Types Of Co-Ownership in California

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Co-tenancy or co-ownership is largely an umbrella term used to describe ownership among multiple owners holding undivided interests in a real estate property. California law recognizes four distinct types of co-ownerships. An experienced real estate attorney can help you understand the different types of co-ownerships and identify the most suitable type for your interests.

Tenancy in Common

This is a form of co-ownership in which an interest in the property is owned by several persons that are not in a partnership or joint ownership. A tenancy in common is usually the default form of co-ownership as considered by courts. Tenants can own varying shares of property in a tenancy in common. Moreover, all co-owners enjoy an equal right to the entire property.

In the event of a co-owner’s death, their interest may get transferred through probate or some other proceeding. It’s critical to understand that the right of survivorship is not applicable to tenancy in common. In addition, tenants may also transfer their interests without affecting ownership interests or severing the tenancy in common.

Joint Tenancy

In this type of co-ownership, the interest in the property is owned by 2 or more people equally. Joint tenancy is created through a single will or transfer by expressly declaring it in the will. It can also be transferred from sole owners to others or from tenants in common to joint tenants.

Other forms of joint tenancy involve the transfer of interest from spouses that hold the title as community property. Joint tenancy rights can be granted to trustees or executors. In personal property, joint tenancy can be created by written transfer, agreement, or an instrument.

As per Weak v. Weak (1962) 202 Cal.App.2d 632, 638, “[W]here…the deed reflects joint tenancy interests, there is ‘a prima facie case that the property is actually owned in joint tenancy. There is a presumption that ownership is as stated in the deed and the burden is upon the party who seeks to rebut the presumption.’”

Estate of Propst (1990) 50 Cal.3d 448, 455 states that the principal characteristic of a joint tenancy is that it allows the right of survivorship. Joint tenancy can be created through the transfer of a single instrument that allows each joint tenant with an equal share of the property.

All parties to a joint tenancy enjoy equal rights to use the property. They also enjoy a “right of survivorship.” This means that if a party dies, their ownership rights get passed on to surviving co-owners.

If a joint tenant dies, their estate automatically belongs to the surviving tenants. This can prove to be useful in avoiding the time-consuming and expensive probate process.

You can pass on your tenancy share even without having a will in place. In addition, joint owners can transfer their interest whenever they want. Taking this into account, this action would sever the joint tenancy. It will automatically convert the joint tenancy to tenancy in common.

Tenancy in Partnership

A partnership interest is owned by multiple people for the same purposes. Tenancy in partnership refers to a type of co-ownership where the title to a property is owned by the partnership instead of an individual.

All partners in a tenancy partnership possess undivided interests in real estate. They are not allowed to transfer their interests to anyone outside the partnership.

The partner is not a co-owner of the partnership property. The partner does not have a right to transfer their interests in the partnership property. This is whether they want to transfer the interests voluntarily or involuntarily. A seasoned real estate attorney can help you attain a better understanding of tenancy in partnership and also draw up the paperwork so that your interests remain protected.

Community Property

This is a type of co-ownership in which the property is only available to a married couple. Both spouses have an equal share in the assets and debts that are acquired during the course of the marriage. The couple holds individual interest in the community property.

As per California law, property acquired by a couple during the course of their marriage, whether held in joint tenancy, tenancy in common, tenancy by the entirety, or community property, is always presumed to be community property for the purpose of property division in the event of dissolution of marriage or legal separation.

Partition Action for Dealing with Co-Ownership Disputes in California

Disputes can arise at any point in time between co-owners leaving them dissatisfied with their current ownership arrangement. Individuals with a joint tenancy or tenancy in common may choose to end their co-ownership forcefully through a partition action.

Partition action can be started by any party to a co-ownership. Furthermore, it’s not an available option for the option of quasi-community property, quasi-marital interest in the property, and community property. This falls under the purview of family law.

Legal Help is Here from Highly-Rated Real Estate Attorneys in California

At Peterson, Martin & Reynolds LLP, our experienced Northern California real estate attorneys can help you put an end to your co-ownership relationship. To set up your complimentary consultation, call us at (415) 399-2900 or reach us online.

 

What Is a Partition Action in California?

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Partition actions involve court-ordered divisions of property. It is usually started when co-owners cannot come to an agreement regarding the property. The subject property is typically sold in a partition action with the proceeds equitably distributed.

Who Can File a Partition Action in California?

Partition actions, also known as petitions for partition, require a disagreement between at least two co-owners. Typically, the disagreement is whether the property can be sold or not. As per California law, any co-owner can file a partition action.

