February 5, 2016

Five Cybersecurity Tech Tips: Worries to Give You the Willies

Editor’s Note: This post originally appeared on Attorney at Work on January 29, 2016. Reprinted with permission. See below for information about ordering Colorado CLE’s homestudy for our program, “Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law.”

By Sharon Nelson and John Simek

A keyboard with a red button - Privacy

A keyboard with a red button – Privacy

There are lots of cybersecurity worries to give you the willies in the wee hours of the morning, but we were asked to pick five. So here are some of the most common threats for lawyers to keep in mind.

1. Ransomware. We continue to see law firms struck by ransomware, which is a type of malware that encrypts your data (restricting your access to it) and then demands a ransom payment — usually in bitcoins — to get your data back. Training your employees not to click on suspicious attachments or links in email will help. They should stay away from suspicious sites as well since ransomware can be installed by just “driving by” an infected website.

Overwhelmingly, from a technological standpoint, you can defeat ransomware by having a backup that is immune to it. This can mean, particularly for solo lawyers, that you back up and then disconnect the backup from the network. For others, it means running an agent-based backup system rather than one that uses drive letters. Make sure your IT consultant has your backup engineered so that backups are protected — that way, even if you are attacked with ransomware, you can thumb your nose at the thief’s demands for money because you can restore your system from your backup. Of course, this means backups need to be made frequently to avoid any significant data loss.

2. Employees. Employees are by nature rogues. Every study made shows employees will ignore policies (assuming they exist) to do what they want to do. This often means people bring their own devices (BYOD) which may be infected when they connect to your network. They may also bring their own network (BYON) or bring their own cloud (BYOC). Certainly, your policies should disallow these practices (in our judgment) or, at least, manage the risks by controlling what it is done by implementing a combination of policies and technology.

Oh, and employees steal your data or leave it on flash drives or their home devices, too. This means you have “dark data” — data you don’t know about and over which you have no control. This means you may miss data required in discovery because you don’t know it exists. Your data may not be protected in compliance with federal or state laws and regulations. And you have no way to manage the data because you don’t know it is there. Once again, a combination of policies and technology should be in place to prevent these issues.

3. Targeted phishing. This is perhaps the greatest and most successful threat to law firm data. Someone has you in their sights — often they have done research on your law firm. They may know the cases you are involved in — and who your opponents are. They may know the managing partner’s nickname. Everything they know about you, they may use to get you to click on something (say, an email from an opponent referencing a specific case and saying “The next hearing in ___ case has been rescheduled as per the attachment). Many a lawyer has clicked on such attachments — or a link within an email.

The best solution to protect yourself from targeted phishing is training and more training — endlessly. One California firm was targeted by multiple phishing attacks but survived them because the lawyers and staff who received such emails questioned their authenticity.

Forget the loss of billable time. The loss of money, time and even clients due to a data breach can be far worse.

4. Interception of confidential information. Start with the proposition that everyone wants your data, including cybercriminals, hackers and nation states (including our own). Frankly, if they want your data and they have sophisticated tools, they will get it. So shame on you if you are not employing encryption (which is now cheap and easy) to protect confidential data transmitted and received via voice, text, and email. Encryption today is a law firm’s best friend. You may choose to use it always or in cases where it is warranted — but you surely should have the capability of encrypting.

5. Failure to use technology to enforce passwords policies. First, let us say that you should use multi-factor authentication where available and use it to protect sensitive data. But failing that, we recognize that passwords are still king in solo practices and small to midsize firms. Therefore, have your IT consultant assist you in setting up policies that can be enforced by technology, requiring that network passwords be changed every 30 days, not reused for an extended period of time — and mandating strong passwords (14 or more characters in length, utilizing upper- and lowercase letters, numbers and symbols). Passphrases are best. Iloveattorneyatwork2016! would do nicely.

There are many other “willies” out there, but address them one digestible chunk at a time!

Sharon D. Nelson (@SharonNelsonEsq) and John W. Simek (@SenseiEnt) are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, VA. Popular speakers and authors, they have written several books, including “The 2008-2015 Solo and Small Firm Legal Technology Guides” and “Encryption Made Simple for Lawyers.” Sharon blogs at Ride the Lightning and together they co-host of the Digital Detectives podcast.

 

CLE Homestudy: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation took place Friday, January 22, 2016. Order the homestudy here: CDMP3 audioVideo OnDemand.

