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commercial foreclosure.jpg Title companies often prepare complicated documents, such as deeds of trust, grant deeds, an promissory notes to accommodate closing escrows, which results in their fees. There can be mistakes that vary in seriousness, and sometimes the only solution is to have the Court order a document re-formed. A recent decision points out the problems that can arise when a property was sold for $7.2 million dollars, and the seller did not have an experienced Sacramento and Placer real estate attorney review their documents.

In Park v American Title, park sold a Fresno property for $7.2 million. Park took back a second deed of trust securing a purchase money note in the amount of $2.45 million. First American Title (FAT) was the escrow holder for the transaction. The buyer defaulted, and in September 2006 Park told FAT to prepare a notice of default. Three months later, when the Notice of Sale should have been recorded, the Title Company told Park that they had made a mistake preparing the deed of trust. The deed of trust named the individual buyers as trustors, while the grant deed conveyed the property to the buyer’s corporation. But FAT thought they could still conduct the foreclosure sale, set for February 23, 2006.

Fifteen days before the sale, FAT declared that it could not conduct the sale, and the deed of trust would have to be reformed. This is a process by which a party files a lawsuit to obtain a court order reforming, or revising and correcting, the problem document. The title company had to get the corporation named os trustors in the deed of trust. This took time, after which the owners filed bankruptcy, resulting in a delay of one and ½ years for the foreclosure sale in April 2008. There were no bidders by then (did the real estate market change between 2006 & 2008?) And park got the property back. Park sued FAT.

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Quiet title actions can resolve conflicting claims to the title of real property. Experienced Sacramento and Placer real estate attorneys know that, once a quiet title judgment is rendered & final, it is good against all the world as of the time of the judgment, and there is no going back. I recently wrote about a surprised party in a quiet title action. As another surprised plaintiff recently learned, the legislature and courts take seriously the requirements to reach a quiet title judgment; even in the case of a defaulting defendant, a final hearing is required where the defaulting defendant, the bad guy, may appear and give testimony.

quiet title escrow officer.jpg It was in Nickell v Matlock that Nickell was selling only half of a parcel to defendant Matlock. When they went to close escrow, Nickell noticed that the deed described the entire property, not just half. He brought it to the attention of the escrow agent, who told him that the escrow company would correct the title after closing. Let that sink in- it was 2006, properties were selling at a manic pace, so just “close and we will fix it later.” Of course it was not fixed and the escrow company, if it is still in business,, will probably end up footing the bill for this lawsuit.

The Matlocks refused to cooperate, wanting the bonus of keeping the entire parcel. This lawsuit was filed, and the Matlocks filed an answer. However, they failed to show up for depositions, even after a court ordered them to do so. The result was a “terminating sanction,” the court ordered their default be entered.

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Ownership of California real estate is like owning a bundle of sticks, or a bundle of rights. These rights, or sticks, include the right to use, possess, and dispose of the property. Experienced Sacramento real estate lawyers know that some disputes depend on whether you own a stick in the bundle, or something else. A central California party recently learned, too late, that an option to buy was not one of the sticks in the bundle.

California statute of limitation.jpg The question arose because of a statute of limitations – the deadline a party has to file a lawsuit before their rights are timed out. In Cyr v McGovran, the loser obtained options to buy some parcels of property. The owner later gave options to a lender on the same property that were to be effective only if the loser did not exercise his options in time. The loser’s deadline was December. However, someone screwed up, maybe the broker, because the later options to the lender said the deadline was in September- if the lender acted according to its option, it would exercise it too soon.

The lender recorded a memorandum of option in September, clouding the title. The loser closed escrow on the property in November, and the lender filed suit, recording a lis pendens, which tied up the property for a year before it was dismissed. Then the losers sued the sellers and their brokers for screwing up the dates on the options, claiming damages in hiring attorneys to defend the lender’s lawsuit, and for costs relating to holding on to the property while it was tied up in litigation.

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Several years ago I had written about how to determine whether or not your California real estate loan is a non-recourse loan, and if you lost the property, through foreclosure, would you have personal liability for the remainder of the debt. I did not discuss two other important considerations, even if you have a recourse loan- whether the lender will conduct a trustee’s sale rather than a judicial foreclosure, and whether or not the particular loan is a first or second loan. Homeowners and investors who have questions about their liability for their loans should consult with an experienced Sacramento and Yolo real estate attorney.

non recourse foreclosure.jpgA. Is the lender likely to conduct a trustee’s sale?

There are two ways to foreclose on real estate in California:

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Quiet title is a lawsuit used in California to establish title to real estate against adverse claims. Quiet title attorneys know that If there is a dispute as to title, and claims against a property, the court order decides it once and for all- or almost all. California statutes allow naming even unknown defendants, and publishing notice of the suit. However, on homeowner who was victim of a scam found out the her quiet title judgment did not affect a deed of trust.

quiet title foreclosure.jpgIn Deutsche Bank v McGurk, McGurk owned a home until she was convinced by scamsters to convey the property to them, and take back a lease- option. The scamsters then got a new loan against the property from lender New Century, and took off with the cash. She filed a quiet title action against the scamsters and New Century, and recorded a lis pendens. New Century filed Bankruptcy. It then assigned the subject deed of trust to Deutsche Bank, which neither recorded the assignment nor notified McGurk. McGurk dismissed New Century from the quiet title to chase them in bankruptcy court, and proceeded against the others in the quiet title lawsuit.

