Articles Tagged with legal declarations

3242023-300x300Real estate contracts are an expansive field of both law and life. Sales, leases, options, and certainly wills can all fall under this broad category. Normally, once a contract is signed, parties can go to court to enforce them by filing a lawsuit. But if one of the parties has passed away, the transaction becomes more complicated. 

Thankfully, the California legislature created Probate Code section 850 to remedy some of the problems inherent to these situations. No longer do separate lawsuits need to be filed. Instead, interested parties can file a special petition to get the probate court to enforce a contract concerning the subject property. For instance, a son could petition to enforce a contract with his decedent’s mother where she had promised to transfer him the house upon death. 

That said, the law surrounding these petitions is still dense and unwieldy for inexperienced litigants. As such, securing the right attorney in these situations can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in these matters and are ready to assist. Potential litigants should not hesitate to contact our office so that we can begin making your goals a reality. 

3222023-300x300In California, a real estate investment trust is “any unincorporated association or trust formed to engage in business and managed by, or under the direction of, one or more trustees for the benefit of the holders or owners of transferable shares of beneficial interest in the trust estate and (1) that formed for the purpose of engaging in business as a real estate investment trust under the Federal Internal Revenue Code, (2) the sale of the shares of which has been qualified at any time by the Commissioner of Business Oversight pursuant to the Corporate Securities Law of 1968, and (3) that in good faith has commenced business as a real estate investment trust.” (Cal. Corp. Code § 23000(a)-(b).) 

The Real Estate Investment Trust originated in 1960 with the Real Estate Investment Trust Act. Generally, the real estate investment trust allows individual investors to invest in large-scale commercial real estate projects. However, there are certain requirements that the law imposes for a real estate investment trust to be valid. 

There are four different categories of requirements for a real estate investment trust imposed by the law; (1) organizational requirements; (2) asset requirements; (3) income requirements; and (4) distribution requirements.  At the Underwood Law Firm, our attorneys are more than familiar with real estate investment trusts and the requirements that need to be fulfilled to have a real estate investment trust. 

3152023-300x300When a loved one passes away, probate proceedings are hopefully not the first thing on their relatives’ minds. Probate is, however, an inevitability, even when a trust is present and effective. But inheritance is not always the blessing that the public conscious imagines it to be. The simple truth is that owning property in California is an expensive endeavor that carries with it tons of monetary responsibility. Faced with the possibility of inheriting something an individual simply cannot afford, there is an option: a disclaimer of interest. 

A disclaimer of interest is, essentially, a written statement to the probate court where someone who stands to inherit property or assets states that they do not wish to exercise that inheritance. They “disclaim” any right to receive the interest that they otherwise would. 

Specifically, Probate Code section 275 provides: “A beneficiary may disclaim any interest, in whole or in part, by filing a disclaimer of as provided in this part.” 

382023-1-300x300A Prejudgment Claim to Right of Possession is a form used for the purpose of avoiding third-party claims in an eviction/unlawful detainer action. The Prejudgment Claim to Right Possession is for the purpose of giving notice to any unnamed occupants of a subject property that an eviction action has been initiated. After a prejudgment claim to right of possession, any unnamed occupants may file their own prejudgment claim form to preserve their rights in the subject property. If said unnamed occupants fail to do so, those unnamed occupants will lose their rights in the subject property, and the eviction action may proceed.   

However, if the litigant filing the eviction action fails to file a prejudgment claim to right of possession, and an unnamed tenant does file a prejudgment claim, then the eviction will be delayed in order for a hearing to take place to determine if the unnamed tenant should have been included as a defendant in the original eviction action. At Underwood Law Firm, our attorneys are more than familiar with prejudgment claims to right of possession. 

Code of Civil Procedure 415.46

2152023-300x300A Marvin agreement is an implied or express contract made between two nonmarried cohabitants/partners regarding property rights during a romantic relationship. Generally, unmarried partners living together can enter a variety of contracts, including but not limited to pooling their earnings to share property equally, holding property as joint tenants or tenants in common, or keeping their earnings and property separate. (Marvin v. Marvin (1976) 18 Cal.3d 660, 674; Hill v. Westbrook’s Estate (1950) 95 Cal.App.2d 599; Della Zoppa v. Della Zoppa (2001) 86 Cal.App.4th 1144.) If established, a Marvin agreement gives property rights to a romantic partner similar to that of a married individual. As such, a Marvin claim works similarly to a breach of contract claim but is ultimately based on equity. 

