California Partition Law Blog

What is the Difference Between a Jurat and an Acknowledgement?

Published on: October 9, 2024 | By Underwood Law Firm, P.C.

underwood-what-is-jurat-vs-acknowledgement-300x300 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.

What is a jurat?

A jurat is a form of notarization also called verification upon oath or affirmation. This means the signer of the document will swear or affirm the truthfulness of the document’s contents to a notary or notarial official. (Allstate Savings & Loan Assn. v. Lotito (1981) 116 Cal.App.3d 998, 1005.)

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Does a Personal Lien Attach to Real Estate?

Published on: October 2, 2024 | By Underwood Law Firm, P.C.

underwood-personal-lien-real-estate-300x300 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.

What is a personal lien?

A lien applies to future property bought by the debtor, the heirs of the estate if the debtor dies, and any property the debtor transfers into a revocable living trust. Liens implicating personal debts like child support are likely to arise as judgment liens. This means a court can impose the lien when someone does not repay a debt. They can be voluntary with the homeowner (or property owner) choosing to use their property as collateral or involuntary if the court has ordered the lien against the owner’s wishes. (CCP § 697.320)

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What is a “Partnership Dissolution”/ Partnership Buyout Agreement?

Published on: September 26, 2024 | By Underwood Law Firm, P.C.

underwood-partnership-buyout-agreement-300x300 The purpose of this article is to explain what Partnership Dissolutions and Partnership Buyout Agreements are. Understanding the purpose of these contracts is important to business partners attempting to navigate the dissolution or end of their partnership and the loss of a partner. Knowing the differences between a Partnership Dissolution and a Partnership Buyout Agreement is crucial to ensuring the best outcome for your partnership’s end.

What is a “Partnership Dissolution”?

A partnership dissolution is the first step in ending a business relationship between partners in a partnership firm by altering an existing partnership. A partnership is a type of formal relationship between at least two individuals who engage in shared business activity for profit. A partnership dissolution ends the legal relationship between partners. Dissolution can occur because of disputes between partners, departure of a partner from the firm, business failure, bankruptcy, or retirement. California law outlines five ways a partnership can be dissolved.

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A Guide to Exceptions in a Title Report

Published on: September 19, 2024 | By Underwood Law Firm, P.C.

underwood-exceptions-in-title-report-300x300 Exceptions in a title report, also called a preliminary title report, make a potential buyer aware of issues with the property. Exceptions are important as they may limit what title insurance a buyer is eligible for and may prevent the sale of property altogether.

What is a title report?

A title report is used when conducting a sale or purchase of real estate to help a buyer make an informed decision. A title report is provided by a title insurance company after escrow is opened. It is a document that includes details about the property’s owners, recorded liens against the property, other encumbrances or debts, and conditions. (Ins. Code. § 12340.11.)

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Can a Co-Owner Recover Value of Time or Services in a Partition Action?

Published on: September 11, 2024 | By Underwood Law Firm, P.C.

underwood-recover-value-time-services-300x300 The purpose of this article is to explain whether a property owner can recover value of time or services in a partition action. Understanding whether an owner can recover the value of time or services is important because it directly affects the compensation they are entitled to recover in a partition action.

What is a partition action?

A partition action is a court-ordered process that occurs when a property owner forces the sale of jointly owned real estate property. Partitions are designed to determine the final equitable sum of a property owner’s interest in real estate, allowing each co-worker to take their fair share of equity, before going their separate ways. Each owner is entitled to recover their fair share of the property’s value. This means each co-owner is guaranteed to receive their equal share of rents and profits from a property they co-own through an equal division process performed by the court. (Cal. Civ. Proc. Code § 872.510.)

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AB 2016 — An Update to “Small Estate Petitions” (Prob. Code § 13100)

Published on: September 4, 2024 | By Underwood Law Firm, P.C.

underwood-small-estate-petitions-300x300 An Assembly bill applying to decedents’ estates was finalized on August 29, 2024. The bill will amend six sections of the Probate Code (Cal. Prob. Code § 13100-13101, 13150-13152, 13154) and repeal one section (Prob. Code § 13158). This is significant because it impacts how successors of decedents can manage a decedent’s real property.

Specifically, this means real property in estates valued over $750,000, or that was not the primary residence, can no longer take advantage of this expedited process.

