California Real Estate Legal Questions

That's a complex question.  A gift is separate property, but it can later be transmutted to community or quasi-community property.  The best way to keep the house as separate property is for you to have a written agreement with your husband that the flat is your separate property.... Read More

The terms of the listing agreement govern how you can terminate the listing agreement.  In general, you will only be able to terminate the listing agreement by the expiration of the term of the listing agreement or by mutual agreement of the parties.  Go ask nicely to the agent's broker to terminate the listing agreement.... Read More

Unless your CC&Rs have a provision which specifically allows smoking or allows smoking in some specified areas, then the HOA Board can promulgate whatever rules it thinks are reasonable and appropriate. A court will not second-guess the business judgement of the HOA Board.  Don't break the rules. The HOA Board can impose fines, make the fines a lien on your unit, add attorney fees and expenses to the lien, and forelclose the lien, sell your home and evict you. The attorney fees are likely to be more expensive than the fines. There aren't many smokers left. Don't try to put this to a vote. You'll lose. You could ask the HOA Board to designate a place where you could smoke, but that might provoke a rule that says nowhere on the property. The HOA owners are likely to approve that. Is your unit self-contained for heating and ventilation? Rules regarding not smoking inside are usually concerned about shared duct and ventilation systems pumping smoke from a smoker's room to a non-smoker's room. Maybe you can smoke inside your unit. Maybe vaping would be more acceptable. This problem for smokers is increasing. You can't smoke indoors in most buildings. You can't smoke within 20 feet of most doors and windows. You can't smoke in many outdoor parks. That doesn'l leave many convenient locations, especially with seating.  If you appreciate this free advice, please remember to refer us to your relatives and friends who need legal help. Referrals are still our best source of new business. Dana Sack 510-286-2200  ... Read More

Only if the tenant did something wrong.  If the tenant did not know that the washer was overflowing, then he had no duty to prevent it. Lots of people turn on the machine before going to sleep or on the way out the door to work or school. Next question, did the tenant know the washer was broken and ran it anyway? Next question, did the tenant do something else negligent which caused the washer to overflow? The occupant is not liable for every bad thing that happens in connection with her or his home, unless the occupant did something wrong which caused the occurrence. The conduct has to be blameworthy. So the answer is definitely maybe. Even condo owners need to have HO-4 insurance to protect their own property, separate from the building, and their own liability for accidents. Owners renting their properties, even condos, should require their tenants to pay for renters insurance and provide proof of coverage. Renters often do not have enough assets or income to pay a judgment  when they are at fault. 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 More

Unless you have something in writing which gives you permission to have the washing machine, then the answer is no. Even without a provision in the CC&Rs, the HOA Board could pass a rule prohibiting washing machines, if the Board could articulate a good reason for doing so. Why don't they like washing machines? My sister is in the apartment business. That's one of her signature improvements to older buildings, adding washer-dryers in the individual units. Tenants love them. You should meet with one or more HOA Board members, one at a time, to talk to them about this? Why this rule? What is the problem? Can you apply for a waiver? If you are not satisfied with that process, then exercise your right to Internal Dispute Resolution. There should be a procedure in the CC&Rs. If not, Google Civil Code §5915 for the IDR procedure which applies if there isn't one in the CC&Rs. Why don't you check the boxes for both "need more time" and "do not understand how to comply" and for "do not agree?" You should disconnect the washer, move it into another room until you can either resolve the issue or sell the washer, take pictures of it disconnected and in another room, and send the pictures to whoever sent you the letter. For violation of the CC&Rs, the HOA can hold hearings to impose fines, have those fines recorded as a lien on the unit, add attorney fees and expenses to the lien, and foreclose the lien and sell your unit to pay the lien amount. The attorney fees could easily exceed the dollar value of a brand new washer. 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 More

As long as you do not negotiate any of the terms of the transactions and do not prepare any of the documents for the transaction, you can legally collect a finder's fee. That means you can find the property and gather information and records about the property. If you do anything more than that, then you are illegally performing real estate brokering services which require a license. That means that you cannot sue the investor to collect any finder's fee you think he owes you. This is a common problem for people trying to get into the real estate business without getting a license and without using any of their own money. Get a real estate license. It's not hard, and it opens up all kinds of opportunities. If you don't have the college courses required, get them at your local community college for free or an online university for not much 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 More

A married couple selling their main home, are entitled to exclude up to $500,000.00 of capital gain, but you must meet two tests: you must have actually lived in the home for 24 out ofthe 60 consecutive months prior to the sale, and you must not have claimed the exclusion for the sale of another principal residence within the last 2 years. So if you have lived in the home since August 2014, then you won't qualify for this exclusion until September 2016, but you will then. So find a buyer and set the close of escrow for September 1. 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 More