These are the common types of parties to partition actions:

  • Romantic partners: Romantically involved co-owners may want to bring an action if they are no longer together and cannot agree on what to do with the co-owned property. In essence, the action, in this case, is the non-married version of the division of property in a divorce.
  • Family: Co-owners can be family members that either purchased the property together or inherited it through estate planning. Co-owners that don’t live on the property and receive no benefits usually seek to force a partition action.
  • Friends: Platonic friends can purchase property together as well. Reliable friends can prove to be instrumental in securing loans and contributing towards mortgage payments for a property that could not have been acquired on your own. In relation to this, there may be a forced sale of the property if one friend wants to sell their share while the others do not.
  • Post-divorced couples: Ex-spouses can use a partition action to solve their co-ownership problems. If the divorce is not finalized, any property owned by the spouses is considered community property, which falls under the purview of family law.

The one basic requirement for partition action is that the property should be co-owned. This is regardless of how the title is held.

Proving Co-Ownership Through Deeds vs. Quiet Title

The only evidence you need to start a partition action is to show that you are the co-owner of the property. A deed recorded in the county recorder is the most acceptable form of evidence of co-ownership. Under California Evidence Code Section 662, this evidence is presumed to be the strongest since most deeds reflect the true owner of a property.

In rare cases, the person referred to as the grantee in the deed or the holder of legal title may not reflect true ownership. For instance, the deed may say that “Max Doe and Jack Doe hereby transfer to Christina Doe.” Moreover, Max and Jack merely wanted Christina to hold the title till they returned from the Pacific Crest Trail.

If Christina refuses to transfer the title back to them, Max and Jack will need to file an action for quiet title. Max and Jack also have the opportunity to end their co-ownership by litigating the quiet title action under California Code of Civil Procedure 872.610.

Right to Partition is Not Affected by Irrelevant Facts

A partition action can be filed by co-owners regardless of the variation in which they hold the title. In addition, irrelevant facts don’t change the right to partition.

  • Manner of co-ownership since joint tenants and tenants in common can both file a partition action.
  • Percentage of ownership doesn’t impact the right to file a partition action. A co-owner with just 1% property can also file a partition.
  • Type of property or its purpose doesn’t have an impact on the partition action. It doesn’t matter whether the property is a farm residence or a commercial building.
  • Partition action requires a co-owner in any form. It can be a trust, suspended corporation, individual, or others.
  • Occupation of the property doesn’t matter. You can file a partition action whether the property is rented out or the co-owner has occupied it themselves.

The most important factor is that courts won’t weigh whether a partition action is “fair” or not. Under California law, the right to partition is absolute and cannot be denied owing to any supposed difficulty.

Partition Action Can Solve Co-ownership Issues

Partition actions are favored by the law. The original purpose of these actions was to prevent co-tenants from dissension or inconvenience arising from sharing land. Another reason why partition actions are favored is to facilitate the transmission of title and avoid unreasonable restraints on the enjoyment and use of a property.

The courts realize that in the open market, few people will want to purchase a share of the property. They may demand a minority discount from the co-owners.

Get Strong Legal Representation from Our Seasoned Northern California Real Estate Attorneys

The skilled real estate attorneys at Peterson, Martin & Reynolds LLP have the necessary knowledge, experience, and resources to help you file a partition action and end a co-ownership relationship without compromising your interests. Our attorneys will help you unlock equity in your property and put an end to co-ownership disputes.

To schedule your free consultation, call us at (415) 399-2900 or fill out this online contact form.

 

How Does a Real Estate Partition Action Work?

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A partition action is required when multiple people co-own undivided interest in a property. The purpose of a partition action is to allow co-owners to obtain individual title to some defined portion of a jointly owned property. You should consult with a skilled real estate attorney to make sure your rights are protected during this type of legal action.

Filing a Partition Action

Partition actions, as per the California Code of Civil Procedure section 872.210, can be brought by:

  • Co-owner of a property.
  • Owner of an estate in real property if the property is owned by several persons.

Individuals with a right to the property specified in section 872.210 can bring a partition action even if they don’t have a right to immediate or actual possession of the property. Individuals that don’t have any right in a property listed under section 872.210 cannot bring a partition action.

Your Right to Partition in California

Co-owners of a property don’t need a reason to initiate partition proceedings. You have the right to commence a partition action if you have enough interest in a property to issue an action. This means that you should have a clear title. The determination whether you have a clear title or not will be determined by the court, regardless of whether the trial is contested or uncontested.

Other Types of Relief in a Partition Action

The court may order a property to be physically divided if it can be. This way each party receives a proportionate share. Taking this into account, this is not always the case since most real estate has improvements in the form of a house or building that cannot be physically divided between multiple owners.

This solution is usually possible where the real property is an unimproved and vacant lot. It’s generally more practical for a property to be sold entirely and the proceeds divided between co-owners.

When Does a Partition Action Become Necessary?

Property usually has a single owner. It’s passed onto multiple owners when the original owner leaves it in their will. The new owners may not have the same aspirations or goals regarding the property. If the parties are unable to agree on a single purpose for the property, a partition action may be required to divide the property.

Partition actions may be initiated by a couple that purchases a property jointly but doesn’t end up marrying. The couple may not agree on how the property needs to be used. This may again lead to a partition action.