Colorado Court of Appeals: Contractual Option Between Actual and Liquidated Damages Not Inherently Void

The Colorado Court of Appeals issued its opinion in Ravenstar LLC v. One Ski Hill Place LLC on Thursday, January 28, 2016.

Ravenstar and the other plaintiffs are Colorado companies who entered into separate contracts with One Ski Hill Place (OSHP) to purchase not yet built condominium units. Plaintiffs paid earnest money of 15% of the purchase price but were unable to obtain financing and failed to close on the units by the deadline. The contracts between OSHP and all plaintiffs contained an identical provision allowing OSHP to choose between actual or liquidated damages in the event of default. OSHP chose liquidated damages. Plaintiffs brought suit against OSHP, raising several claims, including breach of contract. Many claims were dismissed prior to the litigation at issue. On cross-motions for summary judgment, the district court ruled against plaintiffs on all their remaining claims and imposed attorney fees on plaintiffs.

Plaintiffs appealed, arguing the contract clause that allowed OSHP to choose between actual and liquidated damages was unenforceable because there was no mutual intent to liquidate damages as required under Colorado law. The Colorado Court of Appeals declined to adopt reasoning from other jurisdictions that the mere presence of an option between actual and liquidated damages renders a contract unenforceable. The court noted that the option to choose liquidated damages did not operate as a penalty in every case, and since the parties stipulated that the amount of liquidated damages was reasonable, they could not show that they were being penalized by the imposition of liquidated damages.

The court of appeals affirmed the district court, also affirming the attorney fee award.

Colorado Supreme Court: City Ordinance Effectively Barring Sex Offender Residence Does Not Conflict with State Law

The Colorado Supreme Court issued its opinion in Ryals v. City of Englewood on Monday, January 25, 2016.

Home Rule—Local Government Law—Land Use—Sex Offenders—Conflict in Matter of Mixed State and Local Concern—Preemption.

Having accepted jurisdiction over this certified question of law from the Tenth Circuit, the Supreme Court held that state law does not preempt Englewood’s Ordinance 34. The ordinance implicates a matter of mixed state and local concern by effectively barring sex offenders from residing in Englewood, but it does not conflict with Colorado’s statutory regime for regulating sex offenders as required for state preemption. Nothing in the state regulatory regime prevents home-rule cities from barring sex offenders from residing in their communities, nor is there anything that suggests sex offenders are permitted to live wherever they wish. Furthermore, a state statutory provision specifically authorizes local law enforcement to decline an offender’s application for residency if it violates local law. As such, Ordinance 34 does not conflict with state law and thus is not preempted. This Court therefore answered the certified question in the negative and returned this case to the Tenth Circuit for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Property Need Not be Used Exclusively for Religious Purposes for Tax Exemption

The Colorado Court of Appeals issued its opinion in Grand County Board of Commissioners v. Colorado Property Tax Administrator on Thursday, January 14, 2016.

This appeal after remand concerned a religious exemption from property taxes. The YMCA owns properties in Grand County and Larimer County for which it applied for property tax exemptions based on religious purposes and charitable use. The state property tax administrator determined the properties were being used for religious purposes and granted an exemption. The Grand and Larimer County Boards of County Commissioners appealed, contending the YMCA’s use was not sufficiently religious to justify an exemption. The Board of Assessment Appeals held a hearing and found the properties were not used exclusively for religious purposes, reversing the property tax administrator’s determination. The YMCA appealed to the court of appeals and a division reversed the Board’s findings, concluding the Board failed to apply the proper legal standard and setting forth the statutory and constitutional framework for religious exemptions.

On remand, the Board found the YMCA properties qualified for the exemption because the properties furthered the YMCA’s stated religious mission and purposes and the properties were not being used for private gain or corporate profit. The counties appealed, arguing that because the use of the properties was not inherently religious, they should not qualify for the exemption. The court of appeals disagreed, finding the Board applied the correct legal framework on remand.

The court of appeals affirmed the Board’s decision to grant the YMCA properties tax exemptions.

Colorado Court of Appeals: Objection to Special Master’s Attorney Fees Waived When Not Timely Asserted

The Colorado Court of Appeals issued its opinion in Laleh v. Johnson on Thursday, January 14, 2016.

