Articles Tagged with real estate

underwood-divided-undivided-interest-real-estate-300x300Owning property can be complicated. The purpose of this blog post is to talk about different ways to hold title, and provides information on the meaning of some common terms so the average person can better understand their rights and responsibilities with respect to their property. Different types of property ownership come with different rights. By better understanding these terms, we hope to empower people to able to make the best possible decisions when faced with difficult situations.

Undivided Interests

An undivided co-ownership exists when an entire property belongs to two or more owners. An undivided interest includes the property as a whole and the owners have the right to the entire property. Undivided interests can be characterized as a joint tenancy, where two or more individuals each own a partial and equal right to an entire property. (Civ. Code, § 683.) 

With rising rates keeping inventory and sales down, 2023 has seen a holding pattern for many real estate owners. Prices have held steady, but there has not been much movement in the market.

That’s likely to change in a major way as we head into 2024.

As the founder and president of Underwood Law Firm, a California-based boutique law firm that specializes in partition actions, I have a unique perspective on the real estate market. A partition action is a legal method that allows a property owner in a bad real estate relationship to use the court system to force the sale. Through my work, I have seen how trends in the larger economy can impact this decision, and how anticipated shifts in 2024 might play out for property owners.

underwood-title-insurance-real-estate-litigation-300x300Before undertaking litigation over real estate in California, title insurance can help to provide clarity as to important ownership questions. Title insurance is not just nice to have, in many instances, the law specifically envisions that the parties will obtain a title report of some type. For example, the Partition Law specifically envisions that the plaintiff will obtain a title report before filing the suit in Code of Civil Procedure section 872.220.

While a title report may be beneficial, a careful partition lawyer will consider going a step further and obtaining some sort of title insurance in order to adequately address any issues that could arise during the lawsuit. Because there are a number of types of insurance that could be obtained, this article will discuss the different options of title insurance available as part of real estate litigation. 

What is Title Insurance? 

underwood-unrecorded-deed-300x300In California, an unrecorded interest is valid between the parties thereto and those who have notice thereof. (Civ. Code § 1217.)

Just because a deed is unrecorded doesn’t mean it isn’t valid. If executed correctly, it is a valid transfer of real estate. But that doesn’t mean an unrecorded deed is a good idea. In fact, failing to record can wind up being a massive mistake, especially if the grantor tries to sell the property a second time, or give it to another family member.

In these situations, the right attorney can make all the difference. At Underwood Law Firm, our attorneys are well-versed in real estate recording laws and have the experience and knowledge to assist you in these types of title disputes.

underwood-escape-airbnbust-300x300In recent years, the growth of vacation rentals have driven the rise of purchasing investment properties in highly desirable areas throughout the country. For years, investment rentals were so profitable that many people jumped into the market and purchased properties to get a piece of the action. Unfortunately, in recent years, the sheer number of vacation rentals in these areas diluted the marketplace and made it increasingly more difficult to turn a profit from these investments, and in some cases, have lead to investment losses. 

As many people who previously saw the advantages of these investments have recently seen problems the problems with these properties, they have been looking for legal methods to leave these relationships and receive the return of their capital. Frequently, many people find that getting out of these investments is a lot harder than getting in, if they can even find a legal way out. Many cannot. The attorneys at the Underwood Law Firm, however, are well-versed in the legal tools for helping good people get out of these bad real estate relationships. 

What are the options for leaving a bad real estate relationship?

underwood-can-you-abandon-real-estate-300x300Generally, an owner can never legally “abandon” title to property. (Gerhard v. Stephens (1968) 442 P.2d 692, 713.) Instead, abandonment can only be found in situations dealing with personal property. Yet when the property interests in real property are in the nature of incorporeal hereditaments, the California Supreme Court has found that those interests can be abandoned. 

For a person to abandon property, or a right in property, there needs to be a nonuse accompanied by unequivocal and decisive acts on the part of the nonuser clearly showing an intention to abandon. (People v. Southern Pacific Co. (1916) 158 P. 177, 180.) Accordingly, in order to find abandonment, a trier of fact must find that the owner clearly and convincingly demonstrated the necessary intent to abandon. (Gerhard v. Stephens (1968) 442 P.2d 692, 713.)

What is an Incorporeal Hereditament?

underwood-what-is-ouster-300x300What is an Ouster (Civ. Code § 843)?

An ouster occurs when one tenant wrongful dispossesses or excludes another cotenant or cotenants from the common property. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.) Regardless of whether individuals share property as joint tenants or tenants in common, the property rights of cotenants are usually the same regarding possession. (12 Witkin, Summary 11th Real Prop § 41 (2023).) Each cotenant is entitled to share possession of the entire property and cannot be excluded from any part of the property by the other cotenant. (Id.) 

What Does an Ouster Require?

underwood-code-lis-pendens-300x300The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 872.250 outlines the procedure for a plaintiff seeking a partition of real property to record a lis pendens with the county office. A lis pendens gives notice to any future persons who may acquire an interest in the property that there is a pending lawsuit on the real property which could affect the real property’s title. This statute is important because a lis pendens could have consequences in future transactions involving the affected real property. 

Code of Civil Procedure section 872.250 states:

(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.

underwood-understanding-real-estate-contracts-300x300If you’re venturing into a real estate transaction and are daunted by the contracts, you’re certainly not alone. The jargon and intricate legal parlance can often make these contracts seem more complex than they actually are. Yet, the good news is that, armed with some guidance and understanding, these contracts become much less intimidating. Our friends at Cohen and Cohen delve deeper into the realm of real estate contracts below.

Key Aspects of a Real Estate Contract

Real estate contracts can be intricate and can have significant variation based on local laws and the specific details of the transaction. Nevertheless, there are several fundamental components that most real estate contracts should encompass to be deemed valid and enforceable:

underwood-home-equity-sales-300x300Frequently, when homeowners are dealing with financial difficulties, equity purchasers may induce homeowners to sell their homes for a fraction of the price. An “equity purchaser” is anyone who acquires title to any residence in foreclosure, with some exceptions. (Cal. Civ. Code § 1695.1(a)). The California legislature believed that homeowners were losing their homes to foreclosure due to “fraud, deception, and unfair dealing by home equity purchasers.” (Cal. Civ. Code § 1695). To combat these instances of deceit, the Legislature implemented the Home Equity Sales Contract Act, found in Title 5 of the California Code of Civil Procedure, Chapter 2.5, sections 1695.1-1695.16.

The goals of the Act are to provide homeowners with the information they need to make an informed decision regarding the sale of their home to an equity purchaser, to require that sales agreements be in writing, to protect the public against deceit and financial hardship, to encourage fair dealing in the sale and purchase of homes in foreclosure, to prohibit homeowners from being misled, to restrict unfair contract terms, to give homeowners a reasonable opportunity to rescind sales to equity purchasers, and to preserve home equities for the homeowners of California. (Cal. Civ. Code § 1695).

What Does the Home Equity Sales Contract Act Restrict?

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