Limitations to Partition Actions

A party can waive their right to real estate partition action through Code of Civil Procedure section 872.710. The waiver can happen through a valid contract or other methods. There are limits to partitioning partnership property. In general, property owned by a partnership doesn’t necessarily guarantee partition rights. This happens when the rights of unsecured creditors can become prejudiced.

Additional limitations can be imposed wherever a party’s right to partition happens from a successive estate. In the case of a successive estate, a partition can only happen if it is in the best interests of all parties.

These are a few factors considered by the court in making such a determination:

  • Expense of repairs
  • Taxes or other charges
  • Character of the property
  • Circumstances under which the estate was created
  • Factors deemed appropriate by the court

Recoverable Costs Through a Partition Action

There are several costs listed under the Code of Civil Procedure section 874.010 that can be recovered by various parties in a partition action. These include:

  • Referee costs.
  • Reasonable fees paid to the attorney for common benefit.
  • Compensation for those employed by the referee in the partition action, including the surveyor.
  • Costs for a title report.

Any other costs expended for the common benefit may also be recoverable through a partition action.

Resolving a Partition Situation Without a Court-Ordered Sale

In many cases, all parties to a partition action agree to sell their property once a lawsuit is brought. This can happen with or without court intervention.

The parties may decide to divide the proceeds fairly. However, it is necessary to have a binding settlement agreement to make sure the parties follow through on the resolution.

Another way of preventing the sale of a property is to have one co-owner agree to buy out the share of the other co-owners. A new deed may be necessary for such situations to show new ownership.

Our Northern California Real Estate Lawyers are Here to Give You Strong Legal Advice and Support. Call Now.

The reputable real estate attorneys at Peterson, Martin & Reynolds LLP have the experience and skills to represent individuals and entities involved in any form of real estate and business disputes. Our attorneys can help you understand your rights and fight to protect your best interests.

To schedule your free consultation with our legal team, call us at (415) 399-2900 or fill out this online contact form.

Important Things to Know About Terminating An Easement In California

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Many property owners, tenants, and other property occupants in California use easements in their daily life without really paying any attention to the legal considerations. Easements afford legal rights to a non-owner to use a property for a specific purpose. These usually last forever but can be set up to be valid for a certain period of time.

You may want to know more if you are looking to remove an easement on your property. There are several ways of terminating an easement in California. It is best to speak with an experienced real estate attorney and determine the most effective legal solution in your situation.

Easements Can be Permanent or Temporary

In general, easements are permanent and remain until something specific happens. There are clauses and terms within the contract binding the two parties together. Other aspects can also be specified in the contract, such as exclusive, express, or implied. There are certain easements that remain in effect even after the original landowner passes away.

Conservation easements are usually permanent in nature to protect the land. It can be difficult to extinguish permanent easements. You may require an attorney to carry out the necessary research and take the case to court.

Specific Easement Terms

Certain easement agreements have an express expiration date. The clauses in the document will have a concept of expiration or a specific day of termination if both parties agree to this term. For instance, there may be express clauses regarding the termination of the easement when the landowner sells the land to a new person, or the business gets dissolved.

Typically, easement terms specifically mention the events required for extinguishing an easement. It will also mention what the deal requires for any future benefits. You should hire a real estate attorney to review the terms and ensure it is in your best interests.

Specific Purpose for Easement Termination

In some easement agreements, there are specific purposes mentioned. This allows access in case of certain situations. For instance, a partial portion may be opened on a property to grant access to a neighbor if the land adjoining a public road is no longer open.

However, in this case, the easement will automatically get terminated when the road is open again. Similarly, a landowner is usually required to grant a temporary easement if a building has no access because of condemnation or destruction. The easement will continue till access can be created.

Express Release from Easements

You may be able to terminate an easement by creating a deed and extinguishing it. The dominant owner may decide to transfer the easement through deed to a servient owner. If the easement and servient land are owned by the same person, they can merge the two and terminate the easement.

The landowner with an easement on their property can also purchase the adjoining land that requires access because of need. In this case, the need for the easement will get terminated.

Abandoned Easements

The landowner or the easement owner can abandon the situation at any point. The easement can be abandoned by the parties if the need for it disappears. The ownership of an easement can be terminated if it is no longer viable or required.

An easement that is no longer active doesn’t necessarily become inactive though. Instead, the easement ends if it is inactive because of abandonment. If an easement holder stops using the easement, it clearly shows that they no longer have a need and can give up ownership.

Breach of Contract

An easement can exist when two parties agree to it. However, a breach of conditions or clauses of the agreement may result in the termination of the easement. This type of breach may also specify that the easement should have been extinguished because of the easement holder’s actions.

There should be something defined in the contract clauses to this effect. If not, the parties may need to proceed to the courts to enforce contract stipulations and terminate the easement because of the breach.

