Landlady has misstated square footage on our commercial lease and taken prime parking spots to give to other tenant

I have a small cafe. The lease agreement states I am renting 1100 square feet, but there is only 950. The landlady first stated she measured it herself. When I brought up the issue a year or so later, she stated the square footage came from the appraisal, but will not give me a copy. Also, the parking we share with our neighbor was removed and given to that adjacent neighbor to use for outdoor seating and a drive-thru. This was parking that had signs stating it was for our address and our neighbor’s. There are other unscrupulous issues with this landlady (real estate broker), but the above two are the largest. We have been leasing the space for 3.5 years and the lease ends (or can be renewed) in three months. Is it worth my time to seek justice in this matter? How should I proceed?

A: This comes down to two things. First, a court will look to the lease as the primary place to determine what the parties agreed to. So the lease provisions (or absence of lease provisions) are important. Second, a court will look at the communications between the parties. What did the landlady say to you? What did you say to her? What did everyone know about the signs? When were they put up and who agreed to them? That sort of thing.

Whether it’s worth your time to pursue it depends on how much you think you’ve been damaged. Certainly as you decide whether to renew the lease, you should be careful that everything important to you is included in the renewal.

Answered by Arizona Real Estate Lawyer at Gunderson, Denton & Peterson, P.C.
Re-posted from AVVO Legal Questions & Answers.

Sharing Property Losses

My partner and I bought a piece of land 5 years ago. It was for $420,000. I paid half cash, about $210,000 and my partner agreed to make monthly payments until it was paid off. The value of the land went way down and my partner stopped making payments. In 5 years, he made about $70,000 in payments. We settled with the bank and paid $10,000 is settlement through short sale. We split the settlement fee half and half. I am asking my partner to shoulder some of my loss by splitting the total loss. He says that he is not responsible for my loss. I have witnesses supporting my claim that we were 50/50 partners. However, we did not put anything in writing. Although she made the monthly payments for 5 years. Am I stuck with this huge loss or can I sue my partner for the loss and damage to my credit rating? I must say that my partner and I share a few other properties and he has other properties as well. I just do not feel that because the value of the land went down, I should suffer, where he walked away with much less losses. What can I do?

A: The answer to this question is yes, you do have a claim. It is a bummer that your contract was not in writing. But that does not mean it is not enforceable. If there are email or other written documents confirming your deal, that will help. At any event, you may also have a claim for something called “contribution,” which would require your partner to pay his half of the losses of your enterprise. I have handled these cases before and would be happy to discuss your options if you would like.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

Can a voluntary dismissal “without prejudice” still give rise to a malicious prosecution claim?

If a party who brings a civil action (without probable cause and with ulterior motives) against a Defendant voluntarily dismisses their own suit without prejudice, is it is ever possible that the original Defendant may still potentially bring a future malicious prosecution claim against the original Plaintiff? Or, does a voluntary dismissal without prejudice ALWAYS/automatically eliminate the possibility of a future malicious prosecution claim being brought?

Additional information
Landlord brought eviction action against tenant, alleging an unauthorized occupant was living in tenant’s apartment, but failed to offer evidence at the forcible detainer hearing. At the hearing landlord stipulated to voluntarily dismissing action if tenant paid the previous month’s rent of which the landlord had already rejected prior to the hearing, specifically stating to the tenant in writing that they could not accept rent due to the pending outcome of the hearing. Tenant had voluntarily vacated the apartment just prior to the hearing due to landlord’s constant harassment over several months. The landlord was given back the keys to the apartment prior to the hearing, yet still went forward with the hearing even knowing that the tenant had already vacated the apartment. The landlord’s stated basis of moving forward with the forcible detainer hearing was to collect the rent from the tenant, however, this was the same rent that they’d already just rejected from the tenant in writing prior to the hearing.

A: Usually you need a ruling on the merits before a malicious prosecution claim can succeed. I’d have to know more about the facts of this before giving a definitive answer, though. However, I do agree with the other respondents that even if you have a case, it seems like one that isn’t worth bringing.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

Should we refinance for a 15 year term or 30 year again?

We are under water and planning to take advantage of the new HARP program coming out in March to help home owners that are current and more than 125% under. We want to refinance to get a lower rate. We are currently at 6.5%. We want to move to a better neighborhood as soon as possible. We have considered a strategic foreclosure but value our excellent credit and are scared of the negative affects. So, we are definitely going to try to refinance under this new program either way. We have lived in our home for 7 years. We currently have a 30 year fixed.

Our dilemma is do we refinance to another 30 year term, lose the years we have already paid into the house , to lower the payments several hundred dollars a month. Or, do we refi. to a 15 year term, cut 8 years off the term.

A: The part of your question about whether to accept loan terms is really more of a financial question than a legal question. Many times if you do the analysis of the value of your credit, you find that the enormous price of paying off an “underwater” house is simply not worth it.

What I would do if I were you is consult with an Arizona real estate attorney who is familiar with the HARP program. Most attorneys, including me and even many real estate attorneys, do not know much about the HARP program. Bert Millett is one attorney who does. His phone number is 480-655-7440 if you care to follow up. Good luck.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

Arizona Real Estate Civil Law Suit

Q: If I am involved in a civil law suit about a real estate partnership based on a verbal agreement and the partners were me wife the plaintiff and his girlfriend. They are suing, in addition to me personally, my LLC’s. My LLC’s were in no way involved in this partnership. No bank accounts, the LLC’s aren’t even active. They are being aged to be used later. I am trying to file a motion to get the LLC’s dismissed and to continue with the lawsuit against me personally (I know this is backwards). What motion (or law) do I file on what grounds?

A: I agree that a motion for summary judgment is the right motion to file. However, you need to file some groundwork first. Well-defined requests to admit and interrogatories will give you the foundation for your motion to succeed. In my experience on this type of case, you will want to make sure your ducks are in a row before filing. Also, the angle you take might be different depending on which Maricopa County Superior Court judge is assigned to your case.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.