Author: admin

Upholding Declarations or CC&Rs as Equitable Servitudes

Posted on by admin in Areas of Practice

Under California law, CC&Rs, and the restrictions upon the use of property, will be upheld as Equitable Servitudes. See California Supreme Court Case of Citizens for Covenant Compliance v. Anderson, (1995) 12 Cal. 4th 345. The rule that Citizens established, which the Citizens Court held applies equally to both land covenants and equitable servitudes is stated as follows:

“If a declaration establishing a common plan for the ownership of property in a subdivision and containing restrictions upon the use of the property as part of the common plan, is recorded before the execution of the contract of sale, describes the property it is to govern, and states that it is to bind all purchasers and their successors, subsequent purchasers who have constructive notice of the recorded declaration are deemed to intend and agree to be bound by, and to accept the benefits of, the common plan; the restrictions, therefore, are not unenforceable merely because they are not additionally cited in a deed or other document at the time of the sale.” Id. at 349.

The reasoning behind the Citizens Court ruling was stated by the California Supreme Court as follows:

“No longer is there any reason to believe that the average American buying into a residential development would ‘protest vigorously against being compelled to perform promises he has never made. Since financial viability of the community depends on continued covenant compliance by all, the average buyer is more likely to protest if others in the development are permitted to escape performance of the covenants made by their predecessors…Having a single set of recorded restrictions that apply to the entire subdivision would also no doubt fulfill the intent, expectations, and wishes of the parties and community as a whole.” Id. at 364.

If you are a homeowner subject to a CC&Rs and have enforcement issues, contact one of our Los Angeles HOA Dispute Attorneys today for a free consultation and case evaluation.

Land Use Restrictions – Equitable Servitudes Defined Under CA Law

Posted on by admin in Areas of Practice

An equitable servitude arises where one or more of the requirements of a covenant running with the land are not met, but the following conditions are met: (1) the subsequent owner of the servient estate has notice of the covenant; (2) the holder of the servitude is seeking equitable relief only (as opposed to a remedy at law); and (3) it is inequitable to deny the enforcement of the servitude. See In re Snow, 201 B.R. 968, 973 (C.D. Cal. 1996). The In re Snow Court relied upon the California Supreme Court’s holding under Nahrstedt v. Lakeside Village Condominium Association, (1994) 8 Cal. 4th 361, when it defined an equitable servitude under California law.

The In re Snow Court went on to state that “The chief requirement for an equitable servitude is that a successor, against whom enforcement is sought, have notice of the equitable interest at the time that the successor obtains an interest in the property. See In re Snow supra at 973.

If you are a homeowner and have land use enforcement issues, contact one of our Los Angeles Real Estate Attorneys today for a free consultation and case evaluation.

Things To Know Prior To Recording A Lis Pendes

Posted on by admin in Areas of Practice

The filing and recording of a lis pendens is often times a civil mechanism used in real property disputes. Before filing a lis pendens, a litigant should understand his/her burden of proof if and when the lis pendens is challenged by an opponent. Opponents to a lis pendens will file a Motion To Expunge the Lis Pendens and should they prevail, they may be entitled to attorney fees. Thus, the filing and recording of a lis pendens is not without consequence.

A court will not expunge a lis pendens if the filer can prove, by a preponderance of the evidence, the probable validity of their real property claim. See C.C.P. § 405.32. “Probable Validity” “with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” See C.C.P. § 405.3. Thus, a real property claim should be carefully scrutinized for its probable validity prior to the filing and recording of a lis pendens.

If you have questions regarding a real estate matter, contact one of our Los Angeles Real Estate Attorneys for a free consultation and case evaluation.

Security Deposits As Liquidated Damages

Posted on by admin in Areas of Practice

Cal. Civ. Code § 1671 governs liquidated damages in a contract for real property (i.e., a residential or commercial lease) and states in pertinent part: “a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” (Emphasis added.) Cal. Civ. Code § 1950.5 governs security deposits and provides for the manner with which a landlord may apply a security deposit. A reasonable interpretation of both statutes would suggest that a liquidated damages provision may be added to a lease agreement in contemplation of potential damages or a breach wherein the scope and amount of resulting damage cannot be reasonably anticipated by the contracting parties. Thus, a liquidated damages provision triggered by a repair related breach may not be enforceable if the cost or amount of repair is readily anticipated by the contracting parties upon execution.

