California Real Estate Legal Questions

An agreement pertaining to real estate intended to last more than one year must be in writing. If you don't have a lease, then you are a month-to-month tenant. Since you have been there more than one year, the landlord can change the terms of your rental agreement or even terminate it on sixty days written notice. That's sixty days from the day the notice is delivered to your apartment, NOT two complete or partial calendar months. So even if you could persuade the landlord or a judge that there was an implied agreement based on all the years tthat you were using two spaces, the landlord can change that at any time. Be careful how much you complain. Unless you are in a rent controlled city, the landlord can terminate your right to be there and evict you on sixty days notice anytime. Unless you're subject to rent control. Then withdrawing your second parking space is a reduction of service and you are entitled to a reductio of your rent. Talk to the rent control agency in your city. In San Francisco, Oakland and Berkeley, the city agency will contact the landlord and set him straight. 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 will need to recall the directors who approved this and elect enough new directors to vote to cancel the contract. Check your CC&Rs and Bylaws about how to initiate a petition of the members to call a special meeting. You will need a required number of signatures. The petition must specify that the purpose of the meeting is to vote on the recall of the directors named in the petition and to vote in new directors. Then the Secretary must give not less than 10 days and not more than 60 days notice of the meeting. If the HOA or the property manager has already signed contracts for the work, then if the contracts are canceled, the contractors may demand and even sue for their lost profits and any money they have spent getting ready, such as buying materials. If the process described above is going to take to long, you might be able to sue to stop the work temporarily while you go through the process. If I were the judge, I would want a pretty strong showing that you're going to be able to win the election. For example, a recall petition signed by a majority of the members. There is a process required by the Davis Stirling Act where the Board appoints someone, usually a Board member, to meet with any member who has a complaint about how the business of the HOA is being conducted. It sounds like you might already be beyond that, but it should be tried. You can do that at the same time that you are circulating your recall petition. How will the HOA pay for this? Is it a proper expenditure of Reserve Funds? Is it covered by the most recent Reserve Fund Study? Will it require Special Assessments? Has that process been properly conducted? Study your CC&Rs and Bylaws. 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

Was the wardrobe attached to the wall or floor?  If so, it may be a fixture that is part of the house.  If not, then unless it was specifically included in the purcahse, then you can keep it. What you can do depends on the purchase agreement.  You should be issuing a notice to perform to the buyer to close the escrow.  If the buyer breaches the purcahse agreement, then you may be entitled to keep the earnest money deposit.... Read More

Richard is correct that you should not act unilaterally. This is the age of the victim. Victim's win. If you put a gate or chain across the road, you will be the bad-guy. How long has the neighbor been using the road through your property? It takes 5 years to create an easement by just using a road across someone else's property. If the 5 years have not expired, yet, you might still be able to sue to stop them from using the road. If there is an HOA or a community service district which is supposed to maintain the road and bill you for your share, it should have shown up on your title report and title insurance policy when you bought the property. You might want to have a real estate attorney check your title policy. If there is no HOA, community service district, or a recorded agreement regarding the road, then everyone who has the right to use it is required to pay their proportionate share. The statute does not say how to determine proportionate share. Equal shares? In proportion to the size of lot? In proportion to the number of buildings on the lot. In proportion to the linear feet from the public street to each owner's property line or entrance? I have seen all of these formulas and even some combinations of them. Whoever is asking you to pay should be able to provide you with a copy of the agreement that tells everyone what their shares are supposed to be. If not they might be making it up. Still, Negotiating such a formula is a lot less expensive than a lawsuit to impose one. Richard is correct that you can trim the trees back to the property line, as long as it won't threaten the life and stability of the tree. Some very large trees with very large branches on both sides, might be put in jeopardy of falling over, if a lot of weight were removed from only one side. If as a result of your trimming on your side, the tree fell over onto the house or a person on the other side, you would be at fault. Even though you have the right to trim the tree back to the property line, you still are obligated to act reasonably.  ... Read More

I've read your facts twice and I still don't understand your scenario.  A corporation is different from real estate.  You've talked about buying shares of a corporation?  Then you talked about a half interest in real estate?  A deed of trust is a security interest in real estate.  Would you please restate your facts and ask your question again?... Read More

I assume that you do not live in the fourplex. Yes, you can transfer the property to an LLC to limit your liability.  That would shield your personal assets and any other business assets. You can request that your lender approve a transfer to your LLC.  However, many of my clients get the financing in their personal name and then transfer the property to an LLC that they own and it hasn't triggered enforcement by the lender of the due on transfer clause.... Read More