How much did it cost to repair your neighbor's door? Not much. Why not offer to pay half? Yes, your insurance company should pay for it. You can pay for it and sue your insurance company for reimbursement in small claims court. I don't know how small claims court works in Virginia. What did your tenant do to cause the fire? Can you prove it? Is there a fire report which says so? If so, you can sue for reimbursement from your tenant, in small claims court. Does your tenant have renter's insurance? If not, next time your renew her lease, be sure to require, require that you be named as an additional insured, and get proof of insurance. You might get a few bucks off on your own insurance by sending it to your broker. 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 More

She is entitled to reimbursement of the interest payments. 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 More

4 years after the later of the due date of the loan or the last payment you actually made. 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 More

Do you know any of your HOA Directors? You should ask one of them to sit down and talk with you about this. If each of them refuses, then your CC&Rs should have an Internal Dispute Resolution procedure which REQUIRES the HOA Board to appoint one of its members to talk to you, not the property management company, and actual HOA Board Member. It's covered in the Civil Code §5915. When a property owner hires someone to do work which requires a license and the person does not have the required license, then the property is automatically a direct employee of the property owner. That's the law. There is a statute which says so. That means that the property owner, not the contractor, is personally liable for any injury to any worker. There is a statute creating a presumption that the property owner was negligent and at fault. That means the property owner has the burden of proof to prove by admissible evidence that the property owner was NOT negligent. Since the property owner was not in charge, neither you nor the HOA will have taken any required safety precautions. So you will be held legally and financially responsible for any injury to any of the unlicensed contractor's employees. The workers comp limits don't apply. Unlimited damages, including pain and suffering. Your insurance doesn't cover it. Your general liability coverage does not cover liability required by law to be covered by workers comp insurance, and you and your HOA don't have your own workers comp policies. The contractor has no insurance. He can't. You can't buy insurance for illegal activities. That's why no one should ever hire an unlicensed person to perform work which requires a license. As a general rule, anything over $500.00 requires a license. 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 More

Your landlord has a duty to mitigate her damages. That means that if you vacate the premises and stop paying the rent, she must use reasonable good faith efforts to re-rent the premises as fast as she can for as much as she can. That also means that if you have already offered you a tenant with a job, credit and history as a tenant, as good as your own or better, or as good as her other tenants or better, then you have proof that she could have rented the place to that person and thereby mitigated her damages. Put your offer of the new tenant and the new tenant's contact inforation in writing. When you go to trial, it's hard for the judge to sort out what you claim you said and the landlord said, and what the landlord said you said and she said. Letters help. Also, when you send a letter on paper with a signature, the landlord will know that you are creating evidence for trial. You can scan it and email it to get it there faster. 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 More

A suriviving spouse living in the home is an exception to the due on death clause of the reverse mortgage.  So if you pass away, she will continue to be able to live at the property until she passes away.  However, after both of you have passed away, then the reverse mortgage will be due 6 months after both of you have passed away.... Read More

Your question is actually more complicated than it seems.  If you get married, what rights you will have in the property will depend on if the property is community property, quasi-community property, or separate property.   Instead of wondering about your legal rights, it's best to work this out before you get married.  Have an honest discussion with your GF about the house and your contributions to it.   She may see it differently than you do; that you are paying what would be rent.  Whereas, you see your contribution as paying down the mortgage.  ... Read More

I've seen grant deeds that leave out information from the title report.  Ultimately, you can only get what the previous owner had.  So if the previous owner didn't have mineral rights, you won't get mineral rights just because it was left off of the deed.  You'll need an attorney to review your documents to get a full consultation.... Read More

There is a three year statute of limitations when the seller does not disclose any material facts affecting the desireability or value of the home. As the buyer, when you are faced with some repairs that you would like for the seller to make on the home, you have three options: (1) don't buy the home, (2) buy the home with the defects, (3) negotiate with the seller for concession.  If you can't do #3, then your choices are either #1 or #2.... Read More

A joint venture agreement is traditionally a partnership agreement. A general partnership would leave you exposed to liability for third party claims. What you want is a Limited Liability Company. Your 30%-70% split of profits, when you are putting up services and your partner is providing all the cash and credit, creates a tax problem. I know how to solve it. We do it all the time. It's just too complicated to explain in the space Lawyers.com provides. It works. I write up such LLC Operating Agreements and limited partnership agreements often. We prepare the agreement and the one page filing with the Secretary of State for $1500.00 plus the filing fees. That would not include negotiating the deal or any changes with your partner or his lawyer. Dana 510-286-2200... Read More

