Articles Tagged with tenant rights

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 

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

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-3-300x300Co-ownership of property brings with it many rights and duties under the law. These rights and duties can vary depending on whether co-owners hold property as tenants in common or joint tenants; these are the two most popular forms of joint ownership in the state. Regardless of the ownership scheme, however, both forms of cotenancy share the same indisputable right: the right of possession. (Bakanauskas v. Urdan (1988) 206 Cal.App.3d 621, 628-630.) 

The right to possession is straightforward. Whether a co-owner holds a 1% or 99% ownership interest, they are nonetheless entitled to occupy the whole of the property if they so choose. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 382.) Of course, the “right” often does not meet the practicalities of the situation. To that end, co-owners have developed “TIC” agreements, wherein they agree to limit their right to occupy the jointly owned premises. 

TIC agreements, too, seem straightforward enough, but they became the subject of controversy when used with rental properties. Due to California’s skyrocketing housing costs, some co-owners of rental units enacted TICs amongst themselves so that each could have the exclusive right to occupancy (ERO) in particular dwelling units within the rental property. 

Underwood-Blog-Images-1-1-300x300The Partition of Real Property Act (PRPA) is an exciting new development in real estate law only recently passed by the California Legislature. Its effects are far-reaching, and its changes to the procedure for partitions cannot be understated. 

At Underwood Law Firm, our attorneys are more than familiar with partitions and the complexities such lawsuits can entail. With the PRPA and its provisions set to go into effect early in 2023, our attorneys are already keeping track of the way it will change to partition law so that we can best assist you in achieving your litigation objectives. 

When does the Partition of Real Property Act go into Effect? 

Underwood-Blog-Images-2-300x300American law has its roots in the laws of England. As such, many of the laws still on the books in the 21st Century depend on what English judges thought prior to our War for Independence began in 1776. Because our modern laws go back centuries since before the United States was a country, we should care about how our legal terms were originally understood as they may implicate a judge’s decision today. The most important of all the English Judges who influenced our modern laws was most likely Sir William Blackstone. 

Blackstone’s 1765 work, Commentaries on the Laws of England, is his most famous legal treatise, forming the backbone of common law analysis as modern lawyers understand it today. Without his efforts centuries ago, our conceptions of property, individual rights, and governmental authority would not be the same. His works remain cited even now in judicial decisions at all levels, including the Supreme Court of the United States. 

Blackstone’s comments on property law are particularly striking, for they bear the foundational ideas now found in our statutes governing real estate transactions, estate types, property rights, and ownership disputes. His analysis of tenancies in common and joint tenancy is so similar to our own California statutes that they warrant their own discussion. 

Underwood-Blog-Images-1-1-300x300Yes. When co-owners of property decide they want to go their separate ways but cannot come to an agreement on a buyout or reimbursements, they can institute a partition action and have the court system solve the problem for them. 

The presence of a life estate, however, substantially complicates this process. Additional evidentiary showings are required, and a partition might not even be available if the life estate owner fights the lawsuit. Thankfully, the Underwood Law Firm is more than familiar with partitions of all types and is here to assist property owners throughout the process. 

What is a life estate? 

Underwood-Blog-Images-300x300A “waste” claim is a means of recovering damages when a tenant on real property does substantial damage to the property itself. Most often, a waste claim arises when a person renting property causes damage while living there. But a waste claim isn’t restricted to landlords and tenants. It applies to nearly all situations where two or more people have some sort of interest in the common property.

On top of being their own cause of action that can be asserted in a lawsuit, waste claims can also potentially be raised in partition actions during the accounting stage. This allows property owners to approach the issue in the manner they see fit. Yet, understanding the contours of a waste claim is not as simple as it may seem. There are situations where damage to property is justified, meaning parties cannot always recover damages for the seemingly unjust actions of their co-owner(s).

In these situations, having an experienced real estate attorney at your side can make all the difference. The Underwood Law Firm encounters waste claims with regularity and is well-equipped with legal expertise to help guide those with property interests through this unique legal issue.

Underwood-Blog-Images-1-2-300x300Just because a party prevails in a lawsuit does not mean the matter is over. Rarely discussed but crucially important is the fact that a judgment must be enforced once it is entered. This isn’t always easy. Losing parties don’t always want to cooperate, especially when they’re operating without an attorney. 

Sometimes, a party might “disappear,” ignoring all communications from the other side and the court. Other times, they might simply refuse to sign documents as ordered, convinced the court got it wrong. These actions can cost victorious parties thousands of extra dollars of their time and money. Thankfully, in these situations, litigants have a unique remedy to combat this behavior: an elisor. 

An elisor is a person appointed by the court to perform functions like the execution of a deed or document. (Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020.) They are most commonly utilized in cases where a party never shows up or where a party refuses, even under court order, to sign documents as required by the court. 

Underwood-Blog-Images-4-300x300When co-owners of property decide they want to go their separate ways but cannot come to an agreement on a buyout or reimbursements, they can institute a partition action and have the court system solve the problem.

While partition actions usually involve homes or commercial properties, they can also involve condominiums. Condos bring with them some additional complexities because condo owners generally own an interest in their individual units and the common areas of the condominium complex.

This dual ownership can pose problems because there are restrictions in place about what can and can’t be partitioned when condominiums are involved. Thankfully, the Underwood Law Firm is more than familiar with partitions of all types of property and is here to assist property owners throughout the process.

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