Real Estate Law

Disputes come up involving real estate contracts all the time. Some examples would include a seller’s refusal to sell the property; a seller’s failure to disclose defects regarding the property; claims for damages, to name a few.

In California real estate sales contracts, there is typically a duty to first try to resolve the dispute through the use of mediation. This article discusses mediation clauses in real estate contracts and the use of mediation in resolving disputes involving real estate contracts. Many of the issues discussed in this article, however, are not limited to real estate contracts and can be applied to many contract disputes involving other types of contracts.

The typical residential real estate contract in California is put onto an eight-page California Association of Realtors form, which, among other things, includes a mediation clause (“CAR Form”). The mediation clause contained in the CAR Form requires that prior to commencing legal proceedings to enforce rights under the contract, parties to the contract must first engage in the mediation process.

To understand what this means its best if you understand what a mediation is. A mediation is a process where the parties to the dispute, typically the buyer and the seller, meet, usually accompanied by attorneys, with the assistance of a mediator, who is usually either an attorney or a retired judge, in an effort to resolve the dispute without the necessity of commencing litigation. Mediation is a form of alternative dispute resolution which has become very popular in California, mostly because it saves the parties a great deal of money and it enables them to control the outcome of the dispute by agreeing to terms of settlement they find acceptable, rather than exposing the dispute to the cost and uncertainty of a judge, jury, or arbitrator.

The mediation clause in the CAR Form works with an incentive. The mediation clause in the CAR Form requires the complaining party, before commencing legal action, to first demand mediation. That same mediation clause requires the other party to the contract who receives the mediation demand to agree to participate in the mediation. By the terms of the mediation clause in the typical CAR Form, if either party fails to agree to utilize the mediation process, they are waiving their right to recover attorney’s fees in the ensuing legal proceeding, even if they prevail in the lawsuit and the contract contains an attorney’s fee clause. This creates a great incentive to engage in the mediation because if you fail to agree to mediate, you will not be able to recover your attorney’s fees even if you win the ensuing lawsuit.

Mediations can be extremely effective in resolving disputes involving real estate contracts or any other type of contract. For a mediation to be effective, however, it is generally advisable to make use of an experienced attorney who has had successes in resolving cases through the use of mediation. That attorney should be effective in articulating persuasive arguments on behalf of the client, should be familiar with local mediators so as to select an effective mediator, and is effective at advocating for their client at the mediation to influence a favorable outcome and settlement.

I have represented many clients in California, throughout the Bay Area, the East Bay, Oakland, and Walnut Creek, in various types of mediations, including real estate contract disputes, contract disputes, and other real estate and business disputes. If you have questions, or need assistance in mediating your dispute by an experienced and effective California attorney, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025.

It is not uncommon for two neighbors with adjoining properties to enter an informal or formal agreement regarding the right of one of the neighbors to use the other’s property, and in some instances the rights are mutual or reciprocal. Some examples include when a property owner lets their neighbor extend their garden or landscaping onto their property, or when a neighbor permits the adjoining property owner to park on their property, or when an adjoining landowner allows their neighbor to access the neighbor’s property through their property.

Sometimes these agreements are informal. One example is when it is the subject of an informal conversation between neighbors. Sometimes these agreements can be implicit by one neighbor, permitting the other neighbor to use their property, although no discussion has ever taken place on the subject. And sometimes these agreements can be more formal in the form of a written agreement, or even the subject of an express grant or in a written instrument.

In California, informal agreements of the type described above can have some significant pitfalls and risks. What was once intended to be a mere neighborly accommodation, could later be determined by a Court to be the relinquishment of certain property rights to your neighbor. And even in those instances where you intended to grant easement or property rights, there could be issues that develop as to what is the scope and/or duration of the easement or rights.

And even when you enter a formal written agreement, if it is not crafted carefully, disputes can arise. One example would be as to whether or not the agreement is personal to the property owners and not intended to “carry with the land” if one or both of the properties are sold. The effect can be the unintended granting of a permanent property right, which cannot be later revoked or cancelled. If that happens, this can have a serious impact on the usability and the value of the property burdened by agreement or easement.

Consequently, it is really quite important, when entering agreements with your neighbors where you are making accommodations to temporarily permit use of your land by your neighbor, or even in instances when you want to grant a permanent property right such as an easement, that a formal agreement and/or granting instrument be carefully crafted, and in appropriate instances recorded, so there is no later ambiguity or dispute regarding the rights of each of the property owners. Preparing and entering this type of agreement can save property owners great heartache, costs, and loss of property value.

I regularly represent clients in California throughout the Bay Area including in the East Bay, in varying types of issues involving adjoining property owners, and have prepared appropriate agreements and instruments granting appropriate property rights. If you have questions, or need assistance by a California real estate attorney, involving agreements between neighboring properties, please feel free to contact me to discuss your situation or to schedule a consultation at (510) 465-0025.

In California, an encroachment is typically considered to be a building or other structure beyond the boundaries of land on which it was rightfully constructed, onto adjoining land, without the permission or consent of the adjoining landowner. Simply stated a typical encroachment exists when your neighbor builds an improvement on their property which goes over their property line onto your property’s borders.

If your neighbor builds an encroachment onto your property, what should you do about it? The obvious first step would be to attempt to work it out with your neighbor. However, if your neighbor refuses to remove the encroachment, you would then probably have to commence a legal action to recover damages, for injunctive relief to obtain a court order to have the encroachment removed, or both.