The Quiet Title Judgment

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Property buyers in California purchase a title insurance policy as a matter of course. Many do not understand what exactly such insurance does for them, and should consult with an experienced Sacramento real estate attorney. Title insurance does not guaranty the state of title. Instead, it is an agreement to indemnify the buyer / insured for losses incurred as a result of defects in, or encumbrances on, title. One buyer bought seven adjacent parcels in Santa Clara County, with a plan to sell parcel number 7. When the buyer backed out because of the title situation, he sued the title company, but lost.

title insurance claim.jpgIn Deanza Assoc. v. Chicago Title Insurance, the problem was that the city had recorded a “Notice of Merger” of the seven parcels prior the purchase by the plaintiff. Deanza then went into contract to sell number 7, but the buyer backed out when they discovered the notice of merger.

Deanza filed a claim against their title insurance policy. Chicago Title first denied, claiming that the CLTA policy excluded claims regarding governmental regulation whether or not shown in public records. The title company said oops, you paid for an ALTA policy, we issued a CLTA, so your claim is covered. Then they said oops, the claim is not covered. The Notice of Merger impacts only the value and use of the property, not the validity of your title. Deanza filed suit.

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Generally with California commercial properties, when a tenant defaults there is an unlawful detainer, and the landlord is awarded as damages the rent due until the judgment. If the lease contract would have gone for a longer term, the landlord may later sue for the balance of the rent due for the remainder of the terminated lease. In a confusing decision from Southern California, the landlord collected more from the later tenants than the evicted tenant could ever owe.

california commercial lease.jpgKumar v Yu involved a shopping center lease that was not to end until July 2006. In November 2003 the first tenant was evicted, and the landlord got a default judgment for rent then due. (This default was set aside, but there is not further explanation in the decision). The landlord rented to a second tenant, who was evicted. The unlawful detailed included a judgment for over $21,000, which was paid. The landlord rented to a third tenant, who agreed to a much higher monthly rent. In 2007 the landlord sued the first tenant for the balance of the rent due under the original lease.

Generally, to recover damages from a tenant for the remainder of the term after a commercial lease has been terminated, the lease must provide that the…

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A recent decision concerned a property in a real estate transaction that had two deeds of trust securing two different lenders which were recorded at the exact same time. However, they were indexed at different times, and the earlier indexed lender thought he had priority. Generally, where it is a matter of notice, first to be indexed has priority. The court here thought a different rule applied.

real estate lender.jpgIn First Bank Chung, the borrower, pulled a fast one on two lenders (actually three, but the third was not involved in the appeal). He got two different loans at the same time, signing loan documents for each on the same day; the lenders did not know about each other. Maybe the property was worth more then all the loans combined, but also maybe not, & by moving simultaneously on both loans, he got twice the cash he should have.

Both lenders delivered their deeds of trust to the county recorder before 8 a.m. On the same day. The usual procedure for recorders is to allow title companies to deliver documents in batches before 8 am.,and all these documents have an 8 a.m. recording time stamp. They are then separately indexed later. Here, the East West bank’s lien was indexed first, so they thought they had priority. The court said no, they both had equal priority.

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trees.jpg Two pedestrians were stuck by a car while crossing the street in Los Altos. They suffered serious injuries, and in a lawsuit named the city claiming this was a dangerous intersection. The city cross-sued the homeowner, charging that a large tree was a hazard and blocked visibility. The tree was not on the homeowner’s property, but adjacent to it. The owner never trimmed the trees, but PG&E did because there were power lines running through it- PG&E told the owner not to touch it. Now the owner needs to be worried about defending a lawsuit concerning their real property.

The city is claiming that if this was a dangerous intersection, that is due in part because of the tree. They rely on the decision in Gonzales v City of San Jose, which dealt with a person who slipped on a city sidewalk and was injured. The slipper sued the city and the adjacent landowner. San Jose had an ordinance that made the adjacent owner potentially liable to third parties for injuries on a city sidewalk. This placed a duty on the adjacent homeowner to maintain the property, the idea being that the homeowner is in the best position to see the condition of the walk on a day to day basis, and provides an incentive for the owner to maintain the sidewalk in a safe condition.

The situation is different with an adjacent tree. There does not seem to be a similar ordinance that creates liability for adjacent trees. In California, tree liability starts with asking who owns the tree. The location of the trunk determines the owner. If entirely on one person’s land, that person owns the tree, even though roots and branches may cross the boundary. If the trunk is on a boundary, both property owners share ownership of the tree. Civil Code §833

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Recently a federal court in Northern California found that a document which one party claimed was a non-binding proposal was really a binding ground lease agreement with purchase options, which resulted in a 16 million dollar damage award. The proposal concerned development of the Santana Row project in San Jose. Generally, creating of a valid contract requires mutual assent. An “agreement to agree, ” without more, does not create a contract. In this case the court found more.

Santana Row.jpgIn First National v. Federal Realty, First National controlled the property but did not want to sell it yet. Federal unsuccessfully offered to buy, and the parties entered negotiations for a ground lease that lasted several years. They exchanged several proposals, including a “counter proposal” and a “revised proposal.” Finally the both signed a document titled “Final Proposal,” a one page document. Earlier proposals stated that they were non-binding; the final did not include this language. It stated that it was “accepted by the parties subject only to approval of the terms and conditions of a formal agreement,” and Federal was to prepare a formal legal agreement. And it provided that First National could require Federal to buy the property any time over a period of ten years; and that Federal could force First National to sell at the end of ten years (the “Put and Call”). Federal never prepared a formal agreement, and decided it did not want the lease.

The court First looked at the specific language of the Final Proposal. It did not include the standard non-binding clause, and said that its terms were “hereby accepted by the parties subject to” only a formal agreement. The court then looked at the surrounding circumstances. There was the passage from counter to revised to final proposal.

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