Nevada Real Property Cases- January 1, 2000 to Date
Including Federal cases interpreting Nevada law 

Schleining v. Cap One, Inc.
130 Nev.Adv.Op. 36  5/29/14

DEFICIENCY JUDGMENTS:  Pursuant to N.R.S. 40.453, a guarantor cannot waive the right to be mailed a notice of default required by N.R.S. 107.095. However, N.R.S. 107.095 requires only substantial, not strict, compliance, and substantial compliance exists where the guarantor had actual notice of the trustee's sale and was not prejudiced by the lack of statutory notice.

Lavi v. District Court
130 Nev.Adv.Op. 38  5/29/14

DEFICIENCY JUDGMENTS:  Where a guarantor waives the one-action rule, the lender may bring an action against the guarantor prior to completing the foreclosure, but the waiver does not terminate the procedural requirements for asserting a deficiency once the property was sold at foreclosure. Although the lender commenced an action on the guaranty first, once it foreclosed on the property and sought a deficiency judgment, it was required to satisfy N.R.S. 40.455, which requires that an application for a deficiency judgment must be made within 6 months of the foreclosure sale. Since the lender failed to separately make such application, the guarantor was entitled to raise such failure as a defense.

Recontrust Company v. Zhang
130 Nev.Adv.Op. 1  1/30/14

EQUITABLE SUBROGATION: Nevada recognizes the doctrine of equitable subrogation, which permits a person who pays off an encumbrance to assume the same priority position as the holder of the previous encumbrance, so long as the payor 1) reasonably expected to receive a security interest in the real estate with the priority of the encumbrance being discharged and 2) subrogation would not materially prejudice the holders of intervening interests in the real estate. The payor is subrogated only to the extent that the funds are actually applied toward payment of the prior lien.

In re: Nilsson
129 Nev.Adv.Op. 101  12/26/13

HOMESTEADS: The Bankruptcy Court certified a question of law to the Nevada Supreme Court: Can a debtor properly claim a homestead exemption for his interest in real property when the debtor himself does not reside on the property but his minor children do? The court held that the answer is no; the debtor must actually reside on the property in order to qualify for the exemption.

Sandpointe Apartments, LLC v. Eighth Judicial District Court
129 Nev.Adv.Op. 87  11/14/13

DEFICIENCY JUDGMENTS: N.R.S. 40.459(1)(c), which limits the amount of a deficiency judgment after a trustee's sale to the amount paid for the note by an assignee, is a new statute that impacted vested rights. Accordingly, the statute cannot apply retroactively. Because the trustee's sale in this case occurred before the statute became effective, the limitations in the statute do not apply here.

Wells Fargo Bank v. O'Brien
129 Nev.Adv.Op. 71  10/3/13

FORECLOSURE MEDIATION: A district court order granting a petition for judicial review of a foreclosure mediation and remanding the matter for additional mediation is not final and, thus, not appealable.

Markowitz v. Saxon Special Servicing
129 Nev.Adv.Op. 69  10/3/13

FORECLOSURE MEDIATION: An appraisal older than 60 days, as required by the Foreclosure Mediation Program Rules, may nevertheless substantially comply with the rule sufficient to avoid the imposition of sanctions when there is no evidence that the appraisal is so old that it would impair the rule's policy of facilitating good-faith negotiations or the appraisal's content is inaccurate to the extent that the homeowner would be prejudiced.

Khan v. Bakhsh
129 Nev.Adv.Op. 57  8/1/13

STATUTE OF FRAUDS: The court held:
1. The Statute of Frauds does not apply to a writing that is subsequently lost or destroyed, and oral evidence is admissible to prove the existence and terms of that lost or destroyed writing.
2. Parol evidence is admissible to show that a written agreement was induced by fraud or modified by a subsequent agreement.
3. A liquidated damages clause requiring the breaching party to pay additional damages of 150% of actual damages is an unenforceable penalty.

Bergenfield v. Bank of America
129 Nev.Adv.Op. 40  6/6/13

FORECLOSURE MEDIATION: When a deed of trust to real property and the promissory note are held by two different entities and not reunified before mediation in the Foreclosure Mediation Program, the note holder's attendance at the mediation on its own behalf is insufficient to meet the statutory requirement that the deed of trust beneficiary attend and participate in good faith.

