California Real Estate Legal Questions

You need to have a real estate lawyer review the title to the property, the appearance of the fence and the boundary, both the legal boundary and the lease boundary, and the two leases. There are a lot of legal principles in play. There might be loopholes you could use to undo this unusual arrangement. It wlll probaby be less expensive if you engage a real estate lawyer who already is familiar with the real estate law regarding leases, boundaries, title and real estate contracts. I am such an attorney.  Dana Sack 510-286-2200... Read More

You need to hire an attorney. It would probably be less expensive if you hired a lawyer who is already familiar with the real estate law and loan documents and foreclosure procedures, law and documents. I am such a lawyer. If the summons was delivered in person, then you have 30 days from then to file and mail your response. Dana Sack 510-286-2200  ... Read More

Your HOA maintains the common area. In a detached home subdivision, the common area may include landscaped areas, parks, a shared rec center, even pool. In a condominium, it includes all parts of the building outside of the owners individual units, including the roof, walls, windows, hallways, plumbing and electrical outside hte individual units. Each owner pays her or his proportionate share of the cost of maintaining the common area plus reserves to accumulate funds for large replacements which will be required as parts of the common area wear out. The owners proportionate shares are referred to as assessments. All of this is fully explianed in the CC&Rs and the DRE Final Public Report, which you received when you bought your home. The Davis Stirling Act imposes many requirements on CC&Rs and how HOAs are governed. The Act is amended by the state legislature almost every year. If your HOA's CC&Rs and other governing documents are not completely up-to-date, there might be requirements that are not in your CC&Rs. Dana Sack 510-286-2200  ... Read More

You are going to need to have a lawyer read the CC&Rs, the condo plan, and the correspondence with the HOA and the HOA Board. For example, the tree could be located on your property, on the HOA's common area, or on exclusive use common area that only your property uses. If it's on your property, then the tree is yours and you're responsible for it. Why do they want it cut down? If it's on the common area, then it's the HOA's responsibility. If it's on exclusive use common area, the CC&Rs could go either way.  The CC&Rs might say nothing about the trees. Your are entitled to several levels of mandatory negotiation, mediation and arbitration of the disagreement. Check your CC&Rs. Don't ignore the HOA or fight with them. HOA Boards are granted a lot of discretion, the power to impose assessments and fines, and the power to enforce them by selling your home and evicting you. They also get to add the HOA's attorney's fees and expenses, which could easilty exceed the value of the tree and the cost of removing or replacing it. Dana Sack  ... Read More

Yes, they can even sell the house with you still in it.  They must give you 1-2 days written notice each time a real estate agent is going to come through the house to show it to prospective buyers and lenders. There's going to be a lot of that. You may want to move out as soon as you can find a new home. They still have to give you 30 days written notice of the rent increase. The rent increase does not have to start on the first day of a month, but it must be at least 30 days after the notice is delivered to you. If you have a written lease, check it. These rules can be altered by the lease. Dana Sack  ... Read More

The customary way would be to record a grant deed of your interest to your parents. The Recorder's Office will also need a Preliminary Change of Ownership Report for the County Assessor. On the first page, there is a box you can check to indicate thatt the value of the property for purposes of determining the annual property tax, should not be changed, because it is a transfer between a parent and a child. You will also need to state that on the deed, along with the applicable Revenue & Taxation Code section. You will have to pay a documentary transfer tax on your percentage share of the current value of the property minus any debt secured by it. In most places, that tax is onle $1.10 per thousand dollars of net value. A few cities have city transfer taxes of $10-$15 per thousand. If the property is in one of those cities, if your percentage share is not shown on the prior grant deed to you, then you might want to assert that you had less than a 1/3 interest. If there is a deed of trust on the property, you should check that the transfer will not breach the deed of trust nor the loan it secures. If you wanted me to prepare the deed and pcor, and get the deed recorded, I would want $200.00 plus the recording fees and transfer taxes. Reviewing the note and deed of trust would be another $100.00. Dana Sack  ... Read More

It is possible there was a mistake in the document preparation that no one caught, if you are on the loan but not on the title to the house.  Assuming your wife and you are in agreement, the simple answer here is to create and sign a new deed.  Contact escrow and ask if there was a mistake made and if so can they correct it for free.  If not, please contact me and I can help you figure out what to do. ... Read More

