Real Estate Law

I own a commercial building in California and wish to evict a tenant. What are the steps involved?

The laws about evicting a residential tenant in California and a commercial tenant in California are very different. Generally, a residential tenant has many more protections from eviction under law than a commercial tenant.

There are special laws in place that protect residential tenants while they occupy the property – for example, residential tenants have the right of quiet enjoyment of the property, and the right to a clean and safe rental unit.

However, commercial tenants generally are not afforded those protections. Commercial tenants are presumed to be more knowledgeable and sophisticated than residential tenants.

Commercial tenants must be very careful before signing a lease, because they may not be entitled to break it just because there are rats in the building or because it’s in an unsafe neighborhood.

Most evictions of commercial buildings in California occur because of unpaid rent. In California, a commercial tenant can be evicted for failing to pay an amount of up to 20% over the amount of the rent. Landlords also frequently evict tenants because they do not like the way the commercial tenant is using the property.

In some cases, tenants may choose to break the lease because they do not like the way the property is maintained. In commercial property, unlike residential property, there is no warranty of habitability, like there is in residential property. If the commercial property suddenly becomes uninhabitable, the landlord has no duty to fix the problem. The tenant also cannot choose to pay for repairs and deduct those expenses from the rent, as they can in a residential property.

When a commercial landlord in California wishes to evict a tenant, they must give the tenant three days’ notice before evicting. During that three day period, the tenant can legally correct the problem that is causing the eviction. For example, the tenant, in those three days, could pay back rent or clean up the property.

After the three days pass, if the tenant has fixed the problem, the eviction will stop. If the tenant does not fix the problem, the landlord can serve the tenant with an eviction notice, and must give the tenant five days to leave.

If the tenant chooses not to leave, the landlord can go to court. The tenant then has 15 days to get their possessions from the rental property. After the 15 day period is over, the landlord can mail the tenant a notice informing the tenant that the landlord assumes the tenant’s possessions remaining on the property have been abandoned.

At that point, the tenant has another 18 days to claim the property, and then it can be sold by the landlord.

When a commercial tenant signs a lease, the tenant should remember that all rights should be spelled out in the lease. Commercial tenants do not have the same protections as residential tenants, so if roaches suddenly overtake the property, the landlord is not responsible unless it is in the contract.

Some provisions that both sides should think about including in a commercial lease in California include:

• Habitability. Remember, commercial property does not have to be habitable under California law like residential property does. Tenants who wish for proper repairs to the property to be made must insist that they be included in the lease.
• What happens in a dispute. What happens if there is a dispute over the lease? Can the parties sue, or do they have to engage in mediation? To what damages are the landlord or tenant entitled if their legal rights have been violated?
• Other Costs. In some commercial leases, tenants are responsible for paying other expenses of the landlord, such as taxes or insurance. Tenants should be careful of exactly what extra costs they are expected to pay before signing a lease.
• Termination of the lease. When can the lease be terminated by the landlord or the tenant? In some leases, the landlord has the ability to terminate the lease for any reason or no reason. If the commercial tenant was a successful business, it could be very damaging for the business to be forced to move out of the blue.
• Profits. In some leases, the tenant is not only expected to pay for the rent and additional costs, but also a percentage of all profits made. This is common in leases for retail mall space.

While in some cases it may be fine to rent a home without having an attorney review the lease, it’s almost always important that an attorney review a commercial lease before you sign it. The terms contained in the lease in some cases could make or break your business, since commercial tenants are afforded the same protections under law as residential tenants.

If you are looking for someone to review a commercial lease, call Oakland-Walnut Creek real estate attorney Robert Levy at 510-465-0025. I can help review your commercial lease.

A quiet title action is a legal case brought to establish who owns a piece of real estate, when there are multiple parties claiming to own the real estate, or a portion of it.

