Articles Tagged with real estate deed

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. 

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-1-1-300x300In California, property subject to a trust can be partitioned, though with some additional wrinkles to the regular partition process. Because trusts can often involve successive estates with future and present property interests, litigants should take care to understand the law regarding trusts before beginning such an action. 

At Underwood Law Firm, our attorneys are more than familiar with partitions and the complexities such lawsuits can entail, particularly when trusts are involved. With our attorneys at your side, you can be sure that we will best assist you in achieving your litigation objectives. 

What is trust property? 

Underwood-Blog-Images-5-300x300Ejectment is an action brought by a party seeking to recover a possessory interest or claim of title in a piece of real property. Typically, an ejectment action arises when a titleholder to a piece of property has been wrongfully excluded or withheld from the property. Therefore, ejectment applies only to those cases where an individual actually has possessory title to the subject property.

Ejectment is a possessory action used to recover possession of land or a piece of real property to a plaintiff in possession who has been wrongfully ousted from the property by the defendant. (Fuller v. Fuller (1917) 176 Cal. 637, 638, 169 P. 369].) In simpler terms, ejectment allows a party to retake possession of real property that the party was wrongfully removed from.

A claim of ejectment is a common issue in disputes over the real property where the parties are seeking to establish who holds title to or an interest in the subject property. Specifically, under Code of Civil Procedure section 3375, an individual who is entitled to specific real property may recover by a judgment for its possession or an order requiring a defendant to deliver possession of the property. (CCP § 3375.) At Underwood Law Firm, our attorneys are more than familiar with ejectment actions and the requirements needed to prevail on an ejectment claim. 

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-1-300x300In most breach of contract actions, the court must find that a valid contract has been created. There are several requirements that need to be fulfilled in order to have an enforceable contract. In certain circumstances, evidence of the existence of a contract in writing is required for the contract to be valid.

In general, contracts are not required to be in writing; oral contracts are enforceable. However, under the Code of Civil Procedure section 1624, certain contracts are required to be in writing. Code of Civil Procedure section 1624 is also known as the Statute of Frauds, and it renders certain contracts invalid if there is no writing to evidence the terms of the contract.

Code of Civil Procedure section 1624 sets forth a list of different categories of contracts that, per the Statute of Frauds, are required to be in writing. Specifically, there are seven types of contracts defined by section 1624 that a party to a breach of contract lawsuit should be aware of. At Underwood Law Firm, our attorneys are more than familiar with the Statute of Frauds and the writing requirements for a contract.   

Underwood-Blog-Images-5-300x300The deed to a property is the most important document a property owner has. It describes the title and its associated rights while operating as the conveyance of property itself. For that reason, the law presumes the validity of deeds without defects on their face. But that does not mean that every deed is legally valid and not subject to cancellation.

In California, there exists a special type of remedy that allows for deeds to be canceled. This, however, is a rare outcome. The deed itself must be void or voidable in order for this to occur. The Underwood Law Firm is well-versed in these types of cancelation claims and holds the skills to help our clients achieve their litigation goals.

What is a deed?

Underwood-Blog-Images-300x300An escrow is a tool used in real estate transactions to ensure that the purchase and sale of property occur as intended. At its core, it is merely the “holding” of significant property documents (like the deed) and the down payment for a piece of property. This ensures that the actual purchase of the property is not completed until all the conditions of the sale are actually met, such as the buyer officially obtaining a loan for the transaction.

As the California statutes put it, monies and evidence of title to property are “held by a third person until the happening of a specified event or the performance of the prescribed condition.” (Fin. Code § 17003.)

Escrow has numerous upsides, though it is admittedly an added expense on what it already an expensive transaction. Considering the importance of buying real estate, however, it is a safe option that ensures both buyer and seller leave the transaction satisfied.

Underwood-Blog-Images-1-300x300A lis pendens – also called a notice of pendency of action – is a special type of legal document filed with a county recorder. Though its use is limited to lawsuits involving real property claims, its effect is powerful. Once recorded, it acts as “constructive notice” to all persons who would subsequently acquire an interest in the property at issue that a lawsuit is occurring.

In this way, a lis pendens protects title holders as they proceed through litigation and, more importantly, the appeals process. The attorneys at Underwood Law Firm have filed countless lis pendens notices and are more than familiar enough with their requirements to assist you in your real estate litigation.

When can you file a lis pendens?

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