Articles Tagged with legal action

472023-1-300x300An action to quiet title allows a litigant to clear title or have the court establish title to a piece of real property where the title to that property is in the issue. Moreover, a quiet title action is not solely for the purpose of establishing a legal interest in real property but can also be asserted to establish an equitable interest in real property. For example, when two people claim that they own an entire piece of property, one of those parties may file a quiet title action to determine which one of the two persons actually holds title to the property. 

Sometimes, however, the other party will refuse to participate in the lawsuit, which requires a party to win by “default.” In those circumstances, a question arises about what is necessary to do to succeed. The law explicitly addresses these circumstances. 

Specifically, Code of Civil Procedure section 764.010 provides: “The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall, in all cases, require evidence of the plaintiff’s title and hear such evidence as may be offered to respect the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.” 

452023-300x300Yes, although the tenant is not allowed to exclude the non-consenting owners. The reason for this is grounded in ancient legal doctrine regarding the “right to possession” that all co-owners of property share together. Each owner may exercise this right, and each may grant it to a third party, should they so choose, even without the consent of the other owners. 

While this may be legally allowed, however, it rarely results in anything other than trouble and lawsuits. In these situations, getting the right real estate attorney by your side can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in the law surrounding co-ownership and the rights and duties accompanying it. Here, we’re with you every step of the way.  

How does the law view leasing jointly-owned property? 

3292023-300x300While it may not be obvious, a sizeable portion of the work that real estate agents and realtors do is court-ordered. Real estate law is a massive field, and often, the disposition of litigation results in the court forcing the sale of a property, be it a business, home, condominium, etc. As such, many realtors find themselves acting as agents or referees for parties to a lawsuit. 

This situation finds its most common form in the partition. The partition is a special type of lawsuit wherein parties take their equity out of a property by putting it up for sale. However, should a real estate agent accept this task, there are a number of considerations they need to take in mind. The Underwood Law Firm handles partitions every day. As such, we’ve come up with 10 helpful items that every realtor should keep in mind if they’re tasked with partitioning a property. 

Number 1: What is Partition and How Does a Sale Begin? 

3242023-300x300Real estate contracts are an expansive field of both law and life. Sales, leases, options, and certainly wills can all fall under this broad category. Normally, once a contract is signed, parties can go to court to enforce them by filing a lawsuit. But if one of the parties has passed away, the transaction becomes more complicated. 

Thankfully, the California legislature created Probate Code section 850 to remedy some of the problems inherent to these situations. No longer do separate lawsuits need to be filed. Instead, interested parties can file a special petition to get the probate court to enforce a contract concerning the subject property. For instance, a son could petition to enforce a contract with his decedent’s mother where she had promised to transfer him the house upon death. 

That said, the law surrounding these petitions is still dense and unwieldy for inexperienced litigants. As such, securing the right attorney in these situations can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in these matters and are ready to assist. Potential litigants should not hesitate to contact our office so that we can begin making your goals a reality. 

3222023-300x300In California, a real estate investment trust is “any unincorporated association or trust formed to engage in business and managed by, or under the direction of, one or more trustees for the benefit of the holders or owners of transferable shares of beneficial interest in the trust estate and (1) that formed for the purpose of engaging in business as a real estate investment trust under the Federal Internal Revenue Code, (2) the sale of the shares of which has been qualified at any time by the Commissioner of Business Oversight pursuant to the Corporate Securities Law of 1968, and (3) that in good faith has commenced business as a real estate investment trust.” (Cal. Corp. Code § 23000(a)-(b).) 

The Real Estate Investment Trust originated in 1960 with the Real Estate Investment Trust Act. Generally, the real estate investment trust allows individual investors to invest in large-scale commercial real estate projects. However, there are certain requirements that the law imposes for a real estate investment trust to be valid. 

There are four different categories of requirements for a real estate investment trust imposed by the law; (1) organizational requirements; (2) asset requirements; (3) income requirements; and (4) distribution requirements.  At the Underwood Law Firm, our attorneys are more than familiar with real estate investment trusts and the requirements that need to be fulfilled to have a real estate investment trust. 

3172023-300x300Generally, a bankruptcy proceeding acts as a stay on the collection of debt as well as any acts needed to be taken to enforce a debt. The rules regarding partition actions in bankruptcy proceedings are codified in the Code of Civil Procedure section 715.050. Typically, whether a partition action is exempt from a bankruptcy proceeding depends on when the bankruptcy proceeding was initiated. Therefore, a bankruptcy proceeding will not necessarily prevent a person from recovering possession of premises for which they have the right to recover possession. 

If a writ of possession was not yet obtained prior to the filing of a bankruptcy proceeding, then a tenant may be able to stop the execution of a writ of possession initially by initiating a bankruptcy proceeding. Therefore, timing is an essential element in determining whether a partition action is exempt from a bankruptcy proceeding. At Underwood Law Firm, our attorneys are more than familiar with bankruptcy proceedings and their impact on partition actions. 

Code of Civil Procedure section 715.050 

382023-1-300x300A Prejudgment Claim to Right of Possession is a form used for the purpose of avoiding third-party claims in an eviction/unlawful detainer action. The Prejudgment Claim to Right Possession is for the purpose of giving notice to any unnamed occupants of a subject property that an eviction action has been initiated. After a prejudgment claim to right of possession, any unnamed occupants may file their own prejudgment claim form to preserve their rights in the subject property. If said unnamed occupants fail to do so, those unnamed occupants will lose their rights in the subject property, and the eviction action may proceed.   

However, if the litigant filing the eviction action fails to file a prejudgment claim to right of possession, and an unnamed tenant does file a prejudgment claim, then the eviction will be delayed in order for a hearing to take place to determine if the unnamed tenant should have been included as a defendant in the original eviction action. At Underwood Law Firm, our attorneys are more than familiar with prejudgment claims to right of possession. 

Code of Civil Procedure 415.46

332023-300x300A Civil Harassment Restraining Order is a type of restraining order used in California to stop a person from harassing or threatening another. However, the requirements for a civil harassment restraining order are slightly different than a typical restraining order. Essentially, a civil harassment restraining order is for the purpose of providing protection to a person that is the subject of harassment from someone they do or do not have a relationship with. Therefore, a civil harassment restraining order provides a legal intervention that restrains the harasser. 

However, that a special relationship does not need to be shown to obtain a civil harassment restraining order does not mean that a person can get such a restraining order against anyone. A litigant seeking a civil harassment restraining order is required to show proof of behavior that constitutes harassment. At Underwood Law Firm, our attorneys are more than familiar with civil harassment restraining orders. 

Code of Civil Procedure 527.6

312023-1-300x300Partnerships are incredibly common business entities that many Californians enter on a regular basis, often to acquire and develop real estate over many years. Unfortunately, many fail to get off the ground, as mismanagement, poor spending, and bickering derail what may have been promising ventures. 

In these instances, a single partner can apply to have a court dissolve the partnership, effectively ending the entity by triggering wind-up procedures. At Underwood Law firm, our attorneys know how tough this situation can be. Thankfully, our attorneys are well-versed in partnership law, and we know the best ways to tackle the disputes that accompany dissolution and winding up. Our team has the legal acumen and skills necessary to help you achieve your litigation goals. 

When can a partnership be dissolved? 

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