraft operations. Aviation easements help address these concerns by establishing noise abatement measures and setting limits on noise levels within specific areas surrounding airports. These measures can include restrictions on nighttime flights, mandatory sound insulation for affected buildings, and the implementation of flight procedures to minimize noise impact on nearby communities.

Aviation easements strike a delicate balance between the growth and expansion of airports and the interests of neighboring communities. They enable airports to expand and develop infrastructure to meet increasing demands while ensuring that nearby properties are not unduly affected. By delineating clear boundaries and restrictions, these easements provide a transparent framework that helps prevent conflicts and promote collaboration between airports and communities.

The establishment of aviation easements often involves extensive public consultation, where stakeholders, including community members, local authorities, and airport officials, provide input on the proposed easement agreements. This collaborative approach allows for open dialogue, ensures transparency, and helps address concerns from all parties involved.

how are easements terminated?

Easements Can Be Terminated or Abandoned in 4 Basic Methods

  1. Termination by Expiration: Easements can be terminated by the expiration of an agreed upon time event. For example, there could be an agreement that an easement will last for 10 years at which time it will automatically terminate.
  2. Termination by Agreement: This happens when the property owner expressly conveys an easement back to the grantor. For example, if Simon owns an easement over Garfunkel’s land, and Garfunkel requests that Simon release the easement, Simon may then execute the termination agreement and convey the easement back to Garfunkel.

3. Abandonment of an Easement: Easements can be terminated when the owner abandons her right to it. Usually, mere nonuse of an easement is not enough to qualify for termination. The owner must make a clear, unequivocal, decisive act to abandon the easement.

4. Abandonment by Decision: A decisive act to abandon an easement could include creating a new alternate road to enter the property or installing fencing or a wall or some other time of barrier across the easement.

5. Termination by Merger of the Dominant and Servient Properties: Easements can be terminated by a merger of the dominant and servient properties. Under the doctrine of merger, if one party acquires the property subject to and benefited by an easement. The easement will have been said to merge with the other rights held by the owner.

Frequently, adjacent properties have an easement between them, allowing one or both parties access to the other. One is the servient property, and the property that benefits from the easement is the dominant property. In this case, you have an appurtenant easement. If one owner acquired both properties and combined them into one legal description, the easement would no longer be necessary. The two properties have merged. This makes sense, because an easement is the right to cross over the property belonging to another person. However, if you own the land, the easement will merge into the land because it is not necessary to have permission to cross your own property.

landlocked properties in arizona

In Arizona, it’s not unheard of for a piece of property in an isolated and undeveloped area to not have legal access to the property. Meaning there are not roads leading to the property and there are not Express or Prescriptive easements.

In this scenario, the landlocked owner has several options. If the seller of the Arizona property sold a portion of her land without a formal access roadway, then Arizona law implies in the sale of the property an easement across the seller’s remaining property for access–and utilities. If the seller of the land refuses, the landlocked owner can ask a court to enter an order compelling the seller to grant an easement. Because Arizona law generally presumes that transfer of real property includes by implication that there is a way the property can be accessed and used.

private condemnation of properties

A landlocked property in Arizona may be able to file a “private condemnation” lawsuit, where the landlocked owner can ask a court for just enough of the neighboring property to build and maintain a roadway in order to access the property. The landlocked owner must prove that there is no sufficient alternative access to the property. As in public condemnation, private condemnation requires compensation to the owner of the property being taken.

Conclusion

Understanding real estate law can be very confusing, if you have questions then contact the Dunaway Law Group at 480-702-1610 or by sending us a message HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.