California Partition Law Blog
Trusts are an important way to set out one’s wishes for how and when you want to transfer assets like property. While trusts usually are set up as written contracts, other trusts can be enforced by the court, like resulting trusts and constructive trusts. These types of trusts are involuntary, meaning a court imposes them as a remedy to prevent an inequitable result, when property is wrongfully taken or transferred. (Kenneally v. Bank of Nova Scotia (2010) 711 F.Supp.2d 1174, 1190.) A resulting trust may arise where the transferor did not want the transferee to have a beneficial interest in the property. A constructive trust is used by the court to prevent unjust enrichment.
What are some similarities between resulting and constructive trusts?
Both resulting and constructive trusts are involuntary because they are imposed by the court to reach an equitable result. (In re Raymond Renaissance Theater, LLC (Bankr. C.D. Cal. 2018) 583 B.R. 735, 746.) Because they are imposed by the court and not preexisting or stemming from a contract, they are exempt from the Statute of Frauds. This means there is no writing requirement for the trust to be enforced. (Martin v. Kehl (1983) 145 Cal.App.3d 228, 238.) They both have a similar purpose in identifying and then enforcing beneficial rights in property for a third party. (Holder v. Williams (1959) 167 Cal.App.2d 313, 315-316.)
A grandfather clause in a real estate context means a clause from a law or regulation was grandfathered in from an old version of that law or regulation. This means even if the law currently would affect someone if they were exempt under the old version of the law those rights have been “grandfathered in.” This is important in real estate because this allows properties, and thus their owners, to be exempt from current zoning laws and regulations. This exemption is meant to protect property owners against impermissible government takings of their property allowing for continued development. This means governments will pursue relocation agreements or other agreements to accommodate property owners as new ordinances are enacted. (
An encumbrance is a term frequently used in context with real estate. It is most often used with regards to property transfers. When contracting to sell or convey property it is usually implied that that property is being delivered free of encumbrances. (
Yes. Child support liens attach to real estate in California both voluntarily and involuntarily. Liens are effectively a public notice of outstanding claims against your property. In the case of child support, a custodial parent can place a lien against the non-custodial parent’s property when they fail to make court ordered payments. Child support liens last until the non-custodial parent resolves their debt by payment in full.
Commercial real estate is property being operated to generate business revenue through rental income or capital gains. Because it is meant to generate revenue if it is residential property, it must be used as rental housing to still be considered commercial real estate. It is not personal property.
Dividing property following divorce or dissolution proceedings can be complicated under family law principles. If the property has appreciated in value, this can make dividing it more contentious and complicated.
In determining the value of property, a property owner can seek out a broker’s opinion of value. A broker’s opinion of value, also caller a broker’s price opinion is an assessment of a property’s value. This assessment is done by a real estate broker, often for free to get the property owner’s business.
In California, title is determinative in some instances. This means that a court’s characterization of property in a marital dissolution proceeding determines the division of the property between spouses. How a property is titled may also affect the property’s protection from creditors, taxes, and the probate process. Understanding how and when title is determinative is important because married individuals may hold title in various forms affecting their interests in dissolutions.
Property transfers often require documents showing the transfer to be notarized and recorded. This means the document is entered into the county recorder’s office and notarized to ensure the document is authentic. A signed document can be notarized via a jurat or an acknowledgment. The choice of method is left to the person signing. The purpose of this article is to explain the difference between a jurat and an acknowledgment.
This article is about whether a personal lien, like a lien for child support, can attach to real estate. This is important because property can be used as collateral for debt voluntarily or involuntarily. This means the owner of the property uses the property as collateral by having a lien placed on it.