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A common question is how to count the days referred to in the Real Estate Purchase Agreement and related CAR (Calif. Assoc. of Real Estate) forms.  In October 2016 CAR published a concise article on this in their magazine.  In essence the CAR attorneys confirmed that every day counts, even holidays, but if the last day is a weekend or holiday, then the next business day would be the last day.  That confirms with Code of Civil Procedure §12.  More specific examples how to apply this are as follows and are in this great article and summarized below.  See page 10 at http://www.onlinedigitalpubs.com/publication/?i=341167#{%22issue_id%22:341167,%22page%22:10}Continue Reading Counting Days and Loopholes in CAR Real Estate Purchase Agreement Forms

promissory-note-elpWhile Commercial Code 3118(a) provides for a 6 year statute of limitations which can apply to a promissory note (9-109(a)(3).  The key is this ONLY applies to a negotiable instrument (Comm. Code §3102)  So,  you have to make sure your promissory note falls under the Commercial Code.  Most real estate promissory notes do NOT qualify as negotiable instruments.  Here are some factors to consider :
Continue Reading Does a 6 year statute of limitations apply to a promissory note secured by real property?

House with gavelStatutes of limitations are confusing.  A common mistake is most lawyers do not know that the statute of limitations to file a lawsuit against a real estate broker runs from the date of possession, or date of close of escrow, not discovery of the mistake, misrepresentation, breach or harm.  See Civil Code §2079.4.

Civil

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marijuana_legal_gavel_620x350Medical and probably soon recreational marijuana is going to be a hot box for landlords and tenants.  Medical marijuana is also NOT a basis nor does it create “civil rights” for residential tenants to smoke in their apartments!!  Health and Safety Code §11362.5 (Compassionate Use Act of 1996 “CUA”) allows medical marijuana to be purchased, possessed and used. There are many levels and issues, but here is a sampler.  This is one confusing, vague, and evolving area of law and how it impacts employers and landlords.  Make sure to check current law both state, national and local (city), as all laws apply.
Continue Reading Marijuana Laws and Landlord-Tenant Rights

house roll money earnest_money_depositReal Estate Purchase Agreements and Leases (e.g. CAR forms) include deposits may or may not be refundable.    Liquidated damages must bear a reasonable relation to the anticipated damages incurred.  (See Civil Code §§1670, 1671).  For Residential transactions, if 3% or less the presumption is the liquidated damages amount is reasonable.  (Civil Code §1675(c)  Assuming the buyer refuses to allow the deposit to be released to seller, then a liquidated damages clause also benefits the seller as they do not need to prove actual damages from the loss of the sale. 
Continue Reading Liquidated Damages Clause → Is the Deposit Refundable to the Buyer?

Earnest Money depositDeposits are generally refundable unless there is a lawful liquidated damages clause.  The burden is on the party claiming the deposit to show it is a proper liquidated damages and not an improper “forfeiture” and the written agreement bars return of the deposit.  Buyers have several powerful arguments for the refund of their deposit even if the written agreement states the deposit is non-refundable.  Cases such as Kuish v. Smith (2010) 181 CA4th 1419 also support buyers getting their deposit back when there is no liquidated damages clause, but only a clear “the deposit is non-refundable” clause.  See also Civil Code §§1670, 1671 as to liquidated damages.
Continue Reading When is Deposit for Purchase of House is Refundable? (Contract states deposit is NOT refundable)

deedThis law creates the revocable transfer on death (TOD) deed which allows a homeowner to transfer to a named beneficiary 1- 4 residential real property upon the owner’s death without a probate proceeding. This is similar to a joint tenancy deed, but easier for the survivor.  The benefit is title DOES NOT PASS during life, only after death.  This makes the document a hybrid will deed so you can give it away, but take it back before you die!  Note, there are lots of rules to follow to make and cancel a Transfer on Death Deed. 
Continue Reading Revocable Transfer on Death Deed (Will-Joint Tenancy hybrid) avoids probate but also does not pass title during life