Articles Tagged with partition referee

622023-300x300Partitions sales and trustee sales are two different ways that a property can be sold. A main difference between the two is that a partition sale is ordered and overseen by the court, while a trustee sale is overseen by a third party in relation to foreclosure proceedings. While the third party is not beholden to a court ruling in a trustee sale, they must still follow the procedures outlined in California law. 

The Partitions Sale Process

Usually, partition sales are ordered by a court. This is because partition lawsuits are often brought before courts by a property owner who wants to force a sale if the parties cannot come to an agreement. Read more about partition actions generally here

5172023-300x300Lawsuits that affect interests in real property, such as partition actions, often require courts to adjudicate competing claims regarding who should have title to or possession of real property. In general, courts adjudicating such disputes follow the principle of “first in time, first in right.” Under this principle, “a conveyance recorded first generally has priority over any later-recorded conveyance.” (First Bank v. East West Bank (2011) 199 Cal.App.4th 1309, 1313.) 

An important factor that courts consider when adjudicating cases affecting interests in property is whether each party affected by the court’s judgment had notice of the litigation or judgment. A judgment affecting title to or possession of real property that is recorded imparts “constructive” notice to a subsequent transferee or encumbrancer. When recorded, such judgment is effective against any subsequent conveyance or encumbrance, regardless of whether the parties to that judgment receive notice about the subsequent conveyance or encumbrance. (Civ. Code, § 1214.) 

In contrast, a judgment that is not recorded with the recorder’s office of the county in which a property is located does not impart constructive notice to subsequent transferees or encumbrancers of the property. Any such judgment generally is not binding on a subsequent transferee or encumbrancer who acquires and records an interest in the property without notice of the prior litigation or judgment. (Civ. Code, § 1214.) 

472023-1-300x300An action to quiet title allows a litigant to clear title or have the court establish title to a piece of real property where the title to that property is in the issue. Moreover, a quiet title action is not solely for the purpose of establishing a legal interest in real property but can also be asserted to establish an equitable interest in real property. For example, when two people claim that they own an entire piece of property, one of those parties may file a quiet title action to determine which one of the two persons actually holds title to the property. 

Sometimes, however, the other party will refuse to participate in the lawsuit, which requires a party to win by “default.” In those circumstances, a question arises about what is necessary to do to succeed. The law explicitly addresses these circumstances. 

Specifically, Code of Civil Procedure section 764.010 provides: “The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall, in all cases, require evidence of the plaintiff’s title and hear such evidence as may be offered to respect the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.” 

452023-300x300Yes, although the tenant is not allowed to exclude the non-consenting owners. The reason for this is grounded in ancient legal doctrine regarding the “right to possession” that all co-owners of property share together. Each owner may exercise this right, and each may grant it to a third party, should they so choose, even without the consent of the other owners. 

While this may be legally allowed, however, it rarely results in anything other than trouble and lawsuits. In these situations, getting the right real estate attorney by your side can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in the law surrounding co-ownership and the rights and duties accompanying it. Here, we’re with you every step of the way.  

How does the law view leasing jointly-owned property? 

3292023-300x300While it may not be obvious, a sizeable portion of the work that real estate agents and realtors do is court-ordered. Real estate law is a massive field, and often, the disposition of litigation results in the court forcing the sale of a property, be it a business, home, condominium, etc. As such, many realtors find themselves acting as agents or referees for parties to a lawsuit. 

This situation finds its most common form in the partition. The partition is a special type of lawsuit wherein parties take their equity out of a property by putting it up for sale. However, should a real estate agent accept this task, there are a number of considerations they need to take in mind. The Underwood Law Firm handles partitions every day. As such, we’ve come up with 10 helpful items that every realtor should keep in mind if they’re tasked with partitioning a property. 

Number 1: What is Partition and How Does a Sale Begin? 

3172023-300x300Generally, a bankruptcy proceeding acts as a stay on the collection of debt as well as any acts needed to be taken to enforce a debt. The rules regarding partition actions in bankruptcy proceedings are codified in the Code of Civil Procedure section 715.050. Typically, whether a partition action is exempt from a bankruptcy proceeding depends on when the bankruptcy proceeding was initiated. Therefore, a bankruptcy proceeding will not necessarily prevent a person from recovering possession of premises for which they have the right to recover possession. 

If a writ of possession was not yet obtained prior to the filing of a bankruptcy proceeding, then a tenant may be able to stop the execution of a writ of possession initially by initiating a bankruptcy proceeding. Therefore, timing is an essential element in determining whether a partition action is exempt from a bankruptcy proceeding. At Underwood Law Firm, our attorneys are more than familiar with bankruptcy proceedings and their impact on partition actions. 

Code of Civil Procedure section 715.050 

3102023-300x300Receivers and partitions referees are cut from the same cloth. In actions involving property, they step in at the request of the parties or order of the court to properly dispose of or manage the property at issue. That said, there are enough differences between the two to warrant litigants being put on notice. 

At the Underwood Law Firm, our attorneys encounter both partition referees and receivers on a regular basis. We are well-versed in their appointment, associated costs, timelines, and the procedure they become involved in. As such, potential litigants should not hesitate to contact our office so that our team can begin helping you achieve your litigation goals. 

What is a Partition Referee? 

2222023-300x300An action for accounting is an equitable action seeking to determine the amount owed to the parties of an action when damages are uncertain. “An accounting is an equitable proceeding which is proper where there is an unliquidated and unascertained amount owing that cannot be determined without an examination of the debits and credits on the books to determine what is due and owing.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1136-1137, 167 Cal.Rptr.3d 382.) Therefore, when asserting an accounting action, equitable principles apply. 

In order to prevail on an accounting claim, a party must prove the existence of a relationship and that an uncertain balance is owed to the plaintiff, which requires an accounting. At the Underwood Law Firm, our attorneys are more than familiar with accounting actions. 

Elements of an Accounting Action

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 

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