California Real Estate Legal Questions

When is your next Board election? Convince some people you trust to run to be on the Board. The owners' best protection against bad board members is to elect good ones. It's not too soon to start recruiting and campaigning. Same for campaigning to remove any bad board members. Convince owners that one or more of them need to be removed, before you start an open public campaign to do so. Board meetings must be conducted live. They cannot be conducted by email or in writing. The board can approve resolutions by unanimous written consent, but such consent must be unanimous. If anyone wants to attend by phone, the system must allow everyone at the meeting to hear and speak to everyone on the phone, and must allow everyone on the phone to hear and speak to everyone at the meeting and everyone ele how is on the phone. Notice of the time and place of the meeting must be given. There must be a physical place, even if only one person and a phone are there, and it must be a place where everyone may attend. The place cannot be someone's unit with a phone, and not allow others to attend there. All business and decisions must be conducted at open meetings or by unanimous consent. The law does not allow any other procedures, except closed meetings regarding personnel issues, confidential negotiations and litigation, but even closed meetings mus be open to every director. If the other Board members are not complying, you might want to pay a lawyer to attend your next meeting. Preparing for it, getting there, and attending, will probably cost at least $1000.00. Dana Sack  ... Read More

It is possible that your own insurance is supposed to pay you for the reparis and cleanup, and it is up to that insurance company to try to collect from the HOA and its insurance company, or give up. Don't give up your claim, unless they give you a written explanation of why the claim is not covered. Then you might send  your policy, the claim and the insurance company's rejection letter, to an attorney to make the inxurance company is not wrong. Insurance coverage is very complicated. Just because the insurance company's explanation of why it is not paying might sound reasonable, it is probably not correct. Don't get in a fight with the HOA, unless there is a lot of money involved and an attorney who knows about HOA law reviews the situation and the documents and advises you that you are right. These are your neighbors. You have to live with them. They can make your life in the property unpleasant. At some point you may want to ask them for something, and you don't want to have burned them over something less important. Do you know any of the members of the HOA's Board of Directors, or do any of them live near you? I would start by telling your story to one or more of the directors. If none of them will help, your CC&Rs have a procedure that allows you to have the Board appoint a boardmember to meet with you, hear your concern and try to work it out, and report back to the Board. This procedure is mandatory. It is required by law. If there is no such procedure described in your CC&Rs, they are required to do it, anyway. Civil Code §5910 and §5915. Your CC&Rs may also require third-party mediation and even arbitration. Check your CC&Rs to find out.  Start sending signed letters, not emails, and confirm conversations in signed letters, not emails. You can still scan them and email them as attachments, in order to get them to the recipients faster. Letters will make the Board suspect that you are setting them up for a lawsuit or even that there is a lawyer lurking in the background. People have become so casual about emails, they sometimes just brush them off. A letter signals a higher level of confrontation and is less likely to be ignored. Good luck. Dana Sack  ... Read More

That depends on the contract and counter-offer and the term of the counter-offer which is the issue. Some terms terminate at close of escrow automatically, but others can survive. 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

Real estate law and real estate contracts are complicated. I would recommend spending the money for the hour of the time of an experienced real estate attorney to review what happened, the contracts, addenda, correspondence and any other documents, to make sure your claim is worth pursuing. The attorney will also be able to suggest an appropriate mediator. Not every mediator understands the give-and-take of a real estate closing. Some very able mediators may be too expensive for the amount of your claim. In conclusion, your attorney should make the demand for mediaton. 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

If they are working for a general contractor, then 90 days for employees, vendors and subcontractors, unless a Notice of Completion is recorded, and then it is 30 days. 90 days for the general contractor and anyone else who has a contract with the owner directly, unless a Notice of Completion is recorded, and then it is 60 days. But these dates can be waived or extended. So a title company will not rely on just the expiration of 30, 60 or 90 days to insure title clear of such liens. Fortunately, they will usually insure in reliance on an indemnity from the seller or borrower. 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