Mr. Johnson was appointed special master during the Lalehs’ complex forcible entry & detainer action. Ali and Kahlil Laleh, brothers, each signed engagement agreements with Mr. Johnson, outlining the scope of work and payment obligations. Mr. Johnson incurred attorney fees because the Lalehs’ former attorney refused to honor a subpoena, and billed the brothers for those fees as costs. Although the brothers settled their cases in February 2014, Mr. Johnson continued invoicing the brothers for costs, including his attorney fees, through May 2014. Kahlil Laleh sent a letter to Mr. Johnson in March 2014 expressing concern about his inclusion of attorney fees in his billings.

Although the trial court dismissed the case in February 2014 pursuant to stipulations by the parties, Mr. Johnson expressed concern to the court about his significant unpaid bills and the court issued an order to show cause as to why Mr. Johnson’s bills had not been paid. The court eventually accepted Mr. Johnson’s proposed order regarding the unpaid fees. The brothers appealed, arguing their due process rights were violated by the court’s entry of judgment against them.

The Colorado Court of Appeals found that the trial court’s order was procedurally deficient because it had issued only three days after Mr. Johnson proposed his order, defeating Rule 121’s requirement of a 7-day objection period. The court of appeals vacated the court’s judgment and remanded.

The brothers argued the trial court erred in ordering they pay Mr. Johnson’s attorney fees without express court approval, and in awarding Mr. Johnson’s fees incurred after the litigation settled. The majority disagreed with both contentions. The brothers challenged whether Mr. Johnson had authority to hire counsel, but because they did not object as soon as they learned of counsel’s role, the majority concluded they forfeited any objection, although the preferred option would have been for Mr. Johnson to request permission from the court before hiring counsel. Likewise, the brothers did not object to the first invoice containing a line item for Mr. Johnson’s attorney fees, and the court took this as further indication that they waived any contention. Even though Kahlil Laleh wrote to Mr. Johnson in March 2014 expressing concern about the attorney fees, this was not enough to constitute a sufficient objection.

The brothers also challenged the trial court’s award of post-settlement attorney fees, most of which post-dated Kahlil’s objection to the fees. The court of appeals determined the fees were proper pursuant to the court’s inherent authority. The majority affirmed the trial court’s order for the Lalehs to pay Mr. Johnson’s outstanding fees and costs. The dissent, written by Judge Webb, outlined how he would have disallowed any fees incurred after the parties settled.

Colorado Supreme Court: Strict Privity Rule Bars Claims from Dissatisfied Beneficiaries Against Drafting Attorneys

The Colorado Supreme Court issued its opinion in Baker v. Wood, Ris & Hames, P.C. on Tuesday, January 19, 2016.

Floyd Baker, father of petitioners Baker and Kunda, retained Wood, Ris & Hames, Donald Cook, and Barbara Brundin (collectively, attorneys) to draft an estate plan. Floyd’s will specified that at his death, each of the four children (Baker and Kunda plus his stepchildren, Roosa and Brown) would receive $10,000, his condo would go to his wife, Betty, and the remainder of his estate would be divided between a marital trust and a family trust. On Betty’s death, the remaining estate assets would be divided equally between the four children. Floyd died in 2003 and his estate plan was carried out as specified in his will. Betty subsequently retained Cook to draft her estate plan, where she devised the condo to Roosa and specified that the remaining assets be divided equally between the three surviving children – Roosa, Baker, and Kunda. Betty died in February 2009.

Because of the bequest of the condo to Roosa, Baker and Kunda each received approximately 15% of the value of Betty’s estate while Roosa received approximately 70%. Baker and Kunda subsequently sued attorneys, asserting claims for breach of contract – third-party beneficiary; professional negligence; and fraudulent misrepresentation. Baker and Kunda alleged that the attorneys’ negligence allowed Betty to override Floyd’s estate plan after his death; the attorneys drafted an estate plan for Betty that controverted Floyd’s plan; and that Baker and Kunda, as intended beneficiaries of Floyd’s will, suffered damages as a result of the attorneys’ actions and inactions. The attorneys moved to dismiss for failure to state a claim on which relief could be granted, asserting Baker and Kunda lacked standing to sue them and that even if they had standing, Floyd’s testamentary intent had to be gleaned from the will itself, and the will was unambiguous and did not evince the intent alleged by Baker and Kunda. Attorneys also argued the claims were time-barred.

