California Real Estate Legal Questions

You need to hire an attorney to examine that piece of paper you signed. An "outline" might or might not be an agreement. When you hear about lawyers finding loopholes in agreements, that's what we do. For example, if your brother had the right to pay you for the property, but no obligation to do so, then the agreement might be an option, instead of a contract, and you would have the right to cancel at any time before he pays you. Steiner v. Thexton. There are lots of other such loopholes. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack    ... Read Answer

No, probably not, or at least, not much. If your mother was the only owner of the house, then when she passed away, the tax basis for the house, used to compute any taxable capital gain, automatically increased to the fair market value on the date of her death. If the home has gone up in value after she passed away, then that marginal increase in the value after the date-of-death would be taxed.  If they both owned it, were married, and lived in California, then the result would be the same. The whole property gets a stepped-up tax basis. If they were not married or for some other reason the property did not count as community property, then only your mother's shae would get a stepped up basis, and not your surviving faher's share. Where in California is a house worth onlye $220,000.00? Dana  ... Read Answer

Hire a lawyer immediately. The statute of limitation on fraud is 1 year from when you discovered the fraud or reasonably ought to have discovered it.  In order for it to be fraud, the seller would have to have known about the arsenic when he solld you the house. If you adn your real estate agent did not discover the arsenic during your own inspections before you bought the house, how are you going to prove that the seller knew? If the cause of the arsenic is not naturally occurring, then you may be able to sue whoever put it there on the theory that it is a continuing nuisance and trespass. Please meet with a lawyer about this ASAP. Dana  ... Read Answer

Yes, you can sue her in small claims court for up to $10,000.00, with no attorneys. First, you must send her a demand letter. The court will ask about this and might not hear your case if you did not send one. That means   a letter on paper, with your signature sent in an envelope with a stamp. You can also email it to her, but then also send it by mail. State what you know happened. Water came through the ceiling from her unit into yours. HOA management inspected for broken or leaking pipes and fournd that there aren't any. Don't say anything about her cat. Then describe the damage and what it cost to repair the damage and replace any destroyed items. Include copies (not originals) of any available receipts. Nolo Press has a good how-to book on winning in small claims court. Good luck. Dana  ... Read Answer

In most HOAs, the Board of Directors is given very broad powers to adopt rules for the protection of the property and the residents. Unless your HOA's CC&Rs are very unusual, the Board probably has the power to adopt rules restricting or prohibiting short term rentals, even when the owner or a long term tenant is also occupying the unit.  The HOA must enforce the rules equally against everyone. It must follow the rules and procedures, itself. It sounds like it might be, if you were given a hearing. The HOA can impose fines, make the fines a lien on your unit, conduct a foreclosure sale of your unit, and evict you, if you do not comply with properly adopted and enforced rules. The HOA can include its legal fees in the lien amount. The legal fees will almost always be greater than the fines and greater than what you earn from your AirBnB income.  If other owners want to earn money via AirBnB and HomeAway, you should get together to persuade your HOA Board to amend the rules to allow short term rentals, maybe with reasonable restrictions to satisfy concerns of your neighbors, or elect Board members who agree with you. Good luck. Dana  ... Read Answer

You have a claim against the sellers only if they knew about it and did not disclose it, AND you could not have discovered it by making a reasonable visual inspection of the home. If you and your real estate agent did not see it, then how were the sellers supposed to know it was there? Did they install it? Did the prior owner disclose to the sellers that there was asbestos? Did your real estate agent advise you to have the insulation on the heating and air conditioning ducts checked for asbestos? Depending on what the insulation looked like and how old the home was, your agent might have had a duty to give you some advice regarding checking for asbestos. If the agent didn't, you might have a claim against the agent. Please call me to discuss. Dana  ... Read Answer

Usually, no. Most lawsuits in the San Francisco Bay Area now take 1-2 years. That includes partition lawsuits. The court will probably appoint a referree or special master to manage the marketing and sale and report back to the court every couple of months, but that's not until after the court decides whether or not the side seeking partition is entitled to that remedy. Sometimes, that could take a year or more, before the special master even gets started. Partition sales take too long, are too expensive, and often do not produce the best price for the sellers. I have almost always been able to convince the parties to do anything else to separate from each other, instead of a partition sale. Please call me to discuss. Dana  ... Read Answer

First, hire a surveyor to find out where the property line really is. Do not rely on the neighbor's survey. You never know what he might have instructed his surveyor to do. Also, living in earthquake country, survey markers can move. If the fence is on the neighbor's property, do you care? If he moved the fence to the correct location, would it change the value of your property? If not, why not just tell the neighbor to go ahead and build a new fence? There are a variety of legal theories which would allow you to keep the fence where it is and always has been. If you assert those rights, the neighbor might contest them, and you would end up in court. Such a lawsuit could take 1-2 years to resolve. Is the little strip of land in dispute, really worth the time and money? Even if you spent the time and money, you still might lose. Or you might agree to a compromise which was worth less than the time and money expended. Please call me to discuss. Dana    ... Read Answer