Generally, it takes a long time for an estate to go through probate, so this section of the code is meant to facilitate the distribution and disposal of certain types of property in the estate. Normally an estate goes through administration proceedings and to state a claim as a beneficiary that person needs to file a petition. (Prob. Code § 11700-11701.) The petitioning person has to notify the other settled heirs and beneficiaries who can fight the petition. (Prob. Code § 1220.) Because of these lengthy and expensive disputes, estates under a certain value were made exempt from the estate administration process. (Bucholtz v. Belshe (9th Cir. 1997) 114 F.3d 923, 927.) Currently, sections of the Probate Code allow property in an estate under a certain value to be disposed of by a successor. Once this new bill is enacted it will limit the exemption to which the property applies.

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Is It Possible to Bring a Partition Action in Federal Court?

Published on: August 28, 2024 | By Underwood Law Firm, P.C.

underwood-partition-federal-court-300x300 The purpose of this article is to explain how a partition action could be brought in federal court. While it is possible to bring a partition action in a federal court, because of how state-specific partition statutes are, partition matters are usually handled in state courts.

Generally, partition actions are governed by state statutes. Also, a claim for partition is usually resolved by equitable remedies, meaning the court follows equitable principles. (Elbert, Ltd. v. Federated Income Properties (1953) 120 Cal. App. 2d 194, 200.) This means protecting the rights of co-tenants or owners and determining rights in a fair way. The jurisdiction to handle a partition claim and determine equitable remedies is granted by a state constitution or by state or federal statutes.

These state statutes give state courts jurisdiction to handle partition claims alongside other real estate issues. For example, in California, the California Code of Civil Procedure section 872.110 gives state superior courts jurisdiction to handle partition matters.

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What is a “Title Defect”?

Published on: August 21, 2024 | By Underwood Law Firm, P.C.

underwood-what-is-title-defect-300x300 The purpose of this article is to explain about the legal concept of a title defect. Finding defects in the title of a property is important because it indicates there is a problem with the property’s ownership. Title defects can prevent sale and present additional costs to owners and buyers.

What is a title defect?

Title defects most commonly appear in the “chain of title” when title to property is passed from person to person. This means the title to the land (ownership) is unclear or flawed in the way it was sold or transferred to a current owner. Defects in title can hinder the sale of a home and also who the home can be sold to. This is because if a buyer learns of a defect in the title, he can object to the purchase of the property. (Easton v. Montgomery (1891) 90 Cal. 307, 308; Gates v. McLean (1886) 70 Cal. 42, 49.)

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What is a Trustee Removal Petition (Prob. Code, § 17200(b)(10))?

Published on: August 16, 2024 | By Underwood Law Firm, P.C.

underwood-trustee-removal-petition-300x300 The purpose of this article is to explain what a trustee removal petition is. In a trust the trust is managed by the trustee, who is put in charge by the creator of the trust called the settlor. A trustee removal petition is made by a settlor, co-trustee, or beneficiary of the trust with the goal of removing the trustee. (Prob. Code, § 17200, subd. (b)(10).) Usually, this petition is made by a beneficiary, meaning the person or persons intended to benefit from the trust.

Why would removal of a trustee be necessary?

A trustee is a person or persons intended to manage a trust. The trustee is meant to protect the trust and ensure beneficiaries are informed and included in any disputes arising with or against the trust. (Johnson v. Curley (1927) 83 Cal. App. 627, 630; Alexander v. Title Ins. & Trust Co. (1941) 48 Cal. App. 2d 488, 493–494.)

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What Does “Color of Title” Mean?

Published on: August 9, 2024 | By Underwood Law Firm, P.C.

underwood-law-color-of-title-300x300 The purpose of this article is to explain the term “color of title.” This is an important concept in real property disputes because it means some has apparent title to property based on a written instrument, but that title is actually defective.

What is Required to Show Color of Title?

Color of title gives the appearance that someone holds title to a piece of property. (Thompson v. Dypvik (1985)174 Cal. App. 3d 329, 339.) The possessor of color of title has a written deed or instrument or judicial decree that seems to transfer good title. However, the transfer is somehow defective and is not actually effective in transferring title. (Packard v. Moss (1885) 68 Cal. 123, 126.) Just because a deed is void does not mean the possessor of color of title has no claim to the property. Instead, the color of title provides exactly that. It can allow someone to assert a right to property under a defective instrument as long as they can show they had a good faith belief the instrument was valid. For example, a deed that describes the land and purports to pass title between two people which is ultimately void or voidable, furnishes color of title on which the recipient of the deed can base a claim of adverse possession. (Id. at 130.)

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