Partition/Joint Ownership Disputes

 

When more than one person owns a property, an action for partition allows for a property to be split either by division or sale. If multiple owners no longer desire to co-own a property and cannot agree on how to proceed then filing an action for partition is required.

 

There are two main kinds of partition actions: a partition in kind and partition by sale. A partition in kind involves the physical division of a property which is determined by the form of tenancy held by each party. A partition in kind splits a property into separate and individual properties which are no longer held in co-ownership (for example, dividing a 10 acre parcel of land which was co-owned into two separate 5 acre parcels with each co-owner getting their own parcel).   Although California partition law (many aspects of which date back to the 1800’s) favors partition in kind, most properties can no longer be divided by “partition in kind” for practical reasons. If a partition in kind is not a viable option, co-owners have a right to partition by sale which involves the sale of the property to a third party with the proceeds divided among the co-owners.  Partition is generally a matter of right in California, and as a property owner you cannot be forced to remain co-owners with someone you no longer want to co-own property with.

 

Partition claims are the subject of many different laws, some of which are rather obscure and can seem counter-intuitive.  If you are involved in a co-ownership dispute or partition matter, it is important that you be familiar with partition laws or be represented by an attorney experienced in partition matters or you may be in for some very unpleasant expenses and surprises. Our office has handled over 50 partition actions, including some which were resolved quickly by agreement and others which had to go through contested trials and post-trial hearings. 

 

Boundary Disputes, Fences, Encroachments

 

Boundary disputes may arise from numerous sources (i.e. fences constructed over boundary lines, overuse of shared resources, overgrown trees and plants, encroaching structures, property changes which impact drainage). Many boundary disputes arise over poor record keeping and careless construction of fences. In a boundary dispute it is often important to hire a licensed land surveyor to survey the property in question. Due to the varying nature of boundary disputes, an experienced real estate attorney will need to assess a specific situation to determine the best remedy. In some cases a “neighborly” negotiation or discussion will help to resolve a problem quickly. In other cases more formal procedures and even a lawsuit may become necessary to resolve boundary disputes. We can assist you in any facet of these disputes.

                                

Claims/Defenses in Construction Litigation

 

Though performance or payment issues between contractors and subcontractors tend to be at the center of most construction disputes, often add additional levels of complexity to construction litigation. Whether you are a property owner, developer, builder, subcontractor, investor, or purchaser having experienced legal representation is essential to protecting your interests in such matters.  We have represented many owners, developers, contractors, and subcontractors in many different types of construction disputes, from simple payment/performance disputes to pursuing or defending complicated construction defect claims.

 

Construction disputes can emerge for numerous reasons. Due to the often complicated nature of construction disputes, time is of the essence in attempting to reach an early settlement before major costs are incurred. In many cases, lengthy litigation can compound legal costs with costs resulting from delays in project development. We have years of experience in construction litigation and we will do our best to resolve your dispute in the most cost-effective way possible.

 

Real Estate and Mortgage Broker/Agent Disputes

 

Real estate and mortgage brokers and agents can often benefit from the assistance of an experienced real estate and business attorney. Real estate and mortgage brokers must choose the proper structure for their business(es), may need assistance in commission disputes, may need assistance in dealing with disputes before a local real estate board or the state BRE, and may need assistance in dealing with problem clients/customers. Residential and commercial consumers may have been treated unfairly by a real estate agent or broker who failed to fulfill their fiduciary duties. 

 

We are experienced in handling disputes involving real estate brokers and agents. We have represented many real estate brokers and agents and have counseled some brokers and agents regularly for over 20 years. If you are a real estate or mortgage broker or agent, we can work with you to help avoid disputes and can aid in defending any legal or administrative claims brought against you.  If you are a buyer or seller who has been harmed by a real estate agent or broker who failed to fulfill their fiduciary duties to you we can assist you and advise you in pursuing a claim. 

 

Failures to Disclose in Real Estate Transactions

 

Caveat emptor is a Latin term that means “let the buyer beware.” It is similar to the phrase “sold as is, where is,” and means that the buyer assumes the risk that Real Property may fail to meet expectations or have defects. In other words, the principle of caveat emptor serves as a warning that buyers have no recourse with the seller if the property does not meet their expectations or has serious defects.  Traditionally, real estate sales were subject to the principal of caveat emptor and a buyer who was sold property replete with defects had no remedy. California was among the first states to abandon the rule of caveat emptor in real estate transactions, enacting numerous laws that require sellers and real estate brokers to inspect property and to disclose known defects so that a buyer has sufficient information to make a reasoned judgment in buying property. Sellers often run afoul of these disclosure laws either intentionally or because they are unaware of the nature and extent of the duties of disclosure imposed upon them. California real estate attorneys understand that their state law imposes stringent duties of disclosure on sellers of real property, particularly in the sale of residential property, and can assist in making those disclosures. Sometimes a failure to disclose a defect is trivial or unintentional, as when a seller fails to disclose that an electrical outlet in the garage does not work because they had not used it for years and simply forgot about it, and after discovering the defect the buyer replaces the broken outlet with a new one at a cost of $15.00. Other times a seller’s failure to disclose may conceal a significant known defect from a buyer, who discovers the defect after escrow closes and then learns that it going to cost $200,000.00 to repair. As evidenced by the amount of litigation alleging incomplete or inadequate disclosure, the satisfaction of those duties is often misunderstood by sellers. We have years of experience in residential and commercial failure to disclose disputes and we will do our best to resolve your dispute in the most cost-effective way possible.

 

Specific Performance

 

Specific performance is a form of relief in which a court forces a party who breached or defaulted on a contract to fulfill the terms of the contract. In real estate matters, specific performance is most often asserted to pressure a seller who has “seller’s remorse” or otherwise wants to back out of a transaction to fulfill their obligations and complete the sale on the agreed terms. When properly asserting a specific performance claim against a seller, an attorney can file and record a “lis pendens” which alert a second buyer or other prospective buyers that the title to the property is clouded (making the property essentially unmarketable while the specific performance action is pending). Many times, simply filing suit and recording a lis pendens is sufficient to convince a reluctant seller to fulfill the terms of the contract. Our office has handled numerous specific performance disputes over commercial and residential real property and is experienced in all aspects of those disputes, including pre-lawsuit negotiation and required notices, and arbitration and litigation through trial if necessary of specific performance claims.

 

Title Insurance Disputes

 

Title insurance is a form of insurance which protects both owners and mortgage lenders against financial losses resulting from challenges or defects in a real estate title. A title defect is one of a multitude of things that may jeopardize your interest in a property. For example, a title defect can include an unsatisfied mortgage, lien, judgment or other unrecorded or undiscovered claim against a property. It can also arise through easements or other existing arrangements which may contain unseen risks (i.e. invalid deeds, claims to ownership, errors in public record, judgements, liens, mortgages etc.). If you have a disputed title or title insurance matter, we can help to review the details of the claim and accelerate the resolution process.