The district court ultimately granted the attorneys’ motion, concluding Baker and Kunda had not shown that any of the allegedly concealed facts had actually been concealed, or that the attorneys had intended Baker and Kunda to rely on the allegedly misrepresented circumstances. As for the negligent misrepresentation claim, the court noted that under Allen v. Steele, such claim required a business transaction, which was not present. Finally, as to the legal malpractice claim, the court concluded Baker and Kunda failed to show the attorneys owed them a duty of care. Baker and Kunda appealed, requesting that the court of appeals find an exception to the strict privity rule for third-party beneficiaries of a will, but the court of appeals declined to do so and affirmed the district court. Baker and Kunda appealed to the Colorado Supreme Court, contending the district court erred in dismissing their claims because as intended third-party beneficiaries of Floyd’s estate, they had standing to sue for breach of contract and legal malpractice, and also contending the court of appeals misconstrued their fraudulent concealment claims. Baker and Kunda urged the supreme court to abandon the strict privity rule in determining whether a non-client can sue an attorney. The supreme court declined to do so.

The supreme court found that because of the special trust and confidence arising from the attorney-client relationship, sound policy considerations supported the strict privity rule. Limiting an attorney’s liability to his or her clients protects the attorney’s duty of loyalty to and effective advocacy for the client, whereas expanding an attorney’s liability to non-clients could result in adversarial relationships between attorneys and clients and thus give rise to conflicting duties on the part of the attorney, and could require the attorney to reveal client confidences that the client did not want revealed. Further, extending the attorney’s duty of care to non-clients could result in the attorney being liable to an unforeseen and unlimited number of people. For these reasons, the supreme court declined to adopt an exception to the strict privity rule for dissatisfied beneficiaries. The court also recognized that the Colorado Probate Code allows dissatisfied beneficiaries to seek reformation of the will, thereby negating the need for an exception to the strict privity rule.

Addressing Baker and Kunda’s contentions that the supreme court should apply the “California rule” or “Florida-Iowa rule” to find exceptions to strict privity, the supreme court disagreed, finding that its stated policy considerations precluded adoption of either the California or Florida-Iowa rule and that even if it applied those rules, they would not support Baker and Kunda’s claims. The supreme court also rejected Baker and Kunda’s contentions that allowing only third-party beneficiaries to bring claims against attorneys would sufficiently limit the potential class of non-clients who could sue attorneys, noting that anyone could come forward and say they were intended beneficiaries. The supreme court also found no error in the district court’s rejection of Baker and Kunda’s fraudulent concealment claims, finding the district court appropriately applied C.R.C.P. 9(b)’s heightened pleading standard to those claims.

The supreme court affirmed the court of appeals.

Comment Period Open for Proposed Changes to Rule 120

The Colorado State Judicial Branch announced proposed changes to Rule 120 of the Colorado Rules of Civil Procedure, “Orders Authorizing Sales Under Powers.” The changes are extensive, and include changing the title of the rule to be “Orders Authorizing Foreclosure Sale Under Power in a Deed of Trust to the Public Trustee.”A redline of the proposed changes is available here.

The supreme court is now accepting comments on the proposed changes to Rule 120. Comments may be made in writing via email to Christopher Ryan, the Clerk of the Supreme Court, or via U.S. Mail at 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the close of the comment period.

Colorado Court of Appeals: Person with Permission to Enter Property but Not Express Invitation is Licensee Under PLA

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, December 31, 2015.

Interlocutory Appeal—Premises Liability Act—Dog Bite Statute—Colorado Recreational Use Statute.

The Robinsons are sheep ranchers who hold a permit issued by the U.S. Forest Service (USFS) that allows them to graze sheep within the White River National Forest (subject land). Ms. Legro sustained serious injuries when two of the Robinsons’ predator control dogs attacked her on a road on the subject land while she was participating in a bike race sponsored by the Vail Recreation District. Both the Robinsons and the District had permit authorization to access the road. The Legros sued, asserting claims of negligence, negligence per se, loss of consortium, and strict liability under the dog bite statute.

The Robinsons moved for summary judgment, arguing that the Colorado Premises Liability Act (PLA) preempted the Legros’ common law claims and they were not subject to liability under the dog bite statute because of the working dog exemption. The district court granted the motion. The Legros appealed, and a division of the Court of Appeals in Legro Iaffirmed that the Robinsons were landowners under the PLA, but concluded it was error to find the working dog exemption defeated the Legros’ strict liability claim. The Supreme Court granted certiorarito consider whether the Court in Legros Icorrectly interpreted the working dog exemption. The Supreme Court found it had been incorrect and that the working dog exemption insulates a dog owner from strict liability if a person is bitten by a working dog while (1) on the property of the dog owner or (2) the dog is working under the control of the dog owner on either public or private property.