Unless you have a written agreement with the other owners, or you all own the property as a partnership, then each owner has the legal right to force the sale of the prpoerty, unless it is big enough that it can be divided into separate pieces. A forced sale is expensive, takes a very long time, probably at least a year, and often does not produce the best price for the property.  Therefore, it is best to negotiate almost any other solution. The two owners who want to keep the property might be able to refinance the loan on the property and take out cash to buy out the third owner.  The three of you could sell, and the two who want to continue in the rental business could use their share from the sale to trade into another property. This has to be done in a way which conforms with Internal Revenue Code 1031, regarding exchanges. Why does the third owner want to sell? Maybe you could lend him the money he needs, secure the loan with a deed of trust on his share of the property, and he could pay back the loan from his share of the rents. When the loan is paid off, your back to being co-owners. Depending on what the third owner really needs, there might be more solutions. Please call me to discuss. Dana  ... Read Answer

I assume that the decedent died in India and a probate proceeding has been initiated there.  An ancillary probate proceeding can be initiated in California if there is any property in California.  If the value of the California property is more than $150,000, then a petition for probate typically filed by an attorney would only require that the costs be paid up front, which should be about $1,500 (except for the bond).  The attorney's fees are paid towards the end of the probate case, after some property have been sold to create some cash in the estate. The short answer is, about $1,500 is required up front to start a probate action and after some property is sold, the attorney will be paid.... Read Answer

Technically, the law says that what you own before the marriage stays yours, and that no interest in your separate property cannot be converted to community property or his separate property except with a writing signed by you. However, to the extent that community property or his own separate property is used to improve the house or pay for its expenses, he is entitled to reimbursement for his share. A prenuptial agreement could specify what expenses he is expected to pay or might pay, and establish a rental value for the share of the house he will be using, and offset it against whatever he contributest ot he expenses of the house, making it very clear that he does not get anything from you for the house. There are statutes and cases which have imposed rules on how to enter into a prenuptial agreement. Both sides must have separate lawyers. The final version must be in both sides' hands for at least a specified number of days before it is signed and before the wedding. Any last minute change resets the clock for that timing. So if you don't want to risk having to reschedule the wedding, you want to get this started way in advance and completed before any dropdead dates on your reservations. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack      ... Read Answer

I would be happy to act as your mediator. I am not trained as a mediator, but I have attended lots of mediations, including mediations and arbitrations of HOA disputes, but where I was the advocate for the homeowner or the developer.  The law does not require you to use a retired judge. They're good, but they're expensive. There are some lawyers who have taken courses on being a mediator and who are good at it, and less expensive. Here in the SF Bay Area, I would recommend Fred Hertz, Michael Marx or Claudia Haggadus Long. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack      ... Read Answer

You held title as secuirty for repayment of the loan. Now the loan has been repaid and you are returning title. So check the boxes for pay off of a loan or lien. Please use a Grant Deed, and not a Quitclaim Deed. A Quitclaim Deed leaves open questions about what title the Grantor owned and what title the Grantee received. There are a bunch of things the county recorder will require on the deed. Either walk it through the recorder's office, so you can make any changes the recorder wants, or have a knowledgable attorney do it. If you mail it in, there is a chance the recorder will mail it back, because you left something out or wrote the check for the wrong amount. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack      ... Read Answer

In California, the basic rule is that if the creditor's lien was recorded AFTER your spouse passed, then you already owned the house, her interest already had passed to you, and there was nothing for the lien to attach to. However, if the equipment and the equipment contract were for personal, family or household use, then it MIGHT be a community debt, and you might be liable for it.  There are a lot of facts that need to be filled in and a lot of questions your lawyer is going to need to ask. She or he will need to read the contract, need to know what the equipment was and what it was used for, whether you had a prenuptial agreement or a living trust, where did the money come from to pay the lease charges, where was the equipment kept, on what policy was it insured, and the answers to each of those might raise more questions. If the amount is modest, it's worth a letter ot the creditor. If that doesn't work, then maybe pay a lawyer to write a letter. And then try to negotiate a settlement. Remember the lawyer is getting one-third. If he can make that without having done any work or spent any money on court filing fees and other expenses, he might recommend a low settlement. Right before trial, there will be pressure on both sides to settle. Why not do that now and save the legal fees? If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack      ... Read Answer

Unless you have a written lease or rental agreement with the tenants, then the 3-Day Notice to Pay Rent or Quit can be hand-served on the tenants by a registered process server the day after the rent became due. Many leases provide for a late charge, and the late charge does not apply until a couple of days later, often the fifth day. If you have such a lease, then you might want to wait until then, so that you can use the late charge to offset the fee of the process server. Don't wait any longer than that. If you let the tenants get a month behind, it is unlikely that they will ever catch up. Whatever prevented them from paying the rent one month is not going to make them able to pay for two months the next month. Another technique some of my clients use is to call the tenant on the day after the rent is due, if it has not been received, and complain and tell the tenant it is due on the day it says in the lease, usually the first day of the month, even if there is a late charge that doesn't happen for a couple of more days. The tenants get tired of these embarassing and demeaning calls and start mailing their checks a couple of days early so that they arrive on time. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack      ... Read Answer

