Update at Bottom Most California residential real estate contracts (such as the C.A.R. form) have an arbitration provision providing for optional binding arbitration. If the parties all initial it, it becomes a requirement of contract. In arbitration the parties agree to have a supposedly unbiased third person decide the dispute.…
Often in an escrow for sale or financing of California real estate, money will be held back in escrow to take care of unresolved issues. This is done on agreement of the parties in the real estate purchase and sale contract, or the loan documents and escrow instructions. For example,…
When it comes to recording liens against California real estate, we follow the ‘first in time, first in right’ rule. (Civil § 2897) If your lien, or deed of trust, is recorded before mine, then yours is superior. If you foreclose, and I do not pay you off, my deed…
Many older California homeowners associations are governed by CC&R’s (Conditions, covenants, and restrictions) and bylaws which require a supermajority vote to amend the documents. A supermajority is something greater than a majority, and in some documents it can be greater than two thirds. However, when the board wants to amend…
I commonly hear from clients that they were told by their loan servicer that they would not be considered for a loan modification because they were current on payments. They were either told, or it was implied, that they needed to miss a payment in order to be considered for…
Inevitably, a property or business owner has a problem when someone injures themself at their premises. The ordinary slip and fall involves a dangerous condition which causes someone to fall and hurt themselves. Usually, the property owner must have actual or constructive knowledge of the dangerous condition before they can…
My last post was about a California loan modification, where the borrower signed the modification documents and returned them to the lender, but the lender foreclosed anyway. The court decided that the there was a binding contract once the borrower signed and returned the modification agreement, even though the lender…
Loan modifications have been getting a bit more predictable recently, but several years ago it was a crap shoot of false hopes and unreliable loan servicers. Issues I often saw surrounded what happened when the borrower signed the loan modification documents, and make the trial payments, but was told that…
A California partition action is a legal procedure in which any co-owner can get a court order requiring the parties to split the property, buy each other out, or sell the property and split the proceeds. A statute allows the court to award payment of attorney fees incurred “for the…
Usually, residential lenders do not file judicial foreclosures. Rather, they prefer to hold a trustee’s sale to get the property back. This is a much faster, and streamlined, process which is governed by statute. In holding a trustee’s sale foreclosure however, the lender gives up any rights to a deficiency…