REAL ESTATE TOPICS
 
 
Question:  What are my rights if I cannot pay the mortgage on my home?
 
Answer:   A lender that holds a promissory note secured by a deed of trust recorded against your real property must comply with the technical requirements of California law in order to foreclose the lender's security interest.  There are technical and complex rules as to the circumstances under which the lender must resort in order to foreclosure against the real property and the circumstances under which a lender may obtain a deficiency judgment against the borrower.  There are statutes that afford borrowers important procedural protections in the event of a foreclosure.  Institutional lenders are  often willing to work out a loan modification, forebearance agreement, short sale, or deed in lieu of foreclosure with a borrower.  Newly enacted statutes afford homeowners additional protections as a result of the foreclosure crisis.  A property owner at risk of defaulting on a secured loan should consult an attorney promptly. 
 
Question:  What is a foreclosure?
 
Answer:   If an obligation, such as a promissory note that is secured by a deed of trust concerning real property, is not timely paid, the lender may declare the obligation in default.  The lender may mail, record, and post the property with a Notice of Default.  After the required time period has elapsed, a Trustee Sale is set, and the real property can be sold at public auction to satisfy the unpaid loan balance. 
 
Question:  What happens after a foreclosure of my home?
 
Answer:  After the lender, or perhaps a third-party investor, buys the property at a foreclosure sale, an eviction lawsuit can be brought against the occupants.  This type of lawsuit is sometimes referred to as an unlawful detainer proceeding.  There are various laws that afford special protections to the persons sought to be evicted after a foreclosure.  Hence, it is important for the property owner to seek the assistance of an attorney immediately if the loan is in default or if an occupant receives notice of an eviction action.

Question:  What is an eviction?

Answer:  An eviction is a process for the owner of land to regain possession against a tenant or other occupant.  The process is commenced by serving the occupants with either a 30-Day Notice of Termination of Tenancy (if the residential tenancy has been less than one year), a 60-Day Notice  of Termination of Tenancy (if the residential tenancy has been in excess of one year), or a Three-Day Notice to Pay Rent or Quit in the event the tenant has failed to pay the required rent.  If the time allowed by the notice expires and the occupant remains in possession, then the landlord or property owner can file a lawsuit for eviction (also known as an unlawful detainer) against the occupants or tenant.  Unlawful detainer suits are governed by technical rules of procedure and statutes.  Various defenses are available to the occupants, such as a lack of habitability, a defense that a lease governs the term of the tenancy, the fact that rent was actually paid, or the lease agreement had been modified. A party should consult with an attorney before prosecuting or defending an unlawful detainer suit. 

Question:  Can I defend an eviction / unlawful detainer lawsuit?

Answer:  The laws concerning eviction are technical and complex.  If the landlord has failed to provide a habitable premises, there may be a "habitability defense" to the suit.   There are statutes known as the "repair and deduct law" which allow a tenant under certain circumstances to repair dilapidations and deduct the out-of-pocket expenses from the rent.  There may be an issue of whether the tenant performed repairs, improvements, or other work or labor for the landlord and whether the value of that work should be credited against the rent  due.  There may be defenses if a landlord discontinued, terminated, or interfered with utility service to the premises or with reasonable access to the premises.  There are statutes that apply to residential tenancies and statutes that apply to commercial tenancies, and hence, both sides, the landlord and the tenant, should consult with their own attorney if a dispute arises.

 
Question:  What is a partition lawsuit?
 
Answer:  When two or more persons own an interest in land and cannot agree as to the manner in which the real estate will be used, one owner may file a lawsuit with the court seeking that the property be divided.  Partition of the land can occur in kind, as for example, where farm or ranch land is physically divided among the owners, or land may be partitioned by sale, where the property is sold and the proceeds are divided among the owners.  Property can be partitioned by an appraisal and purchase, where one party purchases the interest of the other party.

Question:  What is a quiet title lawsuit?