The HOA and the CC&Rs provide you and each of the other owners many very valuable protections. All of you need to revive this HOA. For example, California buildings are, as a general rule, designed to last for 30 years. In order to last longer, various parts need to be repaired and replaced from time-to-time. Roof, paint, and caulk around windows, for example. Pipes and wires wear out. One of the most important things the HOA does is collect reserves for such repairs and replacements. Another is to maintain value and keep peace among the owners by enforcing rules. Any 2 or 3 of the owners can call a meeting of the owners to elect a new board of directors. The process is a little more complicated than that. First you call a meeting. At the first meeting, you set a date for the submission of nominations for the board. Then you hold that meeting and establish nominations. Then you set a new date for the election. Then double-blind ballots must be mailed to each owner. HOA elections are required to be done by secret ballot. Then you have a meeting to count the ballots. A person who is not an owner or candidate must count the ballots. A travelling notary is often hired to do this. Then your board can elect officers, and your officers can deal with the bank.  Meanwhile, every couple of years, the legislature revises the Davis-Stirling Act, which governs HOAs, which requires amendments to your CC&Rs and Bylaws. If your governing documents are more than three years old, then they need updating. If they are than old, then you cannot rely on the procedures descrived in your CC&Rs and Bylaws. You'll need to find out what the current rules and procedures are. You need a lawyer who is an expert in this area. Dana Sack  ... Read More

This is a complicated area of law, because there are several conflicting rules, each based on a different characterization of facts which can be very familiar. You will need to talk to an experienced real estate attorney who will need to ask you about all the potential situations which might work for you or against you. For example, a defense to a claim of adverse possession is that the owner on the county real estate records consented to the use of the contested land. On the other hand, the doctrine of agreed boundaries requires proof that the owners intentionally agreed that the fence would be the agreed boundary line. How is that different from consent? You and your neighbor might look at the same facts and come to opposite conclusions. And there are several other legal theories which might be applicable. The value of the land is rarely worth the cost of a lawsuit. Often a compromise can be worked out. For example, maybe you and your heirs get to continue to use the disputed land, but if the fence ever needs to be replaced or if you sell the property to a non-family third party, then your right to use the disputed area would end. Where is the property and what is the disputed area used for? Dana Sack  ... Read More

You are going to need to talk to a lawyer and be prepared to provide a lot more details. The first one is when is the foreclosure sale scheduled? The second one is do you have the money to pay the amount claimed by the lender? If not, how soon can you get it? How much could you pay right now? There are 4 ways to stop a foreclosure sale: 1. Pay what is owed. 2. Make a deal with the lender to pay some now and pay the rest according to an agreed schedule. 3. Sue to stop the sale. 4. File bankruptcy. Choices 3 and 4 will only slow the process down, and not for very long. The first thing either court will ask is whether you can pay what is owed and when. 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

Lawsuits are expensive, and there is a substantial risk that you might be awarded only a small judgment or nothing at all. If you lose, your contract probably provides that the loser has to reimburse the winner for her or his legal fees. If you lost, you could end up paying the other side's attorney fees and expenses. You or your own agent or your own attorney needs to go to the city and review the permit history for the property. It does not sound like anyone knows whether or not there really is a problem or not. It sounds like the second bathroom might be legal and that there might be permits. You should find out for sure. If there is a problem, then talk to the city about what it would take to legalize whatever is illegal. It might not be that hard or expensive enough to even fight over. Once you know how much it is likely to cost, you might be able to negotiate a corresponding reduction in the purchase price. Even if you went to court, your damages are the difference between the contract price and what the house would sell for if the illegal bathroom had been disclosed. In a seller's market like now, where there are multiple bids for every property and bidders who have lost out on prior offers, there might be buyers who would overlook this problem and buy the property anyway, with no reduction of the price. If the seller proved that at trial, you would lose. As discussed above, that would mean you would owe the attorney fees. You will need more facts before you will know what to 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. Dana Sack... Read More

1. There is a time deadline for filing an answer. It will take your lawyer a day or two to prepare it, obtain your signature on it, which is required, and get it filed. Missing the deadline can be cured, but it's expensive. Don't miss the deadline. 2. Quiet title is an agent legal theory. That means there are a lot of rules and exceptions that apply. You need a lawyer. 3. All litigation is complicated. The courts are trying to process a large volume of cases and at the same time give each case the careful attention required in order to achieve a fair and honest result. So there are many many rules and procedures. Even lawyers who spent three years studying the rules, took a three day test, and have practiced for years, still make occassional mistakes. A person without that training and experience and without a lawyer on her or his side, is at risk. You need a lawyer. I am a real estate lawyer. I am handling two quiet title matters right now. You need an experienced real estate lawyer.  Dana Sack  ... Read More

