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Real Property Law Challenges 2019

Real Property Law

An interaction between two or more parties in which goods, services or something of value is exchanged for some type of remuneration. Some aspects of commercial transactions, such as truthful representation and contract provisions, are governed by law.

Transactions between those who make their living engaged in commercial buying and selling of goods (merchants) are usually regulated by statutes and regulations that are far more streamlined than those typically applicable to contracts with end users who are protected by myriad consumer protection laws. The concept is that merchants are professionals in the buying and selling of goods and need far more efficient procedures and less protection- based laws to facilitate their transactions. Those laws are normally contained in state statutes that are the state’s version of the Uniform Commercial Code. 

The Uniform Commercial Code (“UCC”) is a set of laws that provide legal rules and regulations governing commercial or business dealings and transactions. The UCC regulates the transfer or sale of personal property. The UCC does not address transactions or financing of real property. Theoretically, the UCC standardizes business laws in these fields in the United States and seeks uniformity amongst the states. Since merchants almost always engage in interstate business, this is a vital benefit for them.

Sub-Categories 

Real Property Litigation

Real property or real estate litigation encompasses a wide variety of matters arising out of or related to interests in real property. Real estate litigation sometimes involves a subset of contract law because basic real estate transactions involve contracts. Disputes sometimes arise because a contract may be open to interpretation or one of the parties may fail to perform his or her obligations. Furthermore, many real property disputes that have to do with damage to the property or the land may require further investigation to determine the actual cause of the damage. Our experience in inverse condemnation law helps us assist clients effectively in such situations.
We have provided legal advice and representation for real property litigation matters such as:

 

  • Boundary disputes
  • Broker/Agent liability
  • Commercial landlord/tenant matters
  • Construction litigation, including mechanic’s liensEasements
  • Claims for payment by and against contractors
  • Deeds
  • Eminent Domain/Inverse
  • Condemnation
  • Environmental issues
  • Foreclosures
  • Ownership disputes
  • Purchase and sales transactions, including failure to disclose issues
  • Premises liability

Contact the Active Law Group today for a Free consultation!!!!

Commercial Transaction

An interaction between two or more parties in which goods, services or something of value is exchanged for some type of remuneration. Some aspects of commercial transactions, such as truthful representation and contract provisions, are governed by law.

Transactions between those who make their living engaged in commercial buying and selling of goods (merchants) are usually regulated by statutes and regulations that are far more streamlined than those typically applicable to contracts with end users who are protected by myriad consumer protection laws. The concept is that merchants are professionals in the buying and selling of goods and need far more efficient procedures and less protection- based laws to facilitate their transactions. Those laws are normally contained in state statutes that are the state’s version of the Uniform Commercial Code.

The Uniform Commercial Code (“UCC”) is a set of laws that provide legal rules and regulations governing commercial or business dealings and transactions. The UCC regulates the transfer or sale of personal property. The UCC does not address transactions or financing of real property. Theoretically, the UCC standardizes business laws in these fields in the United States and seeks uniformity amongst the states. Since merchants almost always engage in interstate business, this is a vital benefit for them.

Condominium Law

Management By Association: California Civil Code Section 1363 states that condominiums shall be managed by an association. All condo owners are members of that association. Members of the association elect a board who manages common areas on their behalf. Even if you’re not actually involved in the management of your association, you still have access to the association’s records, financial documents and membership books.

Assessments: Condominium associations levy regular and special assessments to manage common areas. Regular assessments are generally known as dues. Under the law, your dues cannot be increased more than 20 percent unless a majority of a quorum of owners approve. A quorum is defined as more than half of the owners. Special assessments are fees imposed by the association for large projects in common areas, such as a new roof. California Civil Code Section 1366(b) states that special assessments cannot exceed 5 percent of the budgeted expenses without approval of a majority of a quorum of owners.

Association Rules: Condominium associations often limit use of publicly visible areas, such as porches and balconies. These limitations may create problems if an owner wishes to hang a hammock on a balcony or dry clothing outside. Prohibiting these uses is California Civil Code section 1351(i)(1). This code section designates “awnings, window boxes, doorsteps, stoops, porches, balconies, patios… screens and windows” are “exclusive use common areas.” This designation means that although no one else may use these areas without the owner’s consent, they remain common areas and can be governed by the homeowners association (HOA).