Often, quiet title actions are between co-owners, co-borrowers, or members of the same family who dispute who owns an interest in the property. Also, in California a quiet title case can be used when lenders and trustees are on a borrower’s deed of trust (mortgage), but who no longer have an interest in the property.

What a quiet title action does not do is to determine a piece of property’s boundaries, or to cancel any legal instruments that put a cloud on the title. To cancel a cloud on the title, the property owner must file an action to remove a cloud on the title.

In California, a lender can challenge a borrower’s right to quiet title. This is done by demanding that the borrower pay off the full amount of the loan.

However, if the situation is one in which the lender is non-existent and sold the loan to another party, but is still on the deed of trust, that lender cannot challenge the action. If the borrower is successful, he or she can request that the deed of trust in that lender’s name be expunged.

A quiet title action can be brought by any holder of any interest in the land, not just title to the property, but also a lease, a license, an easement, or a claim of title by adverse possession.

The party who brings the quiet title action will direct it at a person or entity who is claiming an adverse interest in the property.

Quiet title actions are filed in the local Superior Court in California where the real property is located, or where any portion of the property is located.

The plaintiff must file a complaint with the court, and must give a description of the property, how the plaintiff’s title to the property was obtained, a list of adverse claims, whether title is being determined as of the date of the complaint, or another date, and a request that the plaintiff be given title to the property against the adverse claims.

The defendant can then file an answer, which will allege any disputed facts, how the defendant has a claim on the title, and any other defenses to the case.

The plaintiff must also give a notice of pendency of action, which is a notice of the pendency of a case in which a real property claim is alleged. This notice gives constructive notice to any buyers of the property or to anyone who has an interest in the property of the pending action.

The notice of pendency of action gives a method of notifying everyone about the case, and to warn them against any attempt to obtain an interest in the property.

After all the paperwork is filed with the court, a judge will determine who the correct owner of the property is, and will issue a binding judgment about the property ownership. The judge will order a hearing, at which both sides can present all of their information about the property and claims to the property.

The judge will then make a ruling about the property ownership. There is no right to a jury title in quiet title action.

It’s a bad idea to attempt to bring your own action to quiet title, without the help of a skilled real estate attorney. Although there are some legal matters that can probably be done without the help of an attorney, a quiet title action in California is not one of them.

A quiet title action can be complex. The party who originated your deed may be out of business. There may be other assignments that have not been recorded, that could affect the ownership of your home. You may not be aware of all of the parties which claim an interest in your property, and you may not properly allege the facts to establish your property ownership. It’s best to talk with a skilled and knowledgeable California real estate attorney about your quiet title action, rather than attempting to do it yourself.

If another party is asserting an adverse claim of possession or ownership over your property, call East Bay real estate attorney Robert Levy at 510-465-0025. He has extensive experience in real estate matters, including quiet title actions, and will provide you with a free initial phone consultation.

A Marvin claim is a type of claim an unmarried member of a couple may have in California against the property of his or her partner. This does not mean that the couple is in a common law marriage – common law marriage is not recognized in California.

Instead, unmarried couples who live together and have a relationship may have community property rights. The partners can ask for both palimony (alimony for unmarried couples) and property rights in civil court, instead of in family court where marriage and divorce issues are handled.

These types of claims are called Marvin claims, based on a case involving the actor Lee Marvin. After they broke up, his long-term girlfriend sued him for financial support, similar to alimony and community property.

The Supreme Court of California awarded the property to his girlfriend. The Supreme Court refused to treat unmarried cohabitants like married people, but the court stated that agreements between unmarried partners should be enforced like any other contract between unmarried people.

Marvin cases can involve both opposite-sex and same-sex partners. In order for a Marvin claim to be successful, the claimant must be able to prove that the parties had either an express (written or oral) or implied contract, or some other basis for the claim.

Even if the agreement was not an express or oral agreement, the partners may be able to receive support or property in some situations. For example, if the parties casually decided that one of them would be the breadwinner and the other would manage the household and they later break up, the partner managing the household may be able to seek compensation from the income earner in the event of a breakup.