On remand, the Legros were granted leave to amend their complaint to add a claim for relief under the PLA. In a CRCP 56(h) motion, the Robinsons asked the district court to determine the duty they owed Ms. Legro under the PLA. They argued that the Colorado Recreational Use Statute (CRUS) applied, so Ms. Legro was a trespasser. Alternatively, they argued Ms. Legro was neither an invitee nor a licensee under the PLA.

The district court held that the CRUS did not apply to this case and that Ms. Legro was a trespasser as to the Robinsons under the PLA. Sua sponte, it also ruled that the working dog exemption barred the Legros’ strict liability claim because the Robinsons’ grazing permit created a sufficient property interest to satisfy the exemption.

The Legros argued it was error to find that Ms. Legro was a trespasser, and the Court of Appeals agreed. The grazing permit from the USFS provided a sufficient basis to infer that, by accepting the permit, the Robinsons consented to Ms. Legro’s entry on the property. The permit allows the USFS to determine who may enter the property, and therefore the Robinsons impliedly consented to entry on the property by anyone the USFS allowed. The Court then looked to whether Ms. Legro was affirmatively invited (invitee) or merely permitted (licensee). Because the USFS merely permitted Ms. Legro’s entry as part of the permit for the bike race, she was a licensee, not an invitee.

The Legros also argued it was error to hold that the working dog exemption applied so as to insulate the Robinsons from strict liability under the dog bite statute. The Court agreed, finding that the grazing permit did not confer a property interest in the subject land and therefore the exemption did not apply. The district court’s order was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Late Filed Counterclaims Timely Because they Relate Back to Original Answer

The Colorado Court of Appeals issued its opinion in Makeen v. Hailey on Thursday, December 31, 2015.

Real Property—Compulsory Counterclaims—Timely—Discovery Violations—Sanctions—Trial Management—Attorney Fees.

Makeen and his father, Hailey, purchased real property in Denver (Utopia Property) as joint tenants. Makeen alleged that he had an oral agreement with his father pursuant to which he would manage the property while his father was alive, and upon his death Makeen would become the sole owner. According to Makeen, Hailey also promised to give him seven other properties upon Hailey’s death. Hailey, however, alleged that he never promised Makeen any property interests, and that Makeen fraudulently purchased the Utopia Property in both of their names, even though he had agreed to act as Hailey’s agent and to buy the property only in Hailey’s name. The court found in favor of Hailey on all claims and counterclaims.

On appeal, Makeen contended that the trial court erred in finding Hailey’s counterclaims for breach of fiduciary duty and fraud timely. Although it was more than a year since the original complaint was filed, the counterclaims were timely because Hailey’s amended answer and counterclaims related back to his initial answer, which was filed within the revival statute’s one-year limitations period.

Makeen also contended that the trial court erred in failing to sanction Hailey for repeated discovery violations. First, although PPR 3.7 requires mandatory sanctions for a failure to timely and completely disclose, it applies only to initial disclosures and not the discovery requests at issue here. Additionally, the trial court did not abuse its discretion in deciding not to impose discovery sanctions against Haley after finding that Haley had made substantially all of the required disclosures and, even if there had been intermittent noncompliance with some of the CAPP discovery rules, the noncompliance was substantially justified and harmless.

Makeen further argued that the trial court erred in prematurely cutting off discovery at the final discovery dispute hearing in October 2013. Makeen had nearly 11 months to conduct discovery, and the trial court acted well within its discretion in enforcing reasonable trial management deadlines in this matter. Further, Makeen failed to show that he was prejudiced by this ruling.

The judgment was affirmed. Because Makeen’s appeal of some of the issues was frivolous, the case was remanded to award Hailey attorney fees and costs related to the defense of those claims on appeal.

Summary and full case available here, courtesy of The Colorado Lawyer.

Protective Order, Parenting Time JDFs Modified in December

The Colorado State Judicial Branch has amended six forms in December 2015, including forms regarding protective orders, instructions for forcible entry and detainer, and motions to modify parenting time and decision-making responsibility. The forms are available here in PDF format and are available in Word or PDF on the State Judicial forms page.