Chapman v. Deutsche Bank
129 Nev.Adv.Op. 34  5/30/13

QUIET TITLE: Quiet title and unlawful detainer are both in rem actions (the court did not address whether either might be quasi in rem). Therefore the prior-exclusive-jurisdiction doctrine required the federal court, to which the later-filed quiet title action had been removed, to abstain in favor of the earlier-filed state court unlawful detainer action.

Galardi v. Naples Polaris, LLC
129 Nev.Adv.Op. 33  5/16/13

OPTION AGREEMENTS: Where an option agreement provided that "buyer shall have the option to purchase . . . for a sum of $8,000,000", seller was obligated to pay off a $1.3 million encumbrance. Additional language in the agreement stating that the buyer would pay "all costs of transfer and closing" did not mean that buyer was obligated to take title subject to the encumbrance.

Jacinto v. PennyMac Corp.
129 Nev.Adv.Op. 32  5/2/13

FORECLOSURE MEDIATION: Because the district court's order granting judicial review denied appellant's request for a loan modification, appellant is an aggrieved party with standing to appeal. Nevertheless, there is no basis for reversing the judgment of the district court because the court properly concluded that respondent violated NRS 107.086 by failing to bring the proper documents to the Foreclosure Mediation, and the court exercised its sound discretion in denying a Foreclosure Mediation Program certificate and imposing monetary sanctions.

Sylver v. Regents Bank
129 Nev.Adv.Op. 30  5/2/13

LENDER LICENSING: An arbitrator found that even though defendant engaged in mortgage banking activity in Nevada without first seeking a certificate of exemption, as required by NRS 645E.910, the loan was not void. The court upheld the award because it found that the arbitrator's decision was not a "manifest disregard of the law". The court pointed out that the issue before it on appeal was limited to whether the arbitrator manifestly disregarded existing Nevada law, not whether the common law in Nevada should be extended to determine that failure to comply with a licensing requirement necessarily renders a contract unenforceable.

Cox Construction Company v. CH2 Investments
129 Nev.Adv.Op. 14  3/7/13

MECHANIC'S LIENS: A "work of improvement" for constructing a shooting range did not include soundproofing that was installed after the range began operating and that was not contemplated as part of the original construction. Accordingly, a mechanic's lien recorded within 90 days of completion of the soundproofing, but more than 90 days after completion of the original construction, was not timely.

Building Energetix Corporation v. EHE, LP
129 Nev.Adv.Op. 6  2/14/13

TRUSTEE'S SALES: A nonjudicial foreclosure sale may occur after a delinquent-tax certificate has issued and before the final disposition of the property, and the property's acquirer can then pay the delinquent taxes and other amounts due to redeem, or obtain reconveyance of, the property from the county treasurer.

Einhorn v. BAC Home Loans Servicing
128 Nev.Adv.Op. 61  12/6/12

FORECLOSURE MEDIATION: The requirement that a lender bring all assignments of the note or mortgage was satisfied where the lender failed to bring one of the assignments, but the borrower brought a copy of the assignment. The requirement that the copy be certified was satisfied because it was obtained from the Recorder's office and had been notarized.

In re: Fontainebleau Las Vegas Holdings
128 Nev.Adv.Op. 53  10/25/12

EQUITABLE SUBROGATION: 1. NRS Section 108.225 gives mechanics lien claimants priority over all other liens that attach after commencement of a work of improvement, so that a lender who made a loan after commencement of construction is not entitled to equitable subrogation as to proceeds that paid off a loan that was made prior to commencement of construction.
2. Prospective waivers of mechanics liens are unenforceable.

Edelstein v. Bank of New York Mellon
128 Nev.Adv.Op. 48  9/27/12

TRUSTEE'S SALES / FORECLOSURE MEDIATION: The court held that when MERS is the named beneficiary and a different entity holds the promissory note, the note and the deed of trust are split, making nonjudicial foreclosure by either improper. However, any split is cured when the promissory note and deed of trust are reunified. Because the foreclosing bank in this case became both the holder of the promissory note and the beneficiary of the deed of trust, the court concluded that it had standing to proceed through the Foreclosure Mediation Program, and to thereafter foreclose on the subject property. [Ed. Note: The case contains a good explanation of the "traditional rule", under which the deed of trust follows the note so that splitting the note and deed of trust is impossible, and the Restatement approach (adopted by the court), under which a transfer of the deed of trust transfers the obligation unless the parties agree otherwise.]

