California Real Estate Legal Questions

Mr. Harris, Sometimes (not always), a letter from a lawyer on law firm letterhead will be enough to get the other owner to at least talk to you.  In a lawsuit or arbitration to enforce the CC&Rs, the prevailing party is entitled to recover all of its legal fees. I would include the story of a lawyer who installed a wooden floor, violating the CC&Rs, refused to cover them, lost the case, and one an appeal where the court reduced the legal fees he had to pay the HOA from $1.4 million to $800,000.00. That should convince him it's cheaper to meet and compromise than to go through the legal process, whether it's a lawsuit or an arbitration. Small claims court cannot grant an injunction to force the other owner to obey the CC&Rs. Arbitration will be faster than a lawsuit, but it might not be cheaper. In court, your filing fee of $435.00 pays for unlimited use of a courtroom, judge, clerk and bailiff. Arbitrators charge $400-$600 per hour, and have an incentive to make it take as many hours as possible. I always seem to have a CC&R dispute pending. I just finished two and have one pending, now. Dana Sack  ... Read Answer

The sellers had a duty to provide you with the correct governing documents. When you say "property manager," do you mean a person who managed the property for the sellers, or do you mean the manager who maintains the books and records and collects dues for the homeowners association ('HOA")? The sellers' property manager is their agent, and the sellers are liable for its mistakes. The sellers are not responsible for mistakes by the HOA's management company, and that management company has no relationship with you and owes you no duty. How have you been damaged by getting the wrong governing documents? Our civil courts do not punish bad conduct. They compensate for injuries caused by bad conduct. The measure of damages is the difference between the fair market price if a reasonable person would have known about the change to the governing documents and what you paid. How much is that difference? If it would be very hard to calculate, then you might not have any damages. 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

An LLC is good until you sell the property. Then there is an extra LLC fee that starts at $900.00 for LLCs with annual gross revenue greather than $250,000.00 and rises in steps to$10,789.00 for gross revenues for the year of $5,000,000.00 or more. Gross revenue, not profits or capital gains. In real estate investing, that's $10,789.00 you just don't need to spend.  Depending on the client's plans and other investments, I often recommend a limited partnership with an LLC as the general partner. If you invest in several properties, each can have its own limited partnership, with just the one LLC as the general partner for each. You can also put several smaller properties into a single limited partnership. How many depends on how much of your equity in one property you want at risk to claims arising from problems at the other properties. 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

1. Don't delay. California real estate values just keep going up. 2. You are entitled to reimbursement for the downpayment plus his one-half ofeverything you have paid, from PITI to repairs and upgrades. After that, he has a claim to half. Further investigation of the facts might show that he is not entitled to anything, but it might not be worth the legal and accounting expense to figure it out. Figure out what would be his share of the equity, after the reimbursement described above, and offer to buy him out for that amount. It wll be faster and cheaper than paying lawyers. 3. Don't pay him until you have an original signed and notarized grant deed in recordable form. As soon as you pay him, record it. Don't wait even overnight. If you hired an attorney to do it, you would probably also obtain a title report and maybe a title insurance policy on the half you are acquiring from him. Judgments and tax liens against him might have attached to his interest in the home and should be paid from any share he is entitled to. 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

If you can take possession of the house peacefully, without having to force anyone out or change the locks to keep out anyone who claims a right to be there, then you can take possession.  If you are worried that later anyone will claim a right to occupy based on this family member's occupancy, then mail a Notice of Abandonment to everyone you know who might assert such a claim, especially the person who left, and mail it to their last known addresses and to the property address. 18 days after the notice is mailed, any claim to a right to occupy the house will terminate.  If you are worried that anyone will sue you for the value of any of the stuff, then mail a Notice of Abandonment of Personal Property, and wait the same number of days before getting rid of anything which might have any value. The same mailing and 18 days apply. In the meantime, you could clean out all the garbage, and store anything of any possible value in one room, while you do clean up and repairs in the rest of the house, until the 18 days are up, and you can send the rest to the dump. The different Notice of Abandonment forms are in the Civil Code and probably available online, or you could hire me to prepare them for you. 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