DOMESTIC RELATIONS

  • JDF 1406 – Verified Motion to Modify/Restrict Parenting Time (revised 12/15)
  • JDF 1415 – Verified Motion/Stipulation to Modify Decision-Making Responsibility (revised 12/15)

FORCIBLE ENTRY & DETAINER

  • JDF 100 – Instructions for Forcible Entry and Detainer (FED)/Eviction (revised 12/15)

PROTECTION ORDERS

  • JDF 400 – Instructions for Obtaining a Civil Protection Order (revised 12/15)
  • JDF 401 – Incident Checklist (revised 12/15)
  • JDF 442 – Information Sheet for Registering a Protection Order (revised 12/15)

Colorado Court of Appeals: Ample Evidence in Record Supported Trial Court’s Findings of No Easement

The Colorado Court of Appeals issued its opinion in Gold Hill Development Co., L.P. v. TSG Ski & Golf, LLC on Thursday, December 22, 2015.

R.S. 2477—Easement Claims—Public Prescriptive Easement

Plaintiff (GHDC) owned several mining lode properties in the vicinity of various properties owned by defendants (collectively, TSG). GHDC alleged that access to its mining properties was historically made by means of the Gold Hill Road (route), which traverses a portion of TSG’s properties. GHDC claimed the right to use and maintain the route where it crossed over TSG’s mining lode properties.

GHDC brought claims against TSG, including express easement, implied easement, implied easement by prior use, way of necessity, public road pursuant to R.S. 2477, and public road pursuant to CRS §§ 43-2-201(1) and 43-1-202. San Miguel County (SMC) was added as a party and defended against some of the claims regarding a public highway.

Following a bench trial, the court granted TSG’s motion for a directed verdict as to GHDC’s express easement claim and dismissed all of GHDC’s other claims. The court also granted SMC’s R.S. 2477 counterclaims for a public road as to a portion of the road and a public prescriptive easement as to another portion of the road. On appeal, GHDC contended that the trial court erred in imposing additional requirements not supported by Colorado law for its R.S. 2477 claim across the TSG properties.

GHDC argued that the trial court erred in concluding that GHDC failed to show the public was using the route. However, the Court of Appeals found ample evidence in the record to support the court’s finding and perceived no error.

GHDC argued that the trial court was inconsistent because at times it credited the absence of certain trails to deny public use, while at other times it failed to acknowledge the absence of other trails on surveys and maps presented at trial. The trial court’s findings were based on maps and mineral surveys, as well as on extensive testimony regarding the use and nonuse of the various routes. Because there was support in the record for the trial court’s findings, the Court perceived no error.

GHDC contended that the trial court erred in finding a public prescriptive easement across GHDC’s properties. CRS § 43-2-201(1)(c) requires showing (1) a “claim of right,” (2) public use adverse to the landowner’s interest, (3) such use continued for 20 years, and (4) actual or implied knowledge of the public use by the landowner and no objection to such use. Again, the Court found ample support for the trial court’s findings in the record.

GHDC argued that trial court erred in failing to find a public highway across TSG’s property under CRS §§ 43-2-201(1)(e) and 43-1-202. The Court agreed with the trial court that GHDC had essentially the same burden of proof as for its RS 2477 claim and for the same reasons (lack of public use on the route before the relevant removal dates) it failed to meet its burden.

GHDC argued that it was error to dismiss its express easement claim for failing to demonstrate the intent to convey an express easement. The Court found no error in the trial court’s interpretation of the unambiguous language in the patents.

GHDC argued that the trial court had effectively created USFS trails. The Court disagreed. The finding that these were public roads granted no rights in them to the USFS. The judgment and order were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Top Ten Real Estate Programs and Homestudies

As the end of the year approaches, and the end of the compliance period looms for a third of Colorado’s attorneys, we continue examining the Top Ten Programs and Homestudies in several areas of law. In case you missed it, we already profiled the Top Ten Ethics Programs and Homestudies, the Top Ten Family Law Programs and Homestudies, and the Top Ten Trust & Estate Programs and Homestudies. Today we turn to real estate law. Although there are many great programs to choose from, we have narrowed down our list to these ten programs.