  Most HOAs are mutual benefit corporations. The name should appear at the beginning of the CC&Rs. You can also look up the exact official name on the Secretary of State's website at www.sos.ca.gov. In the upper left area, look for Business Entities, and on the next screen look in the same area for Name Search. Your CC&Rs should provide for Internal Dispute Resolution and Mediation. Some CC&Rs require that you do this before any arbitration or litigation. Some also require arbitration instead of a lawsuit. Some carve out an exception for small claims court. Check your CC&Rs. HOA Boards are given very broad discretion in making decisions. Courts will not second-guess the business judgment of the HOA Board. So you need a really strong case in order to prove abuse of discretion by the HOA Board. If possible, private conversations wiith 1-2 board members may be more productive than a direct confrontation at  a board meeting or in court. 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. Set up a trust, and put all your property, especially any real property, into the trust. 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, and convey one piece of real property to the trust, usually the family home, for $1500.00.   Dana Sack  ... Read More

Yes, growing marijuana in the garage is both a violation of the local Zoning Code and illegal under federal law. Therefore, it is grounds for eviction. You must give the tenant a thirty-day notice and an opportunity to cure by stopping the use. Before you send the notice, even before you close escrow, take pictures of the entire house, every wall, floor and ceiling in every room. You want a good record of the physical condition of the house as of the day you bought it. As soon as you give the notice, you are at risk that the tenant might retaliate by damaging your property. If you were to decide to let the tenant continue the growing, it would be reasonable for the tenant to pay the water and electricity bills. He is using a lot more than a normal tenant. You might want an electrician to check out the tenant's electrical system. It might be too big for the house's existing wiring and circuit breakers. That could create a serious fire hazard. If the tenant wants to continue the use and you are willing to allow it, then the tenant should pay you (in advance) to have your own electrician upgrade the electrical system as needed. I have not heard of it happening recently, but there are still laws that allow the state and federal governments to confiscate any property used in the commission of a drug crime, including real property. Not likely, but you need to know. 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. 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. 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, 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 More

Yes, a will does not take effect until after you die. If you don't own the property when you die, then the person named in your will does not get it. I can think of very few situations where a quitclaim deed is the right solution. If you make a gift of the property now, then the person receiving your property will own it with your current tax basis in the property. When that person sells it, she or he will have to pay capital gains tax on the difference between your tax basis and the sales price. If you wait and give it to the person when you die, the donee gets a stepped-up tax basis equal to the market value as of their choice of the date of death or six months later. That means that if the donee sells the property right away, there is no tax. A new alterntive is a revocable transfer-on-death deed. This just became available January 1, 2016. See my website www.sackrosendin.com for more information about revocable transfer-on-death deeds. 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 More

It depends on who breached the contract. If you are successful in proving that the buyer breached the contract in a material way, then he loses, he does not get to buy the property, and if the contract has an attorney fees clause, then he owes you reimbursement for any attorney fees you paid. The only way for the buyer to get the property is to pay you whatever you ask for it, which could be the current market price. I once sued a seller on behalf of the buyer. We had a strong case, but in order to avoid the time, expense and risk of a trial, the buyer agreed to pay more for the property, in order to settle the case. If the court finds that the buyer did not breach the contract or that the buyer breached but that its  breach was not material enough to justify you refusing to sell, then you lose. The buyer gets to buy for the contract price, and, if there's an attorney fees clause, it gets a credit against the purchase price to reimburse the buyer for its attorney fees. You don't get your expenses and appreciation in value, because the expenses are your fault and the appreciation belongs to the buyer. 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 More

As long as you disclose the special assessment and what it is about, completely, then yes, you and the buyer can negotiate whatever you want. What the special assessment was for will determine what you need to disclose. If it was for a one-time rules violation, like letting a dog run off-leash, then just say so, and the buyer won't care. If it's the first or one in a series of escalating assessments for improvements to your unit in violation of the CC&Rs, the buyer might want to investigate that one more thoroughly. If it's a special assessment for repairs or replacements for which there were insufficient funds in the reserves, the buyer might want to investigate that, too. If it was to cover a construction defect problem, again, the buyer might want to find out whether or not the repairs funded by this assessment are the end of the problem or whether there might be more assessments. Whichever it is, don't hide the ball on the buyer. Fully informed, then you and the buyer can negotiate whatever you can.   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 More