Nevada Dept. of Business and Industry v. Nevada Association Services
128 Nev.Adv.Op. 34  8/2/12

HOMEOWNERS ASSOCIATIONS: The Department of Business and Industry, Financial Institutions Division, issued an advisory opinion stating that the superpriority status of homeowners association liens under NRS 116.3116 is limited to the total of nine (9) months of assessments, and that this cap includes any additional fees, charges, interest, costs, penalties or fines which the association could apply towards a lien. The Department additionally found that prior to the imposition of any additional charges by a collection agency, the association must expressly approve the charges pursuant to the provisions in its governing documents. The Supreme Court affirmed the district court's order granting defendants' request for injunctive relief, holding that only the Real Estate Division and the Commission for Common Interest Communities and Condominium Hotels (CCICCH) have the authority to interpret provisions of NRS Chapter 116.

Jones v. Suntrust Mortgage
128 Nev.Adv.Op. 18  4/26/12

FORECLOSURE MEDIATION: A short sale agreement entered into by the borrower and lender as a result of mediation under Nevada’s Foreclosure Mediation Program is an enforceable contract. Accordingly, the district court properly refused to impose sanctions against the lender after it violated N.R.S. 107.086 by failing to provide assignments of the deed of trust at the mediation.

Holt v. Regional Trustee Services Corp.
127 Nev.Adv.Op. 80

TRUSTEE'S SALES: A lender who has been denied a Foreclosure Mediation Program (FMP) certificate for failing to mediate in good faith can reinitiate foreclosure by means of a new notice of default and election to sell and rescission of the original, thereby restarting the FMP process.

Walters v. Dist. Court
127 Nev.Adv.Op. 66  10/13/11

DEFICIENCY JUDGMENTS: A lender foreclosed on a deed of trust, then sought a deficiency judgment against a guarantor. The court held:
1. A cross-complaint, which included a cause of action to recover a deficiency, filed by the lender in a declaratory relief action brought by the guarantor, constituted an "application" under N.R.S. 40.455(1). Since the cross-complaint was filed within 6 months of the foreclosure, it satisfied the statutory requirement that an application for a deficiency be made within 6 months after the foreclosure.
2. The lender did not seek a prohibited double recovery by obtaining the property and also seeking a deficiency judgment because the district court intended to reduce the deficiency judgment by the fair market value of the property.

Daane v. Sup. Court
127 Nev.Adv.Op. 59  9/29/11

TRUSTEE'S SALES: After the District Court found that the lender had acted in bad faith in connection with the Foreclosure Mediation Program, the lender filed a second Notice of Default. Plaintiff filed a Petition for a Writ of Prohibition to prevent a second mediation from proceeding. The court denied the Writ of Prohibition, holding that plaintiff had an adequate remedy at law, which is that plaintiff can file a petition for review with the district court after the second mediation is conducted.

Benchmark Insurance Company v. Sparks
127 Nev.Adv.Op. 33  7/7/11

INSURANCE: While an insurance company is free to contract its way around the general rule regarding an insurer's duty to defend its policyholder, the policy provision in this case was ambiguous with regard to whether it could terminate its duty to defend by depositing the policy's liability limits with the district court. The policy provided that the duty to settle or defend ends when the limit of liability has been exhausted, but that sentence was only part of a policy provision regarding the duty to defend, and it was not clear that depositing policy limits in court was one of the methods by which the limit of liability can be "exhausted".

Leyva v. National Default Servicing Corp.
127 Nev.Adv.Op. 40  7/7/11

TRUSTEE'S SALES: The court held that Nevada's Foreclosure Mediation Law applies to a homeowner even if he is not the named mortgagor and did not assume the obligation secured by the mortgage. One of the requirements of the mediation is that the lender bring the original or a certified copy of the assignment of the deed of trust or note. The court also held that strict compliance, not merely substantial compliance, is required. The lender failed to comply and was subject to sanctions (which can include imposition of a loan modification) because it failed to produce either an assignment of the note and deed of trust or a note containing an endorsement. [Ed. note: The case contains a good explanation of negotiable instruments law.]