Construction Law

Construction law involves any legal issue related to the construction of a building or other structure. Legal issues related to construction activities can arise under federal, state, or local laws. Federal statutes, such as workplace safety regulations and employment laws, can impose requirements on worksites and hiring practices. States may impose additional regulations on top of federal ones, which can range from safety and employment to environmental rules. City and county ordinances may impose additional restrictions on zoning and construction noise.

With all of the levels of government playing a role in construction regulation, legal issues can arise in a number of ways. Common construction-related legal disputes include workplace injuries and accidents, construction defects, contract issues, and problems with obtaining the proper planning or building permits.

Construction Contracts

A contract is a legal agreement between two or more people. A written agreement is one of the most important communication tools for both the contractor and Consumer. It helps avoid misunderstandings about what a job will include. A thorough contract tells how the work will be done, when it will be done, what materials will be used, and how much it will cost.

In California, a written contract is required for all home improvement projects over $500. A home improvement contract and any changes made to that contract must be in writing, legible, easy to understand, and inform the consumer of his/her rights to cancel or rescind the contract. If you are promised something verbally make sure that it is included in writing. Don’t sign anything until you understand the contract and agree to the terms.

Fiduciary Duties

A fiduciary duty is a legal or ethical relationship which relies on trust between two or more parties. A fiduciary has the responsibility to take care of funds entrusted to him or her. Accordingly, it is expected that a fiduciary person has to be extremely loyal to whom he owes the duty. In practice, business officers and directors are in a fiduciary relationship. They have fiduciary duties to the business and to the persons who are its constituents.

Unfortunately, the practice is full of cases when an entrusted person violates his or her obligations. At that point, a fiduciary relationship is no longer. Oftentimes, breach of a fiduciary duty is linked to situations when business directors prevail their personal over the business interest of the owner. Mainly, the lawsuits on breach of fiduciary duty involve the following causes of action:

  • breach of contract ( i.e., one of the partners did not act according to the partnership agreement),
  • fraud (i.e., one of partners misrepresented an important fact),
  • breach of fiduciary duty ( i.e., business director betrayed company),
  • and accounting (i.e., a partner misappropriated the income).

Under California law, in order to establish a cause of action for breach of fiduciary duty, one needs to prove the following elements:

  • existence of a fiduciary duty,
  • breach of the fiduciary duty,
  • proximate cause,
  • causation of harm or damages(Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1044).

Furthermore, California courts practice distinguishes three categories of breach of fiduciary duties:

  1. Breach of reasonable care (negligence)
  2. Breach of duty of loyalty
  3. Breach of confidentiality

Additionally, the acts of intentional wrongs, i.e. fraud, as well as misrepresentation also are types breach of fiduciary duty.

Real Estate Partnership Agreement

Real estate partnership allows all parties to pool their resources and capital, as well as split the operating costs and expenses of the business in the pursuit of real estate opportunities.

The key benefit of a real estate partnership agreement is that it clearly lays out the rights and responsibilities of each member of the partnership. The goal is to eliminate all vagueness and confusion at the outset so that later on when issues arise — such as disputes over rental income, property management, rights to sell, etc. — all parties can be guided by the agreement to the best course of action.

  • A real estate partnership agreement is essentially a contract outlining the responsibilities of each partner.
  • Every real estate investment partnership agreement should contain information on company finances and asset protection.
  • Investors can follow a real estate partnership agreement template to ensure they don’t leave anything out.

Real Estate Fraud

Real estate fraud is when one person or party makes misrepresentation or uses false information to take advantage of the other party during a real estate sale/purchase. Most of the real estate fraud cases involve some form of mortgage loan fraud.

In California, the basic criminal statute that may be used to prosecute various forms of real estate fraud or mortgage fraud is Penal Code 487 PC, California’s“grand theft” law. Real estate fraud can be considered a form of “theft by false pretenses”—which is a similar concept to fraud.