A probate action is required to deliver the title to half of the property to your late husband's heirs.  The step-father isn't going to be able to sell it on his own without someone siging off the other half of the interest in the property.  Get a probate attorney to help you with this.... Read More

As the buyer, you have to properly cancel the purchase agreement.  Your real estate agent should help you with that.  Then, the buyer and the seller have to sign escrow instructions giving the earnest money deposit back to the buyer.  First thing to do is to have your real estate agent help you with this. If your agent can't or won't help you with this, then contact an attorney.... Read More

Real estate investing is definitely the best game in town, so welcome to the profession. If you plan to close on the purchase of the property then sell the property to someone else, then you are buying and selling real estate.  If you plan to enter into a purchase agreement and then assign that purchase agreement to someone else, then you are selling a contract right that is personal property.  You'll need a lot of things included in the purchase contract and the assignment contract with the assignee.  You'll want an attorney to draft the clauses for you. Being a minor, you will not be able to hold property (real estate or business entity ownership interest) in your own name or enter into any contracts.  You will need a guardian to hold any property for you.   What you'll need to do is build a team of professionals to assist you with real estate investing.  Your team should include a real estate attorney, a CPA, a real estate broker or agent, an escrow agent, a title company rep or title officer, and an insurance agent.... Read More

I assume that you are using the California Association of Realtors Residential Purchase Agreement to buy a single family residence.  I also assume that you have a real estate agent that is representing you as the buyer in this transaction.  Talk to your agent about this issue.  If he can't resolve it, talk to the real estate broker of record that employs your agent. Read your purchase agreement.  Paragraph 16 provides for a Final Verificaiton of Condition.  If the property is not maintained in the same condition as it was upon contingency removal, then your remedy as the buyer is to: (1) make a request for repairs to the seller; (2) get a credit from the seller for the costs of the repairs; (3) cancel the purchase.... Read More

A property management company owes fiduciary duties to the landlord.  You may need an attorney to draft a demand letter to the property manager to enforce your rights.  The property manager will have to account for the rents that they collected and any expenses deducted from those rents.  Then they will have to turn over the balance to you according to the management agreement.... Read More

I understand your argument to be "they're doing it, so why can't I?" and a secondary argument to be that you may be liable to the other owner in the event of a leak.  I'm sorry to say that I don't think that your arguments hold water.  I know that it's not what you want to hear, but your best course of action is to install the AC unit how the HOA wants you to.  If you don't, then you may be facing fines and have to redo it.... Read More

I know that getting your car towed can be very upsetting, especially from your own driveway.  But I have to tell you that you are not going to be able to argue that a sidewalk is not a common area.  Sure, your driveway may not be a common area, but every driveway is traversed by a sidewalk that is the common right of way and connects to a street that is the common right of way.  Even though there isn't a definition including the sidewalk in the common area, we all know from common sense that the sidewalk is a common area. If you're still not convinced, then write a demand letter to the HOA for the cost of getting your car back.  Then file a small claims case against the HOA for wrongfully towing the car.... Read More

Provided that your property is not under eminent domain proceedings, you cannot be forced to sell your home. You will only be obligated to sell the home if you agree to their offer to purchase it. If you do not want to accept their offer, your options are to reject their offer and not sell the home, or make a counter offer.... Read More

Materialiality is an objective standard that is applied based on the facts and circumstances surrounding the purchase of the property. It generally depends. There are cases and statutes that mandate certain things be disclosed in a real estate transaction. If the issue would affect a reasonable buyer's decision to purchase the property, then it is material and should be disclosed.... Read More

The purchase agreement will control this issue. Was the proof of funds a requirement or contingency of the purchase agreement? Usually the purchase agreement obligates the seller to sell the property, and it is the buyer who has the right to cancel. However, if the buyer does not perform as required by the purchase agreement, then the seller can issue a notice to perform to the buyer and then cancel the purchase agreement.... Read More