Pasillas v. HSBC Bank
127 Nev.Adv.Op. 39  7/7/11

TRUSTEE'S SALES: Nevada's Foreclosure Mediation Law requires that when a borrower requests mediation, the lender must (1) attend the mediation; (2) mediate in good faith; (3) provide the required documents (original or certified copy of the deed of trust, promissory note, each assignment of the note and an appraisal); and (4) attend the mediation, or if attending through a representative, have a person present with authority to modify the loan or access to such a person. A lender who fails to comply is subject to sanctions (which can include imposition of a loan modification). Here, the lender failed to comply, and was subject to sanctions, because it did not provide all pages of the promissory note, the assignment it provided was defective because the name of the assignee was left blank and someone with authority to modify the note was not available.

J.E. Dunn Northwest v. Corus Construction Venture
127 Nev.Adv.Op. 5  3/3/11

1. Under NRS 108.22112, "commencement of construction" requires that work performed be visible on the ground, including preconstruction services, in order to establish priority.
2. The 2003 amendments to NRS Chapter 108 did not affect the long-standing requirement that work must be visible on the property for a mechanic's lien to take priority over a deed of trust recorded before commencement of construction.
3. The statutory visibility requirement is not waived by a lender who has actual knowledge of off-site preconstruction services.
4. The preparatory placement of signs advertising an architect's work on the project and removal of power lines does not constitute visible work.
5. "Commencement of construction" does not include architectural, soil testing and survey work, nor does it include preparatory work on a site, such as clearing and grading.
6. The court explains what the "Ê" symbol means when used in the Nevada Revised Statutes pursuant to NRS Section 0.025.

Simmons Self-Storage Partners v. Rib Roof
127 Nev.Adv.Op. 6  3/3/11

MECHANIC'S LIENS: A judgment is not final for purposes of appeal where the trial court determines a mechanic's lien's validity and enters judgment on the lienable amount, but fails to direct the subject property's sale.

Hardy Companies v. SNMARK, LLC
126 Nev.Adv.Op. 49  12/16/10

MECHANIC'S LIENS: The court held that NRS 108.2453 does not abrogate Nevada's substantial compliance doctrine. Substantial compliance, however, requires notice to be given to the party whose interest the lien claimant is seeking to affect. Notice to one owner is not sufficient to affect the interest of other owners. The court further concluded that the actual knowledge exception requires the owner to have actual knowledge of the identity of the lien claimant (not just the fact that work was being done, but the identity of the person doing the work). Since knowledge of the owner was a question of fact, the court reversed the district court's grant of summary judgment

American Sterling Bank v. Johnny Management LV
126 Nev.Adv.Op. 41  10/28/10

EQUITABLE SUBROGATION: Equitable subrogation is allowed as long as the intervening lien holder is not prejudiced, and as long as the mortgagee reasonably expected to get security with a priority equal to the mortgage that was paid. The fact that the new loan has a higher loan balance and interest rate does not prejudice the intervening lien holder because equitable subrogation is allowed only to the extent of the payoff of the original note and only to the extent of the debt balance that would have existed if the interest rate had been unchanged. However, the court denied equitable subrogation because the much shorter maturity date of plaintiff's loan did have a prejudicial effect on junior lienholders and plaintiff failed to demonstrate how the court could equitably bifurcate the new note to apply both the maturity date of the original note and the maturity date of plaintiff's note. [Ed. note: The court was also perturbed by the plaintiff's inequitable conduct in inflating the value of the subrogated loan. Would a future plaintiff in this situation prevail if it is reasonable in asserting the amount of the subrogated loan and if it sets forth a plan to be subrogated only to the extent of the original loan, including the original due date?]

J. D. Construction v. IBEX International
126 Nev.Adv.Op. 36  10/7/10

MECHANIC'S LIENS: The district court did not err in expunging the lien because it applied the correct standard of proof and substantial evidence supported its decision. The court made the following points:
1. When a property owner seeks to remove a lien by arguing it is frivolous or excessive, the court must determine the material facts in order to reach a conclusion regarding whether a lien is frivolous or excessive.
2. In making these factual determinations, the court is not required to hold a full evidentiary hearing, but instead may base its decision on affidavits and documentary evidence submitted by the parties.
3. This procedure meets due process requirements. However, pursuant to the time frame mandated by NRS 108.2275(3), if the court determines that a hearing is necessary, it must be held within 15 to 30 days of the court’s order for a hearing. And while any hearing must be initiated within that time frame, the statute does not require the court to resolve the matter within that time frame.
4. In evaluating whether a lien is excessive, the court must use a preponderance-of-the-evidence standard, rather than the reasonable-cause standard used for frivolous liens, and the burden is on the lien claimant to prove the lien and the amount claimed.