10. HOA Basics: Common Interest Communities. HOA law is a booming subset of real estate law. This program details the basics of representing a client in an HOA, or representing an HOA as your client, including providing an overview of common interest communities and the Colorado Common Interest Ownership Act (CCIOA), collection actions for HOA dues, covenant enforcement, transparency, and ethical issues related to representing HOAs and developers. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Eminent Domain Law for Pipelines in Colorado. In 2012, the Colorado Supreme Court ruled that a 100-year-old pipeline condemnation statute was not applicable to petroleum pipelines, only electrical conduits. The petroleum industry unsuccessfully petitioned to legislatively overturn the decision in 2013 and 2014. In this one-hour course, learn about the history of pipeline condemnation statutes and the powers they grant, as well as important safety considerations. One general credit; available as MP3 audio download and Video OnDemand.

8. Foreclosure Law — All the Latest and Greatest. In 2011, Colorado had one of the highest foreclosure rates in the nation. Since then, foreclosures have waned in the metro area, but despite the decrease in foreclosure proceedings, real estate lawyers need to be aware of the ins and outs of foreclosure law, especially because Colorado’s foreclosure process is unique compared to other states. This program details Colorado’s public trustee foreclosure process from start to finish, and also addresses issues such as bankruptcy, tax liens, and receiverships, that are commonly seen alongside foreclosures. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. The Life of a Residential Real Estate Transaction. Everything you need to know about residential real estate practice, from the offer to the closing, is explained in this helpful program. Learn about the Colorado Real Estate Commission forms and how to use them, get an overview of title commitments and title policy issues, learn about types of conveyance deeds and when to use each type, hear about mortgage lender concerns and issues, and discuss the ethics of being both an attorney and a real estate broker. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. Eminent Domain. Eminent domain involves the acquisition of private property by public entities for public projects or, in certain specific circumstances, by private parties for private use. Learn about key aspects of representing condemning authorities or private landowners during the various stages of eminent domain proceedings in this informative program, including immediate possession hearings, eminent domain appraisals, and ethical considerations in condemnation actions. Three general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. 25 Cases Every Real Estate Lawyer Should Know. Fred Skillern, seasoned practitioner and former judge, hand-picked 25 cases from the repertoire he has amassed by doing the case law update at the Real Estate Symposium for the last 16 years. From an obscure attorney discipline case that sets precedent on recording attorney liens to a well-publicized case that revolutionized easement disputes, from cases that interpret statutes to cases that seem to rewrite the law, Fred Skillern discusses it all. Three general credits. This program will take place January 21, 2016. Click here to register for the live program and click here to register for the webcast. Also available as CD homestudy, MP3 audio download, and Video OnDemand after the program.

4. Colorado Real Estate Practice with Willis Carpenter. No list of real estate programs would be complete without mention of Willis Carpenter’s legendary 10-week course, “Colorado Real Estate Practice.” Although this was Willis’s last year teaching the class, we hope to continue his legacy in 2016. Stay tuned. Eighteen general credits, including four ethics credits.

3. Anatomy of a Commercial Real Estate Transaction — Real Estate Spring Update 2015. Commercial real estate transactions are complex, and present a different array of issues than residential transactions. This program offers a look at the commercial real estate contract, including key provisions, due diligence, and common issues, as well as leasing issues, financing the transaction, construction and construction defects, environmental concerns, zoning, and more. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: The Real Estate Spring Update occurs annually with a different theme. Click here for the 2014 program.

2. Hot Topics! — Real Estate Fall Update 2015. The ABA, ACMA, and ACREL developed guidelines for typical and appropriate real estate opinions, which were discussed at this Hot Topic update. Also covered were HOA assessment lien priority, available insurance products for clients, and recent changes in conservation easement and urban renewal laws. Six general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: The Real Estate Fall Update is repeated annually with different themes. Click here for the 2014 program, and click here for the 2013 program.

1. Annual Real Estate Symposium. For 33 years, the annual Real Estate Symposium has been THE event for Colorado’s real estate lawyers, with top-notch presentations, wine tasting, and beautiful scenery in the Colorado mountains. For the 2015 Symposium, topics discussed included legislative and case law updates, ditch rights, section 1031 exchanges, recent changes to foreclosure law, ethics, eminent domain, and more. The 2016 Symposium is scheduled for July 21-23 in Breckenridge. Registration is not yet open but keep an eye on http://cle.cobar.org/realestatesymposium for details. 2015 Symposium—20 general credits, including 2.7 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand.