California Real Estate Legal Questions

If there no agreement between the co-tenants, then you can file a partition action which will involve a sale of the property and distribution of the proceeds.  Your situation appears to be someone unusual due to the statement that you built a home on the property, presumably with your funds. You should have an equitable claim to the value of the improvements.    ... Read More

It really depends on the language of the guaranty, but in my experience, most such guaranties say that the guarantor remains liable until the the lease is terminated and the tenant has returned the property to the owner. Take a look at what the written guaranty itself says. Don't be surprised if it says your brother-in-law is still liable. Dana Sack  ... Read More

Take a look at the language in your lease. Some leases say notices, including rent payments, are effective upon delivery or receipt. Some say they are effective upon mailing. In the absence of language in the lease, then the rent is "paid" when it is delivered, not when you send it and not when the landlord gets around to going to the mail drop to pick up his mail. There is no statutory or common law late fee. If it's allowed in the lease, then the landlord cannot charge one. Whatever the lease says, that's what applies. Most late charges don't apply until the 5th or 10th day of the month. 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 California, if you don't pay the real property taxes, after 5 years, the county will put the property up for public sale. It might not happen quite that fast, but eventually. What property in California is worth only $10,000.00? In California, since 1975, the assessed value for determining property taxes can only increase 1% per year, until the property is sold. The assessed value on the property tax bills says nothing about the current market value of the property. If you and your aunt have owned it for 41 years, it might be worth a lot more. Check Zillow. Call a title company's customer service desk and ask for some comparable sales data. If you hired me, that's where I would start. Regarding finding the last two owners, have you hired a professional to look for them? As an attorney, I subscribe to some databases to help me find witnesses. A good private detective will have more ways to search for them. In court, the judge won't let us serve a lawsuit on a defendant by publishing it in the newspaoer, because we can't find someone, without a declaration under penalty of perjury from a licensed private detective, describing his training and experience and listing the sources he searched. That's what I would do, if you hired me. Once you find them, one of the neighbors might pay you a few bucks for it, even if it's not worth much, just to keep some lunatic from getting control of it and making trouble. Dana Sack... Read More

A transfer of a portion of a leased premises is a sublease, not an assignment. Whether or not you can sublease a portion of the leased premises depends entirely on what it says in the lease agreement. Most commercial leases require the tenant to obtain the prior written consent of the landlord to any assignment or sublease. Failure to do so is a breach and can result in termination, eviction and a lawsuit to make the tenant pay the rent for the rest of the lease term. One advantage of a sublease over an assignment is that under a sublease, the tenant still has the right to occupy the premises and cure any breach of the lease by the subtenant. For example, if the subtenant disappears, the tenant can resume using the space for a money-making purpose or sublease to a new subtenant. If the subtenant causes damage to the premises, the tenant can repair the damage and control the quality and cost of the repairs. Under as assignment, the tenant is still liable for the unpaid rent, but cannot re-occupy the premises, and the landlord performs the repairs, and does not care how much they cost, because he's going to get reimbursed by the tenant. Please carefully read the lease. It's all in there. Dana Sack  ... Read More

In California, almost every lender uses a deed-of-trust, not a mortgage. The lien of the deed-of-trust or mortgage stays on the property until it is paid off or released. The transfer by the owner of the property does not cancel or remove the lien of the deed-of-trust or mortgage. If payments aren't made, the lender's first remedy is to foreclose on the property. Under all most all deeds-of-trust, this can be accomplished by mailing and recording a notice of default, and then after 90 days, recording and mailing a notice of sale, which states the date, time and place of the auction, and then conducting a foreclosure auction.  Bankruptcy can slow down such a foreclosure sale, but only as long as the lender lets it. There is a very fast court procedure the lender can use to ask the court to let the foreclosure continue. Dana Sack  ... Read More

Please go back to your divorce attorney and ask him to file a motion requesting an order that your ex refi the home. If you are a named borrower on only a first deed of trust on a single family home (i.e. not a second deed of trust or home equity line of credit (HELOC), then even though you are technically still one of the borrowers, if your ex and son failed to make the payments, that lender's one and only remedy is to take the property. The lender cannot come after you to collect any part of the loan. Therefore, your credit score does not accurately reflect your true credit risk. A good loan broker should be able to explain this to a lender that is not totally automated. The poor credit score will be a problem, but a good lender and loan broker should be able to figure it out. Dana Sack  ... Read More