St. James Village v. Cunningham
125 Nev.Adv.Op. 21  6/25/09

EASEMENTS: The Court adopts Section 4.8 of the Restatement (Third) of Property, which provides that the owner of a servient estate can make reasonable changes in the location of an easement, except where the location of the easement is specified in the instrument creating the easement or where the instrument specifically prohibits relocation. Here, the Court refused to allow the owner of the servient estate to relocate the easement because its location was specified by a metes and bounds description.

Lehrer McGovern Bovis v. Bullock Insulation
124 Nev.Adv.Op. 92  10/30/08

1. Not every lien waiver provision violates public policy. The enforceability of each lien waiver clause must be resolved on a case-by-case basis by considering whether the form of the lien waiver clause violates Nevada’s public policy to secure payment for contractors. NOTE: Subsequent to the events described in this case, the Nevada legislature amended NRS Chapter 108 to prohibit lien waivers unless such waivers comply with the statutory requirements and specific forms set forth in NRS 108.2453 and NRS 108.2457.
2. "Pay-if-paid" provisions (i.e. the right to payment is contingent upon the obligor being paid) are unenforceable because they violate public policy. NOTE: Subsequent to the events described in this case, the Nevada legislature enacted NRS 624.624 and 624.626, which make pay-if-paid provisions unenforceable.
3. Change orders become part of the original contract and are therefore lienable.

Cox v. Dist. Ct.
124 Nev.Adv.Op. 78  10/2/08

PARTITION / JUDICIAL SALES: Judicial sales to bona fide purchasers generally are not subject to later challenge if an underlying judgment is reversed on appeal. Although as a general matter judicial sales to bona fide purchasers will survive appellate reversals, these sales may be challenged collaterally or in remanded proceedings in the original action if the order of sale was void. Here the court order for a sale in a partition action was void because the court did not have jurisdiction after it wrongly denied a motion to dismiss under NRCP 41(e) for failure to bring the action to trial within 5 years.

Adaven Management v. Mountain Falls Acquisition Corporation
124 Nev.Adv.Op. 67  9/11/08

WATER RIGHTS: Water rights are freely alienable, but the transferee can only use the water in accordance with NRS 533.040.
RECORDING: The case explains the procedure for searching the grantor/grantee indices: The prospective purchaser first searches the grantee index for the purported owner's name to ascertain when and from whom the purported owner received the property. Using that name, the purchaser checks the grantee index for the names of each previous owner, thus establishing the "chain of title." The purchaser must then search the grantor index, starting with the first owner in the chain of title, to see whether he or she transferred or encumbered the property during the time between his or her acquisition of the property and its transfer to the next person in the chain of title.

Countrywide Home Loans v. Thitchener
124 Nev.Adv.Op 64 9/11/08

FORECLOSURE: This case is not of much interest to people in the title industry. But it is interesting because it shows the kind of liability a lender incurs when it forecloses on a condominium unit and mistakenly enters the wrong unit, disposes of the owners' personal property, then purportedly re-sells the unit.

Bianchi v. Bank of America
124 Nev.Adv.Op. 45  7/3/08

JUDGMENTS:  After Nevada’s 6-year limitation period for the enforcement of judgments expired on the original domestication of the foreign judgment, the judgment was renewed in the issuing state, which has a 10-year limitation period for renewing judgments, and could again be domesticated in Nevada.

Brooks v. Bonnet
124 Nev.Adv.Op. 36  6/5/08

EASEMENTS: Plaintiff could not establish an easement over defendant's property under any of the 3 theories he raised:
1. Deeds in the chain of title granted the City a road easement, but did not grant easements to the property owners.
2. An easement by necessity requires (1) prior common ownership of the land to be benefitted and the land to be burdened and (2) the easement is "reasonably necessary" to use the land. However, "reasonable necessity" requires something significantly greater than inconvenience, which must exist both at the time of the severance of the parcels and present necessity. Here plaintiff has no present necessity because he has access to two other public roads from his property.
3. Plaintiff does not have private easement rights in the abandoned road because an abandoned public easement reverts to abutting property owners in the approximate proportion that the easement was dedicated by the abutting owners or their predecessors.

