neighbors-300While it is possible to obtain an equitable easement to allow a trespasser to continue use of the property in exchange for  damages, the hardship on the trespasser must be “greatly disproportionate” to the hardship of the landowner losing a portion of her land.  In this neighbor dispute over lawn chairs, the Court provided a definition or test to follow adverse to the trespasser.  Basically, the Court of Appeal held that the $275 cost to the trespasser to remove the patio furniture was not sufficient compared to the total loss of use of the area to the legal property owner.

Continue Reading Equitable Easements require “greatly disproportionate” hardship on the trespasser (Shoen v. Zacarias (2015) 237 CA4th 16

The Appellate Department of the Los Angeles Superior Court (Chen v Kraft (2016) 243 CA4th Supp 13) allowed a landlord to evict a tenant for running short-term rental business out of his residential rental unit in Los Angeles.

In Chen, the Court affirmed a summary judgment granting possession to the landlord EVEN THOUGH the lease explicitly gave written permission allowing the tenant to host guests through airbnb.com at the tenant’s discretion, without it violating any other rental lease restrictions.  This was a very unusual lease provision.  The landlord won because the rental violated other local ordinances regulating short-term rentals.

The court held that when a tenant violates such ordinances by using his or her unit for transient occupancy and receiving income from it, the landlord may bring an unlawful detainer action after giving a 3-day notice under general state law (CCP §1161(4)) if the tenant fails to cease his or her violation of the ordinance.

The reason the tenant lost is the local law trumped the lease making that lease provision allowing short term rental an illegal contract, so it was then unenforceable by the tenant who lost the eviction.

This Los Angeles case may not directly help say in San Francisco where its Residential Rent Stabilization and Arbitration Ordinance §37.9(a)(4), states a landlord may not evict a tenant for illegal use of the unit based solely on a first-time violation of SF Adm C §41A (restricting short-term residential rentals) if the violation is cured within 30 days of written notice to the tenant.

 

Property_Management_DummiesIn Von Nothdurft v. Steck, (2014) 227 Cal.App.4th 524, the manager challenged the written management agreement with the landlord as being “unconscionable” or “an adhesion contract” so void.  The Court of Appeal said the agreement was fine and confirmed it was freely entered into.  The Court told the manager/tenant she could not have it both ways.    Continue Reading Landlord can deduct a portion of the value of rental unit to resident manager as part of wages due

HOA-ROHIn Watts v Oak Shores Community Association (2015) 235 Cal.App.4th 466, the Court said an HOA may impose reasonable regulations and charge reasonable fees that are related to short term rentals that are not imposed or charged other owners of longer term rentals. Continue Reading HOA may charge fees short term rental fee to homeowner who rents to short term tenants (AirBnB)

landlord tenant logoT & A Drolapas and Sons LP v SAN FRANCISCO RESIDENTIAL RENT STABILIZATION AND ARBITRATION BOARD et al., and GERALD BORJAS (2015) 238 Cal.App.4th 646) –> Costa Hawkins case against landlord

Landlord cannot increase rent after parent (named tenant) vacates leaving adult child occupant in apartment

Facts: The Laras moved into a nine-unit building in San Francisco in 1995.  At that time, Borjas, their eldest child was six years old.  In 2010, the Laras moved into a home in Daly City but Borjas remained.  The Laras continued to make the rent payments on the San Francisco apartment.  In 2011 the landlord served a notice increasing rent from about $1,171 per month to $2,000 a month.  Borjas contested the increase at the Rent Board.  The Board denied the rent increase.  Landlord appealed to Superior Court and the court similarly denied the rent increase.  Landlord appealed. Continue Reading Landlord cannot increase rent of rent controlled apartment to market level after parent vacates leaving adult child in possession

tenant_rightsBoston LLC v. Juarez 245 Cal. App. 4th 75 (Cal. App. 2d Dist. 2016)

NIVO 1 LLC v. Antunez 217 Cal. App. 4th Supp. 1 (Cal. Super. Ct. 2013)

What is material, and the purpose behind the lease term is important when a forfeiture is being sought.  For example, renter’s insurance, and other lease terms that “benefit the tenant, not landlord” cannot be the basis for a material breach to support an eviction.