You will need a lawyer.  If it were any other kind of easement, I would tell you to tender the dispute to your title company. Unfortunately, the title insurance you got when you purchased the property 30 years ago, probably excludes water rights. You should still check your title policy, but I am not confident that it will cover this dispute. Next, a lawyer could send a couple of letters to the city attorney, detailing the evidence in support of your property's right to use the well. If that didn't work, then you would need to sue. That's one of the reasons to have a lawyer send the letter. It will demonstrate to the city that an attorney has looked at the matter, determined that you have a good case, and is ready to sue. This will be an expensive case to take to court. Probably $20,000.00 to get it to where the city might settle, and more than $50,000.00 if you actually have a trial. Do you really need the well?  Dana Sack  ... Read More

If you were my client, I would advise you to post and mail two Notices of Abandonment as allowed by the Civil Code, one for the premises and one for the contents. There is a two week waiting period after the Notices are posted and mailed. The rental value of the apartment is probably more than all of the contents and more than the cost of the following procedure. In order to get the apartment ready for re-renting as soon as possible, you could have a bonded moving company move everything in the apartment to a storage unit, and at the end of the two weeks have the storage unit vacated and the contents taken to the dump. That way, if the family chose to go through the stuff looking for valuables or mementos, they could still do so. If you do this, have the movers take everything, even what to any reasonable person appears to be trash or garbage. And take pictures of everything and make an inventory. You don't need to count the socks and forks, but the more detail the better.  Don't sign a new lease for the apartment or send the contents to the dump until the expiration of the two weeks. Since you'll have to rent the storage space for a month, you might as well wait three weeks. 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 look at the first deed out of your specific unit from the original developer. If that deed assigned a specific parking space to your unit, then the HOA cannot change it without your prior written consent. It is more common for all the parking spaces to be common area, and for the CC&Rs to provide the mechanism for assigning them. Most commonly, that is for the HOA Board to assign them. Some CC&Rs will specify one space or two spaces per unit. If there are less spaces than units, the CC&Rs might specify which specific units are not entitled to parking spaces. You have to look at BOTH the CC&Rs and the first deed out of your unit. 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

This is why sellers need to use a licensed real estate broker or a licensed attorney when selling real estate. You have a contract, but you don't know exactly what the terms are. Most of the terms are whatever is in the escrow instructions you and the buyer signed. However, the buyer is in a position to allege almost any terms the buyer (or the buyer's attorney) chooses to make up. For example, they could allege that you agreed that they could take as much time as they needed to get the loan, as long as they were doing what they could.  Even if you had a contract, enforcing it in court generally takes at least a year. If you had a contract with an arbitration clause, it might take a couple of months, but I once prolonged an arbitration for nearly a year. Many parties to home purchase contracts choose to initial the arbitration clause in all the most common agreement forms used by brokers. You need an attorney to help persuade the buyers to cancel the contract, in writing, so that you can move on to the next buyer. Don't sign up a new buyer until after you get something in writing signed by the buyer canceling his or her claim against the property. 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