There can be several ways to show there was an agreement to create financial reliance between the partners. Generally, the longer the couple has lived together, the stronger the Marvin claim is likely to be.

If there are children involved, that also tends to make a claim stronger. If one partner gave up a career or a job for the benefit of the partnership, that can help to make a claim stronger.

If there are shared accounts or property, this can help show your relationship status. Any similar estate plans, health or dental plans, life insurance policies, or other documentation can strengthen your claim.

A couple which holds itself out to the world as married may have a stronger Marvin claim. The parties may have agreed to treat each other as a spouse. They may have used the same last name, or even filed joint tax returns.

In addition, some courts may want a reason the couple wasn’t married in order to uphold a Marvin claim, since getting married is generally quick and inexpensive. Typically, a successful plaintiff in a Marvin case must be able to show why the couple did not get married, even though they agreed they would have the same legal rights as they would as if they were married.

For example, one partner may be receiving alimony from a former marriage which would terminate if he or she remarried. One of both of the partners may have had a very lengthy, expensive, painful divorce. One of the partners may have a sketchy financial history, and the other may fear that getting married would destroy his or her credit.

There are a number of theories that can be asserted in a Marvin claim. They could include breach of contract, fraud, implied partnership, unjust enrichment, and more. The injured party can ask for lifetime support, or a division of property.

If you have been involved in a romantic, long-term relationship in California, and you two have broken up, you may believe that you have the right to financial support or property based on promises that were made during the relationship. In that case, you should consult with an attorney.

On the other hand, if you were involved in a long-term relationship that has ended and your partner makes a claim for property or financial support based on the Marvin case, you should also speak with an attorney.

An attorney can help you gather evidence that no promises were made during the relationship, and that your partner is not entitled to any support now that the relationship is over.

The forms of property ownership vary state by state. In California, property can be owned by one person, by several people, or by another entity such as a corporation, trust, or limited liability company.

If a person owns property in his or her individual capacity, the person is solely responsible for paying taxes, any mortgage on the property, and for the upkeep of the property or any other expenses related to the property. If he or she wants to sell the property, that can be done with only the sole owner’s signature on the deed or other documents.

In California, there are four ways in which to own property jointly with other individuals. They are tenancy in common, joint tenancy, community property or partnership interests. Under each form of ownership, two or more people own the property, but their legal rights are dependent on which type of ownership is involved.

A tenancy in common exists when two or more people are owners of undivided interests in real property. If a deed lists multiple owners, and it’s not specified that the owners own the property another way, the owners own the property as tenants in common. In a tenancy in common, each owner has the right to possess the property, and none of the owners can exclude the other owners or claim a certain portion of the property.

If a tenant in common receives rent from the property, he or she must share it with the other tenants in common. Also, any expenses of the property, such as property taxes, must be shared among the tenants in common in proportion to their ownership interests.

By law, a tenant in common can sell, give away, or mortgage his or her interest in the property without getting the permission of the other co-owners. When a tenant in common dies, his or her share of the property passes through the individual’s estate.

A joint tenancy exists if there are two or more people who are joint and equal owners of the same undivided interest in real estate. The most important factor involved in a joint tenancy is the right of survivorship – when one of the co-owners in a joint tenancy passes away, the property passes automatically to the surviving owners.

Therefore, any property subject to a joint tenancy cannot pass under a will and is not part of the estate. Normally, for a joint tenancy to exist, the deed must specify that it is a joint tenancy, and there are other factors that must be met as well.

California is a community property state, so another way two people can own property is through community property ownership. Community property consists of all property acquired by both spouses or by either spouse during a marriage, except for any separate property acquired through gift or inheritance.

Each spouse has the right to manage and control community property in general. Neither spouse can give away community property without the consent of the other. Each spouse does have the right to dispose of his or her half of community property by a will, and if no will is done the property passes to the surviving spouse.