Easement Termination Should be Legally Sound

You cannot assume with certainty that an easement on the property or land you own or want to acquire was ended by any of the aforementioned methods. You need proper legal legwork and thorough research to determine the termination option that is most feasible for your needs. It is possible that the termination results in litigation making it necessary to work with a proven attorney.

Legal Help is Here from Highly-Rated Real Estate Attorneys in Northern California

The results-driven attorneys at Peterson, Martin & Reynolds LLP operate on the principle that real estate is too valuable to leave anything to presumption or chance. If you have a matter related to real estate law, our attorneys can make sure that all legal bars are cleared, and your rights are fully protected.

To set up your complimentary consultation with a member of our team, call us at (415) 399-2900 or reach us online.

Most Common Causes of Real Estate Litigation

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Real estate disputes are becoming increasingly common in California. You may be embroiled in real estate litigation whether you are an individual property owner, a manager of a condominium association, a property management company, or a commercial real estate developer.

With a skilled property lawyer on your side, your dispute can usually be resolved out of court. With that said, litigation becomes necessary when the parties are unable to arrive at a fair resolution. You should consult with a reliable real estate litigation attorney to make sure your legal rights are protected.

Here are some of the common causes of real estate litigation in California:

Breach of Contract

Contracts prepared for real estate transactions may contain specific terms related to title clearance, assets included, closing date, and other things. The plaintiff (or the wronged party) will need to prove that they satisfied their contractual obligations while the defendant did not. The plaintiff may be able to claim compensation for any losses suffered as a result of the breach.

It’s best that you work with an experienced real estate attorney to avoid breaking any provisions. Your attorney will review the agreement and give you an explanation of the clauses so that you don’t inadvertently break them.

Not Disclosing Property Defects

The seller in real estate sales is obligated to disclose any known and non-evident defects to a purchaser. This is when the defects have an adverse impact on the value of the property. If a property buyer discovers an undisclosed defect later, they can initiate legal action against the property seller on the basis of the failure to disclose.

Taking this into account, for such a lawsuit to be successful, the plaintiff is required to prove that the defendant was aware or should have been reasonably aware of the defect. The plaintiff will also have to show that the defect was purposefully concealed by the defendant.

Breach of Duty or Negligence

Realtors and agents are legally obliged to act in their client’s interests and not the interest of a third party or salesperson. In addition, they are required to keep sensitive information about their clients confidential. Realtors also have a duty to inform the client of any information that will benefit them. The agent is required to perform these services to the best of their abilities and knowledge.

Boundary Dispute 

If property lines are not correctly set, it can result in real estate litigation. Property boundaries don’t get registered properly in most cases. Practical property lines may not be consistent with the legally registered lines. This can cause a dispute.

An easy way for the seller to fend off such disputes is to research legal property boundaries. You can speak with a real estate attorney to pursue action against any neighbors that are overstepping on your property. This is someone who has been through the legal corridors before and knows where danger likes to lurk.

Faulty Repairs 

Buyers can now easily find defects in a company through building inspection companies. In most sale contracts, the sellers agree to make repairs as requested by the buyer. Moreover, the quality of repairs may not be adequate.

Buyers can file a lawsuit against the seller in case of improper or faulty repairs. They can claim that the seller acted fraudulently. The seller can also file a lawsuit against any involved realtor.

Undisclosed Easements

An easement refers to a pre-existing agreement involving a specific piece of land or property. If a person or an entity has an easement, they essentially have the right to use the property for a specific purpose. This is regardless of who the new owner is.

The seller is required to disclose easements to a buyer before completing the real estate transaction. Easements can have a major impact on the purchasing decision. Undisclosed easements may lead to real estate litigation. The buyer may be unaware that an entity is granted lawful access to the property.

Title Defects 

The title may have a lien, mortgage, or other encumbrances. The seller may not be able to sell the property with these defects since the lender can claim ownership if the money owed to them is not paid.

A property title cannot be transferred to another entity if these encumbrances are not disclosed. In addition, real estate closing cannot be completed before having the title checked out. If the seller fails to disclose title defects and other encumbrances or fraudulently makes a sale, they can be held liable.

Breach of Construction Contract

Real estate investors and landowners that enter contracts with their construction companies can sue them if the scope of work is not carried out as outlined in the construction contract. The construction contract will also outline the legal rights and risks of both parties. Any failure to provide the duties as listed in the contract can result in real estate litigation.

Get Strong Legal Representation from a Knowledgeable Real Estate Attorney

If you are in the midst of an unraveling real estate dispute or have been wronged in a real estate transaction, the trusted real estate attorneys at Peterson, Martin & Reynolds LLP will make sure your rights are adequately protected. Our lawyers are skilled in litigation matters related to all kinds of residential and commercial real estate transactions.

To request a free consultation, call us at (415) 399-2900 or complete this online form.

