Category: Areas of Practice

HOA Disputes – Renting or Leasing Condos Subject to the CC&Rs

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Cal. Civ. Code § 4740 states the rules governing an owner’s ability to rent or lease his/her separate interest property. Section 4740(a) states that “An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to his or her separate interest.”

Thus, owners seeking to rent their separate interest unit should first consult with their CC&Rs and governing rules and ensure the rental of the unit does not violate any CC&R provisions or association rules assuming that said rules were in place prior to the owner taking title. If an owner seeking to rent the separate interest unit acquired title prior to an HOA adopting plans governing rentals, then the owner will not be subject to those rules adopted after title was acquired.

Slander of Title – Attorney Fees Recoverable

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Pursuant to the Civil Code A person shall not record a notice of intent to preserve an interest in real property for the purpose of slandering title to the real property. If the court in an action or proceeding to establish or quiet title determines that a person recorded a notice of intent to preserve an interest for the purpose of slandering title, the court shall award against the person the cost of the action or proceeding, including a reasonable attorney’s fee, and the damages caused by the recording. Thus, attorney fees can be recoverable in actions where a recording slandering title seeks to clear title. See also Sumner Hill Homeowner’s Assn., Inc. v. Rio Mesa Holdings, LLC, (2012) 205 Cal. App. 4th 999, 1031 (“we hold that at least in cases such as this one where title was disparaged in a recorded instrument, attorney fees and costs necessary to clear title or remove the doubt cast on it by defendant’s falsehood are, by themselves, sufficient pecuniary damages for purposes of a cause of action for slander of title.”)

If a recording is disparaging clean title to your property, contact one of our Los Angeles Real Estate Attorneys today for a free consultation and case evaluation.

HOA Disputes – Changes in Civil Code

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The Davis-Stirling Common Interest Development Act, which provides for the rules regarding common interest developments, now commences with Cal. Civ. Code § 4000. The former code sections commencing with Cal. Civ. Code § 1350 have been repealed. Essentially, the code sections have changed but substantively, the rules remain intact.

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

Commercial Evictions – Partial Payments Under C.C.P. § 1161.1

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Partial payments received by Commercial Landlords during eviction actions or before a commercial unlawful detainer is filed is not uncommon. The receipt of a partial payment does not waive a landlord’s right to pursue the eviction and at a minimum, the Pay Rent or Quit notice should state the same. With respect to seeking the difference owed, C.C.P. § 1161.1(b) requires that the landlord specify the demand for partial payment in the complaint if received prior to filing. “If the landlord accepts a partial payment of rent, including any payment pursuant to subdivision (a), after serving notice pursuant to Section 1161, the landlord, without any further notice to the tenant, may commence and pursue an action under this chapter to recover the difference between the amount demanded in that notice and the payment actually received, and this shall be specified in the complaint. (Emphasis added.) As follows, if partial payment of rent is received after filing the complaint, the landlord is entitled to amend the complaint without prior leave of court and without delay to the expedited eviction proceeding. See C.C.P. § 1161.1(c).

If you are a commercial landlord facing the prospect of evicting a commercial tenant, contact one of our Los Angeles Commercial Eviction Attorneys today for a free consultation and case evaluation.

HOA Disputes – California Courts May Issue Broad Orders to HOAs Compelling Enforcement of Rules

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In Ekstrom v. Marquesa at Monarch Beach Homeowners Ass’n (2008) 168 Cal. App. 4th 1111, the Court of Appeal upheld a homeowner’s injunction against the HOA to enforce certain tree trimming provisions to protect the plaintiff homeowner’s view.  Id. at 1114.  The HOA appealed the injunctive and declaratory relief ordering the HOA to enforce the CC&Rs and preserve plaintiff’s views, claiming that the injunction was overbroad and vague and because the order did not specify a course of action and because plaintiff did not join as defendants individual homeowners. Id.  The Court of Appeal rejected the HOA’s arguments and affirmed the trial court’s judgment.  Id. at 1127.  In rejecting the HOA’s arguments, the Ekstrom Court held that “a directive that it [the HOA] utilize all enforcement mechanisms available is necessary to ensure the Association does not simply now make a token effort.” Id. at 1125.  In affirming the trial court’s order that the HOA do everything within its power to enforce the CC&Rs, the Ekstrom Court further held that “The Association cannot feign ignorance of what it should do—it has apparently had no difficulty figuring out how to carry out its responsibilities as to other trees species and has in the past required homeowners to trim or remove such trees.” Id. at 1126.  With respect to the HOA’s assertion that plaintiff failed to join individual homeowners, the Ekstrom Court relied on Cal. Civ. Code § 5980 which provides that an association may defend litigation concerning enforcement of CC&Rs without joining the individual homeowners in the association. Id. at 1126.    Thus, under well-settled California law, Courts have broad discretion to compel HOAs to take all measures necessary to enforce their rules.   If you are a member of a condominium association and have a dispute with your HOA, contact one of our HOA Dispute Attorneys in Los Angeles for a free consultation and case evaluation.

