California Real Estate Legal Questions

No, you have been parking in that space with the HOA's knowledge and permission. Your payment for use of the parking space shows that your use was not adverse to the ownership by the HOA. Check the legal description attached to the deed of your unit to you, your HOA's CC&Rs, and any rules the HOA has enacted regarding the assignment of parking spaces. Some deeds include the right to a specific parking space as shown on the recorded condominium or PUD plan. Some make them the property of the HOA and let the HOA Board decide who gets which spot. In that case, it's completely up to the HOA Board (not the property managment company). Some HOA Boards enact rules that let a unit owner keep the same spot until they request another or fail to pay their assessments or parking fees. Talk to some of your HOA Board members about the problem and ask them to solve it. If they won't, then your CC&Rs and the annual report you receive from the HOA should describe an Internal Dispute Resolution procedure. Use it. If your CC&Rs don't include one, then the IDR procedure in the Davis-Stirling Act applies. If that doesn't work, then you an ask for mediation. The HOA Board is required to participate in mediation. If you appreciate this free advice, please remember to refer me to your family and friends who have questions or need help. Referrals are still our best source of new clients. Dana Sack  ... Read More

If the tenant is renting a room in a home, the rules are different. If the tenant is renting a house, a condo unit, an apartment, an office, a store, or warehouse space, then you need to serve a 3-day notice and then sue to evict the person. The legal procedure is very technical and the courts are very strict about following the rules. The courts don't want to kick a person out of his or her home unless it's absolutely sure that's the correct think to do. I recommend you hire an attorney who has done it before. If you appreciate this free advice, please remember to refer me to your friends and family who have questions or need help. Referrals are still our best source of new clients. Dana Sack  ... Read More

The Davis-Stirling Act prohibits any increase in regular assessments greater than 20% of the regular assessments for the previous fiscal year, unless approved by a majority of the owners. Even increases of 20% or less are prohibited, unless either approved by a majority of the owners, or 7 specific financial disclosures are provided, including an explanation of the increase and financial back-up to support the explanation. It could be that a letter from a lawyer might be enough to get the HOA to comply with the requirements of the Davis-Stirling Act. Your CC&Rs are supposed to provide for Internal Dispute Resolution and for Mediation. I recommend that you exercise both of these rights. If the CC&Rs do not include such sections, then the Davis-Stirling Act provides default provisions which apply to all HOAs which don't have them. Don't stop paying your assessments. The HOA can impose late charges and penalties, place a lien on your unit, and then sell your home. Going to court to stop that is very expensive. If it turns out that the HOA somehow got the assessments approved legally, then you would not only lose your home, but you would owe the HOA for all the past due assessments, late charges, penalties, and the HOA's attorney fees and expenses. The attorney fees are likely to be a lot more than the assessment overcharges. That's why you MUST go through the Internal Dispute Resolution and Mediation process first. If that doesn't work, then the next step is arbitration or a lawsuit. Check your CC&Rs. Watch out for small claims court. The plaintiff who chooses small claims court cannot appeal that court's decision, but the defendant can appeal and automatically there will be a whole new trial in Superior Court with lawyers. Maybe the HOA has spent money poorly. Maybe money has been misspent or lost. But maybe there are problems at the property that need fixing. In order to have a safe and pleasant place to live, the owners need to spend that money. Use the procedures described above to find out. Dana Sack... Read More

Suing the HOA is tricky. These are your neighbors. You have to live with them. Win or lose, someday you are going to apply for something from the HOA Board, and Board's have very wide discretion to approve or disapprove almost anything. Why not sue the plumber, instead? He probably has insurance for just this kind of mistake. It was his mistake that caused your damage, not the HOA's. When he complains to the HOA about being sued, you can honestly say that you realized it was not the HOA's fault and that you did not want to sue your neighbors. What a good guy.   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

NO!! In the law, that is called a "constructive eviction," just like changing the locks. In order to evict someone legally, you must go through the court process of a lawsuit to recover possession of the property. Except that since the judgement debtor is an owner, she has the right to occupy the property, unless you have a written co-ownership agreement. When I write co-ownership agreements, the way I usually put the world on notice of the agreement is to record a deed of trust on the property securing the duties of each owner against the other. That way, if one owner breaches the agreement, the other can conduct a private foreclosure sale of the delinquent owner's interest, without going to court. That shifts the burden to the delinquent owner to either cure the breach or go to court and explain to the judge why the agreement and deed of trust should not be enforced. Your remedies to collect your judgment include attaching her bank account, garnishing her wages, and attaching any other sources of income she has. 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