That requires three answers. New construction will depend on the CC&Rs and the legal description of what the individual owners own. If you each own an undivided interest in the common area, then any new construction will require the consent of  100% of the owners and their lenders, unless there is a provision in the CC&Rs which allows such a change to the common area with less than unanimous approval. Even if the HOA owns the common area, the ability to change the common area with new construction will be governed by the CC&Rs. If the CC&Rs allow the HOA Board to approve such a change to the common area without approval by the owners, then that's the answer. In all CC&Rs I've ever read, repairs and replacements with different materials is not mentioned and would be withing the business discretion of the HOA Board. If enough members don't like it, they should mount a recall of some or all of the Board members. Use of reserve funds for new construction does not sound like a proper use of money set aside for repairs and replacements. Again, check the language of the CC&Rs regarding use of reserves. The Davis-Stirling Act requires the HOA Board to assign someone to discuss such an issue with you, and if that doesn't end the issue, then to engage in mediation. That should be in your CC&Rs, too. 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

I'm unclear of what you are asking for.  Are you questioning the terms of your contract with Airbnb and whether you can rent a room in your home?  Have you recieved any complaints or letters from code enforcment regarding this?  Local ordinances and zoning restrictions may limit your ability to rent a room on Airbnb.... Read More

You can ask the escrow officer when they will dispurse sale proceeds and to whom.  I've always found that a wire transfer of the escrow funds is the fastest way to get paid, as opposed to receiving a check. Are your funds payable directly to you or to a trust?  You may have to ask the trustee, if any, when and under what circumstances you will receive your inheritance.... Read More

Did you obtain an owner's title insurance policy when you purchased the property? If so, then you can make a claim to your title insurance company to clear this up for you. Did you use an escrow agent when you purchase the property? If so, then you can go to the escrow officer and request that they clear for you. If you did not obtain an owners title insurance policy and you did not go through an escrow agent, then your first step would be to try to clear up title with a title officer at a title company. A preliminary title report will tell you the status of the ownership of the property. Although there is no legal description of the property, the address and assessors parcel number of the property may be on the grant deed that would sufficiently describe the property. If that doesn't work, then your next step would be to initiate a quiet title action to have a court determine your ownership interest in the property. You probably do not have to use adverse possession as a means of acquiring title, since you already have a grant deed.... Read More

Are you still on title to the property? If you are still on title to the property then you would be able to force the sale of the property through a partition action that would request the court to order the property be sold. A partition action is a co-owners right. One of the co-owners can purchase the property from the other co-owner. However, if you are no longer on title to the property then you're ability to remove your name from the home loan is very limited. Your first step should be to have a talk with your friend to see if you can settle this. The second step would be to contact an attorney to write a letter to your friend asserting your rights. You might even want to try mediation, before resorting to a partition action.... Read More

A transfer between parent and child is not exempt from the due on sale clause contained in the deed of trust. The lender can accelerate the loan balance and foreclose on the property. You may have confused the parent child exemption from reassessment for property tax purposes. For income tax purposes, your mother should transfer the property into a living trust with you as the beneficiary when she passes away. That way she can keep the tax benefits of claiming the property as her primary residence, with income exclusion if she sells the property up to $250,000, deduction of property taxes, and deduction of interest on the mortgage. Also, when you eventually take ownership of the property when she passes then you will have a stepiup in basis to the fair market value of the property at the time of your mother's passing. All of these tax benefits will be lost if she transfers the property now.... Read More

Your first step in this situation should be to try to workout a settlement with the co-owner of the house. If that doesn't work, your second step would be to have an attorney write her a letter asserting your rights. Only if that doesn't work, your third step would be to file a partition action that requests the court to order that the property be sold and that the proceeds be divided amongst the co-owners. In the partition action, one of the co-owners can purchase the property from the other co-owner. A partition action is a matter of right between co-owners and you do not have to have a reason or show the court anything in order to request partition. Since she has stopped making payments, you should also request an accounting so that the court can determine if any monies are owed between the co-owners. This accounting would be offset with the proceeds of the sale of the property.... Read More

In this situation, you should file a quiet title action requesting that the court determine the title to the property. The quitclaim deed that you signed over to your sister does not have to be recorded in order to be valid and can be raised by your sister as a defense to any partition action. Along with the quiet title action, you can also sue for declaratory relief, accounting, and a partition action. You are required to bring all your causes of action against the defendant at the same time.... Read More

An escrow agent is a neutral third-party who is an agent of both the seller and the buyer. The escrow agent can only act with written instructions from both the seller and the buyer. In general, the escrow agent collects the deed from the seller and the money from the buyer and does not complete the transaction by recording the deed until all the conditions of the escrow are met. You will not be paid as soon as you sign the deed. You have to wait until the escrow closes and the deed is recorded for funds to be dispersed according to the escrow instructions. If after the escrow closes you do not get paid, then you may have recourse against the escrow agent.       ... Read More