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underwood-unrecorded-deed-300x300In California, an unrecorded interest is valid between the parties thereto and those who have notice thereof. (Civ. Code § 1217.)

Just because a deed is unrecorded doesn’t mean it isn’t valid. If executed correctly, it is a valid transfer of real estate. But that doesn’t mean an unrecorded deed is a good idea. In fact, failing to record can wind up being a massive mistake, especially if the grantor tries to sell the property a second time, or give it to another family member.

In these situations, the right attorney can make all the difference. At Underwood Law Firm, our attorneys are well-versed in real estate recording laws and have the experience and knowledge to assist you in these types of title disputes.

underwood-service-by-publication-300x300Service of process is an important aspect of every lawsuit filed 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, and the plaintiff will have to begin the litigation process all over again.

While service of process can be an easy affair when the locations of the defendant(s) are known, the situation becomes much more difficult when one or more parties don’t have a set address, or perhaps do not want to be found. 

At that juncture, service by publication may be available as a last resort. But litigants must take care to realize that service by publication is not automatic, and cannot be attempted from the outset. Instead, set statutory rules need to be followed before this method of service may be authorized by the court. 

underwood-attorney-client-privilege-power-attorney-300x300The attorney-client privilege is well-known for a reason. It is a tenant of the legal profession, allowing for clients to approach attorneys with honesty and sincerity without fear that what they say will ever “leave the room,” so to speak. 

But its application to various situations and circumstances can become quite complicated. For example, two of the most common types of arrangements when it comes to estate planning are the establishment of trusts and powers of attorney. Both serve unique purposes, and both approach the attorney-client privilege quite differently. 

What is a power of attorney?

underwood-right-of-first-refusal-300x300A right of first refusal is, essentially, an option contract. It is a contract or a condition in a contract between the owner of an asset, and some other person with an interest in that same asset, that allows the interested person to buy the asset from the owner instead of allowing the owner to sell it to a third party. Put differently, it’s a conditional right to acquire property, depending on the owner’s willingness to sell. (Campbell v. Alger (1999) 71 Cal.App.4th 200, 206.) 

The classic example is for a long-term lease of a house. There, as part of the lease, the owner provides that the renter has a right of first refusal if they rent for a set amount of years (let’s say five). After those fives years are up, the owner tries to sell the house on the market to a third party. But, because of the right of first refusal, the renter must be allowed to chance to make the same offer as the third party. Only if the renter “refuses” to match the offer is the sale allowed to proceed. 

While the concept itself is rather straightforward, there are many legal complexities that can arise when the right is integrated into other actions concerning property, such as eminent domain proceedings, probate sales, and partitions. 

underwood-what-is-real-property-300x300Under California’s Civil Code, real property refers to land, and things affixed to land such as houses. (Civ. Code § 658.) When people think of “property” they may envision a large lake house or a humble home. But this is only one type of property – real property. Personal property, on the other hand, is a broad term that encompasses property rights in basically everything else. A patent is property, and so are the apples that grow on trees in someone’s back yard, and so are the pipes and plumbing that run underneath someone’s house. 

But these property rights do not all fall into the same bucket. And when someone is selling a home, for instance, it’s important to know what property belongs to the seller (what are they allowed to take with them) and what belongs to the buyer (what must the sellers leave behind). 

In these situations, the right attorney can make all the difference. At Underwood Law Firm, our attorneys are well-versed in property law and partition actions, and are here to help you get the answers and assistance you need. 

underwood-does-partition-count-bankruptcy-claim-300x300Yes, it can. Partitions and bankruptcy can interact in unusual ways despite the fact that they can often seek the same thing: the sale of a piece of property. 

Nonetheless, a co-owner of property filing for bankruptcy either before or during a partition lawsuit immediately raises several issues for the other innocent co-owners. For example, they’ll need to decide whether they can file a bankruptcy claim, and they’ll also need to figure out whether their partition action is subject to the automatic stay provisions of bankruptcy.

As such, in these situations, the right representation can make all the difference. At Underwood Law Firm, our attorneys know the ins and outs of partition actions, and are ready to handle the accompanying litigation that’s sure to result, even in bankruptcy courts. 

underwood-what-is-proposition-19-300x300Proposition 19 is a new law in California that significantly affects the way property taxes are assessed on homes when deeded to heirs. While intra-family transfers were previously protected under Proposition 13, its effect has been significantly bludgeoned. On the other hand, Proposition 19 does include the added benefit of extra assessment transfers for residents over the age of 55. 

What are “ad valorem” taxes?

Prop 13 and Prop 19 are centered on “ad valorem” property taxes. “Ad valorem” is simply Latin for “according to value.” As such, ad valorem property taxes are just ordinary property taxes. They are a tax levied by the state government against owners of real property on a year-to-year basis. 

underwood-responsible-bidder-partition-300x300Under the Partition Law, “[a] bidder is responsible if it can perform the contract as promised.” (PCC § 20162; Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1438.) That means, in essence, that it can be determined from the face of the bid itself that it will be viable, without outside investigation or information. (Taylor Bus Service, Inc. v. San Diego Bd. Of Education (1987) 195 Cal.App.3d 1331, 1342.) 

The concept of the “responsible bidder” comes up at the end of partition cases when the court is deciding whether the confirm or vacate the partition sale. Essentially, the law provides that if a “responsible bidder” makes a viable bid above the sales price, then the court may vacate the sale and either sell the property to the bidder, or start a new round of marketing the property. 

For parties who were looking forward to a sale, this can be devastating news if the court chooses to send the house back to the market. As such, having the right attorney by your side can make all the difference. At Underwood Law Firm, our attorneys are well versed enough in the practice and procedure of partition actions to help you get the answers and relief you need

underwood-deed-trust-vs-mortgage-300x300Civil Code section 2924 states that “every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage.” The “other than in trust” portion of the statute refers only to express trusts, however, because “under a deed of trust the trustee obtains none of the incidents of ownership, other than the right to convey upon default.” (Blair v. Blair (1941) 44 Cal.App.2d 140, 146.)

As such, the functionality of the deed of trust is more or less identical to a mortgage. In terms of semantics, however, the big difference is that the mortgage is a two-party transaction whereas the deed of trust involves three. In addition, there is also a difference with how title actually passes with deeds of trust.

Filing a successful partition complaint can be quite difficult depending on the circumstances. There are a great number of statutes that need to be precisely followed, otherwise the court is likely to toss the complaint out on a motion to demurrer. 

underwood-guide-to-appeal-interlocutory-judgement-300x300Does the appeal of an interlocutory judgment automatically stay the partition case?

No. An appeal of an interlocutory judgment in a partition case is not stayed unless the appellant files an undertaking. (CCP §§ 917.4, 917.5.) Normally, appeals of court judgments result in an “automatic” stay that restrains the lower trial court from issuing any more orders until the appeal process is completed. 

There, are however, certain types of orders where this rule is inapplicable. Instead, if the appealing party wants to stay lower court proceedings, they must post a bond to the court called an “undertaking.” Interlocutory judgments of partition fall into this category because they are orders that dispose of real property.

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