Your lawyer is going to need to ask you for a lot more facts. For example, who occupies the property? Do the occupants pay rent? Who collects the rent and pays other expenses, besides the property taxes you pay? How are the net profits shared? Is there any written agreement among the owners? Do you believe there were any oral agreements between you and any of the other owners? How did each of you acquire your ownership interest in the property? In the event of a lawsuit, the winner is NOT entitled to recover reimbursement for nlegal fees as part of the judgment. Usually, these cases become complicated, with 10 years of facts, 10 years of ncome and expenses, and 10 years of grievances and complaints. Personal disputes not involving the property get added. Legal fees can soon exceed the amount actually in dispute. The lawsuit would be for an accounting, which would end in a judgment evening up what everyone has received so far, and setting rules for how to manage the property in the future. Someone might add a demand for partition, requiring that the property be sold, the net proceeds distributed, and any accounting matters equalized from the proceeds of the sale. This also is expensive litigation, usually including appointment of a private referee paid for by the parties, and  expert witnesses. In the end, many potential buyers won't want to get involved, which will lower the sales price below what it would be without the lawsuit. For all these reasons, lawyers usually can persuade the parties to do the right thing and avoid all the attorney fees. Dana Sack... Read Answer

When is the next election of board members? A lawsuit will take a year or longer. The best way is to just elect good people at the next election. Find some candidates now, and start lobbying other members to support them, starting now. There is a procedure to recall directors, to remove them from the board. It takes a lot of votes. Your lawyer will need to calculate the number for you. If the election is too far off, then that would be the next step. If your board and management company have not been keeping up, then your CC&Rs are probably outdated. The legislature has enacted a lot of requirements for HOA and HOA boards, and revises them all the time. In particular, voting by members is done exclusively by written ballots mailed to the owners a month in advance and returned in double-envelopes.  That's just one example. You and some like-minded owners should get together and pay a lawyer to help you get the mess fixed. Dana Sack  ... Read Answer

The owners who do not want to sell would have to somehow proe that the owner wants to sell does not own an interest in the house. For example, if he has not been paying his share of expenses, his share of any possible sale, after paying off the lender and paying the other owners for his share of the expenses the other owners had paid, might be zero or close to zero. Why not save all the legal fees, delay and annoyance of a lawsuit, and buy him out? Pay him a little extra, just to go away. Dana Sack  ... Read Answer

If you are living there, then he is a "lodger." Give the "lodger" a written notice to leave. You must give him the same number of days notice as the period of the rent he pays. If he pays by the month, then you must give him a month's notice. If he pays by the week, then a week's notice. If he doesn't leave, call the police. He is NOT a tenant. You are NOT required to go through the court eviction process. The police are required to remove him from your home. If the owner does not also live there, then he is a tenant, and you need a lawyer to have him evicted. Dana Sack  ... Read Answer

Yes. I am currently defending against a partition lawsuit. It is slow, complicated and expensive. Previously, I have always been able to convince the reluctant party to go along with a sale, because so much of the money from the sale ends up going to the court-appointed referree, expert witnesses and the lawyers. Also, the market tends to lower the price of partition properties, for several reasons. The threat of theses consequences of making the owners who want to sell, go to court, should persuade the reluctant owner to go along. Dana    ... Read Answer

In California, by law, the maximum dues increase per year is 5% of gross expenses, and that increase is spread over all the units. The CC&Rs can provide for a lower limit.  Your HOA Board is required by law, to prepare a comprehensive reserve fund study every three years, and to review it at least once-a-year. If your HOA is not doing this, it needs to get a new manager. He should be making sure this gets done. After bringing this to your HOA Board's attention, if they don't do it, then you and your neighbors need to run for the Board and put good people on the Board. In many HOAs, no one wants to do the work required of the Board. The volunteers who end up on the Board might not be the best able to do all the work required. Every owner needs a good board to protect the owners' investments. If that doesn't work, then request Internal Dispute Resolution and then mediation or arbitration, to get the message through to the Board that they don't have any choice. Increases greater than the 5% limit require approval by the owners. Reserve studies are mandatory. Good luck. Dana Sack  ... Read Answer

Definitely the homeowner whose employee did the damage. Some HOAs have rules against homeowners performing any work on common area without prior written approval, including fines for violations. If the HOA is not having its own plumber do the repairs and wants you to do them, be sure to hire a licensed plumber. You don't want any more mistakes. Plumbing work that costs more than $500.00 is required by law to be performed by a licensed plumber. When work requiring a license is performed by someone without the correct license, the hirer is personally liable for all damage caused and all injuries, including injuries to the handyman and any employees he has. He won't have workers comp. Your homeowner's insurance (HO-4) won't cover it. A statute imposes on the hirer a rebuttable presumption that the hirer was negligent. And the workers compensation law limits on damages do not apply. It sounds like there wasn't any flooding damage. If you're handyman had caused flooding into lower units, you could also be liable for all of that damage, from replacing sheetrock and carpeting, damage to paintings and expensive clothes, to mold remediation. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack    ... Read Answer