Answer:  The rules and procedures for various types of lawsuits concerning land are set forth by statutes and by case law.  A quiet title lawsuit asks the court to determine which party or parties are lawfully entitled to the ownership, possession, or other interests in land.  A suit for partition asks the court to sell an interest in land that is owned by two or more persons who cannot agree on a voluntary manner of managing or disposing of the land.  A suit for ejectment asks the court to remove a person who is not entitled to possession.  A suit for adverse possession asks the court to declare that a person who has occupied land, and perhaps paid property taxes on the land for a number of years, should be entitled to a decree that he/she owns a fee interest in a parcel.  These types of suits are often common in areas with large parcels of land where the boundary lines may not appear clear from an inspection of the property. 

Question:  What is an easement?

Answer:  An easement is the right of one party to use a portion of the land of another party.  Typical easements are for ingress and egress, which are commonly referred to as road easements or access easements.  There are laws that govern the obligations of the parties concerning the maintenance and repair of easements.  Often disputes arise in connection with rural land, such as farms or ranches, as to whether gates or fences may be placed across or along easements.

Question:  What are equitable rights?

Answer:  Often a person has rights in real property, although the person’s name is not on legal title of the property.  For example, two persons might agree to jointly purchase a parcel of property, but for some reason, the title to the property is only placed in the name of one of the parties, although both parties might have contributed towards the down payment and may have contributed towards the monthly mortgage payments.  Sometimes one of the parties will have paid the mortgage payments, and perhaps the other party paid property taxes, insurance, or provided labor or materials to improve the property.  The courts can apply certain equitable principles, sometimes referred to as promissory estoppel, the doctrine of constructive trust, or the doctrine of resulting trust, and enter a decree determining the interest of the various parties in the parcel of property.  In these types of cases, an accounting is usually required to determine the contributions made by each party towards the acquisition and improvement of the property.

Question:  What is a deed of trust?

Answer:  A deed of trust is a security instrument that is recorded in the records of land title maintained by a county recorder.  The deed of trust is a contract by which the owner of land (known as the trustor) grants a security interest in the real property to a beneficiary to secure the performance of an obligation, which is usually the payment of a promissory note.  The deed of trust appoints a third person, known as the trustee, with the power to sell the property at public auction in the event a default occurs and the trustor fails to comply with the terms of the secured obligation.  The power of sale included within a deed of trust is often referred to as nonjudicial foreclosure, because the foreclosure of the trustor’s interest can occur without any involvement by the courts.  If the trustor, often a homeowner, contends that the obligation was modified by the beneficiary, who is often a lender such as a bank, then the trustor has the burden of moving forward and filing a lawsuit to enjoin the foreclosure.  Often the trustor will claim there was an agreement to modify the promissory note in some manner, or perhaps the lender has agreed to postpone the foreclosure sale, but then breaches the agreement by either attempting to enforce the original obligation or proceeding with the trustee sale.  A court may enjoin, in other words prohibit, the foreclosure sale until the rights and duties between the property owner and the lender are determined by the court.

Question:  What is adverse possession?

Answer:  Often  a person is in possession of real property, and perhaps pays the property taxes and insurance, yet the record title to the property is in the name of another person.  Under certain circumstances, the occupant can bring suit for a court judgment to determine that the occupant is the rightful owner of the property, where the occupant can show he occupied the property in an open, notorious, continuous, and adverse manner for the statutory period of time under a claim that the occupant was the true owner.  

Question:  Should agreements between family members concerning real property be in writing?

Answer:  All agreements concerning real property should be in writing.   Uncertainty can result when real estate acquisitions or purchases are handled informally.  Sometimes, one family member provides the down payment and another family member obtains financing for a loan, and perhaps another person makes the monthly loan payments, property tax payments, and insurance payments.  As time passes, there could be a dispute as to how the parties intended to share ownership, occupancy, and responsibility for the payments secured by the property.  The resolution of such disputes is complex and often involves a claim by one party that another party holds only the bare legal title, and suit is filed for a court determination that one party holds the real property in a constructive trust for the intended owner.