Mayfield v. Koroghli
124 Nev.Adv.Op. 34  5/29/08

1. When a contract does not make the time for a party's performance of the essence, either party can make it so by setting a reasonable time for performance and notifying the other party of an intention to abandon the contract if it is not performed within that time.
2. Absent such a demand for performance, or a term making time of the essence, a contract must be performed within a reasonable time. What constitutes a reasonable time for a contract's performance is a question of fact to be determined based on the nature of the contract and the circumstances surrounding its making.
3. When a contract contains a condition precedent to a party's performance, that party may waive the condition and tender performance so long as the parties included the condition in the contract for the sole benefit of the party seeking to waive the condition. Whether a condition included in a contract is for the benefit of one or both parties is a question of fact.

Torrealba v. Kesmetis
124 Nev.Adv.Op. 10  3/6/08

1. Claims for notary misconduct or negligence brought under NRS 240.150(1) and NRS 240.150(2) are claims upon a liability created by statute, other than a penalty or forfeiture, and are subject to a three-year statute of limitations under NRS 11.190(3)(a).
2. A recorded but improperly acknowledged instrument may provide constructive notice only if honoring the instrument would not improperly benefit the notary or any party to the instrument and would not create harm.
3. A court may consider the individual factual circumstances surrounding a defective acknowledgment, thereby permitting it to waive certain technical notarial violations while protecting against actual harm that may flow from honoring an improperly acknowledged document.

Horgan v. Felton
123 Nev.Adv.Op. 53  11/21/07

QUIET TITLE: 1) An easement was not extinguished by prescription where the dominant tenement owners gained access to the easement area on a regular basis by climbing over and walking around fences erected on the easement area by the owner of the servient tenement; 2) The original grantor's reservation of the right to promulgate reasonable regulations for use of the easement ran with the land and passed to successive owners of the servient tenement; 3) The District Court did not have a similar right to promulgate regulations for use of the easement; 4) Attorney's fees are only available as special damages in slander of title actions and not simply when a litigant seeks to remove a cloud upon title.

Boulder Oaks Community Association v. B & J Andrews Enterprises
123 Nev.Adv.Op. 46  11/1/07

CC&R's: The original developer of a recreational vehicle park had authority, consistent with NRS 116.003, to define "declarant" in the CC&R's differently than the definition set forth in NRS 116.035. Therefore the successor in interest to the original developer is a "declarant" as set forth by the CC&R's and also owns land within the community, and had to approve any material amendment.

Leven v. Frey
123 Nev.Adv.Op. 40  10/11/07

JUDGMENTS: Judgment renewal under NRS 17.214 requires 1) the timely filing of an affidavit, 2) timely recording of the affidavit (if the judgment to be renewed was recorded), and 3) timely service of the affidavit. These requirements must be complied with strictly or the renewal is invalid.

Nelson v. Heer
123 Nev.Adv.Op. 26  7/26/07

DISCLOSURE: Under NRS 113.140(1), a seller of residential property has a duty to disclose only those conditions that materially and adversely affect the value or use of the property, and of which the seller is aware. Because repaired water damage does not constitute a defect under NRS Chapter 113 and Nelson did not know of the presence of elevated amounts of mold in the cabin, she did not violate the disclosure requirements contained in NRS 113.130 when she completed the Seller's Real Property Disclosure Form.

In re: Contrevo
123 Nev.Adv.Op. 3  3/8/07

HOMESTEADS / JUDGMENTS: An abstract judgment lien under NRS 17.150 cannot attach to homestead property that is fully exempt, both at the time the judgment is recorded and at the time the property is sold. The Court in footnote 13 states that it does not address the situation where a debtor’s home is fully exempt at the time the lien is recorded, but the debtor subsequently gains surplus equity in his home prior to or during the sale or transfer. The Court points out that one could argue that the abstract judgment lien attaches to the surplus equity when and if it exists, and that at such time the creditor could execute against the surplus equity, but that was not the question certified to the court, so it declined to address the issue.

Murray v. District Court
Nevada Supreme Court (47922) 9/8/06
Note: This is an unpublished order, not an opinion.

RECORDING: The Court denied a petition for a writ of mandamus challenging a district court order expunging a lis pendens. The Court held that the recording numbers of two deeds of trust controlled priority where they were recorded at exactly the same time. Court also points out that the higher numbered TD reflected the possibility of being junior to another TD because it contained a recital requiring the borrower to meet his obligations "under any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust".

