Saturday, March 3, 2012
Darwin Bustarde is Pleased to Join Mayfield & Associates
Darwin Bustarde is pleased to announce that he will join the firm Mayfield & Associates as of March 5, 2012. He will join that firm's partners, Gayle Mayfield-Venieris and Melissa Bustarde, to continue serving those in need of professional legal services regarding their business matters. Please visit Mayfield & Associates by clicking on the hyperlink here. For your information, this website will be maintained to help orient prior visitors, and past and current clients, to Mr. Bustarde. The information contained in this blog and the website bustardelaw.com may not be current as a result of this change in Mr. Bustarde's professional affiliation.
Wednesday, July 20, 2011
More Protection for Home Owners Who Short Sell
Governor Jerry Brown signed Senate Bill 458 into law this past Friday. The law provides further anti-deficiency protection to homeowners who short sell their property. As you may recall, Governor Schwarzenegger signed SB 931 (see prior blog post here) which prevents first lien holders from going after their borrowers for the difference between the sale price and the remaining loan balance of the first loan.
SB 458 expands on that anti-deficiency protection to all loans on a home when a short sale occurs.
Your realtor, financial planner/CPA can help you decide whether pursuing a short sale is worthwhile in consideration to your goals. Contact an attorney to help you ensure that the proper documents and procedures are followed to help you take advantage of this new law. Call Bustarde Law to discuss your legal matters.
SB 458 expands on that anti-deficiency protection to all loans on a home when a short sale occurs.
Your realtor, financial planner/CPA can help you decide whether pursuing a short sale is worthwhile in consideration to your goals. Contact an attorney to help you ensure that the proper documents and procedures are followed to help you take advantage of this new law. Call Bustarde Law to discuss your legal matters.
Friday, December 3, 2010
Improving or Constructing on Property in an HOA
Your homeowner association's governing documents or Declaration of Covenants, Conditions & Restrictions ("CC&Rs") should provide some control over the improvements and design of the exterior of members' individually owned units. The duty to enforce those improvements must generally be delegated to a 3-5 person committee. (California Code of Regulations, Title 10, Section 2792.28(a)) This committee is frequently referred to as the Architectural Control Committee.
Depending upon the type and age of the community, the committee will be staffed by owner-members chosen by either the HOA, or if the development is newer- the developer/subdivider.
The conditions on how a member can improve his or her property must be reasonable. The member will normally have to submit proposed plans to the committee. The committee will review the plans in light of its duty to the homeowners to act in good faith in exercising its powers. If the committee acts in an arbitrary or unreasonable manner the homeowner can seek judicial relief (frequently after exhausting his or her non-judicial/Alternative Dispute Resolution remedies required in the CC&Rs). If a judicial action is brought, the court will not uphold the committee's decision if it was unreasonable or not in good faith as to the other owners.
Generally, the committee's discretion can be very broad. The committee can apply subjective standards in making its decision that tends to increase their discretion.
However, there are certain issues where the committee has little, if any, discretion. An individual homeowner can modify his or her property to provide disability access for example. Other examples of matters excluded from the committee's control is: the use of non-commercial signs, installing low-water using plants, and displaying the flag of the United States. These exclusions are themselves subject to the limitation that the HOA or committee can act to limit uses like these in the interests of the public health or safety, or in the case of posting non-commercial signs (like protest signs), if the posting would violate another law.
The benefit of architectural control committees should not go unstated. Proper exercise of the CC&Rs frequently will advance the interests of the community in general. The general master plan and aesthetic look of the community can be maintained. Limiting one homeowner's ability to modify his or her property can help preserve the views of others.
Many communities in southern California are subject to HOA restrictions. While the CC&Rs should provide for proper protection for both individual homeowners and the community at large, disputes can arise regarding the proper application of the governing documents. Community politics can interfere with an otherwise reasonable proposed architectural improvement, or conversely cause an otherwise unreasonable or improper construction to be authorized.
If you believe your ability to modify your home or land is being impaired unfairly, you may have recourse through the dispute resolution procedures of your HOA or in the court. If you believe that a neighbor's project is improper and against the CC&Rs you too may have legal recourse to either take action directly yourself or to compel your HOA to take action on behalf of the committee as a whole.
Contact Darwin Bustarde, Esq. to discuss your options regarding completing your own project or issues that you may have with a neighbor's proposed project.
Depending upon the type and age of the community, the committee will be staffed by owner-members chosen by either the HOA, or if the development is newer- the developer/subdivider.