There are at least ten issues and questions you need to deal with, besides the five you have raised. Even the questions you did ask do not have simple yes-or-no answers. There are pros and cons for each one. A day care center has all kinds of impacts on your property and your neighbors. The use and the wear-and-tear on your property are much more intense. You should be paid compensation for that cost to you. The provisions of your lease or rental agreement regarding maintenance, repairs and replacements, inspections by the landlord, and insurance, need to cover this special use. This is a use that belongs in a commercial space, not a home. Your tenant wants to do it in your house, because rents for single family homes for residential use are substantially lower than commercial rents. But the reason commercial rents are higher is, in part, because of the more intense use and the greater likelihood of third-party claims for personal injury and damage to their property. You're going to have all those expenses and risks, and your rent should compensate you for them. You need to sit down with an attorney and go over all the circumstances.  Dana Sack  ... Read More

If you hired me, I would prepare the paperwork for General Electic to terminate the lien of the deed of trust and send it with a cover letter telling the story and asking for cooperation. It would be more effective if back up proof of payment were enclosed. For example, the last written statement you received from the lender stating the loan balance and copies of the canceled checks after that.  If they did not respond to the first couple of letter, next the letters would start threatening litigation and a claim for reimbursement of attorney fees pursuant to the note and deed of trust. If that didn't work, then we'd need to figure out which is going to be cheaper, the bond or the lawsuit. Dana Sack  ... Read More

If that's the right thing to do, then you just prepare a grant deed, attach a legal description of the property, get it notarized, fill out a preliminary change of ownership report, and take it to the county Recorder's office to record. However, there are lots of circumstances where that might be the wrong thing to do. You should go over all the circumstances with an attorney. For example, does the transferor plan to buy another home? The loan on this home will still show up on her credit report. She will still be liable on the loan, even after the transfer. Maybe you need to refinance in order to take her off title AND off the loan. Is she older and trying to avoid estate taxes? This would be the wrong way to do that. Please go contact a real estate attorney to discuss all the different issues involved. Dana Sack  ... Read More

I have a friend who specializes in this. I just got a quote for a client and the price is $7500.00. That includes updating your bylaws and your rules. That's not optional. There are lots of changes to the Davis-Stirling Act which make changes to your bylaws and rules mandatory. If you continue to follow your bylaws or rules, and the Davis-Stirling Act requires a different process, waht your HOA will have done may be invalid and unenforceable. On the other hand, some provisions allow the HOA to vary the procedure. Unless you want to hire an attorney every time to figure out which it is, you're better off having all three documents brought current. Contact me for that referral. Dana Sack  ... Read More

You definitely need to discuss this with an attorney. If the solution to your problem is to transfer one person's 1/3 interest to one of the other owners, then you just prepare a Grant Deed with the legal description, get it notarized, and then record it at the county recorder's office. However, that's probably the wrong thing to do. For example, if the person who is leaving plans to buy another home, the loan on this first home is going to continue to show on her credit report. The transferring owner is still liable on the loan. So maybe you need to refinance the house to take that person off the loan and the title. If the transferor is older and trying to avoid estate tax, that's wrong. There is no estate tax to worry about, unless her assets exceed her debts by more than $5,340,000.00, but if she gifts you the property, your tax basis will be her old low tax basis from when she bought her interest. If she gave it to you in her estate, then you would get a stepped-up basis to the value as of the date-of-death or six months later. Depending on the circumstances, there might be other issues to consider. Please contact an attorney. Dana Sack    ... Read More

Not likely. If you have the papers from when BOE "wrote off" the debt, maybe her attorney can find something she can use to persuade them to back off or at least negotiate. She might be able to negotiate some compromise, like writing off the penalties and interest.  Otherwise, she will have to pay off the debt in order to refinance or even sell her property. How much can you afford to pay montly to pay her back? Maybe you should offer her a note with monthly payments to reimburse her. Dana Sack  ... Read More

