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Posted by on in Real Estate Law


A mechanics lien is a legal claim, known as a secured interest in your property, which can be filed and recorded with the county recorder's office by an unpaid contractor, subcontractor, laborer, or material supplier. If filed and unpaid, it allows the filing party to pursue a foreclosure action, forcing the sale of the property to satisfy any unpaid debts.

From a historical perspective, mechanics liens are dated at least as far back as Roman times when construction lenders would receive a lien not only on the land, but on the structure built. They were also enforced in old maritime law for the labor and materials in the improvement of a vessel. Unlike most American laws, mechanics liens did not exist under English common law and are somewhat unique in their modern origin. Mechanics liens were meant to give contractors a preference over other creditors so that our nation could sustain the type of growth and building that our forefathers envisioned. First conceived by Thomas Jefferson to encourage construction of the then new capital city of Washington, D.C., the long history of mechanics liens also extends throughout the history of California, which is the only state to guarantee mechanics lien rights in its constitution.

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rent own property mlnariklawAs rental fees and mortgage payments continue to climb in major metropolitan areas around the U.S., tenants and homeowners are turning to short-term rental services in increasing numbers to relieve the economic burdens that have begun to build up. This option is especially appealing to individuals who travel on a regular basis for work, who travel for extended periods after retirement, or who are looking to make a profit from the rebounding real estate market. But before opening up a home, apartment, or condo to a would-be renter, it is important for the owners or lessors to take the following factors into consideration.

City Ordinances, CC&Rs, and Limitations in Rental Agreements

Housing and rental markets in major cities are already crowded, and adding short-term rental arrangements to this equation only serves to compound the difficulties in finding affordable housing. With this in mind, several cities in California have passed zoning ordinances restricting or completely forbidding the use of short-term rental agreements in otherwise long-term housing.

For example, in San Luis Obispo County, California, a short-term rental home may not be located within 200 feet of a similar rental on the same block. Further south, Palm Desert, California adopted an ordinance allowing short-term rentals of up to 27 days provided that an annual permit is obtained and a 9% transient occupancy tax collected and paid to the city. St. Helena, California enacted a similar law.

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b2ap3 thumbnail 1st time homebuyers

As we approach the summer home buying season, here is some practical advice for first time homebuyers from my experience both as a real estate litigator and a recent first time homebuyer:

Don’t fret about the market: I am often asked if I think now is a good time to buy. My response to this recently has been “Well, what are you buying – a house or a home?” The market seems dangerously inflated at present and may very well decline in the short term. However, given long term inflationary trends, it seems highly likely prices will before too long return to these levels and ultimately go higher. If you are a speculator who wants to flip, or somebody that wants to sell in a few years and move somewhere else or upgrade off accumulated equity, it is a bad time to buy and there is a fair probability you will get hurt at these prices.

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b2ap3_thumbnail_bad-neighbor-dog.jpgWhen a neighbor is being a nuisance, there are some instances where the person affected may file a claim against them. This is often seen when the nuisance affects the quality of life, the value of property or may injury someone through illness or bodily harm.

If the neighbor in question is continuing an act or activity that could cause property damage in any manner, he or she should desist. It is best to first communicate with the neighbor about the grievance before any action is taken. It is only when communication fails with this individual that further actions should be sought. A property law lawyer should be contacted and consulted to determine what to do next.

In some situations, once a lawyer has been contacted, a file may be issued to the neighbor to desist with the activity that is causing the damage. However, while this is a legal document, the person is not forced to follow the order. At that point, it may be necessary to gather evidence of the problem and determine if litigation is the next best route. No matter how obvious the situation may seem that harm has been caused by the person responsible, it is best to obtain as much proof of the incident as possible to strengthen the case.

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b2ap3_thumbnail_images-3_20160802-183955_1.jpgWhen a person hires someone else to provide goods or services to him or her, the terms of the contract dictate when the work is to be performed or the goods to be provided. However, situations can occur in which the contractor is not providing timely delivery, and the customer may pursue legal action to enforce his or her rights.

Contract Provisions

Courts give wide breadth to individuals to enter into contracts in a voluntary fashion. Therefore, courts will usually hold the parties to the terms of the contract that they both willingly signed, absent certain rare exceptions. If the non-breaching party wants to enforce the contract, the court must be able to refer to clear provisions in order to effectuate the agreement as the parties intended.

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b2ap3_thumbnail_images-1_20160802-181514_1.jpgAlmost every private housing area as well as public ones prohibits undue, avoidable and excessive noise. For laws and ordinances that stipulate noise levels, law enforcement is allowed to give citations and tickets to those that violate these regulations.

Law enforcement is responsible for enforcing these laws when necessary, and tickets are to be paid within the designated time frame or offenders may face additional penalties. Each area is different based on roads, country, housing communities or city living. Each area has rules that may be reviewed at the local municipality.

Noise Explained

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b2ap3_thumbnail_growth-Real-Estate-Market.jpgTo receive a highly professional legal advice based on experience in Real Estate will be vital to make sure that the land you want to purchase for starting a real estate project (horizontal or vertical condominiums, houses, gated communities or commercial) is ideal and doesn’t have any kind of building restrictions.

With the ‘Due Diligence’ lawyers make ensure that the client’s investment is not at risk.

Before a person buys a land, it takes place a study related to legal and procedure aspects, that will allow to inform the person if the property he/she is considering to purchase for the real estate project is suitable for that business.

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Forming a limited liability company (LLC) for real estate investments has been a common practice in Florida for more than 30 years because an LLC can help investors protect their personal assets from any liabilities associated with their real estate investments.

Although some real estate investors may elect to rely solely on liability insurance to protect themselves from a potential lawsuit, there are some risks to this approach. Liability policies generally have exceptions and limits that do not wholly protect investors from litigation; an LLC’s protective power is typically broader and more beneficial.

Here are the advantages of forming an LLC for real estate investments:b2ap3_thumbnail_images-2.jpg 

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b2ap3_thumbnail_images-1.jpgReal estate agents occupy a position of trust. Quite often, they are involved in transactions that represent the largest monetary value that their clients have ever encountered. As such, real estate agents may be subject to a number of legal claims.


One common claim made in this context is that of fraud. In most cases, fraud requires showing that the real estate agent had the intent to defraud, deceive or misrepresent facts to the detriment of the plaintiff. This may be affirmative action such as telling a lie, or it may be fraud by omitting certain information. Some states have laws or case law regarding a concept called constructive fraud, which is when the real estate agent gains an unfair advantage by using deceitful or unfair methods. Intent is not required in these cases.

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Whether you are buying or selling a home, your team of expert advisers should include a real estate closing attorney. Real estate closings are complicated matters and require a thorough knowledge of the law. With a decision as serious as buying and b2ap3_thumbnail_download-1.jpgselling real estate, it is important that you are guided throughout every step of the closing process by an experienced and knowledgeable real estate lawyer.

How a Closing Lawyer Can Help

The real estate attorney performs many time consuming tasks preparing for a closing. A real estate closing involves a series of complex phases: contract drafting and negotiation, document review, examination of the title, completion and explanation of legal documents, and resolution of any possible title difficulties. An experienced real estate attorney oversees the entire process so that you are not overwhelmed by the paperwork involved, the disclosures that need to be made, inspections, loan documents, title insurance and affidavits, and unforeseen issues that can suddenly turn a sure sale into a disaster.

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In most cases, a person is not legally required to hire a real estate lawyer beforeb2ap3_thumbnail_Real-Estate-Image.jpg purchasing real property. However, real estate lawyers perform a variety of tasks that can help make the home buying process less complicated and that can tend to the buyer’s rights.
General Rule
Property ownership is usually dictated by state law. Most states do not require a homebuyer to hire a real estate lawyer or even a real estate agent. However, some states only allow a lawyer to prepare documents related to the home purchase, to perform a title search and to complete the closing.
Reasons to Use a Real Estate Lawyer
For many individuals, the purchase of a home is the most expensive purchase that they will make in their life. They may also live in the house for many years to come, making any decisions made during this process significant and enduring. Additionally, property law is an area of law that includes complex legal issues that may not be present in other areas of law. A real estate lawyer focuses his or her time on real estate transactions and likely has more experience in this matter than the buyer.
Tasks that a Real Estate Lawyer Assists With
Real estate lawyers can assist in a number of tasks related to the home purchase, including the following:
A real estate lawyer can help submit a written offer to the buyer. He or she discusses the options with the buyers and can include certain contingencies for the purchase of the home.
Many individuals may not be accustomed to negotiating on a routine basis. A real estate lawyer can offer suggestions related to counter-offers, as well as handle the communications between the buyer and the broker.
Purchase Agreement
The most important document that a real estate lawyer may draw up is the purchase agreement for the home. This is the formal contract for the purchase of the home that details the rights and responsibilities of each party. While many real estate agents use standard forms, a lawyer can provide a customized contract that takes into consideration any unique details or arrangements. Additionally, such standard forms may be written in a way that protects the seller more than a buyer, so having a real estate lawyer can ensure that the buyer’s rights are also being protected. In particular, the lawyer may include provisions regarding the consequences of what will happen if the seller does not provide good and marketable title within a certain timeframe or fails to show up at closing. Additionally, he or she can include provisions regarding home inspections and the rights of the buyer if problems are discovered during this process. He or she should also include a provision that makes the purchase contingent on the buyer receiving appropriate financing for the purchase. Even if using a standard form, a real estate lawyer can review it to ensure that it contains all of the pertinent provisions.
Other Contracts
A real estate lawyer may assist with additional contracts. For example, he or she may review or draft a contract with the broker. If the property is a rental property, he or she may draft a lease for future or existing tenants. He or she can also review other documents relevant to the transaction, including financing agreements.
Title Search
The real estate lawyer may also conduct a title search on the home to ensure that there are no clouds on the title. This information is also important to the lender, which has a financial stake in the transaction.
Legal Issues
Sometimes during the process of purchasing a home, buyers may run into legal issues. For example, they may discover that there was an unknown encumbrance on the property. They may find that there are existing tenants in the property. They may uncover unknown problems with the home or discover that certain areas of the home are not legally permitted. There may also be certain tax implications due to the transaction.
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On July 11, 2012, Governor Brown signed the Homeowner Bill of Rights. This important bill extends reforms to help homeowners who are having trouble with their residential mortgage. The most significant aspects of the bill follow:

1. The bill prevents lenders from “dual-tracking” borrowers. This means that when a homeowner is negotiating new terms for a modification with a residential loan borrower, the lender is prohibited from pursuing a foreclosure simultaneously.

2. The bill imposes civil penalties of up to $7,500 for auto-signing foreclosure documents (this process is frequently referred to as “robo-signing”, meaning that lenders file testimony about their possession of original documents and their review of business records without checking the accuracy of their statements).

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A real estate attorney is your advocate when it comes to purchasing a home

b2ap3_thumbnail_Real-Estate-Attorney.jpgFor most people, their house is their biggest investment. It makes sense to hire a real estate attorney to ensure that you understand all aspects of your transaction with the seller and any regulations related to the purchase.

Homeowner Associations (HOAs)

Review of your covenants, conditions and restrictions (CC&Rs) by an attorney can alert you to items you might be unfamiliar with. More important, it can keep you from buying a property that is already violating a CC&R -- thus avoiding liability toward the association or a neighbor later on. There may be restrictions (for example on flooring types, or pets, or turning your property into a rental unit) that you will wish you had known about!

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b2ap3_thumbnail_HOA-Foreclosure-Bill1-150x150.jpgIf you were a condo owner in a community governed by a homeowners association (HOA) and your condo was sold at a foreclosure auction, you might think you’re off the hook for any delinquent payments to your HOA. You’re not! You will be liable for any dues while you are on title.

Today, as the market value for many properties has fallen, there isn’t enough money “left over” to pay your HOA. Most associations have governing documents that allow them to collect from a property owner personally, after the home has been lost to a foreclosure.

Bottom line – don’t just ignore your association fees because you’re in active foreclosure. You could pay for it later.

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b2ap3_thumbnail_New-Home-New-Year-Relationship-150x150.jpgIf you’re considering buying a place with your boyfriend, girlfriend or significant other, you can take advantage of the great real estate deals that are currently out there. Whether it be a short sale or foreclosed property, you both may fall in love with a great house, but as sometimes happens, fall out of love with your partner. We can get caught up with the joy and spirit of the Christmas holiday season and many couples don’t think ahead of this unfortunate outcome. Many are forced to sort out what they’re going to do with their house down the line. If you’re married, there are plenty of California laws out there that will help protect you. If you’re not, you won’t be so lucky.

In the event you’re ready to take the plunge, consider an agreement to document who is responsible for what and what you’ll do with the house if you part ways. Important things to consider are who will pay for things like the mortgage, property taxes, insurance and maintenance? More importantly, you should consider how you can realistically afford to sell or maintain the property in the event you do split up. Allowing for concrete time frames to secure new financing and allocating responsibility for who will take care of the payments when the house is still in both your names are the big issues.

If you’re looking planning to make a big purchase like this with that special someone over the Christmas holiday season or the upcoming new year, consider drafting an agreement to protect yourselves now and down the line.

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