If you are a Landlord in Los Angeles and have a Residential or Commercial Lease inquiry, contact one of our Los Angeles Real Estate Attorneys today for a free consultation and case evaluation.

Landlords – A Tenant’s Email Address Should Be Included In A Lease Agreement

Posted on by admin in Areas of Practice

Lease agreements should include a tenant’s email address.  There are many practical reasons for capturing a tenant’s email.  One in particular is for purposes of notifying a former tenant of abandoned property.  If the former tenant provided the landlord with the tenant’s email address, the landlord may also send abandonment notices by email and comply with the statutory requirements. See Cal. Civ. Code § 1983.  While an email may not substitute for the notice provisions in a lease, the parties may certainly mutually agree to receiving notice via email.

Are Agents/Brokers Subject to the Statutory Duties Under Cal. Civ. Code § 1102 et. seq.

Posted on by admin in Areas of Practice

Generally, in a nondisclosure/fraud claim arising out of a real estate sale and transaction, wherein the buyer is bringing claims against both the seller and broker, we analyze the Transfer Disclosure Statement (“TDS”) to determine whether a breach of statutory duty claim should also be brought. If it is found that the TDS was not accurate or failed to disclose known material facts, we would consider bringing a breach of statutory duty against both the Seller and Seller’s Broker and California law supports such a claim.

Section 1102.4(a) seems to suggest that a listing agent shall be liable for any omission that was (a) within its personal knowledge, (b) was based on information timely provided by public agencies or by a person providing information as specified in this section and (c) required to be disclosed. See Cal. Civ. Code § 1102.4(a). Furthermore, Section 1102.9 states that an agent can amend the TDS if information becomes known. Moreover, in Loken v. Century 21 – Award Properties, (1995) 36 Cal. App. 4th 263, 274, the Court of Appeal held that a claim against a broker under Cal. Civ. Code § 1102 et seq for breach of statutory duty, is subject to a two year statute of limitations. Thus, such a claim against a broker is authorized under California law.

If you are a buyer of real estate and believe certain material facts were not disclosed during escrow, contact one of our Los Angeles Real Estate Attorneys today for a free consultation and case evaluation.

Landlords – Certain Unlawful Detainer Proceedings May Be Consolidated With Other Civil Actions

Posted on by admin in Areas of Practice

The expedited procedural framework for unlawful detainer cases is necessary to prevent frustration of the summary proceedings by the introduction of delays and extraneous issues. See Vasey v. California Dance Co., (1977) 70 Cal. App. 3d 742, 747. Therefore, a UD under C.C.P. § 1161 will only be interrupted by consolidation with a civil action where complex issues of title exist. See Martin-Bragg, (2013) 219 Cal. App. 4th 367, 393; see also Mehr v. Superior Court, (1983) 139 Cal. App. 3d 1044, 1049; see also Asuncion v. Superior Court (1980), 108 Cal. App. 3d 141, 145.

In Martin-Bragg, a property owner filed an unlawful detainer action against a tenant for failure to pay rent. See Martin-Bragg supra, 219 Cal. App. 4th at 371. The tenant subsequently filed a civil quiet title action against the property owner, alleging that he was the true owner of the property, and that due to a complex personal relationship with the property owner “he had caused title to the property to be transferred to her, with the understanding that she would hold it in trust for him.” Id. at 372. The Court concluded that the complex issues of title raised by the tenant required a departure from the summary procedures of the unlawful detainer action. Id. at 395.

In Mehr, an unlawful detainer action was filed by the purchaser of a property at a trustee’s sale. See Mehr supra, 139 Cal. App. 3d at 1046. The defaulted borrowers filed a separate civil case, alleging that the foreclosure sale was void because the foreclosure trustee and its attorneys, along with others, conspired with the purchaser to obtain possession of the property by unlawful means. Id. at 1049-1050. The borrowers alleged that they were lulled into believing they could exercise their right of redemption on August 14, but the sale occurred without their knowledge on August 13, and the property was awarded to the sole bidder for an inadequate price. Id. at 1050. In ordering a writ of mandate granting the borrowers’ motion for stay of execution of the post-judgment writ of possession pending appeal, the Court ruled that the fact-intensive question of fraudulent acquisition of title was not fully litigated at the unlawful detainer trial. Id.