The conditions on how a member can improve his or her property must be reasonable. The member will normally have to submit proposed plans to the committee. The committee will review the plans in light of its duty to the homeowners to act in good faith in exercising its powers. If the committee acts in an arbitrary or unreasonable manner the homeowner can seek judicial relief (frequently after exhausting his or her non-judicial/Alternative Dispute Resolution remedies required in the CC&Rs). If a judicial action is brought, the court will not uphold the committee's decision if it was unreasonable or not in good faith as to the other owners.
Generally, the committee's discretion can be very broad. The committee can apply subjective standards in making its decision that tends to increase their discretion.
However, there are certain issues where the committee has little, if any, discretion. An individual homeowner can modify his or her property to provide disability access for example. Other examples of matters excluded from the committee's control is: the use of non-commercial signs, installing low-water using plants, and displaying the flag of the United States. These exclusions are themselves subject to the limitation that the HOA or committee can act to limit uses like these in the interests of the public health or safety, or in the case of posting non-commercial signs (like protest signs), if the posting would violate another law.
The benefit of architectural control committees should not go unstated. Proper exercise of the CC&Rs frequently will advance the interests of the community in general. The general master plan and aesthetic look of the community can be maintained. Limiting one homeowner's ability to modify his or her property can help preserve the views of others.
Many communities in southern California are subject to HOA restrictions. While the CC&Rs should provide for proper protection for both individual homeowners and the community at large, disputes can arise regarding the proper application of the governing documents. Community politics can interfere with an otherwise reasonable proposed architectural improvement, or conversely cause an otherwise unreasonable or improper construction to be authorized.
If you believe your ability to modify your home or land is being impaired unfairly, you may have recourse through the dispute resolution procedures of your HOA or in the court. If you believe that a neighbor's project is improper and against the CC&Rs you too may have legal recourse to either take action directly yourself or to compel your HOA to take action on behalf of the committee as a whole.
Contact Darwin Bustarde, Esq. to discuss your options regarding completing your own project or issues that you may have with a neighbor's proposed project.
Monday, November 29, 2010
The Warranty of Habitability: Waivable in a Lease?
Frequently, lessors/landlords will present to lessees/renters/tenants a lease full of boilerplate language. A renter will likely not be able to negotiate many of the terms in such standard leases. Consequently, a lease may contain many terms that a renter might not otherwise accept or in fact may not even be legal!
The question arises, what terms can the landlord get away with? That is of course, a very broad question. The best way to have it answered effectively is to contact an attorney like Darwin Bustarde, Esq. or other competent real property professional to review your lease and consult with you regarding its terms.
In California (and other states), the warranty of habitability is one implied warranty that many lessors want waived in the lease. The warranty of habitability requires that a dwelling be in a condition fit for the occupation of humans. California Civil Code Section 1941 et seq. For example, an untenable dwelling may lack: effective waterproofing/roof, plumbing that is in good working order, a water supply that provides cold and hot water, appropriate heating, electrical systems in good working order, adequate garbage receptacles, floors and stairs in good repair, and/or a locking mail box. California Civil Code Section 1941.1.
Sections 1942.1 and 1953 of the Civil Code make any agreement that waives or modifies a tenants rights establishing the warranty of habitability/tenability void as a violation of public policy. There are of course potential exceptions to this general statement that would need to be considered before taking any action in reliance on the warranty of habitablity. For example, a lessor and tenant can agree to have a tenant make improvements or repairs to the property in consideration for rent. Civil Code Section 1942.1.
If you are a landlord looking to control his or her legal duties to the extent legally permissible you should consult with an attorney to review your lease. Bustarde Law can provide that type of consultation for a reasonable flat fee, reflective of your interest as a landlord to make renting/leasing properties as profitable as possible. Conversely, if you are a renter or tenant and you have been presented with a lease, consult with an attorney to review it. A small investment to pay an experienced legal professional to review and consult with you regarding your lease could help you avoid legal issues in the future.
The question arises, what terms can the landlord get away with? That is of course, a very broad question. The best way to have it answered effectively is to contact an attorney like Darwin Bustarde, Esq. or other competent real property professional to review your lease and consult with you regarding its terms.
In California (and other states), the warranty of habitability is one implied warranty that many lessors want waived in the lease. The warranty of habitability requires that a dwelling be in a condition fit for the occupation of humans. California Civil Code Section 1941 et seq. For example, an untenable dwelling may lack: effective waterproofing/roof, plumbing that is in good working order, a water supply that provides cold and hot water, appropriate heating, electrical systems in good working order, adequate garbage receptacles, floors and stairs in good repair, and/or a locking mail box. California Civil Code Section 1941.1.
Sections 1942.1 and 1953 of the Civil Code make any agreement that waives or modifies a tenants rights establishing the warranty of habitability/tenability void as a violation of public policy. There are of course potential exceptions to this general statement that would need to be considered before taking any action in reliance on the warranty of habitablity. For example, a lessor and tenant can agree to have a tenant make improvements or repairs to the property in consideration for rent. Civil Code Section 1942.1.
If you are a landlord looking to control his or her legal duties to the extent legally permissible you should consult with an attorney to review your lease. Bustarde Law can provide that type of consultation for a reasonable flat fee, reflective of your interest as a landlord to make renting/leasing properties as profitable as possible. Conversely, if you are a renter or tenant and you have been presented with a lease, consult with an attorney to review it. A small investment to pay an experienced legal professional to review and consult with you regarding your lease could help you avoid legal issues in the future.
Monday, November 15, 2010
Unlawful Detainer/Evictions: The Three (3) Day Notice, The Landlord's Concerns
A Three (3) Day Notice is required to initiate a Unlawful Detainer (Eviction) action as described in California Civil Code Section 1161, including:
- tenant's failure to pay rent;
- tenant's failure to abide by the lease terms;
- nuisance by the tenant;
- waste by the tenant;
- unlawful use of the property by the tenant; and
- the property has been sold pursuant to a sale under execution, mortgage or trust deed.
Depending on what acts or omissions the tenant has committed, a 3-Day Notice to Pay or Quit, and a 3-Day Notice to Cure or Quit (also may be termed something like-3-Day Notice to Perform Covenants or Quit) may be served on the tenant together. For example, if the tenant has failed to pay rent and is committing a nuisance on the property, both notices may be proper.
The landlord must take care when filling out the required information on the notice(s). If the notice is incomplete, incorrect or contains extra information or allegations that are not allowed by law, then the notice may be defective. A defective notice may cause the landlord to lose his unlawful detainer case.
Examples of defects/issues that the landlord should be aware of include:
- not stating the name of the actual tenants;
- not identifying the address/property;
- failure to state the exact amount of rent owed (or a reasonable calculation/approximation as may be allowed by law);
- overstating the amount (including claims for unpaid utilities, late fees, interest, etc.)
- including a claim of rent beyond a years time;
- failure to state that the tenant has 3 days to pay the amount at a particular day and time or the tenant must move out;
- say what the tenant did or failed to do to break the lease and alternatively state that the tenant has 3 days to fix the problem or move out;
- and simply sign and date the notice.
Landlords should carefully review the terms of the lease. For example, some leases might specify that a late fee is deemed to be "rent" under the lease, thereby creating the potential to claim the late fee as part of the rent owed in a 3-Day Notice to Pay or Quit.
Bustarde Law can help analyze your situation with your tenant to determine the correct notices to serve, the correct information to provide, and the correct procedure to serve the notices and thereafter file an eviction action. Oftentimes, an attempt to evict someone is delayed or fails unnecessarily because the notice contained a seemingly minor discrepancy.
An eviction action is a complicated process based on specific statutory requirements. The foundation of the action is the notice. If the notice is defective then the action will likely be too.
The California Court system provides a helpful website containing general information (including that summarized above) concerning unlawful detainer actions on its website, click here. Also, Mr. Bustarde offers extremely reasonable hourly and flat rate fees to help landlords, especially non-professional landlords, evict tenants to make their properties money generating resources again.
Monday, November 8, 2010
The Deferrence Given to HOA Maintenance Decisions is Not a Blanket Immunity
A homeowners association ("HOA") of a common interest community enjoys "judicial deference" concerning ordinary maintenance decisions. Individual owners who might believe their HOA caused or failed to prevent a problem, like a burst pipe in a common area, flooding, termite infestation, etc., should educate themselves and consult an attorney regarding the viability of the potential claim and anticipated defenses.
A court will defer to the ordinary maintenance decisions of an HOA, where the HOA selects from various means a method to maintain or repair a development's common areas. This deference is an affirmative defense that the HOA can assert to protect itself from liability. To do so, the HOA must show that it performed a reasonable investigation, in good faith and with regard for the best interests of the community and members, pursuant to its authority under the law and CCRs. Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253.
Last month, the Court of Appeal, Fourth Appellate District, held that the judicial deference does not shield an association from liability for ignoring problems and explained it protects an HOA's good faith decisions to maintain and repair common areas. Affan v. Portofino Cove Homeowners Association, et al. (2010) 2010 DJDAR 16702. In Affan, owners in a condo complex complained of sewage backups over the years. The HOA discussed possibly hiring someone to clean the sewage lines but never actually took action. Eventually, it hired a pluber to clean the linem, however by that time the lines were so clogged that a special method of cleaning was required but was not used. As a result, after the cleaning, a serious "sewage eruption" occurred.
The Court of Appeal found that the HOA in responding to the sewer line issue did not make a "maintenance decision." Therefore, it could not avoid liability for the sewage problems under the judicial deference doctrine. As an aside, the Appellate Court also described that the HOA's managing agent could not rely on the judicial deference doctrine because it was not an HOA.
