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

ramgsgate wineryRam’s Gate Winery v. Roche, 235 Cal.App.4th 1071

Purchasers of the land for use by a winery http://www.ramsgatewinery.com/ sued the seller for not disclosing an earthquake fault on their property four years before closing escrow. Buyers sued in tort for nondisclosure but also in contract for breach of a provision in the sales agreement requiring the vendors to disclose all material facts. The trial court granted summary judgment against the contract claim on the ground that it had not survived the closing of escrow and had merged into the deed which the purchasers accepted the Court of Appeal reversed in favor of the buyer winery.

This case involved a fairly esoteric legal issue concerning the merger by deed doctrine and found in this case, it did not bar admission of extrinsic evidence under Code Civ. Proc., § 1856, subd. (h), concerning a buyer’s understanding of a disclosure covenant and warranty as continuing after the close of escrow because the declaration proposed an interpretation of the real estate purchase agreement to which it was reasonably susceptible.

The Court found that the contract provisions are deemed merged into deeds only when there are inconsistent provisions in the two documents or where their was a clear intent to do so in this case, there was no such inconsistency or obvious intent to have the disclosure provision not survive close of escrow, and therefore no merger.Continue Reading Merger Clause in Real Property Sale may not merge into deed at closing (CCP §1856)

spring breakers arrested

Spring Breakers may have to look elsewhere for an Airbnb rental.  In Harrison v. City of Rancho Mirage, 243 Cal. App. 4th 162 (2015)

The City of Rancho Mirage passed an ordinance regulating rental of  private homes for short-term vacation rentals. Among other things, the City requires that a person over age 30 sign the