California Partition Law Blog

Can One Co-Owner Take All of the Rent from the Property?

Published on: April 11, 2024 | By Underwood Law Firm, P.C.

underwood-co-owner-take-rent-property-300x300 Often, the question of distributing rent earned on a co-owned property arises in the context of cotenants. Cotenants have equal rights to possess their property with their fellow cotenants. This means that no one cotenant can exclude another from the property. One cotenant can, however, assign their right of possession to a third party.

This can happen when a cotenant rents out part of the property to a tenant. In this situation, the other cotenants still have the right to possess the property, but they do not have a right to exclude the tenant. The tenant is also prohibited from excluding the other cotenants from occupying the property.

How can a cotenant lease property they co-own?

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A Guide to Penalties for Financial Elder Abuse (Probate Code Section 859)

Published on: April 3, 2024 | By Underwood Law Firm, P.C.

Underwood-Blog-Image-Temp-Apr-24-300x300 Probate Code section 859 protects certain individuals whose property or money is taken, concealed, or disposed of by another. Section 859 does this by imposing hefty penalties on anyone who wrongfully takes or conceals property belonging to certain groups.

Specifically, the statute provides:

“If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse . . . the person shall be liable for twice the value of the property recovered by an action under this part.” (Prob. Code § 859 (emphasis added).)

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A Primer to Trustees and Beneficiaries in California (Prob. Code § 16000.)

Published on: March 27, 2024 | By Underwood Law Firm, P.C.

underwood-trustees-beneficiaries-300x300 A trust is a legal device that is commonly used in estate planning. A trust represents “a collection of assets and liabilities” that can be held and transferred by an individual to another individual, the “beneficiary.” (Portico Mgmt. Grp., LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.) When the trustee, the person responsible for managing and distributing the trust’s assets, has a personal interest in those assets, certain problems can arise. This is because the trustee is bound by several legal duties designed to safeguard the interests of the beneficiaries. Therefore, if a trustee is also a beneficiary, they must make sure that they do not unduly favor themselves at the expense of the other beneficiaries.

What is a trustee?

A person who creates a trust, the “settlor,” names a “trustee” who holds legal title to the property held in the trust for the benefit of one or more persons, the “beneficiaries.” (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 521.) The settlor can create a voluntary or express trust through a formal agreement where the settlor details his intentions regarding the trustee and beneficiaries. A property owner can designate himself as a trustee, creating an express trust holding his property. (Probate Code § 15200(a).) The owner can also designate a third party as a trustee. A trust can be created during the settlor’s life, or, it can be created by a will where it becomes effective upon the settlor’s death.

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A Guide to Statutory California Settlement Offers (Code of Civil Procedure Section 998)

Published on: March 20, 2024 | By Underwood Law Firm, P.C.

underwood-guide-statutory-settlement-offers-300x300 California Code of Civil Procedure section 998 encourages parties involved in legal disputes to settle prior to trial. According to this law, either party can present a written settlement offer to the other party up to ten days before the trial begins. (CCP § 998(b).)

If the plaintiff declines a timely offer from the defendant and subsequently receives a judgment at trial that isn’t more favorable than the defendant’s offer, the plaintiff must “pay the defendant’s costs from the time of the offer.” (CCP § 998(c)(1).) Moreover, in many civil cases, the court may also require the plaintiff to pay a reasonable amount of the defendant’s expert witness expenses incurred after the offer was presented.

Likewise, if the defendant rejects the plaintiff’s timely offer and later gets a judgment at trial that isn’t more advantageous than what the plaintiff offered, the court has the authority to require the defendant to pay the plaintiff a reasonable portion of their costs related to expert witnesses incurred after the offer was made. (CCP § 998(d).)

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Underwood Law Recognized as Partition Pros (Daily Journal)

Published on: March 11, 2024 | By Underwood Law Firm, P.C.

via Daily Journal

Partition Pros

Underwood Law Firm helps clients move past the difficulties of co-owned property.