Affan v. Portofino provides an instructive example for HOA Board Members and owners, of the type of conduct an HOA will be expected to perform. If you are involved in an HOA or common interest development feel free to contact me and I would be happy to discuss the law and concerns that regard defects like that addressed above and other issues.
A court will defer to the ordinary maintenance decisions of an HOA, where the HOA selects from various means a method to maintain or repair a development's common areas. This deference is an affirmative defense that the HOA can assert to protect itself from liability. To do so, the HOA must show that it performed a reasonable investigation, in good faith and with regard for the best interests of the community and members, pursuant to its authority under the law and CCRs. Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253.
Last month, the Court of Appeal, Fourth Appellate District, held that the judicial deference does not shield an association from liability for ignoring problems and explained it protects an HOA's good faith decisions to maintain and repair common areas. Affan v. Portofino Cove Homeowners Association, et al. (2010) 2010 DJDAR 16702. In Affan, owners in a condo complex complained of sewage backups over the years. The HOA discussed possibly hiring someone to clean the sewage lines but never actually took action. Eventually, it hired a pluber to clean the linem, however by that time the lines were so clogged that a special method of cleaning was required but was not used. As a result, after the cleaning, a serious "sewage eruption" occurred.
The Court of Appeal found that the HOA in responding to the sewer line issue did not make a "maintenance decision." Therefore, it could not avoid liability for the sewage problems under the judicial deference doctrine. As an aside, the Appellate Court also described that the HOA's managing agent could not rely on the judicial deference doctrine because it was not an HOA.
Affan v. Portofino provides an instructive example for HOA Board Members and owners, of the type of conduct an HOA will be expected to perform. If you are involved in an HOA or common interest development feel free to contact me and I would be happy to discuss the law and concerns that regard defects like that addressed above and other issues.
Tuesday, October 19, 2010
New Anti-Deficiency Protection for Short Sales in California
More homeowners are considering "short selling" their home in these hard economic times as an alternative to foreclosure. A "short sale" is where a home is sold for less than the homeowner owes to his or her lender or mortgage holder.
However, the mortgage holder/lender who received less than the full amount of the debt owed to it could still pursue the homeowner for the difference remaining on the indebtedness after the short sale. To address this, Governor Schwarzenegger signed Senate Bill no. 931 to provide anti-deficiency protection for borrowers. This protection applies to pre-existing, previously negotiated mortgage loan contracts subject to actions filed on or after June 1, 2011.
SB931 adds section 580e to California's Code of Civil Procedure. Pursuant to this new section: if the mortgage holder gives its written consent for the "short sale" then the mortgage holder must accept the proceeds of that sale as full payment and discharge any remaining claims it may have against its borrower for the remaining amount of indebtedness.
Homeowners should take care to note that section 580e is written with specific reference to a: "note secured by a first deed of trust or first mortgage." SB931 [setting forth the language of C.C.P. section 580e.]. Therefore, homeowners that have a second mortgage or HELOC, may not be able to completely rely on this new law to protect themselves from liability for amounts owed under other notes that are secured by their homes. Also, as indicated above, an anti-deficiency action filed before June 1, 2011, may not be precluded by this new law.
Before taking any action in reliance on this new law, homeowners should take care to consult with an attorney or perform their own legal research. California's leginfo.ca.gov is one helpful website to start with.
However, the mortgage holder/lender who received less than the full amount of the debt owed to it could still pursue the homeowner for the difference remaining on the indebtedness after the short sale. To address this, Governor Schwarzenegger signed Senate Bill no. 931 to provide anti-deficiency protection for borrowers. This protection applies to pre-existing, previously negotiated mortgage loan contracts subject to actions filed on or after June 1, 2011.
SB931 adds section 580e to California's Code of Civil Procedure. Pursuant to this new section: if the mortgage holder gives its written consent for the "short sale" then the mortgage holder must accept the proceeds of that sale as full payment and discharge any remaining claims it may have against its borrower for the remaining amount of indebtedness.
Homeowners should take care to note that section 580e is written with specific reference to a: "note secured by a first deed of trust or first mortgage." SB931 [setting forth the language of C.C.P. section 580e.]. Therefore, homeowners that have a second mortgage or HELOC, may not be able to completely rely on this new law to protect themselves from liability for amounts owed under other notes that are secured by their homes. Also, as indicated above, an anti-deficiency action filed before June 1, 2011, may not be precluded by this new law.
Before taking any action in reliance on this new law, homeowners should take care to consult with an attorney or perform their own legal research. California's leginfo.ca.gov is one helpful website to start with.
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