That is a really complicated question and will depend on a lot of facts. If the Deutsche BanK loan was recorded in the county real estate records before the lease was signed, and if the lender went through the full foreclosure process, then the foreclosure cancelled the lease.  If the lender took back a deed-in-lieu of foreclosure, then the lease survives. Even if there was a complete foreclosure sale, if the bank or anyone else has accepted the rent payments after the foreclosure sale, the occupants may argue that acceptance of the payments renewed or ratified the lease. It's not a great argument, but it could take a year or more of litigation to get a final determination. I suggest you negotiate a deal with them. They'll need first month's rent and the security deposit for a new place. You could start by offering that. Then add reimbursement of the cost of a moving company packing and moving their stuff. Getting them to move out early is worth as much as $21,600 to you (18 months x $1200.00). So you can afford to negotiate. An eviction action will start at costing you around $5000.00 and could easily get to $20,000.00 in attorney fees on that renewal and ratification issue. The lease probably has an attorney fees clause. If you lose, you pay both sides attorney fees. If you win, you might get a judgement to recover your attorney fees, but you might have trouble collecting it. They're renters. 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 cash is okay. The land is a bad idea. When you sell the land, you pay capital gains tax on the difference between the sale price and your tax basis. If your mother makes a gift to you of the land, then you get her low tax basis. If she makes the gift when she dies, then you get a stepped-up tax basis equal to the value of the land on either the date of death or the date six months later. Then if you immediately sell, there would be no capital gain and no capital gains tax. If your mother has owned the property a long time, her tax basis could be very low and produce a large capital gain, if she makes the gift while she is alive. If your mother and her spouse owned the property and her spouse recently died, then she got a stepped-up tax basis on his death. If the property has not gone up in value much since the death of her spouse, then she could make the gift now and if you sold the property, there would not be much capital gain. If you're going to hold the property, you might be better off letting her hold it and give it to you when she passes away with a further step-up in the tax basis. Your mother should have a revocable trust to avoid probate and put all her property, including this land, into the trust. Probate takes forever, is annoying, and costs too much. We set up such trusts, provide a pour-over will to cover any property not covered by the trust, convey one property into the trust, and provide you with blank copies of the California statutory powers of attorney for financial decisions and healthcare decisions if she is alive but unable to make such decisions, for $1500.00. If you appreciate this free advice, please remember to refer any of your friends who need legal advice or assistance. Referrals remain our best source of new business. Dana Sack    ... Read More

In order to answer this, a lawyer will need to review the CC&Rs and the Condomnium Plan or PUD Plan, and the grant deed to your unit. Even then, there might not be a clear answer. If there is not a clear answer, then it would be within the authority of the HOA Board to adopt a Rule or Regulation governing repairs to individual mailboxes and their locks. Your HOA probably has not done that. It is possible that after reading all those documents, a lawyer might determine that the mailboxes are common area. That means that repairs due to ordinary wear and tear are the responsibility of the HOA, but repairs required do to misuse or abuse by the owner would still be the owner's responsibility. It will cost you $250.00-$500.00 to have an experienced real estate attorney do that research. Those fees are NOT recoverable from the HOA. How much is replacing the lock going to cost? It's probably not worth getting into a war with the HOA Board over a bill that small. 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

1. You can deduct her share of the taxes from her share of income from the property. 2. If she collects the income from the property, you can sue for an accounting, and the court will award you a judgment for your proper shares, taking into account expenses like taxes where you have paid her share. 3. If the amount is less than $10,000.00, then you can sue in small claims court and avoid hiring an attorney. The downside of being a plaintiff in small claims court is that the plaintiff has no right to appeal the decision, but the defendant can and get a new trial in Superior Court with attorneys allowed. Still, if it's a strong and obvious case, it might be worth avoiding attorney fees. 4. The penalties and penalty interest for failing to pay property taxes are expensive. When the property taxes are 5 years past due, the county sells the property at a public auction for very little, because the buyer has to sue the prior owner to quiet title in order to get a title insurance company to insure any subsequent sale or loan secured by the property. Meanwhile, for one year, the prior owner has the right to buy the property back from the tax sale buyer for what he paid for it. As a result, the new buyer can't do much with the property for that year. If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need.   Dana Sack... Read More

As a co-owner of the property, you are responsible for your share of the expenses of the upkeep of the property, including the property taxes.  You are responsible for your 1/3 share of the costs.  It's irrelevant that you did not sign the installment agreement for the property taxes.... Read More

Most lawyers are compensated on an hourly basis and paid monthly. We charge $300.00 per hour and send out bills at the end of each month on a calendar month basis. Some lawyers charge a little less. Many charge more.   Personal injury cases are commonly compensated on a contingent fee basis. The lawyer only gets paid when a judgment or settlement is collected. One fairly typical such arrangement is 20% if the case can be settled without filing a lawsuit, 25% after a lawsuit is filed and served, 33% if the case is not settled until within 30 days or 60 days before trial, and as much as 40% if the case is tried to a verdict.   Many services which the attorney does over-and-over might be charged at a fixed rate. Drunk driving defense where the case is going to result in a plea bargain and not go to trial, typically cost $2500.00 -$5000.00. I write revocable living trusts and set up corporations and limited liability companies for a flat fee of $1500.00. I believe patent lawyers often quote fixed fees for filing patent and trademark applications.   In California, all attorney fees are negotiable. There are no laws or rules fixing fees. You can always make some other arrangement with the attorney.   Good luck.   Dana  ... Read More