You should make a two step transfer. First, have your brother transfer his share to your mother, which, if he is the child of your mother then this transfer will qualify for a parent-child exclusion for up to $1M. Second, have your mother transfer the property to you, which should also qualify for a parent-child exclusion for up to $1M. For each transfer, you will have to file the parent-child exclusion form with the county assessor.... Read More

Check your CC&Rs. The HOA might be correct, that it is not responsible for damage to contents and interior surfaces of your unit. That's why condo owners should always carry their own HO-4 condo owners coverage. If the unit next door caused the leak, then the owner of that unit might owe you the money for replacing your floor. You can send that owner a claim for the damage with a copy of the bill for the repair work. If that owner and his or her insurer don't pay, then you can sue the owner. It the bill is less than $10,000.00 you can sue in small claims court, without attorneys. 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

In order to determine whether there is anything wrong with the decision to not allow you to replace your floor, I would need to review the CC&Rs, both before and after the amendment, and find out all the facts regarding the other units which have been allowed to install the hard-surface floors. As a general rule, HOA Boards are allowed very broad discretion in making decisions and choices. A judge will not question an HOA Board's decision unless it is an "abuse of discretion." On the other hand, violations of the CC&Rs by the Board are always an abuse of discretion. Some provisions of the CC&Rs cannot be amended by a simple majoirty vote. Is the hard-surface in the unit above you causing too much noise in your unit? Just because the Board approved it does not mean that it might not be a private nuisance. You should start by asking your neighbor to do things to reduce the noise, like wearing soft-soled shoes, putting area rugs in areas of high traffic, and reducing the volume of audio and video equipment or use headphones. If the neighbor refuses, then you can sue him, not the HOA. Don't unilaterally install a hard-surface floor in violation of the CC&Rs. Earlier this year, a condo owner who had done that and lost the case, won an appeal where the attorneys fees the owner had to reimburse to the HOA was reduced from over $1 million, to over only $700,000! 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

You have to read the purchase agreement.  Usually, the seller is entitled to an earnest money deposit (EMD), under certain conditions.  But you don't have an EMD.  Even if there are no contingencies, the seller must provide the proper notice to be entitled to keep the EMD and the buyer will have to sign the escrow instructions allowing the escrow holder to give the EMD to the seller.   So where does that leave you?  You are in a negotiation with the buyer of an amount that should be roughly equal to your costs of taking the property off market, costs of the transaction, etc.  This amount can't be so high that it's a penalty.  Both of you will have to agree to how much to give to you and to the buyer.  However, if you wrongfully withhold money owed to the buyer in escrow, then you can be held liable for damages. What should you do?  Try to negotiate a couple thousand dollars, but if push comes to shove, then give back the entire amount to the buyer.... Read More

Commissions must be paid to the name that is licensed.  If your broker associate is the broker of record for the corporation and your agency agreement with the broker associate lists the corporation, then yes, you can pay the commission to the licensed corporation.  Generally, you do not have to report income paid to a corporation on Form 1099.... Read More

Commissions must be paid to the name that is licensed.  If your broker associate is the broker of record for the corporation and your agency agreement with the broker associate lists the corporation, then yes, you can pay the commission to the licensed corporation.  Generally, you do not have to report income paid to a corporation on Form 1099.... Read More

You'll first have to read the easement granting document to see what it provides.  Generally, the servient tenament cannot obstruct or build on the easement, but there are exceptions.  It's going to depend on the facts and circumstances of your case and what the easement granting document says.  Contact an attorney for a full consultation.... Read More

For commercial tenancies, late fees are valid unless they are unreasonable.  Liquidated damages limitations are for residential tenancies.  The only way to really find out if your late fee is unreasonable is if a judge rules it to be so. While you may have waived your right to recover the late fee by never demanding it, you can send a letter to the tenant to request the late fees be paid.... Read More