Go to www.sos.ca.gov, and at the top of the page, click on Notary and Authentication. There are instructions on how to obtain the required certificate. If you click on Processing Times, right now, if you do it over-the-counter in Sacramento, they do it while you wait, and if you send it by mail, it takes more than a week plus mail transit time. I use a service in Sacramento called California Lenders' and Attorneys' Service, www.clasinfo.com. They can do it for you over-the-counter. I don't know their fee, but it is probably more than $50.00. 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 need to sue the other owner. The other owner is the person you have a contract with, not his tenant. Check your CC&Rs. They might require arbitration. If not, you can send the other owner a letter offering to do arbitration, and if he refuses or fails to respond, just sue him. Your CC&Rs probably provide for the winner to also be awarded reimbursement of legal fees. You only get that if you go all the way to trial. Most cases settle, and the first compromise is usually waiver of attorney fees.  Mediation is a process where a third party listens to both sides and then tries to negotiate a compromise between the parties to the dispute. The mediator does not decide who is right or wrong. There is only a binding decision if both sides agree to some compromise settlement. Most mediation services are pretty successful and convincing the other side that they are better off going to a mediation than having you sue them. 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

That is a complicated legal issue. Possibly, but it is hard to be certain. You could spend a lot of money on a lawsuit, and still maybe win and maybe lose. The railroad might argue that it has hundreds-of-thousands of miles track, and society cannot pay enough for rail service to afford fencing or policing all of it. The California Supreme Court requires judges to weigh the likelihood of any form of protection doing any good against the cost of that protection. It is a very difficult test for your HOA to win. It might be cheaper for your HOA to install some very bright lights and surveillance cameras, all triggered by motion detectors. The presence of the lights and cameras might deter the vandals. They'll have to look up at the cameras in order to throw rocks at the lights, cameras and windows. So you should get some good images of them. If the police have suspects, like local gang members and juvenile delinquents, they might make a match. Nothing will deter others than a couple of their buddies getting arrested. 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 your CC&Rs have language whihc specifically prevent the HOA Board from choosing to build all those improvements, then it is within the very broad discretion of the HOA Board to do pretty much whatever it wants in the common area, and spend HOA assessments and reserves any way it wants. There is a exception, when the CC&Rs specifically prohibit something, like the case where the CC&Rs specifically banned trees above the roof-lines, and the HOA Board wanted to allow palm trees. If you and your neighbors disagree with the decisions of your Board, your most effective remedy is to vote people onto the Board, whom you trust and respect. Get rid of the rascals.  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 really need an attorney. Even though it is the tenant's fault, not yours, that the utilities got turned off, in a lawsuit between the subtenant who occupies your home and you, as the landlord, you might have a difficult time proving that you did not share some percentage of the blame. Unless the subtenant was actually given a copy of your written lease with your tenant, and that lease has a provision about no subleasing without your prior written consent, the subtenant is more a victim than you are. The subtenant has been paying rent, just to the no-good tenant, not to you. 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

The HOA Board has very broad discretion in making decisions about HOA business. If the decision is within the range of possible choices a reasonable board of any hoa board might make, then the decision of the HOA Board will be upheld, unless it is in direct contradiction of an express provision of the CC&Rs which specifically addresses that issue. For example, an HOA Board cannot allow palm trees to block views if the CC&Rs specifically say no palm trees shall be allowed to block anyone's view. There actually is such a palm tree case. If the HOA Board wants to deal with the correspondence and not pay the management company to do so, then just tell the management company to send all the letters to the Board. A good management company should be able to politely respond to correspondence in a totally non-commital way.  The Board has all the power. So it can afford to be gracious to an owner who is not getting his way. Eductate this owner about the choices that need to be made. There is a budget. There is a reserve budget for anticipated future repairs and replacements. The Board needs to be cautious in spending those resources. The HOA is going to need all of that money for future repairs and replacements. That means that for any specific item that needs to be repaired or replaced, the Board will probably spend more than some members feel is needed and less than other members will think should be spent. It's up to the Board to make those choices. Anyone who wants to participate in those decisions should run for a seat on the Board. Dana Sack 510-286-2200  ... Read Answer

Yes, but it requires the signatures of all of the people named in the Grant Deed and affected by the change. Cancelling the life estate or providing that it ends when the life estate holder stops living there, will require the signature of the holder of the life estate. The owner who is going to receive possession after the holder of the life estate passes away, can grant that right to get the property in the future, to someone else without the signature of the life estate holder. Likewise, the life estate holder can transfer the right to occupy the premises during the life of the life estate holder, without the signature of the owner of the property, unless the original life estate deed prohibits such a transfer, which they sometimes do. 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