 

Real Estate Law and Land Use Regulations in California

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California land use regulation is notoriously complex even though the market opportunities are significant for both investors and end-users. There are new and changing regulations applicable to California properties that must be considered and addressed when you are entering into a real estate transaction.

It is important to work with an experienced land use attorney to guide you through the complex maze of these regulations and provide the right legal advice on every aspect of your project.

Land Use Laws in California

There are several different laws in California that apply to land use at the federal, local, and state levels. These laws basically dictate the manner in which a specified use is allowed for different structures and purposes. You can identify permit and zoning regulations by utilizing an attorney. You can also address any issues you may have with permits.

It’s critical that local land use decisions are consistent with the general plans of a community, such as public works, use permits, subdivision approvals, and zoning. General plans obtain meaning and purpose with this requirement for vertical consistency. State government public works projects and permit decisions usually have sovereign immunity, which means they don’t need to follow local general plans.

Special districts and school districts are allowed by state law to override city and county general plans and zoning for carrying out their own public works projects. It’s best that you work with an attorney that offers experienced advocacy before regulatory boards, city councils, and commissions on your behalf.

Regulations When Handling Environmental Matters

Environmental matters related to real estate and land use are usually complicated. They generally involve different statutes, political concerns, case laws, and ordinances. Land use attorneys can help you stay on top of things in this ever-changing fabric. They will use their knowledge to advance your interests and get the results you are looking for.

It’s critical that you have the necessary tools and resources to manage and resolve any environment-related land use matter. This includes disputes as well. In California, local and state agencies are required to analyze and identify the potential environmental impact of a proposed project as part of the California Environmental Quality Act.

Real Estate and Land Use Regulatory Compliance

You should get proactive counsel if you have been accused of non-compliance in land use matters. These are a few environmental regulations you should be familiar with:

  • The National Environmental Policy Act
  • Proposition 65
  • The California Environmental Quality Act

Land Use and Litigation

It can be difficult to reach an amicable solution in some instances involving land use. Your case may need to be litigated in such situations. You should find top-rated representation for all your litigation issues.

The attorneys you consult with should have a deep understanding of eminent domain, regulatory takings, inverse condemnation, and California Coastal Commission violations among others.

Dealing With Condemnation in California

Condemnation occurs when a state, local, or federal government takes over privately-owned property by remunerating the owner. The government is allowed to do this for public use through eminent domain. You will receive a payment for your property.

But just because the government wants your property, doesn’t mean you need to approve the sale. You should speak with an attorney as soon as possible if you receive a notice of eminent domain.

Your attorney will use their experience in land development litigation to create a solid strategy for opposing the eminent domain. They will also help you determine a fair dollar amount for compensation if there is no way to stop eminent domain from being asserted.

The government can use eminent domain to take property for building schools, railroads, roads, and other public use projects. The government can also seize private property to help facilitate other private projects. This is not commonly known. For instance, the government may purchase land if there is a housing shortage in order to create condominiums and apartments.

Land deterioration is another reason for the government to purchase private property. And this can also be done without the property owner’s approval in some instances. This is another case in which it is important to speak with an experienced California land use attorney.

Legal Help is Here from Reputable Real Estate Attorneys in California

The attorneys at Peterson, Martin & Reynolds LLP have a deep legal understanding and the extensive experience needed to enable clients to overcome land use and development hurdles. Our attorneys have achieved proven results with cases involving eminent domain and other issues related to land use.

We work in a strategic and timely manner to help you accomplish your goals. Call us at (415) 399-2900 or write to us online to set up your free initial consultation with one of our attorneys.

 

Who Can Claim Property Based on Adverse Possession in California?

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California is one of the largest states in the US in terms of land, and it is governed by complex real estate laws in both rural and urban areas. Under California law of adverse possession, your neighbors can possess parts of your property.

It is essential that you consult with an experienced real estate attorney immediately if you are worried about adverse possession or would like to know how to protect your legal rights.

Overview of Adverse Possession Laws

Adverse possession is a legal concept that allows a trespasser to obtain legal title over another person’s land. The concept first originated in Britain centuries ago. It essentially allows trespassers on the land to gain ownership of it. This occurs if the true owner of the land doesn’t object within a specified period of time or if the trespasser pays property taxes on the land.

The law has been kept alive in various states to achieve a fair result where one owner leaves their land unused or idle, while another has been tending it for a long time. In such instances, it is believed that making the trespasser leave the land should seem unfair or create an undue hardship. Adverse possession in California is defined and regulated by both state courts and statutes.

It is important to understand that government property in California is immune to adverse possession actions. For instance, if you attempt to annex a portion of the Big Basin Redwoods State Park, you won’t be able to claim ownership. This is even if you build a shed on the land and wait for 5 years.

Trespasser Needs to Prove Adverse Possession in California

There are a few hurdles the trespasser will need to clear before they claim a piece of your land in California using this approach. The burden of proof falls on the trespasser.