No. In California, turning off the utilities is treated as a form of eviction, just like changing the locks. Even if the tenant has not paid the rent or reimbursed you for utilities (if that is required by the lease), the only legal way to evict the tenants is to serve them with a 3-day notice and then sue them for eviction. After you win your case, then you get a writ of execution from the the court, take that to the sheriff, and then a week or two later, the sheriff evicts them. Most eviction cases settle before that. 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

Call my friend Rob Shroder at Shroder Insurance in Walnut Creek 925-934-6789. If even he can't help, then try Wex Wekselblatt at 415-397-0800. He can insure anything. 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 her share might be is a complicated question. It will require an inquiry into all your statements to each other and others about the ownership of the house, and a complete accounting of everything either of you spent on the house. Meanwhile, if she turns out to be entitled to a share of the value of the house, then that value keeps going up and up. The sooner you cash her out, the better. The solution is to refinance with some cash out to pay her off. And that's all she wants. She wants to be cashed out. Get her to tell you how much she wants. If the number is unreasonable, then try to negotiate her down. If the number is reasonable, but you can't afford to pay it all to her right now, offer her as much as you can right now and some amount per month until it's paid in full. But don't pay any of it until you have an agreement in writing, prepared and approved by an attorney.  As long as she is on the loan for this property, she might have difficulty buying another property. Many lenders will include the debt on this property in determining her net worth. With this loan plus the loan on a home she wants to buy, she might not have enough net worth to qualify for a home loan of her own.  Dana Sack  ... Read More

Under California's anti-deficiency laws, if the owner stops making the loan payments, the lender forecloses, and property is sold for less than what is owed on the loan, the lender cannot sue the borrower for the shortfall. It cannot sue for the deficiency. Therefore, the fact that you are named as one of the borrowers on the loan does not mean that the lender can sue you for the loan. Home loans in California are non-recourse loans. A good mortgage broker should be able to find a lender who will take this into account and not penalize you for a loan on a home which you no longer own. Dana Sack  ... Read More

The lien is not a problem for you, unless and until you want to sell or refinance your property. So you are not in a hurry. If the supplier does not sue within 90 days after recording the lien, the lien will expire.  You need to hear the general contractor's side of the story. He might have legitimate defenses to the supplier's claim. You don't want to pay the supplier, if he didn't supply the materials or he was paid what the contractor owed him, and the supplier is trying to claim more than was agreed, you don't want to be the one deciding their dispute. If the supplier sues, you can sue the contractor in the same lawsuit. You can also send both lawsuits to the Contractors State License Board for investigation. If either of them has done this before, the CSLB might take an interest. Dana Sack  ... Read More

Partition sales do not produce the best price for the sellers. Almost always, I can use this to persuade the reluctant party to go along with the sale, rather than ending up with a lower price and paying expensive legal fees.  With interest rates so low, maybe she can buy out your client's interest. Dana Sack  ... Read More

Your mother needs to meet with an attorney, by herself, tell that attorney what she wants done, and have that attorney prepare the appropriate paperwork to make sure that your mother's wishes are respected. Dueling children getting her to sign different deeds and wills is elder abuse and despicable. All of her property, including the 1/2 interest in the house which she gave you, should all be put into a revocable living trust. She can change it whenever she wants to. She can take property out of it and add property to it. She can even cancel it any time she wants to. It will keep the family out of court when she passes away.  Your question raises many questions. For example, was the deed of an interest in the house to you, ever recorded? Did she give you that deed? What kind of interest was transferred by that deed, if any? Notarizing a will does not make it valid. Was the will prepared correctly? And of course, what does it say? Yes, if a deed of some percentage interest in teh home has been conveyed to you on the county real estate records, then that percentage interest no longer belongs to your mother and would not be affected by her will. After she passes, if different people end up owning shares of the home, any of them can force the sale of the home by a petition for partition.  Your mother should hire a lawyer to make sure that whatever she wants, that the paperwork is set up to fulfill her wishes. Dana Sack  ... Read More

