Pre-judgement interest Archives

What is a Pre-Judgment Claim to a Right of Possession in Eminent Domain? (CCP § 1255.260)

Published on: October 26, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-4-300x300 Eminent Domain proceedings will almost always end with the government taking title to private property after it pays out “just compensation” to a homeowner.

But sometimes, the government begins condemnation proceedings against the backdrop of a large project with encroaching deadlines. In these instances, California law allows the entity to obtain possession of the property early on in the condemnation process, granting the government the ability to begin its work sooner rather than later.

That said, there are numerous requirements that the government must fulfill in order to obtain pre-judgment possession. And even when the government meets its burden, defendant property owners can still oppose early possession by meeting various showings of hardship.

Continue reading →

What Happens when a Partition By Appraisal Fails? (CCP § 873.910)

Published on: October 19, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-1-2-300x300 Partitions by appraisal are a unique way to resolve a partition dispute. In essence, they are buyouts that the parties contractually agree to, allowing one party to remain on the jointly-owned property in exchange for purchasing the other co-owner’s interest at an appraised value.

This seemingly middle-of-the-road option, however, is one of the options available for inherited property under the Uniform Partition of Heirs Property Act. Specifically, the Act permits the non-partitioning party to purchase the other party’s interest at the appraised value, which can allow the property to remain in the family. This effectively grants the non-partitioning property an option to “partition by appraisal.” When a party agrees to buy the property at the appraised value but then cannot ultimately find the money for the purchase, what happens when a partition by appraisal fails?

What is a Partition?

Continue reading →

Is a litigation guarantee required in a Partition Action?

Published on: July 22, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-2-1-300x300 While litigation guarantees are recommended in a lot of contested real estate issues in court, it is not required in a partition action. Read on to find out more about the nuances of litigation guarantees and their relationship with partition actions.

What is a partition action?

A partition action or a partition lawsuit is when one co-owner, or when one person with interest in the property wants to sell the property, but the other co-owners or others with interest in the property do not want to sell their ownership rights.

Continue reading →

Do you have a right to recover attorney’s fees in partition actions? (CCP § 874.020)

Published on: July 20, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-1-2-300x300 Yes. In California, you have a right to recover attorney’s fees by statute. But that doesn’t mean that you can recover 100% of your fees, even in uncontested partitions. Courts will employ numerous equitable considerations in awarding costs, and the complexities of prolonged litigation may render some expenditures on your attorney unrecoverable. The focus of this blog post will therefore be those common issues that arise when attempting to recoup your costs.

The Authority for Awarding Attorney’s Fees in Partition Actions

Code of Civil Procedure, section 874.010 states that “[t]he costs of partition include: (a) [r]easonable attorney’s fees incurred or paid by a party for the common benefit.”

Continue reading →

Can a property owner testify as to the value of their property in eminent domain? (CCP § 1260.210)

Published on: June 28, 2022 | By Underwood Law Firm, P.C.

A lawyer holding her gravel with documents on her desks and beside her is someone holding lots of money.
Yes. But it is a complex affair. Eminent Domain proceedings take on a unique structure with expert testimony as the backbone for the determination of fair market value. Neither side of the litigation has the burden of proof on this issue of just compensation, and unlike the traditional civil court case, the Defendant presents their evidence first. (Code. Civ. Proc. § 1260.210.)

Additionally, judges will often place limits on what a homeowner may testify to and can screen the witness beforehand to ensure that they’ll be employing a valid methodology on the stand. Taken as a whole, the process can be quite daunting to the layperson. This post will therefore look at the common issues and questions which arise regarding testimony in eminent domain.

The Importance of Testimony in Eminent Domain Proceedings

Continue reading →

How does a partition by private sale work? (CCP § 872.720)

Published on: June 24, 2022 | By Underwood Law Firm, P.C.

A lawyer writing on a paperwork on his desk in front of his client. Partition by a private sale is a method of selling jointly owned property, either by joint tenants or tenants in common, under the court’s supervision via a court order or a court-ordered referee.

What is a partition lawsuit?

A partition action or a partition lawsuit is when one co-owner, or when one person with interest in the property wants to sell the property, but the other co-owners or others with interest in the property do not want to sell their ownership rights.

Continue reading →

What is the difference between a receiver and a partition referee? (CCP § 873.610)

Published on: June 20, 2022 | By Underwood Law Firm, P.C.

Two lawyers having an agreement and signing a paperwork. Receivers and partitions referees are cut from the same cloth. In actions involving property, they step in at the request of the parties or order of the court to properly dispose of or manage the property at issue. Their roles are to act as a third party with no ties to any of the co-owners interests in property via a partition lawsuit and to help the court and the judge to distribute the property or proceeds from the sale of the property fairly and equitably. That said, there are enough differences between the two to warrant litigants being put on notice.

At the Underwood Law Firm, our attorneys encounter both partition referees and receivers on a regular basis. We are well-versed in their appointment, associated costs, timelines, and the procedure they become involved in. As such, potential litigants should not hesitate to contact our office so that our team can begin helping you achieve your litigation goals.

What is a Partition Referee?

Continue reading →

How does a court make an accounting when a property is partitioned by division? (CCP § 873.250)

Published on: June 17, 2022 | By Underwood Law Firm, P.C.

A lawyer on his desk signing a document. When there is a court-ordered partition by division, there are several steps that both the court and parties take to ensure that the property is physically divided both equally and equitably. Read on to find out the different avenues the court takes when deciding a partition by division lawsuit.

How does the Court Account for partition by Division?

First, the court operates on the assumed guideline that all parties should have the property divided in the most equal and equitable ways possible. The court in the Canepari v. Pascale court case found that there is a rebuttable presumption that the partitioned property should be equally divided. This means that if each co-owner or tenant holds a 50 percent interest in the property, then the property in question is divided as physically possible to a 50/50 divide.

Continue reading →

What is pre-judgment interest on an eminent domain award? (CCP § 1245.220)

Published on: June 6, 2022 | By Underwood Law Firm, P.C.

Books stacked on a desk with a lawyer's gravel. Pre-judgment interests are accrued interests on judgment amounts. Eminent domain is when the government “takes” private property for the public’s use and then owes fair and just compensation to the original private property owners. An eminent domain award is the court-ordered judgment amount that is based on the fair market value of the property owed to the private property owner.

Generally speaking, eminent domain awards must be paid out to the private property owner before a property’s title can be transferred or the government can take physical possession of the property. Read on to understand what both pre-judgment interests are and eminent domain awards contain.

What is a pre-judgment interest?

Continue reading →