The final form of joint ownership is a tenancy in partnership. This exists if there are two or more partners who own property for partnership purposes. There are specific rules that govern property ownership by individuals who are in a partnership.

Real estate attorneys often get asked if it’s a good idea to put a piece of property into a form of joint ownership with another party. This is often asked by elderly parents who want to put their children as joint owners on their primary home, so that the home does not go through the probate process.

There are a lot of factors to consider when considering putting another party as co-owners on a piece of property, such as: What happens if one of the owners gets mad at you, gets a divorce or files for bankruptcy?

Will that affect your property taxes? What if you change your mind later? How will that affect your estate plan? Will it affect your eligibility for Medicaid in the event you needed nursing home care? Will adding another party be considered a gift for gift tax purposes?

There are many factors to consider when deciding on how your property shall be titled. The best thing to do is to contact an experienced real estate attorney. If you are in the Oakland or Walnut Creek area, call Robert I. Levy, at 510-465-0025. I can help with your real estate issue. Call today to learn more.

All states have unique laws about buying homes in their state, and California is no exception. If you have bought a home in another state, your experience could be completely different than your experience in California.

Before buying a home, you may want to read about some of the unique laws to see how they will affect you.

The first issue that may be of some consideration to you is taxes. California has something called Mello-Roos taxes, which are imposed on property owners to fund improvements to local infrastructure.

The law that allows these special taxes was authorized by two politicians with the last names Mello and Roos. The funds from these taxes finance bonds that are used to build streets, improve or build sewer and sanitation systems, police and fire protection, parks, schools, and other local facilities. In order to be charged Mello-Roos taxes, a property has to be located within a Mello-Roos Community Facilities District.

Before buying a home in California, you should investigate whether or not the property is potentially subject to Mello-Roos taxes, and what the expected payment is.

Interestingly, under California law, buyers and sellers are allowed to be represented by the same real estate broker in a transaction. An arrangement in which the buyer and seller are represented by the same real estate broker is called a dual agency relationship. Many states do not allow a dual agency arrangement.

There is inherently a conflict of interest that arises when an agent is working with both a buyer and a seller. Obviously, the buyer wants to pay the lowest possible price for the property, while the seller wants the maximum price for the property.

It can be extremely hard to facilitate that type of arrangement objectively without sharing confidential information with either party. In California, as long as both the buyer and the seller consent to the arrangement in writing, the agent is allowed to represent both parties.

In California, it’s highly possible the buyer and seller will never meet each other in person. In some states, the buyer and seller are both required to physically attend a closing. At the closing, the buyer or the lender will provide funds for the purchase price, the seller signs a deed to the buyer, the deed is registered so that the buyer appears as the owner, and money from the sale is distributed to the seller.

In California, in most transactions the buyer and seller do not ever meet each other. This can make the transaction proceed more efficiently, since the closing is not contingent upon the parties’ schedules.

In California, home sellers are required to issue disclosures that are much lengthier than in many other states. California requires a high level of disclosure on home sellers. They are required to tell prospective buyers about the property’s features, pest control issues, physical condition, material defects, environmental issues, and other problems.

It’s important for buyers to read the disclosures very carefully, while also keeping in mind that a seller may not know everything about a property.

Finally, in California, you are not required to have an attorney to represent your interests at the closing. Some states require an attorney, because real estate transactions are typically complex and buyers and sellers may get easily taken advantage of if an attorney is not involved. However, California does not require that either party have a real estate attorney.

In California, most offers involve a form called the Residential Purchase Agreement and Joint Escrow Instructions. A real estate agent can help complete the form, sign the form and it can be the final contract.

However, just because attorneys are not required to be involved in real estate transactions does not mean they shouldn’t be.

Real estate is a complex area of law and there can be multiple issues that may arise during the offer, contract, or closing process, which can result in disaster if not handled properly.