The problem with selling in installments is that if the value of the property goes up, the buyer will make all the payments and keep all that increase in value, but if the value goes down, then all you will be able to do is take back the property, and it won't be worth as much as it is now. Plus, you have no control over what the buyer does with the property or to the property. If the buyer doesn't pay you and starts trashing the property, it will take several months for you to get the property back. If it's in a mobilehome park where you rent the space, the new buyer might do things that cause you to lose your lease. What is the mobilehome worth if you have no place to keep it? The buyer should get a loan from a bank, a friend or a relative. If none of them will lend the money to the buyer, why should 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 More

It's been my experience that many different investors do different types of wholesaling and every deal is different.  You'll probably need a custom contract or at least a custom tweaking of a contract for each deal. You should build a team around yourself, including an attorney, a real estate agent, an escrow officer, a title officer, a CPA, and an insurance broker that can give you the right advice at the right time.  Furthermore, you're going to get what you pay for.  Don't try to get the rock bottom price for any professional services- pay a fair price so that you will always get the best service.... Read More

I wrote you a nice long answer, but this website is not working, and the support department is closed for the holiday until Monday. I got a 404 error message. Please call me at 510-286-2200. I apologize for the inconvenience. I am a user of the website, just like you, and have no control over it. Dana Sack  ... Read More

Please do NOT use a deed. What you need is a durable power of attorney. The state legislature has enacted two, one for financial decisions and one for healthcare decisions. The financial one lets the person choose which financial decisions to give to the other person. For example, she could choose to allow the person to make decisions about real estate and not give that person control of her bank accounts. She could either not give that power to anyone or give different powers to different people. Google California durable power of attorney. Both forms will come up. The form must be signed and notarized by a notary public. There are notaries who will come to her home. Your mother should also have revocable living trust to avoid probate. Probate takes forever, is expensive, and is annoying. She should set up a trust, and put all her property, especially any real property, into the trust. Since it is revocable, she 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. 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. Dana Sack      ... Read More

Good for you and your sister to agreeing on how to manage your property before any disagreements or misunderstandings happen and to put that agreement in writing. I have several active files on my desk involving family members in such disputes. I am desperately trying to keep them out of court. Lawsuits are too expensive and rarely provide a lasting resolution of the dispute. Instead of a partnership, I recommend that you form a limited liability company and transfer the property to the company. The LLC will need to have an Operating Agreement, and that agreement can cover all your management issues and questions. The main advantage of an LLC is that if something happens in connection with the property which threatens a lawsuit, only the LLC will be liable, unless one of you actively participated in the alleged wrongful conduct, and even then, only the owner/sister who participated will be at risk and not the other sister. As partners, you would each be liable for the other's bad acts in connection with the partnersip and the property. This is why most businesses are either corporations or limited liability companies. There is no federal tax, but you will have to file both federal and state tax returns. The state imposes an $800.00 franchise fee, plus an LLC fee which does not start until you have gross revenues of more than $500,000.00 per year. We charge $1500.00 to set up a simple Operating Agreement where the owners share profits and distributions in proportion to their investments in the LLC, file the LLC-! Articles of Organization with the Secretary of State, and transfer one property into the name of the LLC. Dana Sack  ... Read More

You can sue your brother in a partition action to request that the court order a sale of the property.  You can buy out your brother in the sale.  You can also seek reimbursement for the expenses of the property that you paid for your brother.  You can also evict him from the house.   Email or call an attorney for a full consultation.... Read More

Someone needs to read everything you said about the house. You say you "specified new plumbing." Someone needs to carefully review the exact words you used. Knowing everything you knew about the house, the words you used might have meant to you just the plumbing inside the house and not the main line. A buyer who knew nothing about the house might read the same words and think they meant all the plumbing. An experienced real estate attorney, especially one who has argued such details of the language to judges and juries, should be able to give you a better idea of whether you are at risk or not. The buyers and their agent are required to perform a thorough reasonable visual inspection of the house. If you had actual knowledge of a problem that they could not discover by performing that thorough inspection, then you had an affirmative obligation to tell the buyers about it. If the problem that happened after escrow was a new problem that you knew nothing about, that happens, it's not your fault, and you are not responsible. How much will it cost? Sometimes this can be a cheap way to pay for a complete release of any future claims for anything else that goes wrong. You'll need a knowledgeable lawyer to prepare such a release so that it covers unknown future claims. 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