You will be presumed the owner of a piece of land as long as you hold the legal title to it. This is unless the adverse possessor comes up with enough compelling arguments and evidence against you to convince a judge to give them ownership of a piece or all of the land.

It is important to understand the difference between adverse possession and having an easement to use another person’s land. For instance, a neighbor may have an easement to use your driveway for accessing their property. But they cannot claim ownership of the land they are allowed to use. In adverse possession, there is a shift in the title and the owner gets a right to exclude others from the property.

Requirements for Adverse Possession in California

There is no single statute dictating the elements required to be established by a trespasser for proving adverse possession in California. The courts have instead established a wide array of such factors over several decades for issuing decisions in different cases.

Adverse possession in California, as in most states, is established from the nature and length of time of the possession. In California, a trespasser’s possession should be:

  • Accompanied with a color of title or claim of right. This means the trespasser should assert ownership even when they don’t have purchase documents or when they have title documents that make them look like the owner.
  • Hostile, which means it should be without the true owner’s permission or right.
  • Actual, which means the trespasser should exercise control over the physical property by continually improving it or enclosing it.
  • Open and notorious. The property should be used by the trespasser as if they are the real owner. They should place the original owner on notice and possess the property without hiding their occupancy.
  • Continuous for at least 5 years as per Cal. Civ. Proc. Code § 325

There is another vital element that needs to be established in California. The adverse possessor should show that they paid taxes on the property for all five years.

Action to Quiet Title to Cut Off Adverse Possession Claim

If you spot an encroaching neighbor or a trespasser on your California land, you should speak with the person and ask them to remove all structures from it. You should also ask them to refrain from entering your property. The person will likely comply with your request if it was an honest mistake.

If the trespass continues, however, you should immediately get in touch with an attorney and bring an action to quiet title. This legal recourse is available to property owners for determining the rightful owner of the land.

In this process, you will essentially ask a California state court judge to issue an order that declares you as the true owner or the title holder of the land and not the trespasser. Action to quiet title is usually helpful when a person is trying to sell their property and needs to reassure the potential property buyers.

Get a Dedicated Real Estate Lawyer on Your Side to Protect Your Rights

The seasoned attorneys at Peterson, Martin & Reynolds LLP are here to help you avoid the mistakes that can place your legal situation in jeopardy. Our real estate attorneys have a deep understanding of California laws and regulations and can provide the right advice for obtaining your goals.

To schedule a free consultation with our property lawyers, call us at (415) 399-2900 or contact us online.

 

Conservation Easements in California

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Conservation easement refers to a voluntary agreement that places permanent restrictions on the use of a specific land for protecting its conservation values. Owners continue to control the piece of land by placing a conservation easement on it. While they can also take advantage of a tax deduction, they cannot usually develop it. The limits of conservation easement continue even when the land gets sold in a sale or passed on to an heir.

It’s best to consult with a real estate attorney in California to identify the right legal steps that will help accomplish your end goals regarding your property.

Everyone Doesn’t Qualify for Conservation Easement

Everyone cannot take advantage of a conservation easement. You can probably get a conservation easement if you meet any of the following four categories found in the IRS Code, Section 1.170A-14(d):

  • Preservation of a relatively natural habitat of fish, plants, or wildlife.
  • Preservation of agricultural lands or forests with open spaces.
  • Allowing public access to a portion of the land.
  • Protecting the property as per a clearly delineated government policy regarding local open-space plans.

Conservation easements are required to provide public benefits.

Tax Deduction on Conservation Easement

The primary benefit of a conservation easement is the tax deduction you will receive from it. You can deduct 50% of your income for the next 16 years until the appraised value of the easement. This means that if you make $60,000 a year, you can obtain a tax deduction of $30,000 for the next 16 years, which can amount to a total deduction of $480,000. Pertaining to this, this deduction is only up to the amount of appraised value of the easement.

Customizing a Conservation Easement

Conservation easements can be customized to meet your needs, depending on your plans for the property. The goal of an easement is to benefit everyone – the owner, the land trust, and the government agency.

Public Access Is Not Mandatory

While a few landowners choose public access as a condition of the conservation easement, this is a rare process. If you are worried about public access, you should know that this is not a requirement of the conservation easement. In other words, your land remains private property. By placing a conservation easement, you forego your development rights and prevent future development on the land you own.

Government Does Not Get Automatic Access

A conservation easement will not give the government direct access to your land. Most conservation easements are held by non-profit land trusts. These are designated by the IRS under section 501(c)(3).

These organizations play a role similar to tax-exempt companies and NGOs. In rare circumstances, a government entity may hold a conservation easement. Typically, government entities get involved in conservation easements when they audit or scrutinize the easement transaction.

No Need to Sacrifice Agricultural Production

Many people don’t want to get a conservation easement because they profit off the land in the form of ranching or agricultural production. You can work the productivity of your land into the easement. Conservation easements are flexible and you can work around your goals. The only thing you may not be able to do is future development.