In Asuncion, a hard money lender paid off a delinquent second mortgage and other debts of two borrowers in exchange for a grant deed to the property, subject to a 45-day option for the borrowers to reacquire the property by executing a promissory note in favor of the lender on very unfavorable terms. See Asuncion supra, 108 Cal. App. 3d at 143-144. Upon the expiration of the option, the lender recorded the grant deed and immediately commenced unlawful detainer proceedings. Id. at 144. The borrowers filed a separate civil action seeking to quiet title and alleging fraud, usury, unfair business practices and truth in lending violations. Id. at 143. The Court found that the title issues raised by the borrowers were sufficient to merit either a stay of the eviction proceedings pending adjudication of the title issues, or consolidation of the actions. Id. at 146-147.

Thus, short of complex title issues raised as a defense to an unlawful detainer action, Evictions would likely not be consolidated with a civil action. If you are a landlord and are seeking to evict a tenant, contact one of our Los Angeles Eviction Attorneys today for a free consultation and case evaluation.

Agency Disclosure Requirement Expanded to Include Commercial Property Transactions

Posted on by admin in Areas of Practice

Under existing law listing and selling agents are required to provide the seller and buyer in a residential one to four unit real property transactions, including a lease of more than one year, with a prescribed disclosure form containing general information on real estate agency relationships. Existing law also requires the listing or selling agent to confirm their agency relationship by disclosing to the buyer and seller whether he or she is acting as the buyer’s agent exclusively, the seller’s agent exclusively, or as a dual agent representing both the buyer and the seller.

This agency disclosure is extremely important because California Law imposes on real estate agents and brokers a duty to act with the utmost good faith in the best interests of their clients. Thus, a real estate client is owed a duty of good faith, loyalty, honesty, reasonable care and fair dealing.

Effective January 1, 2015, this law is extended to include transactions involving the sale or lease for more than one year of commercial real property. Commercial property as defined includes vacant land, industrial property or any residential property, even if containing more than four dwelling units.

SB 1171 (codified as Civil Code §2079.13) (effective January 1, 2015).

Real Estate Brokers and Agents – Duty to Retain Text Messages and Tweets in Connection with Real Estate Transactions

Posted on by admin in Areas of Practice

Under existing law, a broker must retain for three years copies of all listings, deposit slips, canceled checks, trust records, and other documents executed by him or her or obtained by him or her in connection with any transactions for which a real estate license is required. Effective January 1, 2015, electronic messages of an “ephemeral nature” such as text messages, instant messages, and tweets (unless designed to be retained or to create a permanent record) are excluded from this record retention requirement. The new law, however, does not clearly exclude emails from record retention requirements. Therefore, emails sent and received in connection with a transaction should still be retained. AB 2136 (codified as Business and Professions Code §10148 and Civil Code §1624) (effective January, 2015).

A broker who fails to retain transaction records for a period of three years may be cited by the Bureau of Real Estate and subject to formal legal action. You should review the record retention policies for your office to make sure you are in compliance with this code section.

If you are a real estate agent or broker and have a legal question, contact one of our Los Angeles Real Estate Attorneys for a free case evaluation and consultation.

Landlords – Certain Lessee Rights Cannot Be Modified Or Waived

Posted on by admin in Areas of Practice

There are certain rights which cannot be waived by a tenant even though that tenant might agree and put said waiver or modification in writing. Under Cal. Civ. Code § 1953, certain rights agreed waived or modified by a tenant shall be void and contrary to public policy including: (1) A tenant’s rights or remedies under Sections 1950.5 (security deposit) or 1954 (entry by landlord); (2) His right to assert a cause of action against the lessor which may arise in the future; (3) His right to a notice or hearing required by law; (4) His procedural rights in litigation in any action involving his rights and obligations as a tenant; (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.

If you are a landlord and have a question regarding your residential or commercial lease, contact one of our Lease Attorneys in Los Angeles for a free consultation or case evaluation.