New Mexico statutes are not applicable in California. In California, the state Constitution places responsibility for making sure that suppliers and subcontractors are paid by the general contractor, on the property owner. In California, a subcontractor or supplier does not need to record or file its lien until after completion of the work. From the language you quoted, it sounds like that part of the law might be different in New Mexico. Enforcing such a lien in California is subject to several technical requirements. Contractors and vendors often make mistakes. In such cases, it is often possible to get an expedited hearing on removing the lien from th e title to your property. If there is a lot of money involved, you should see a lawyer. This is a very technical area of law. Dana Sack    ... Read More

Do not ignore the HOA. It has the power to impose fines and to go to court to either collect the fines or to enforce the HOA's CC&Rs and rules. If it wins, the HOA is entitled to reimbursement for all of its legal fees. These legal fees can get very expensive very fast. Until you work this out, I would recommend complying, so that you don't incur monetary fines or potential liability for the HOA's legal fees.  You need to have a lawyer familiar with HOAs and CC&Rs review your CC&Rs, any rules and any other governing documents. Provided that they do not violate the CC&Rs, the law grants HOA Boards of Directors very very broad discretion to make decisions. On the other hand, there might be language in the governing documents which would not allow the Board to discriminate between cars, pick-up trucks, and vans parked in driveways on the owner's private property. A lawyer familiar with CC&Rs and the state laws regarding CC&Rs would need to review your governing documents very carefully. The HOA Board must also treat everyone the same.  Your best protection against an unreasonably intrusive Board is to elect reasonable Board members. Too many HOA members don't want to spend the time and energy to be involved with their HOA. The result is that many Board members select themselves, because they are the only ones who volunteer. Too often, they volunteer, because they have an agenda which will interfere with other people. The only protection against them is for good people to volunteer and vote out the bad members. Dana Sack  ... Read More

You need a lawyer. No, the owner does not have to occupy a condo unit in order for the HOA's fire insurance to provide coverage. You need to have someone familiar with real estate and condominium sales and financing, review your purchase agreement and your loan documents. The transaction you described does not sound right. If title is still in the name of the seller, you might be vulnerable to losing all the money you have invested and your right to live there. A lawyer should check it all out. You need to have someone famiiliar with HOAs and CC&Rs review your CC&Rs and other governing documents. I have never heard of a condominium HOA where the owners bought their fire insurance separately. If a fire burned several units, insurance on one unit is not going to pay to rebuild other units or common area. If an upper unit is insured and a lower unit is not, and the owner of the lower unit doesn't have cash to pay for repairs, the upper unit cannot be repaired without first repairing the structure which will hold it up. Most homeowners pay at least half the purchase price for their homes by borrowing money from a bank. The banks always require fire insurance. For condos, they always require insurance on the entire building. There must be fire insurance somewhere. The HOA's insurance covers the building and common area only. It does not cover the contents of your unit, including the kitchen appliances, the bathroom fixtures and all of your possessions. It does not cover the floor coverings and any wall coverings, e.g. linoleum, carpet, paint and wallpaper. There is a separate policy that the owner of an individual unit or a tenant can purchase, to cover contents. All occupants of condo units, owners and tenants, should have such coverage. Dana Sack  ... Read More

No, you cannot turn off the utilities. The law treats that the same as changing the locks or having large goons physically remove the tenants from the home.  You need to start the eviction process right now. If they have already spent the rent and utilities money for the last 2 months, they are never going to be able to dig themselves out of that hole. The eviction process takes at least 2 months, usually longer. Even if you win and get a judgment for the unpaid rent, utilities, and reimbursement for your legal fees and expenses, are you ever going to be able to collect them from these tenants? Evicition lawsuits are very technical. Since the tenants are going to lose their home and almost always are not represented by an attorney, the process and the judges will enforce every rule against the landlord. Any mistake can make you start the whole process all over again. Even lawyers make mistakes. Use an attorney with experience with evictions. Whenever a tenant is late with the rent, you need to have them formally served with a legal 3-day-notice-to-pay-rent-or-quit. You are not doing them any favor by letting them get further behind. Dana Sack... Read More