You may still be able to use the land in the same way as outlined in the easement. To qualify as a farmer or rancher, more than 50% of your gross income should be from the business or trade of farming. These are a few activities that qualify as farming:

  • Raising or harvesting any horticultural or agricultural commodity.
  • Cultivating the soil.
  • Drying, handling, grading, packing, or storing a horticultural or agricultural commodity in its unmanufactured state.
  • Planting, caring, cultivating, and cutting down trees for the market.

You can place a restriction in the conservation easement stating the land is “available for agriculture.” If you qualify as a farmer or rancher, you should be able to receive tax deductions of up to 100% in exchange for the conservation easement.

Conservation Easements are Financially Beneficial

You have options even if your income doesn’t justify tax benefits. If your land has a high conservation value, the land needs to pay you for the conservation easement. Land trusts may purchase development rights through grants and donations since there is a great benefit to the public if development is prevented. Even if you do not get a tax deduction or credit, you can still get cash for the land.

Conservation Easement Need to be Accurate

You need to file forms for documenting the transaction if you want to claim tax benefits on both state and federal levels. You will need to provide IRS Form 8283 along with an appraisal if the deduction is more than $500,000.

You need to have a defensible appraisal since agencies pay close attention. You will need to pay for the property appraisal while actively avoiding overstating the conservation easement.

Get a Free Case Evaluation from Our Seasoned Land Use Law Attorneys

Speak to the experienced real estate and land use attorneys at Peterson, Martin & Reynolds LLP to discuss the details of your conservation easements, possible consequences, and the available legal options to protect yourself from losses. To schedule your free consultation, call us at (415) 399-2900 or fill out this online contact form.

 

How Commercial Tenants Should Protect Themselves When Leasing a Property

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For brick-and-mortar businesses, the commercial space they rent is not only one of the key components in their operational costs, but it also plays an important role in the success of their business. Several commercial landlords and tenants in California get into disputes over issues related to the condition of the property, upkeep and maintenance, and various other matters.

There are a number of things you should consider before signing a lease because every legal clause and paragraph has the potential to impact your company. This makes it important to have a consultation with a qualified real estate attorney in California, who can review the terms and conditions of the commercial property lease, make appropriate recommendations, and provide the right legal advice to protect your interests.

Review All Terms of the Lease Carefully

The overall value of the commercial real estate sector in the US is around $16 trillion as per the National Association of Real Estate Investment Trusts (NAREIT). Businesses can easily become overwhelmed when searching for a commercial property with so many options. Commercial tenants often focus on rental rates and locations when searching for a new property.

Based on this, it’s as crucial to review the lease agreement. In fact, you should get an experienced attorney to carefully review the specific details of the lease agreement. The lease is what controls your rights and interests if a dispute or problem arises. These are a few terms to pay attention to:

  • Late payments: Commercial leases should clearly mention the terms of late rent. It should specify the amount of interest and an additional charge for late payments. This gives you a clear idea of what will happen on nonpayment of rent.
  • Use clauses: These clauses will list out the things you can and cannot do with the commercial space as a tenant. It will also dictate the manner in which any disputes are to be handled if multiple tenants lease the same building. There may be a limited use clause that permits you to use the space for specific purposes till authorized capacity.
  • Assignment and subletting: Commercial tenants are typically allowed to sublet or assign space as per the terms of the lease unless the commercial lease specifies otherwise.
  • Non-Waiver provisions: This is actually a protection for the landlord to enforce any terms that they may have allowed to slide in the past. For instance, your landlord may not enforce a late payment charge if you are late on the rent the first time, but does it the second time.
  • Security deposit: California law places no restrictions on the amount of security deposit a landlord can request for a commercial space. Your attorney will negotiate with the landlord to come up with a fair amount.
  • Repairs and maintenance: Commercial landlords are not required to maintain or repair a commercial property, except as required by the lease. Tenants should negotiate the repair and maintenance clause to obligate the landlord into making repairs.
  • Insurance: These clauses dictate whether you, the landlord, or both of you are required to obtain insurance for the space, the minimum amount of insurance required, and the type of insurance needed.

Pay Attention to the Clauses on Liability Risks

Your liability risk is a key factor to investigate when evaluating a commercial lease. Commercial landlords often try to shift a large share of the risk onto their tenants. You may end up accepting a far greater liability risk if you fail to review the specific terms and clauses of the lease agreement. Common Area Maintenance (CAM) charges are an important thing to look out for.

This is also known as NNN or triple net lease. CAM charges are basically in the form of a fee paid to the landlord. It’s designed to cover the expenses of running day-to-day operations. The CAM fees are usually proportional to the total rental obligations where the common space is shared with other commercial tenants.

CAM charges can be used for paying for landscaping, trash removal from common areas, and elevator upkeep. Repairs and improvement to the commercial property is another critical provision to look out for. You should check if the landlord can pass on repair and improvement costs to your business.