Since most lawyers are paid by the hour, they try to keep their days as full as possible. Legitimate conflicts and postponements happen. On the other hand, some lawyers play fast-and-loose with the rules. They know it will take at least a month to get a hearing on a motion to compel attendance at a deposition, and even then, the deposition might not be ordered to occur for a couple of more weeks. So attorneys know that it will be faster and cheaper to just agree to a new date. If this is happening to you because you are trying to represent yourself, I urge you to hire a lawyer. There are an unlimited number of tricks lawyers try to pull on each other, and we usually know what they are and how to deal with them. You don't. You're already the victim of the other side's prior bad acts. Don't let yourself be a victim again, by trying to do this yourself. Good luck. 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 order for a lawyer to know what is going on, whether it can be fixed, and how much it might cost, she will need to see the lien and the court documents. Sometimes fathers and sons have the same name or similar names. Sometimes a person who is sued will transfer a home to a friend or family member in order to try to avoid paying the judgment. The courts and the law are not fooled by this strategy. On the other hand, sometimes an unscrupulous creditor will try to extort a partial payment out of a family member by recording a false lien. And there are lots of other possibilities. Reviewing the file might take an hour or more. You should plan on spending $200.00-$500.00, to find out what is going on and what a lawyer might be able to do for you. 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 CC&Rs should include an Internal Dispute Resolution procedure, where you can meet with a board member to discuss your concerns and try to work them out. If this doesn't work, then you can require Alternative Dispute Resolution. However, the statute does not require the HOA to stop or postpone the work while you go through this process. If the HOA Board decides that the fumigation is critical, they might be right. If you sue the HOA Board to stop the fumigation until the IDR and ADR processes are completed, you will have a very high standard to prove. The decisions of the HOA Board are deemed reasonable, unless you prove that there is no substantial evidence to support their decision. If reasonable minds can disagree, then you lose. If you lose, you will have to reimburse the HOA for all its legal fees and expenses. Since the HOA Board and the attorney both know that you are likely to lose and have to pay the legal fees, they don't have any incentive to keep the legal fees down.  If the building really is suffering from some infestation, you are not going to win any friends or allies by causing the fumigation to be delayed. After it is all over, they will still be your neighbors.  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 and your mother should submit the issue to mediation. That involves having a neutral third party negotiate a compromise and settlement between you. In legal cases, we often use retired judges and practicing lawyers, who specialize in doing this, and have training and experience. There are also family and neighbor mediators who are trained in trying to repair relationships. They are usually less expensive. The goal is to avoid the cost, waste of time, and annoyance of a lawsuit. A lawsuit will take a year. It could easily cost $30,000.00 to get to a point where the lawyers and the court would insist on a private mediation or a settlement conference with a judge, anyway. So why not do the mediation now, and save all that aggravation and money? 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

Yes, you always have the right to change attorneys. You would still have to pay the prior attorney any amounts you owe that attorney. Your prior attorney must turn over all of your files upon request. You own the files. The attorney cannot require you to pay your bill or pay for copying as a condition to releasing your files to you. If he wants a copy, he is entitled to make one, but at his own expense. Litigation is slow and expensive. If your attorney starts sending discovery requests to the other side, they will respond by sending similar requests to you. If you or your attorney are not ready to respond to such discovery, then your attorney might be right to wait.  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

Title issues and escrow issues are handled differently in different states. Even here in Califorina, such issues are handled differentlyin Northern California and Southern California. In Southern California, the title company might record the deed, but a separate escrow company might prepare the deed and decide how it should read. In some states, title and escrow are handled by an attorney, and the attorney's work is insured by a title insurance company. The point of all of that is that you need to hire an attorney in Alabama to help you. Also, any threats or implied threats which might be needed, will be much more credible coming from a local attorney than a California, thousands of miles away.  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

From a preliminary review of these facts, it appears that you have an action for a private nuisance. This would involve filing a civil action in Superior Court.  The preference of course would be to have the County prosecute a code enforcement action administratively, or by civil or criminal complaint. If the County is non responsive, then you would need to file a civil action in superior court in your own name.... Read Answer