Several years ago,  a well known Los Angeles UD Mill marketed that he had a “secret way to evict a rent control tenant”.  The “secret” was to serve a notice to unilaterally change the terms of tenancy to remove something supposedly “not material” but could later be used to evict a tenant or upset the tenant to leave.  Landlords then tried removing various items they argued were “not a reduction in rental services” to upset rent control, but something that was material enough to support an eviction.  These two cases are the result of this “secret” along with a change to the Los Angeles Rent Stabilization Ordinance.  See L.A. Mun. Code, § 151.09.A.2(c).  It is ironic that in the NIVO case, the landlord served a notice of change of terms of tenancy “to render all breaches material”.  The Notice stated: “3. Renter agrees that Renter’s performance of and compliance with each of the terms of the rental agreement constitute a condition on Renter’s right to occupy the premises. Any failure of compliance or performance by Renter shall allow Owner to declare a forfeiture of this agreement and terminate Renter’s right to possession. Any breach of the contract is a material breach.” (Italics added.)”  Both Courts did an excellent analysis of the material vs. non material breach.  Continue Reading Not having Renter’s insurance is not a material breach to support an Unlawful Detainer

Yvanova v. New Century Mortgage (2016) 62 Cal.4th 919 house-fraudclosure

Now a borrower can survive demurrer or summary judgment if he shows the assignment is void.  has standing to challenged allegedly improper securitization of mortgage loan

The Court now found that a break in the chain of title due to a void assignment is prejudicial to a borrower and they now have standing to sue for wrongful foreclosure.  This is a huge change for plaintiffs, but essentially only means that most cases live to die another day. Continue Reading Calif. Supreme Court Helps Wrongful Foreclosure Plaintiff

Wong v Stoler, 237 Cal.App.4th 1375Thinking is difficult so judge

The trial courts if find rescission for nondisclosure by a seller must unwind the transaction even if difficult and complex.  E.g, Judges cannot be lazy!

Buyer of a home sued seller for not disclosing the fact that their sewer system was not hooked up to the city’s public system. The trial court found there had been misstatements by the vendors but refused to effectuate rescission of the contract because of the difficulty in unwinding a transaction that had closed many years ago. The court of appeal reversed.

Civil Code§ 1688 et seq. requires a court to grant complete relief to a rescinding plaintiff, returning him to his same economic position as before the contract was made. Since the purchasers had made out a case under those statutes, the trial court was obligated to grant them appropriate relief.  It erred in refusing to do so based upon the seven years that had passed, the fact that both parties had since done major remodeling.

 

Shark predatory lendingTypical of 2006 predatory lending practices, the mortgage payments exceeded owners’ monthly income by more than $1000.  This was found to be sufficient to plead substantive unconscionability as grounds to set aside nonjudicial foreclosure sale in Orcilla v. Big Sur, Inc. (2016) 244 CA4th 982.

Continue Reading Predatory Lending Per se: Orcilla v. Big Sur, Inc. (2016) 244 CA4th 982

evict no moneyTaylor v. Nu Digital Marketing, 245 Cal.App.4th 283

The court found monthly payments to be “rent” and upon default in payment of these “interim payments”, before the purchase price is paid, re-characterized the installment sales agreement as lease and seller can bring unlawful detainer against buyer.

The parties signed a “Contract of Sale Residential Property,” by which plaintiffs agreed to sell to defendants a piece of property for $1.2 million, to be paid after 5 years. Meanwhile, the defendants were to make monthly payments to plaintiffs equal to the amount plaintiffs paid on their mortgage (referred to as “probationary installment payments”), which did not apply to the purchase price. Defendants were given immediate possession but if they failed to make timely payments of any probationary payments. The written agreement provided that plaintiffs could serve the “buyers” with a five day notice to quit if in default and they were to immediately vacate.

Defendants defaulted ten months later and plaintiffs filed an unlawful detainer complaint, alleging that the agreement created a tenancy, requesting possession of the property, unpaid back payments and forfeiture of the agreement. The trial court found the contract to be a lease and granted the requested relief. Defendants appealed, contending that unlawful detainer was not an appropriate form of action.

Continue Reading An Installment Real Estate Sales Agreement is a Lease until the buyer pays the purchase price