Commercial Landlords – Some Rules Regarding Fixtures

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Cal. Civ. Code § 660 defines a fixture as “A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.”

If the landlord and tenant do not have an agreement regarding the removal of fixtures, then under Cal. Civ. Code § 1013, then the thing affixed, belongs to the owner of the land, unless he chooses to require the tenant to remove it or the tenant elects to exercise the right of removal pursuant to Cal. Civ. Code § 1013.5. Section 1013.5 says a tenant retains the right to remove such improvements or fixtures so long as the landlord is compensated for any damages proximately resulting from the removal of the fixture.

Landlords and tenants are best advised to enter into an agreement regarding fixtures, additions, removals and the disposition of fixtures after the tenancy is terminated.

If you are a commercial landlord in Los Angeles and have a commercial lease inquiry, contact one of our Commercial Lease Attorneys in Los Angeles today for a free consultation and case evaluation.

What Happens to a Landlord’s Eviction Action When Possession Is No Longer At Issue

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Pursuant to Cal. Civ. Code § 1952.3, if the lessor brings an unlawful detainer proceeding and possession of the property is no longer in issue because possession of the property has been delivered to the lessor before trial or, if there is no trial, before judgment is entered, the case becomes an ordinary civil action. At this point, the landlord may continue with the civil damages action but is limited to recovering only those damages allowable in the unlawful detainer action (unpaid rent earned at the time of termination), unless the landlord elects to amend the complaint so that possession is no longer at issue and state a claim for damages. To seek damages arising from the unpaid rent for the balance of the term of lease, the Landlord must amend the complaint.

If you are a landlord in Los Angeles and have an issue with a tenant, contact one of our Los Angeles Eviction Attorneys for a free consultation and case evaluation.

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Just because a party prevails on their expungement motion does not mean an attorneys’ fees award is automatic. California courts utilize the “practical approach” when deciding whether to award attorney fees upon successfully bringing an expungement motion. Under the practical approach, a trial court must determine whether the moving party is the prevailing party under section 405.38 by analyzing the extent to which each party has realized its litigation objectives. To determine litigation objectives, it is not enough simply to consider that the lis pendens has been withdrawn; the court must consider and decide whether the moving party would have prevailed on the motion. See Castro v. Superior Court, (2004) 116 Cal. App. 4th 1010, 1022-23.

Contact our Los Angeles Lis Pendens Attorneys today for a free consultation and case evaluation.

Enforcing Land Covenants as Intended Beneficiaries

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Our Los Angeles Real Estate Attorneys recently litigated the issue of whether claimants could enforce land covenants upon a property owner wherein there were no express provisions granting claimants the right to enforce the covenants.

California courts have held that Plaintiffs who did not own any land benefited by a particular covenant they sought to enforce, nevertheless had standing to bring a declaratory relief action because the Court found that the Plaintiffs were intended beneficiaries of the land covenant and therefore interested parties within the meaning of C.C.P. § 1060. See Monterey/Santa Cruz County Bldg. and Const. Trades Council v. Cypress Marina Heights LP, (2011) 191 Cal. App. 4th 1500, 1521-22.

In the Cypress Marina Heights LP case, the plaintiffs, who consisted of labor organizations, an association of contractors and two taxpayers, sought a declaration and injunction enforcing prevailing wage requirements found in property deeds. Id. at 1504. The trial court granted plaintiffs’ summary adjudication motion. Id. The developer defendants appealed the trial court’s judgment and challenged plaintiffs’ standing to bring declaratory relief since the plaintiffs did not own any land subject to the covenants. Id. at 1521.

In holding that the plaintiffs had standing and affirming the trial court’s ruling, the California Court of Appeal for the Sixth District held that the plaintiffs “had a beneficial interest in the enforcement of the prevailing wage requirement because it was intended to benefit them.” Id. at 1521. The plaintiffs in Cypress Marina Heights LP were not landowners or owners of benefited lands, but were benefited parties to the deed covenants sought to be enforced. In affirming the trial court’s judgment, the Court of Appeal held that these plaintiffs had standing pursuant to C.C.P. § 1060. Id

Nuisance Actions – Damages for Diminution in Rental Value

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Under California law, where the damages caused by a nuisance are shown to be temporary in character, the measure of damages is the difference in the rental value or use value of the property before and after the injury caused by the nuisance.  See Qualls v. Smyth, (1957) 148 Cal. App. 2d 635, 637; see also Guttinger v. Calaveras Cement Co., (1951) 105 Cal. App. 2d 382, 387.  The diminution in rental value is also the proper measure of damages wherein the property is not directly affected or depreciated by physical injury.  See Ingram v. City of Gridley, (1950) 100 Cal. App. 2d 815, 821.