Articles Posted in Real Estate Law

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-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-3-300x300A lis pendens – also called a notice of pendency of action – is a special type of legal document filed with a county recorder. Though its use is limited to lawsuits involving real property claims, its effect is powerful. Once recorded, it acts as “constructive notice” to all persons who would subsequently acquire an interest in the property at issue that a lawsuit is occurring.

This small legal tool, however, can sometimes prove itself to be subtlety abusive. When bad-faith litigants file them, they essentially act as injunctions against encumbrances and sales of property, drastically affecting the rights that property owners should have.

For this reason, litigants have the option to expunge a lis pendens outright, though it is no light undertaking. At Underwood Law Firm, our expert attorneys are more than knowledgeable on expungement motions and their intricacies and are prepared to assist you in your real estate litigation.

Underwood-Blog-Images-300x300A “quiet title” action is a lawsuit where a property owner seeks to eliminate, establish, resolve, and “quiet” any other claims on the same property by anyone else. Once complete, the lawsuit will result in a perfect title enforceable in the courts. A quiet title action is thus an effective tool to establish and settle ownership over real estate.

Quiet title judgments are particularly powerful, however, and therefore involve more stringent requirements than other lawsuits in the real estate field. At Underwood Law, our attorneys are familiar with handling the complexities of quiet title actions and are here to help navigate you through this unique lawsuit.

What does a Quiet Title Action do?

Underwood-Blog-Images-1-300x300A lis pendens – also called a notice of pendency of action – is a special type of legal document filed with a county recorder. Though its use is limited to lawsuits involving real property claims, its effect is powerful. Once recorded, it acts as “constructive notice” to all persons who would subsequently acquire an interest in the property at issue that a lawsuit is occurring.

In this way, a lis pendens protects title holders as they proceed through litigation and, more importantly, the appeals process. The attorneys at Underwood Law Firm have filed countless lis pendens notices and are more than familiar enough with their requirements to assist you in your real estate litigation.

When can you file a lis pendens?

Underwood-Blog-Images-3-1-300x300The deed to a property is the most important document a property owner has. It describes the title and its associated rights while operating as the conveyance of property itself. But not all deeds are the same, especially when marriage enters the equation.

Marital deeds carry with them their own rules, rights, and duties requiring in-depth knowledge of family law and community property. And while spouses can choose to acquire property through a regular grant deed, more often than not, that isn’t the case. Understanding the differences between the two is of crucial importance for estate planning, and in these situations, having an experienced real estate attorney at your side can make all the difference. The Underwood Law Firm encounters both types of deeds with frequency and has the familiarity and skill to help title holders understand their rights.

What is a deed?

Underwood-Blog-Images-2-1-300x300Service of process is a crucially important part of every lawsuit in California. If a defendant is not served and thus does not receive notice of a lawsuit, then any judgment entered against them is void for lack of jurisdiction.

While service of process can usually be accomplished with a registered process server or Sherriff, the situation becomes murky when “unknown” defendants are involved. Quiet title actions involve such unknown defendants, who are designated as any and all persons claiming an interest in the property at issue.

But in order is get a valid judgment against these unknown persons, any plaintiff must first follow the exact statutory requirements required to effectuate them with proper service by publication. Failure to follow these requirements can result in future legal action, even after a quiet title lawsuit that is designed to put title issues to rest. The attorneys at Underwood Law Firm are familiar with this process and are here to help guide you through service in quiet title actions.

Underwood-Blog-Images-3-300x300Sometimes, two or more persons claim to have an interest in the same piece of property. If these interests conflict, then the courts have to step in to adjudicate the dispute and decide whose title is true. But things can get messy when both parties appear to have valid deeds, free or forgery, or other impropriety.

It is for this reason that California (and most other states) enacted laws called “race-notice” statutes. As will be discussed below, these statutes are designed to give “priority” to competing property interests, making it much easier to settle disputes over the same piece of land.

Of course, there are many exceptions to the general rule that the first to record their interest gets the highest priority. Bona fide purchasers, for instance, are entitled to special benefits if they lack knowledge of competing claims. Underwood Law firm is more than familiar with real estate recording laws and has the experience and knowledge to assist you in these types of title disputes.

Underwood-Blog-Images-2-300x300American law has its roots in the laws of England. As such, many of the laws still on the books in the 21st Century depend on what English judges thought prior to our War for Independence began in 1776. Because our modern laws go back centuries since before the United States was a country, we should care about how our legal terms were originally understood as they may implicate a judge’s decision today. The most important of all the English Judges who influenced our modern laws was most likely Sir William Blackstone. 

Blackstone’s 1765 work, Commentaries on the Laws of England, is his most famous legal treatise, forming the backbone of common law analysis as modern lawyers understand it today. Without his efforts centuries ago, our conceptions of property, individual rights, and governmental authority would not be the same. His works remain cited even now in judicial decisions at all levels, including the Supreme Court of the United States. 

Blackstone’s comments on property law are particularly striking, for they bear the foundational ideas now found in our statutes governing real estate transactions, estate types, property rights, and ownership disputes. His analysis of tenancies in common and joint tenancy is so similar to our own California statutes that they warrant their own discussion. 

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