NOTE: I reviewed the actual recorded TD's. TD #4670 secured a $380,000 loan and is on a Fannie Mae/Freddie Mac form used for first TD's. TD #4671 secured a $95,000 loan and is on a form used for junior TD's and, in fact, states at the bottom of the first page: "Nevada - Second Mortgage - 1/80 - FNMA/FHLMC Uniform Instrument Form 3829". [Emphasis added.] It is not clear to me that the Court would rely on order of the recording numbers if the $95,000 TD had been recorded first.

It seems possible that the Court would do like California does and seek to determine the intention of the parties. However, it may not go as far as California courts in holding that the mere fact of simultaneous recording imposes a duty of inquiry into the intention of the parties regardless of the recording numbers assigned to the documents.

In re: Resort at Summerlin (Jones Construction Co. v. Wilmington Trust Co.)
122 Nev.Adv.Op. 15  2/9/06

DEEDS OF TRUST / MECHANICS' LIENS: A lender did not comply with the statutory scheme of NRS 106.300 to 106.400 regarding future advances. However, the Court held that statutory scheme to be an optional safe-harbor that applies only if the parties opt-in. Since the parties did not do so, the Court applied common law principles in holding that obligatory advances are entitled to the same priority as the deed of trust, which was senior to mechanics' liens on a work of improvement commenced after recordation of the deed of trust.

McDonald v. Alexander
121 Nev.Adv.Op. 79  12/1/05

TRUSTEE'S SALES / ANTI-DEFICIENCY: Where a bankruptcy court sets aside, as a preference, a deed of trust securing a guaranty, two exceptions to Nevada's anti-deficiency rules apply: 1) NRS Section 40.430(4)(i) (bankruptcy stay of foreclosure) and 2) NRS Section 40.430(4)(j) (sold-out junior lienholder). Guarantor's waiver of notice under NRS Section 107.095(1) constitutes a waiver under 40.430(4)(i) of the notice required by that section.

Zhang v. Dist. Court (Sorichetti)
120 Nev.Adv.Op. 104  12/29/04

CONTRACTS: After entering into a contract to sell real property, the seller told the buyer he was terminating the sale, but would sell for a higher price. The buyer agreed and signed a contract for the higher price. Subsequently the buyer sued to enforce the original contract. The Court held that the second contract was invalid, and the buyer could enforce the original contract, under the "preexisting duty rule". No consideration supported the second contract where the seller promised to do what he was already obligated to do.

Nolm v. County of Clark 
120 Nev.Adv.Op. 82  11/18/04

DEEDS: A deed that described more property than the seller intended may be reformed to describe the correct property where the seller made a unilateral mistake, and the buyer knew about it but failed to bring it to the seller's attention.

Bonicamp v. Vazquez 
120 Nev.Adv.Op. 41  6/10/04

ONE ACTION RULE: Under the one action rule of NRS 40.430, a creditor forfeited the real estate collateral under a deed of trust where he first obtained an out-of-state judgment on the debt.

Houston v. Bank of America
119 Nev.Adv.Op. 54  10/28/03

EQUITABLE SUBROGATION: Equitable subrogation is allowed even with actual knowledge of the intervening lien, as long as the intervening lien holder is not prejudiced, and as long as the mortgagee reasonably expected to get security with a priority equal to the mortgage that was paid. Furthermore, a refinancing mortgagee should be found to lack such an expectation only where there is affirmative proof that the mortgagee intended to subordinate its mortgage to the intervening interest.

Dayside Inc. v. Dist. Ct. (Parkway Manor Inc.)
119 Nev.Adv.Op. 48   8/29/03

MECHANICS' LIENS: The right to a mechanics' liens can be waived in a construction contract. HOWEVER, NRS 108.2453, prohibits such waiver after October 1, 2003, except under certain circumstances.

Maki v. Chong
119 Nev.Adv.Op. 46   8/29/03

HOMESTEADS: The homestead exemption is inapplicable when the proceeds used to purchase real property can be traced directly to funds obtained through fraud or similar tortious conduct.

Schneider v. County of Elko
119 Nev.Adv.Op. 43   8/28/03

RECORDING: The district court found that an access road depicted on a record of survey did not create an easement because the record of survey did not meet the statutory requirements for a parcel or subdivision map, as required to create an easement. The Supreme Court held that the County Recorder is not liable for recording the defective map because it has not duty to determine whether a document serves its intended purpose, given that recording is a purely ministerial task.

