property

Can One Co-Owner Take All of the Rent from the Property?

Published on: April 11, 2024 | By Underwood Law Firm, P.C.

underwood-co-owner-take-rent-property-300x300 Often, the question of distributing rent earned on a co-owned property arises in the context of cotenants. Cotenants have equal rights to possess their property with their fellow cotenants. This means that no one cotenant can exclude another from the property. One cotenant can, however, assign their right of possession to a third party.

This can happen when a cotenant rents out part of the property to a tenant. In this situation, the other cotenants still have the right to possess the property, but they do not have a right to exclude the tenant. The tenant is also prohibited from excluding the other cotenants from occupying the property.

How can a cotenant lease property they co-own?

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What is “Real Property”? (Civ. Code § 658)

Published on: October 18, 2023 | By Underwood Law Firm, P.C.

underwood-what-is-real-property-300x300 Under 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.

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What is the difference between a deed of trust and a mortgage?

Published on: October 4, 2023 | By Underwood Law Firm, P.C.

underwood-deed-trust-vs-mortgage-300x300 Civil 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.

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Who is Responsible for Injuries on Jointly Owned Property? (Civ. Code § 1714)

Published on: August 9, 2023 | By Underwood Law Firm, P.C.

underwood-responsible-injuries-joint-property-300x300 Generally, every owner of property is liable for injuries on their property when it is not in a reasonably safe condition. (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232.) If a party was a co–owner and jointly in possession of the premises, they would be equally responsible for the condition of the premises and equally liable for injury. (Mayo v. White (1986) 178 Cal.App.3d 1083.

Civil Code section 1714 states that everyone is responsible for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

Even if someone has a small interest in the property and they exercise no control over the management of the property, they still will be liable. (Davert v. Larson (1985) 163 Cal.App.3d 407.) This is because the courts believe relieving individual owners in common of liability would eliminate any motivation of any party to exercise due care in the management and control of commonly owned property. (Id.) Therefore, owners may then be found to be “jointly and severally liable” for a person’s injury.

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