In order to prevail on a Marvin claim, a party must prove that an agreement existed between nonromantic partners to treat the property as theirs together. At Underwood Law Firm, our attorneys are more than familiar with Marvin agreements and their relationship with property rights. 

Where do Marvin Agreements come from?

Underwood-Blog-Images-2-300x300A deed of trust is a commonly used mortgage document in California. Essentially, a deed of trust provides a lender with security for the repayment of the loan and effectively functions similarly to a mortgage.  A deed of trust is a deed that transfers a legal interest in a piece of real property owned by the lendee to the lender, or trustee, in order to secure the debt owed on the loan. Certain elements are required for a deed of trust to be valid. These elements are codified in the Code of Civil Procedure, section 2924. 

A deed of trust involves three parties: (1) the trustor, who is the person who received the loan, (2) the beneficiary, who is the person who loaned the money to the trustor, and (3) the trustee, who is the person that released the loan once it has been paid off. At Underwood Law Firm, our attorneys are more than familiar with a deed of trust and the elements required for a valid deed of trust. 

When is it common to have a Deed of Trust?

Underwood-Blog-Images-1-300x300In California, a person can claim title to a piece of real property that they are not a titleholder to through adverse possession. Adverse possession requires a person to be in use of a particular piece of real property for the required statutory period. An adverse possessor, however, does not become the titleholder of a piece of property merely by using the property. Certain elements are required for a claimant to acquire title through adverse possession. The requirements for adverse possession are codified in the California Code of Civil Procedure section 323. 

Under section 325, subdivision (b), for an adverse possessor to gain title through adverse possession, the claimant must prove (1) possession under the claim of right or color of title; (2) actual, open, and notorious occupation of the premises which gives reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (CCP § 325(b).) At Underwood Law Firm, our attorneys are more than familiar with adverse possession and the elements required for gaining title through adverse possession. 

Possession Under the Claim of Right/Color of Title 

Underwood-Blog-Images-1-2-300x300A motion to determine title is a motion to the court requesting that the court establish title to a piece of real property. Typically, a motion to determine title shows up in the court as a quiet title action. A quiet title action is brought when a litigant seeks to establish that they have an ownership interest in the subject property and refute any adverse claims against the litigant. It follows that to prevail on a motion to determine title; one must show that they hold some ownership interest in the subject property. 

The law surrounding a motion to determine title is codified in Code of Civil Procedure section 760.030. Under section 760.030, when establishing or quieting title is in issue in an action or proceeding, the court may, upon motion of any party, require that the issue be resolved pursuant to the provisions of the code of civil procedure relating to quiet title actions. (CCP § 760.030.) At Underwood Law Firm, our attorneys are more than familiar with partition actions and the step-by-step process of pursuing a partition. 

What is a Quiet Title Action

Underwood-Blog-Images-4-300x300“Joint tenancy” is a phrase that most people associate with the co-ownership of a property. And indeed, this is correct. Joint tenancy is a form of co-ownership in California, second only to tenancies-in-common in terms of popularity. But just because the words “joint tenancy” are used in a deed or other property-related document does not mean one actually exists. 

For a joint tenancy to be “true” means its effects fully apply. At a minimum, ownership percentages between the owners need to be equal, and the right of survivorship has to be present between the parties. What’s more, is that if any of the statutory or legal requirements associated with its creation are missing, then the joint tenancy does not exist, and it cannot be “true.” 

At Underwood Law Firm, our attorneys are well-versed in co-tenancy and the various forms it can take, including joint tenancy. The rights and duties that follow each of these ownership schemes are unique, making them a key issue in real estate litigation. 

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.

But sometimes, one of the buyers is a party to the litigation itself. While the law allows for this, it would be counterintuitive to force that party to submit a bid for the full price of the house when they already have equity in it. The law’s solution to this is the full credit bid.

Full credit bids allow parties to “credit” their bid for the property with the value of their equity already in place. This reduces the amount of cash they actually need to bid for the property. That said, it isn’t always an option, and sometimes it can wind up being a disadvantage for the party attempting to utilize it.

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