Evans v. Samuels
119 Nev.Adv.Op. 42   8/28/03

JUDGMENTS: Under NRS 17.150(2), a judgment lien expires after six years from the date the judgment was docketed if the judgment is not renewed within such time frame. The judgment, itself, was renewed subsequent to the six-year period, but the court does not explain why that was allowed.

Keife v. Logan
119 Nev.Adv.Op. 41   8/28/03

RAILROADS: Upon abandonment by the railroad of a right-of-way granted by Congress before 1871, the right-of way reverts to the underlying landowner, not to the adjacent landowner (unless the right-of-way runs through a municipality, in which case it reverts to the municipality). Note that before 1871, the right-of-way that railroads received was a limited fee with the right of reverter, but after 1871 it was an exclusive-use easement because in 1871 Congress discontinued conveying the land outright.

Crestline Investment Group v. Lewis
119 Nev.Adv.Op. 40   8/28/03

MECHANICS' LIENS: Employees may file mechanics' liens for their wages, but only where their services improve the property.

Huntington v. Mila, Inc.
119 Nev.Adv.Op. 38   8/27/03

Court's Note: The opinion in this matter was amended by an order filed on September 24, 2003.

TITLE INSURANCE: A title company is not the insured's agent, so it's knowledge of an encumbrance is not imputed to the insured. The court does not explain why recordation of the encumbrance did not, itself, impart constructive notice to the insured. (This case follows the California case of Rice v. Taylor (1934) 220 Cal. 629.)

California Commercial v. Amedeo Vegas I
119 Nev.Adv.Op. No. 18   4/29/03

MECHANIC'S LIENS: A mechanic's lien cannot include amounts claimed for delay damages. NRS 108.222(1) limits the amount of mechanic's liens to the contract price for, or in the absence of a contract the value of, labor performed or material furnished or rented.

A.F. Construction Company v. Virgin River Casino
118 Nev.Adv.Op. No. 72   11/6/02

MECHANIC'S LIENS: The beneficiary of a deed of trust is not a necessary party to a mechanic's lien enforcement action. Only the owner of the property is a necessary party. However, a beneficiary of a deed of trust may bring a subsequent action to determine priority and contest matters that were at issue in the foreclosure action.

Mark Properties v. National Title Co.
117 Nev.Adv.Op. No. 77   11/26/01

1. Double Escrow Case. The Court adopted the holding in Burkons v. Ticor Title Ins. Co. of California, 813 P.2d 710 (Ariz. 1991). Although not required to investigate, when an escrow agent is aware of facts and circumstances that a reasonable escrow agent would perceive as evidence of fraud by one of the parties to the escrow, then there is a duty to disclose to the other party.

2. An escrow agent owes a duty to disclose fraud only to parties to the escrow, not to third parties.

3. An escrow agent does not have a duty to a third party for disbursing disputed funds to the parties to the escrow in accordance with the escrow instructions.

Besnilian v. Wilkinson
117 Nev.Adv.Op. No. 45   6/21/01

HOMESTEADS: A conveyance of homestead property by one party to a declaration of homestead is void. The court also makes the somewhat confusing comment that: "To the extent that the homestead property here did not exceed the statutory value stated in NRS 115.010, [the plaintiff] is entitled to prevail on her quiet title action." (Emphasis added.)

Eicon v. State Board of Examiners
117 Nev.Adv.Op. No. 24   4/12/01

LEASES: The Nevada Constitution prohibits the state from contracting for “public debts”, which are debts that bind future legislatures to successive appropriations. However, a lease-purchase agreement is valid where the lease 1) contains a nonappropriation clause, 2) limits recourse to the leased property and 3) does not create a long-term obligation binding on future legislatures.

Pro-Max Corp. v. Feenstra
117 Nev.Adv.Op. No. 7   1/31/01

DEEDS OF TRUST/MORTGAGES: NRS 106.240, which provides that mortgages and deeds of trust secured by real property are extinguished 10 years after the due date, applies to all such debts, and is not limited to protecting BFP's. However, it is a question of fact in this case as to whether the owner is estopped (based on certain representations) from raising the statute.

In re: Nybo
U. S. Dist. Court, D. Nevada   247 B.R. 294, 4/4/00

MECHANIC'S LIENS: Preparatory work which was performed by a civil engineering firm, including engineering studies, surveys, creation of parcel maps and drawings, and the placement of temporary stakes, did not rise to the level of "work done" of a kind that would permit a mechanic's lien to attach.