In evaluating whether or not to have the encroachment removed, the court, which has discretion whether to grant or deny an application for an injunction, will evaluate many factors including, but by no means not limited to:

Whether or not the encroachment is temporary in nature or permanent;

The amount of time that has passed since the encroachment first appeared;

Whether, when the encroachment was built, the encroachment was done intentionally or unintentionally;

The expense and/or difficulty in removing the encroachment;

The impact of the encroachment on the encroached property.

Further, in California, there is a statute of limitations that applies to encroachments, which means that if you are going to commence a legal action for damages or to obtain a court order to have the encroachment removed, you do not have an unlimited amount of time to commence that action. Therefore, if you think your neighbor has built an encroachment onto your property, it is critical that you immediately consult with an attorney and if necessary, commence legal action.

I represent clients in Oakland, California, Walnut Creek, California and throughout the East Bay Area, regarding various types of boundary disputes including encroachments. If you have questions, or need representation by a California real estate attorney involving an encroachment dispute or another type of property dispute with your neighbor, please feel free to contact me to discuss your situation or to arrange for a consultation at (510) 465-0025.

An issue that comes up often is the situation where there is a fence that was believed to be on the property line between two properties (property A and B) which is discovered to actually be on just one of the properties (A) and has the effect of fencing in a portion of one of the property owner’s property (A) thereby excluding that property owner (A) from access to a portion of his property. Sometimes when this issue comes up the two neighbors talk and resolve the issue by either moving the fence or agreeing that although the fence is not on the property division line, that the property division lines remain fully intact. In other instances, however, a dispute arises where property B, the property that is benefiting from having a portion of their neighbor’s property on their side of the fence, takes a position that they have accrued property rights in the fenced in portion of property A.

In California, this scenario invokes various legal issues including the doctrines of boundary line by agreement, adverse possession, and prescriptive easements, to name a few. In evaluating this situation, the inquiry is not simply how long the fence has been up. Certainly a fence that has been in place for a long period of time is one piece of evidence as to whether or not certain property rights have accrued in favor of property owner B. However, the inquiry would not end there. In California, other evidentary issues need to be determined such as whether or not the boundary line between the two properties was uncertain at the time the fence was first built; whether the fence was intended to delineate a new boundary line between the two properties; whether the fence was intentionally erected by the owner of property B, and whether the neighboring property owner being burdened by the fence (property owner A) knew that a portion of his or her property was fenced in at the time that the fence was built or any time thereafter.

I have often come across these types of issues and have represented clients in Oakland, Walnut Creek, and in the East Bay, California, in dealing with resolving the issue of a property that is fenced in. If you have questions, or need representation by a California attorney, involving a dispute between neighbors, please feel free to contact me to arrange for a consultation at (510) 465-0025.

It is very common for neighboring or adjoining properties to develop issues between the owners regarding a variety of topics or issues. Some of the types of issues that can develop include:

• What are the owner’s responsibilities regarding division fences or property line fences

• What is the legal effect when one property has a portion of their property fenced in by their neighbor’s fence

• Easement issues which might include

• Determining the scope of an easement and whether its scope has changed over time

• Determining whether easement rights exist or whether they have terminated over time

• Whether or not easement rights have accrued over time under varying legal theories including for example:

• Prescriptive easements

• Easements by necessity

• The duties of property owners in maintaining and repairing easements

• Determining the legal effect of an encroachment onto a neighbor’s property or from a neighbor’s property (which is when there is a projection of a building, structure, or other thing on one tract of land onto another tract of land)

• The legal effect of agreements between neighbors regarding the property lines or easement rights

• Whether or not a property owner is using their property in such a way to commit a nuisance or trespass

• Tree issues

The issues that develop and disputes that arise between neighboring property owners can be many. Over the course of the next few weeks I will publish articles in this blog which discuss many of these issues including the legal rights involved, common problems, and ways to deal with some of these issues in California.

I regularly represent clients in California throughout the Bay Area and in the East Bay in varying types of boundary disputes, easement issues, and neighboring property issues. Please keep a lookout for later articles on these issues. If in the meantime, however, you have questions, need a consultation, or need representation by a California attorney regarding these types of issues, please feel free to contact me to arrange for a consultation at (510) 465-0025.

 

Before investing in investment real property, it is very important that you develop an asset protection strategy which accomplishes a number of goals, including, among other things, protecting your personal assets from any liability arising from the property (i.e., if someone gets injured at the property), and protecting the property from your personal creditors.

In California, there are various decisions that need to be made when making these types of asset protection strategies, including how to hold title, whether personally, as a limited liability company, as a trust, or in some other capacity, as well as, in what state to form any type of LLC, etc.

In California, these decisions are best made prior to or at the time of the purchase of the property. However, if you didn’t take care of it at the time of purchase, they can still be implemented after you have acquired the property.

Asset protection planning can end up being critical down the road in minimizing your personal liability, as well as protecting assets and wealth. I regularly represent clients in California throughout the Bay Area, and in the East Bay, California, in developing and implementing asset protection strategies when acquiring investment real property. If you have questions, or need assistance in developing and implementing an asset protection strategy from a California attorney, please feel free to contact me to arrange for a consultation at (510) 465-0025.