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Jogani v. Jogani: A Massive Decision on Joint Ownership

Published on: March 6, 2024 | By Underwood Law Firm, P.C.

underwood-jogani-v-jogani-joint-ownership-300x300 Recently, a jury in the Los Angeles Superior Court awarded what may become one of the largest judgments in a real estate case that has ever been issued. Significantly, in addition to a damage award in the billions, the Court also found that the family members were also co-owners in 17,000 apartments across California. As a result, this consequential decision should be better understood for its potential implications for all co-ownership situations.

Background

This saga started in the late 1970s. The Jogani family, natives of Gujarat, India, built a fortune in the global diamond trade with offices in Europe, Africa, the Middle East, and North America.

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A Guide to Restraints on Alienation (Civ. Code Section 711)

Published on: February 28, 2024 | By Underwood Law Firm, P.C.

underwood-restraint-on-alienation-300x300 Real estate law has many nuances and subtleties. One of the lesser known aspects to real estate law is something known as a “restraint on alienation.” At its most basic, a restraint on alienation limits the sale or transfer of interests in real property.

Civil Code Section 711 states that “[c]onditions restraining alienation, when repugnant to the interest created, are void.” These conditions may be found in a will that conveys property but provides that the property may not be sold for a certain period of time. (Wharton v. Mollinet (1951) 103 Cal.App.2d 710, 713.) A restriction on the sale of the property will be deemed void and not apply to the recipient’s property interest. Similarly, if property is transferred by a deed, such a restriction will be deemed invalid. The purpose underlying Section 711 is to “clarify[] and protect[] titles for the benefit of the public at large, as well as of the grantees.” (Id.)

What restraints, if any, are permissible?

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Testimony on Property Value in Partition Cases (Evid. Code Section 813)

Published on: February 21, 2024 | By Underwood Law Firm, P.C.

underwood-testimony-property-value-partition-cases-300x300 The estimated value of a piece of property can be important for resolving several types of legal disputes. It is crucial when a property owner needs to establish damages when the government interferes with the owner’s property and diminishes its value. Spouses may wish to testify regarding the value of their marital property when it is divided during divorce proceedings. A property owner may also want to testify as to their property’s value to contest a bank’s foreclosure on the property.

Testimony regarding a property’s estimated value can also be important during partition proceedings: when one or more co-owners of a property want to sell their property interest a question arises under the Partition of Real Property Act as to the Property’s value. As such, determining who can answer that question becomes of critical importance.

Normally, who can testify as to a property’s value?

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How to file a partition action in California

Published on: February 16, 2024 | By Underwood Law Firm, P.C.

underwood-how-to-file-partition-action-california-300x300 When co-owners of real estate cannot agree on how to divide or use their property, filing a partition lawsuit becomes a necessary course of action. In California, where real estate is often a significant investment, understanding the process of partitioning property is essential. In this article, we’ll walk you through the steps involved in filing a partition lawsuit in California, empowering you to navigate this legal process effectively.

What should you know before filing a Partition Action?

1. Understand the Concept of Partition.

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A Guide to Rights of First Refusal

Published on: February 14, 2024 | By Underwood Law Firm, P.C.

underwood-guide-to-right-first-refusal-300x300 A right of first refusal – sometimes called a “preemptive right” – is a right provided by contract that gives a party priority to purchase a property if the owner decides to sell. This right may be included in an ownership agreement between two co-owners who are cotenants. The person who holds the right is the “grantee,” and the person who gives the right to a fellow co-owner is the “grantor.”

A right of first refusal gives the cotenant priority over other potential buyers when the other cotenant makes a decision to sell their interest in the property. Unlike a valid option provision where a cotenant is obligated to sell the property to the other cotenant subject to the terms of the ownership agreement, under a right of first refusal, a second cotenant’s ability to purchase the first cotenant’s interest depends on the first cotenant’s desire to sell it. The right of first refusal becomes an option when the owner “voluntarily decides to sell the property and receives a bona fide offer to purchase it from a third party.” (Campbell v. Alger (1999) 71 Cal.App.4th 200, 206-207.)

What types of instruments contain a right of first refusal?

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