You should also clarify how the expenses are charged if the costs do get passed on to you. The cost may be in the form of a lump sum payment or get amortized over several years.

Negotiate the Terms and Conditions of Your Commercial Lease

In general, commercial lease agreements can be negotiated. Based on this, there are a few take-it-or-leave-it options as well. It’s vital that you consult with a seasoned real estate attorney and have them review the lease terms. Your attorney will give you specific advice on the meaning and implications of the different terms and clauses.

You may be able to talk your landlord into certain amendments that reduce your overall risk. Your attorney will help you decide on a lease agreement that offers a fair rental rate and ensures that your business is protected from unreasonable liability risks.

Get Legal Representation from Skilled Real Estate Attorneys in California

The seasoned real estate attorneys at Peterson, Martin & Reynolds LLP have the legal experience and skills to draft, review, and negotiate commercial lease agreements. If you are renting a commercial property and have questions about the lease, our informed attorneys are here to help. To set up your free consultation with us today, call us at (415) 849-2564 or write to us online.

 

Do Easements Transfer with The Sale of Property in California?

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Easements provide an individual or entity to use a portion of private property for a specific purpose. These non-possessory rights are typically mentioned in the property deed but could be missed out in certain situations. Easements that are not specified in a property deed usually come to an end when the property is sold, the grantor passes away, or an expiration date has been reached.

It’s crucial that you speak with a reliable real estate attorney in California because there might be unique circumstances that keep the easements active even when the property is sold.

Effect of Sale on Different Types of Easements in California

The basic framework for easements in California Civil Code is detailed between sections 801 – 813. The framework provides an overall look at easement guidelines that landowners and city officials are required to adhere to. This is how different types of easements are treated when a property is sold in California.

  1. Express Easements

Express easements are the most common type of easement in California. These can be obtained by both individuals and entities via a reservation or grant. Express easements when granted give another entity or individual the right to use a portion of the land for right-of-way purposes.

Express easements when reserved, refer to an easement that has been transferred with the property on sale of the land from one individual to another. The original owner in this situation reserves the easement for the benefit of the individual or entity.

  1. Implied Easement by Existing Use

Implied easement by existing use is a different type of easement in which the law states that there is a previously implied easement between two parties. This is even when there is no record of a written agreement. The individual or entity that believes that they are able to use a part of the property as an easement will need to show that they were earlier able to use the property for a specific purpose.

  1. Easement by Necessity

This type of easement occurs when the specific use of land is absolutely necessary. This type of easement doesn’t need any pre-existing easements on the land. Any easement on the land will automatically get transferred when the property is sold. Easement by necessity is usually provided when someone’s property is landlocked and the only way through is by using a portion of another’s property.

  1. Prescriptive Easement

A prescriptive easement is a type of easement that is granted to an individual or entity after they continue to use a portion of another’s land for a certain period of time. A prescriptive easement may still be granted if the use of land was not permitted by the owner.

Building on a Property with Easement

Utility easements are the most common type of easements on California property. Many property owners believe that they won’t be allowed to build on a property if it has a utility easement. This is not entirely true. You can do a lot of different things with your property as long as you don’t interfere with the ability to use and access the area for water, sewer, gas lines, or any other utility purpose.

If you have an easement in gross on your property, the individual can use it as a right of way, for burial purposes, for the right to pasture, and for fishing among other things. You can always build something simple on an easement, such as a fence. Moreover, you need to remember that the fence can always be taken down to use the easement. The utility company will do everything possible to repair the fence as best as they can.

Many property owners also build hot tubs and pools on easements. Above-ground pools can be easily removed when the easement has to be used. You should refrain from planting trees and other large vegetation. Based on this, you can always have a flower bed or shrubs.

Terminating Easements on a Property

Easements are typically designed to continue for an indefinite period. In relation to this, there are several ways for a property owner to terminate easements. This includes:

  • Express agreement: You can get into an agreement with the easement holder to terminate the easement.
  • Abandonment: In this, the easement holder takes action that stops them from using the easement.
  • Merger: Dominant estate owner can obtain the title to the servient estate.
  • Ending by necessity: This occurs when the easement is no longer deemed to be necessary.

It’s fundamental to understand that abandonment needs to be permanent. Not using the easement for a short period of time doesn’t refer to abandonment. There are several other nuances that come into play making it important to retain the services of a skilled real estate attorney.

Our Trusted Real Estate Lawyers Can Provide You with Strong Legal Advice and Support. Call Now.

At Peterson, Martin & Reynolds LLP, we pay attention to our clients and pursue their interests with a steadfast commitment and sharp focus. Our seasoned attorneys have an in-depth understanding of California’s real estate laws and will carefully evaluate your issues and concerns to provide you with the right legal advice. To can book your free, no-obligation consultation with our team, call us at (415) 849-2564 or reach us online.