Yes, negative publicity is available to you, but it is unlikely to do any good. The HOA Board won't care. Better get statements of support from "many residents" in advance. When the controversy is joined, you might have few if any supporters. Most HOAs allow owners ot use common rooms at no charge if they clean it up or might charge a small cleaning fee. No rent. If an owner is using a common room for the owner's own religious or political meeting, there is no additional fee. That means that the HOA assessments paid by each owner are paying for the general maintenance, utilities and reserve fund contributions for that use of the common room for a religious or political meeting. Some members may object to their dues money being used to support a religious message or political point of view with which they disagree. Once this subject starts getting discussed, you might find that you have less support than you think. Try a petition. If you get enough signatures, that might persuade the HOA Board to change the policy. If you get a lot of support and the Board does not change the policy, then elect a new Board. The HOA Board has a tremendous amount of discretion in enacting such rules or making such decisions. 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 outcome depends on several facts. Was there an actual completed foreclosure sale, by a court proceeding or a public auction? If not, then the transfer from the prior owner to the new owner or to the lender and then to the new owner, did not cancel the lease. You are entitled to stay unti the end of your lease. If a full foreclosure sale was actually completed, then it depends on which agreement had priority, your lease or the lender's loan. If your lease was signed and you started occupying the unit before the loan was recorded, then you have priority and the lease survives. If the loan came first, then you lose. If you were asked to subordinate to the loan, then you lose, unless the subordination agreement included a provision that the lender would recognize and comply with your lease. Some tenants will not sign a subordination agreement unless includes such a provision recognizing the lease, but sometimes tenants don't know that they can and should insist on it. The Ellis Act, which gives an owner the right to move in, is a way to avoid rent control. It does not cancel your lease. His daughter has to wait until your lease expires, unless it did not survive the foreclosure, as discussed above. Regarding the deposit, if it's less than $10,000.00, you can sue for it in small claims court. If you agree to leave early, you could insist on some free rent and return of the deposit as a condition to be paid in order to induce you to move out early. Such relocation agreements are common. Get it in writing. 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?  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

Yes, your HOA can and should insiste that you use a properly licensed contractor to do that kind of work. You are connecting the tub, toilet and sink to commonly owned building plumbing. The HOA Board has a fiduciary duty to all the owners to make sure that the work is done properly. That means, at the very least, a licensed plumber. The plumber's reputation and history of complaints should also be investigated. If the HOA were my client, I would insist on references, and I would call them. If the plumber or any of his or her workers are injured on the job, your insurance won't cover it, because unlicensed contractors and their employees are automatically your personal employees. There is a Labor Code statute that imposes this. It is intended as a punishment against property owners who hire unlicensed contractors. As your personal employees, you are required by the Labor Code to carry Workers Compensation insurance on them. Neither the contractor nor you can obtain such insurance, because the contractor is unlicensed. Since you don't have Workers Compensation insurance, you are presumed to have been negligent in connection with the injury, and there is no limit on the damages the injured worker can claim. Presumed negligent, means that you will have the burden of proving that you were not negligent and that all requires safety procedures were followed. Since the workers were supposed to be covered by Workers Compensation insurance, your liability insurance won't cover injuries to any of them. Getting a license is not that hard. If your contractor doesn't have a license, there is probably a good reason why the State of California doesn't want him working on your home. The few extra dollars in requires are well worth it. 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.  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, 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

Mr. Brisgel, First, you should have a real estate attorney familiar with CC&Rs and the Davis-Stirling Act, study your CC&Rs. If you have any rights, they are there. You probably don't, but you should have a lawyer check, especially the Article on design review. Unless there is something very specific in the CC&Rs, the law gives HOA Boards very broad discretion to make decisions like maintenance and painting. Your only recourse may be to recall the current board and elect a new board, get the new board to repaint, and probably enact a special assessment to pay for it. Your HOA's reserve budget is very tight and specific. There isn't money for repainting.  Unless there is something very strong and special in your CC&Rs, which the HOA Board breached, it is very unlikely that the HOA can get the money for the repainting back from the current Board. If you decide to attempt a recall election, please hire an attorney to show you how to conduct it. The Davis-Stirling Act and the Mutual Benefit Corporation Law include very detailed procedures for such elections. Unless your CC&Rs are very up-to-date, they probably do not contain all the current requirements for a valid recall election and election of substitute directors. The process is not difficult. It's just very detailed and specific, and it is probably different than you would ordinarily expect. 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

And if he doesn't show up at the arbitration, the arbitrator can conduct the hearing without the seller and issue an award. Then you can have the award perfected as a judgment, and have an attorney in Nevada enforce that judgment by having it made a Nevada judgment and attaching the seller's assets there. The attorney fees and expenses get added to what the seller owes you. It will cost you some money and it will take awhile, but you should be able to collect it all.  ... Read More

