Real Estate Law Archives

Can You Contest The Title in a Partition Action? (CCP § 872.210)

Published on: November 13, 2021 | By Underwood Law Firm, P.C.

A chess board where the king fell down
In many ways, partition actions are relatively straightforward. Generally, in a partition action, the two property owners cannot agree on its use, and one of the owners asks the court to sell the property so each can go their separate ways.

The question arises of whether one of the two persons actually owns the property in the first instance. When there is a question of whether one of the parties is an owner, can you contest the title in a partition action? The answer is “yes,” as one of the primary purposes of a partition action is a determination of title.

Generally, at trial, the court must determine whether the plaintiff has the right to partition. (CCP § 872.210(a).) A question of ownership of property, as presented in a partition action, may be one of fact or law, depending on whether the determination of the issue involves a decision on conflicting facts or the application of the law to a stated set of facts. (Lieb v. Superior Court (1962) 199 Cal.App.2d 364.)

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The Surplus Land Act’s Pre-Negotiation Notice Requirement (Gov. Code § 65088.4)

Published on: November 8, 2021 | By Underwood Law Firm, P.C.

Aerial image of a wide portion land in a city
The revised Surplus Land Act contains negotiation requirements to encourage the sale of surplus public land. Also, the law makes it more likely that the land will ultimately be developed for as much housing as possible. Prior to entering negotiations, however, AB 1486 requires that the agency selling the surplus land must first give notice.

Government Code section 54222 states that “Any local agency disposing of surplus land shall send, prior to disposing of that property or participating in negotiations to dispose of that property with a prospective transferee, a written notice of availability to all of the following [list of persons]. (emphasis added.)”

By the use of the mandatory term shall, this section mandates notification and therefore ensures that the widest possible array of interested persons will be able to compete to develop the surplus land.

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What’s the Big Deal with the New Surplus Land Act? (Gov. Code § 54222)

Published on: November 3, 2021 | By Underwood Law Firm, P.C.

Wide array of land with a stream in the middle.
Everything old is new again. Or so it seems. Sometimes a new thing really is new. In this case, the question is whether the new Surplus Land Act is truly as big of a change as touted. After all, there was a Surplus Land Act before, and there’s a Surplus Land Act now. What’s the big deal?

New Designation Requirements

One small but powerful change is that AB 1486 requires an entity disposing of surplus land to send a notice of availability to the Department of Housing and Community Development (the “Department”) rather than upon written request. This is part of the new “master list” requirements whereby the Department is now required to maintain a master list of available surplus land available. (see Gov. Code § 54222(a)(2).) By requiring each entity to send the information to the Department instead of requiring the Department to request such information, AB 1486 makes it easier for prospective purchasers to understand what is available.

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What is the purpose of the Surplus Land Act? (Gov. Code § 54221)

Published on: November 1, 2021 | By Underwood Law Firm, P.C.

Landscape image of a wide land in the field
The purpose of this article is to address the goals that California’s Surplus Land Act was designed to accomplish.

The article will address the prior version of the Surplus Land Act, the changes to definitions made in 2019, and provide a big-picture perspective on its aims.

In 2019, the California Legislature re-made the Surplus Land Act in significant ways. Just three of those ways are addressed here.

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How does a 1031 Exchange Work in Eminent Domain? (I.R.C. § 1033)

Published on: October 30, 2021 | By Underwood Law Firm, P.C.

Aerial view of land as a background image with texts about eminent domain
As if eminent domain is not bad enough, after you’ve gone through the process, the government wants to tax you on the land it made you sell. Savvy property owners, however, can limit their tax liabilities through the use of a 1031 exchange process.

Can a property owner limit the effects of eminent domain?

Internal Revenue Code section 1033 permits the owner of property taken by eminent domain to avoid income tax liability by purchasing qualified replacement property within a specified time following the condemnation.

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Why Don’t Business Owners Receive Compensation Offers in Eminent Domain? (Gov. Code § 7267.1)

Published on: October 29, 2021 | By Underwood Law Firm, P.C.

Business man handing over an envelopment to another man inside the office
The purpose of this post is to address the process where a governmental entity makes an offer to purchase property in contemplation of the later use of the eminent domain.

This post will address the rule that applies for offers prior to eminent domain, known as “pre-condemnation offers,” address specifics applicable to business, and then contemplate some difficult questions.

Eminent Domain Compensation

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How Does a Partial Taking Affect My Property Taxes? (Treas. Reg 6 1.10233(a)-2(c)(10)

Published on: October 22, 2021 | By Underwood Law Firm, P.C.

Property Tax illustration with a person's hand typing on a laptop
The purpose of this post is to discuss how a partial taking of your property may affect your property taxes.

Often, in an eminent domain action, there are at least two types of damages or payment required. First, the government should pay the property owner for the property actually taken.

Second, when the government takes anything less than the entire parcel, the government should also pay the property owner for any damages caused to the property left-over.

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How Does Eminent Domain Work?

Published on: October 14, 2021 | By Underwood Law Firm, P.C.

A person writing on an office desk holding a key beside a model miniature house.
For many of us, real estate is our most valuable asset and the thing that we rely on to provide security for retirement. It is also our passion where we can use our creativity to make our mark on the world. When we receive notice that it may be the subject of an eminent domain action, however, the unknown elements of the process can be a source of great anxiety.

This article provides insight into how the eminent domain process works so that you can know what to expect and hopefully navigate the process more smoothly. The typical steps for the eminent domain process are laid out below.

The Eminent Domain Steps

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How do I respond to an Eminent Domain Lawsuit?

Published on: September 22, 2021 | By Underwood Law Firm, P.C.

Two business men shaking hands on a meeting

What is the Eminent Domain Process?

The eminent domain process begins with an environmental review, negotiations with property owners, a hearing before a public entity, and then eventually, an eminent domain lawsuit. After some preliminary negotiations, a public entity will generally hold a hearing on something called a “Resolution of Necessity.” This is a formal determination by a governmental entity that a piece of private property is required for the construction of public work. Following the hearing on a resolution of necessity, the governmental entity will file a lawsuit in eminent domain.

What is an Eminent Domain Complaint?

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Surplus Land Act Guidelines Released

Published on: September 22, 2021 | By Underwood Law Firm, P.C.

Person pointing at a justice or scale icon

Surplus Land Act

Government Code section 54230.5 contains the “penalty” or “enforcement” provisions in the updated Surplus Land Act enacted under Assembly Bills 1255 and 1486 in 2019. Specifically, Section 54230.5 (a)(1) creates a penalty of “30 percent of the final sale price of the land sold in violation of this article for a first violation and 50 percent of any subsequent violation.” This is a serious hammer for noncompliance. A public entity may rightly be concerned, however, with ambiguities or gaps in a newly-enacted law.

Recently, in April 2021, the California Department of Housing and Community Development (HCD) released “guidelines” to provide clarity on the law to avoid the perils of non-compliance. Broadly, the Guidelines include further refinement of “definitions,” information on the “surplus land determination process,” requirements to be placed on surplus land for affordable housing, reporting requirements, and performance monitoring and penalties. These Guidelines are made available here and through HCD’s website. Since the Guidelines are too extensive to be digested in a single blog post, later posts here will digest each of the pieces and–the remaining gaps–over time. Until then, they are worth reviewing in full.

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