Articles Tagged with property owner

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? 

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

2242023-300x300A Heggstad petition is a unique legal maneuver in probate court that a party can use to establish the existence of a trust. Normally, if a party wants to show that the property at issue is in a family trust, they have to produce evidence of a transfer of the property into the trust. (Prob. Code § 15200 (b).) This is usually accomplished with a deed, which conveys the property from the owners (the “settlors”) to the trustees of the trust. 

But what happens when the settlor and trustee are the same person? That’s where Heggstad comes in. Under Heggstad, no formal transfer of the property by deed is needed. Instead, a written declaration of trust by the owner of the property is enough, provided the owner names themself as the sole trustee. (Carne v. Worthington (2016) 246 Cal.App.4th 548, 559.) 

Nonetheless, a successful Heggstad petition still requires proper planning and execution. A faulty property description, for instance, can doom the action from the outset. At Underwood Law firm, our attorneys know how tough a situation like this can be. Thankfully, our attorneys are well-versed in estate planning, and we know the best ways to tackle the disputes that accompany property in probate. Our team has the legal acumen and skills necessary to help you achieve your litigation goals. 

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

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-1-1-300x300A “TIC” Agreement is a contractual agreement between tenants in common to real property. Because each tenant in common is a co-owner of the property, these agreements can help spell out the rights of each, preventing future disputes over payment or occupation. And, if the dispute cannot be prevented, the agreement, acting as a binding contract, provides a clear guideline for a judge to use in a court action, ensuring that the lawsuit moves along as quickly as possible. 

That being said, an imperfect TIC agreement can wind up doing more harm than good in certain situations. If it fails to include a partition waiver, for example, one co-owner can actually attempt to force a sale of the entire property outright. 

As such, it is important for any prospective co-owner of real property to choose the right attorney for the job. At Underwood Law Firm, our attorneys are well-versed in the law of co-ownership, and we know the best ways to tackle the disputes that accompany it. Our team has the legal acumen and skills necessary to help you achieve your ownership goals.  

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-3-1-300x300Yes, but only in specific circumstances. When thinking of lawsuits, most people associate them with individuals. John may sue Mary for battery, for example. But this isn’t always the case. A large part of the law is devoted to virtual representation because some people, like minors, simply cannot file suit. 

This is where guardians and conservators come into play. These are officers that can be appointed or approved by the court and whose sole responsibility is the management of a person or thing on their behalf. Commonly, we associate conservators with property and guardians with people, but the differences are, in actuality, quite minute. 

Partitions are lawsuits that seek to divide up the shared equity in a property. But what happens when one of the owners is a minor or so elderly that they cannot manage the property on their own? At Underwood Law Firm, we have the answers. Our attorneys are more than familiar with partitions and the complexities such lawsuits can entail, particularly when conservatorships or trusts are involved. With our attorneys at your side, you can be sure that we will best assist you in achieving your litigation objectives. 

Underwood-Blog-Images-2-300x300When there are two or more owners of a piece of real property who are unable to come to an agreement on how to divide the property, any co-owner of the subject property may petition the court to partition the property. This is known as a partition action. Generally, the decision of a court to partition the property is merely the first step in the partition process. Although a partition action may sound quite simple, it is a complex process that requires extensive accounting and patience.   

What is a Partition Action?

A partition action is an action brought by a co-owner of a piece of real property against another co-owner, seeking to divide the property according to the respective interests of the co-owners. In order to establish a right to a partition, a party must show that they have some ownership interest in the subject property. Under Code of Civil Procedure section 872.210, any owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate is owned by several persons concurrently or in successive estates may bring a partition action. (CCP § 872.210.) Therefore, a co-tenant has an absolute right to partition. (Formosa Corp. v. Rogers (1951), 108 Cal.App.2d 397.) At Underwood Law Firm, our attorneys are more than familiar with partition actions and the step-by-step process of pursuing a partition. 

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