Yes, you can sue the seller, the contractor, or both, and in small claims court without lawyers, up to $10,000.00. Nolo Press has a good book on how to win in small claims court, step-by-step. Follow the instructions, and you'll have no problem. The small claims court judge will have a dozen cases on the calendar. So quick and efficient is important. He doesn't need to hear about your search for a home, the offers that were not accepted, etc. Make a list of the points you need to make, and have your exhibits for each point clipped together separately. That way, before you discuss each point, you can hand the judge the exhibits for that point, or if he asks for all the exhibits at once, you can tell him which numbered or lettered bundle to look at for the point you are about to discuss. You'll need 3 sets. One for the judge, one for the other side, and one for you. If you sue both the seller and the contractor, then you'll need 4 sets. Good luck. Dana Sack 510-286-2200  ... Read More

You need a business litigation attorney or law firm with knowledge and experience in real estate law and procedure. I am such a lawyer and we are such a law firm. Please take a look at my resumé on our website at www.sackrosendin.com. The first thing to do is to gather all your records on the bar, building, decorating and furnisthing the bar, and all your expenses getting ready to open, and all your records on the fire, and take them to an attorney. Have you tendered your claim to your insurance company and your landlord's insurance company? Have you tendered the claim to the business you believe caused the fire and its insurance company? That is the first thing we would do for you. We do not handle such cases on a contingent fee basis. That is where the attorney does not get paid unless and until a settlement or judgment is collected. This shifts the cost of paying for the attorney time and expenses, and the risk of losing, to the attorney. If the lawsuit is successful, the attorney earns at least 2-3 times more than if the client paid for the attorney's work monthly for the work performed. This shifts both the cost of the lawsuit and the risk of losing to the client. We charge $300.00 per hour and are paid by our clients monthly for the work performed duing the previous month. We would want a $5000.00 deposit before starting, which would be applied to your last invoice at the end of the case, and any remaining balance would be returned to you immediately. If you would like to discuss your case or set up an appointment, please call me at 510-286-2200. Dana Sack  ... Read More

I suggest that you have an experienced real estate attorney examine the title report you have received which shows this problem, the deed to you in 1996, your deed of trust to your lender in 1996, and this 2002 deed of trust by the sellers. Maybe it's not as big a problem as someone is trying to make of it.   If the sellers are dead, then unless there was a court probate of their estates, there is no way to know who inherited that deed of trust and is authorized to undo it. Many people have revocable living trusts specifically to avoid probate. If the sellers did not own any real estate when they passed away, and the estate was not large, there might not have been any probate case. So asking you to do anything to remove this cloud might be asking the impossible. Dana Sack 510-286-2200  ... Read More

Take a look at Civic Code §5725. It specifically distinguishes between penalties covered by §5850 and assessments to reimburse the HOA for repair of damage. They are asking you to pay for the repair of the damage you or your mover did. Elevator repairs are very expensive. The technicians are highly trained and skilled, and the insurance carried by the company is very expensive. If you or your movers broke the elevator and it cost $1000.00 to repair it, then you owe that money to the HOA. If you didn't pay it, your neighbors do. The HOA can add late charges, interest, and the fees and expenses of its attorney. If you don't pay it off right away, just reviewing the CC&Rs, the elevator bill, and the correspondence, and recording the lien, might cost nearly $1000.00. Foreclosing could cost more. If you take this to court, the attorney fees and expenses will just keep going up. These disputes get way out of control very fast, and the homeowner almost never prevails. 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 law only requires you to give the tenant 3 days notice, and then you can sue to evict the tenant. 30 days would be more customary and more reasonable. Evictions are very technical. In order to protect tenants from being evicted wrongfully, there are a lot of due process protections, and judges enforce them very strictly. Even lawyers have trouble getting them all perfect. Please have a real estate lawyer prepare the notice and arrangre for its delivery to the tenant. Dana Sack 510-286-2200  ... Read More

The HOA Board of Directors is given very broad discretion in deciding how to maintain the property. You should have an attorney who is familiar with CC&Rs and the Davis Stirling Act, to see whether you have any legal recourse. Good for you to have done the right thing with your own home. It would have been nice if, having seen how much better your unit looks, the other owners had followed your example. Dana Sack 510-286-2200... Read More