California has a reputation of being a state which is friendly to home buyers, which can make it a great state in which to buy property. If you have any questions about a real estate transaction in California, and you are in the Oakland area, call Oakland – Walnut Creek real estate attorney Robert Levy at 510-465-0025.

He will provide you with a free consultation on your case. Call today to learn more or to schedule a free consultation on your case.

A mechanics lien is a lien recorded against your real estate. Mechanics liens are filed by contractors, subcontractors, suppliers of materials, or a laborer, who has worked on your property or provided materials for your property but has not gotten paid for that work or materials.

They is a way in which the unpaid party can use your property to collect compensation for the work performed or supplies provided for the property. In California, mechanics liens are recorded in the county recorder’s office. If mechanics liens remain unpaid, your property can be foreclosed.

In some cases, property owners have paid everyone for the work on their property, but still end up with a mechanics lien on their property. This usually occurs when the owner pays the contractor for the work, but the contractor fails to pay his or her subcontractors, workers or suppliers. Unfortunately, the homeowner is responsible for paying those individuals, even if the homeowner has already paid the contractor.

If you have a mechanics lien against your property in California, the property can be foreclosed on to pay the lien. The owner can also run into problems in trying to borrow against, refinance or sell the property if there’s a mechanics lien on it. The owner could end up paying twice for the same job in order to get the mechanics lien released.

Therefore, it’s critical that if you are a property owner in California and you are getting a home built or remodeled, that you do everything you can to prevent a mechanics lien from occurring in the first place.

One of the best things you can do to prevent a mechanic’s lien is to hire only a licensed contractor. You can click here to check that a contractor’s license in California is valid. You shouldn’t stop there though – you should also find out which subcontractors will be working on the job, and check their licenses as well.

Ask your contractor to provide you a list of all of the workers, suppliers and subcontractors to be used on the job. Finally, you should go online to check with your courthouse to find any lawsuits that have been filed against your contractor.

While a contractor may have been involved in a lawsuit or two and may still be a reputable company or individual, a pattern of lawsuits may indicate a problem.

Another thing you can do to prevent a mechanic’s lien is to keep on top of the paperwork involved. Your initial contract should be very detailed in identifying subcontractors for each part of the job, when they will get paid, and what the price is for each job.

The price and identification of material suppliers should be in the contract as well. You should keep up with the work of subcontractors or suppliers, whether or not they have been paid, and to whom money is owed.

Don’t take a step back and assume it’s your contractor’s responsibility to handle all that – the contractor is not the one who could end up with a mechanic’s lien filed against their property.

Once a certain subcontractor’s work is finished or materials are supplied, get a signed lien release which says that they have been paid and do not have a lien against your property.

Immediately upon the completion of the work on your property, you should file a timely Notice of Completion in your county recorder’s office. This may reduce the length of time a contractor, subcontractor, worker or supplier has in which to record a mechanics lien.

If you do discover that you have a mechanics lien on your property, don’t panic. It may not be valid. A qualified real estate attorney can help you determine if it is valid or invalid. If a mechanics lien claim is invalid, it is typically because the required timelines for filing the claim were not met by the contractor, subcontractor, supplier or laborer.

Often, but not always, a party who is filing a mechanics lien must give you a Preliminary Notice at a certain time; they must give you a Notice of Mechanics Lien; and they must have filed the mechanics lien within a certain time. If the lien is invalid, you can remove it.

The easiest way is to ask the party who filed it to remove it, and threaten a court action. If the contractor, subcontractor, worker or supplier fails to remove it, there is a swift court procedure to ask the court to remove it.

If you have a mechanics lien on your property, don’t panic or do anything right away. The best thing to do is to contact a real estate attorney who is experienced in removing mechanics liens from property. If you are in the Oakland – Walnut Creek area, call Attorney Robert Levy at 510-465-0025. He can help you remove the mechanics lien from your property.