Underwood-Blog-Images-3-300x300Even when a party finally secures a judgment of partition, the property itself must still be sold (or partitioned in another way). This raises a brand-new set of issues for litigants as they attempt to figure out the terms of sale, when the property should be sold, and, most importantly, the asking price.

Usually, anyone can buy the property for sale, but shrewd litigants can impose the right terms to ensure that the pool of potential bidders is sufficiently narrowed to meet their goals. At Underwood Law Firm, our attorneys are more than familiar with the practice and procedure of partition sales and are here to assist you in achieving your litigation objectives.

What is a partition sale?

Underwood-Blog-Images-2-300x300In most partition actions, the court appoints a partition referee in order to see that the property is sold or properly divided. The job of a Partition referee requires one to carry out several responsibilities and obligations. The purpose of this article is to provide some information on a partition referee’s duties and authority under the partition statutes.   

What is a Partition? 

A Partition action is a lawsuit that seeks to distribute equally a piece of property or sell said property and distribute the proceeds of the sale equally among the titleholders of the property. The rules governing Partition actions are set forth in the California Civil Code of Procedure.    

Underwood-Blog-Images-1-1-300x300The Partition of Real Property Act (PRPA) is an exciting new development in real estate law only recently passed by the California Legislature. Its effects are far-reaching, and its changes to the procedure for partitions cannot be understated. 

At Underwood Law Firm, our attorneys are more than familiar with partitions and the complexities such lawsuits can entail. With the PRPA and its provisions set to go into effect early in 2023, our attorneys are already keeping track of the way it will change to partition law so that we can best assist you in achieving your litigation objectives. 

When does the Partition of Real Property Act go into Effect? 

Underwood-Blog-Images-4-300x300The way a business is conducted depends on the entity used to conduct it. There are several entities one can form in order to conduct a business. One common entity used to conduct a business is a partnership. The formalities for creating a partnership are dependent on what type of partnership a person decides to form. A partnership can be formed either as a general partnership or as a limited partnership. The purpose of this article will be to provide information on partnership entities and their formation. 

What is a General Partnership?

A partnership is defined as an “association of two or more persons to carry on as co-owners a business for profit.” Cal. Corp. Code § 16101(10). A general partnership is made up of only general partners, and each general partner is jointly and severally liable for the partnership. This means that a general partner is liable for the obligations of the general partnership. 

Underwood-Blog-Images-1-300x300Not all eminent domain proceedings involve the government taking an entire piece of property. If the property is large enough and the government’s project is limited in scope (expanding a road, for instance), then the government can instead opt for a “partial” taking of the property.

Despite this difference, partial takings are nonetheless subject to the requirement of just compensation for property owners. And in addition, property owners may be entitled to special damages if the government project diminishes the fair market value of the rest of the property.

Eminent domain is, however, one of the more difficult fields to navigate in litigation. This is in no small part due to the many evidentiary hurdles in place that make proving the right amount of just compensation a timely and expensive process. At Underwood Law Firm, our attorneys are more than familiar with overcoming these evidentiary roadblocks and are ready to help assist you with your litigation efforts.

Underwood-Blog-Images-300x300An escrow is a tool used in real estate transactions to ensure that the purchase and sale of property occur as intended. At its core, it is merely the “holding” of significant property documents (like the deed) and the down payment for a piece of property. This ensures that the actual purchase of the property is not completed until all the conditions of the sale are actually met, such as the buyer officially obtaining a loan for the transaction.

As the California statutes put it, monies and evidence of title to property are “held by a third person until the happening of a specified event or the performance of the prescribed condition.” (Fin. Code § 17003.)

Escrow has numerous upsides, though it is admittedly an added expense on what it already an expensive transaction. Considering the importance of buying real estate, however, it is a safe option that ensures both buyer and seller leave the transaction satisfied.

Underwood-Blog-Images-4-1-300x300The significance of the differences between legal and equitable title is an outright confusing topic, requiring some knowledge of constructive trusts, beneficial interests, and seller’s liens. That said, the concept can be made digestible by boiling it down to its essential elements. When done, this simplification reveals how often we encounter both types of titles in common real estate transactions.

At its core, the difference between these titles contains significance only insofar as there are multiple interested parties in the same property. When this is the case, the law creates a legal fiction of sorts, assigning the beneficial use of the property to the “equitable” titleholder and the legal power over the property to the “legal” titleholder.

The explanation is, in reality, much more complex, but the attorneys at Underwood Law are more than familiar with the ins and outs of title disputes and are here to help navigate you through your real estate lawsuit.

Underwood-Blog-Images-3-1-300x300Partition litigation can be broadly categorized into two phases. In the first, the parties fight over whether there is a right to partition the subject property. If the court agrees that such a right exists, then the litigation shifts into the second phase, where the parties determine the manner and means by which the property is actually partitioned.

Partition referees play an integral role in this second phase. Their responsibilities are wide and ranging, as they can assist in disbursements, marketing the property, dividing the property, and much more.

At the apex of this second phase is the referee’s report. This is a filing the referee makes with the court after the partition is completed, essentially detailing how the referee partitioned the property. Unsurprisingly, this report can become the focus of additional litigation as parties seek to confirm, deny, or modify the report based on any number of legal grounds.

Underwood-Blog-Images-1-3-300x300Writs of possession are special statutory remedies that usually appear in unlawful detainer actions. As their name implies, they are a means of recovering possession from someone who is wrongfully occupying a property. Writs are unique, however, in that they are almost exclusively a post-judgment tool.

This means that there must be a court judgment, order, or decree already in place that entitles a party to possession of the property. Only then can said party apply for and obtain a writ, allowing them to kick the wrongful occupants out of the house.

At Underwood Law Firm, our attorneys are familiar with writs of possession and the inherent difficulties in obtaining them. When a property is on the line, we understand what needs to be done and are prepared to assist you in achieving your litigation goals, whatever they may be.

Underwood-Blog-Images-4-300x300Eminent Domain proceedings will almost always end with the government taking title to private property after it pays out “just compensation” to a homeowner.

But sometimes, the government begins condemnation proceedings against the backdrop of a large project with encroaching deadlines. In these instances, California law allows the entity to obtain possession of the property early on in the condemnation process, granting the government the ability to begin its work sooner rather than later.

That said, there are numerous requirements that the government must fulfill in order to obtain pre-judgment possession. And even when the government meets its burden, defendant property owners can still oppose early possession by meeting various showings of hardship.

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